The four year sentence handed down to Anton Vickerman, owner of the SurfTheChannel linking site, has led to much media comment on its severity. At the height of its popularity, SurfTheChannel was one of the most popular video linking sites online. Visitors found thousands of links to newly released films and television episodes for instant streaming from video hosts around the Internet. None of the content was actually hosted on SurfTheChannel (STC), though Vickerman and his staff actively patrolled and checked for new links to add and on occasions uploaded infringing material themselves.
Content owners in the UK have attempted to prosecute owners of linking sites under the 'conspiracy to defraud' charge before and failed: Alan Ellis, owner of the Oink private music tracker, was cleared in January 2010. The owner of a site almost identical in operation to SurfTheChannel (TV-Links) was found not guilty in February 2010 on the grounds that his site provided a 'mere conduit' to information held elsewhere. Yet in this trial, Judge John Evans treated the case as a simple case of an individual profiting hugely from pursuing a criminal enterprise. There is no discussion at all as to whether simply providing links to content constitutes infringement. As the judge says: "contrary to your assertion that you believed what you were doing was lawful, you knew full well that it was not".
The judge took exception to almost every action Vickerman took during his ownership of the site and the trial. "In all the years I’ve worked in this court", he noted, "I have never encountered arrogance of the kind that you displayed during the trial." He was also clearly annoyed at Vickerman's attempts to base his servers outside the UK and hide domain registration details, Vickerman's refusal to cooperate with investigators, at persistent attempts to delay the trial (including refusing to return from a holiday in Majorca on 'medical grounds'), and the continued operation of SurfTheChannel until a few days before the trial. Vickerman's 'lack of remorse' is also mentioned, as well as the determination to operate the site despite knowing that he was providing access to infringing material accessed by millions of users.
Prosecutors had built up an array of evidence against Vickerman which demonstrated that he was clearly aware that the content linked from the site infringed copyright and that he was making thousands of pounds in advertising revenue because of the popularity of the site: bank accounts showed profit of £250,000 over two years, much of which was funneled into bank accounts in Latvia. There is an obvious impression from the sentencing remarks that the judge accepted these facts as evidence of knowledge of wrongdoing on Vickerman's part. The judge also accepted that the film studios had lost "millions of pounds" through Vickerman running the site (though he was unwilling to accept evidence from the prosecution that the loss to the film industry from STC was between £50m and £200m, based on (unknown) research that 55% of those viewing the free content provided by STC would have viewed it at the cinema or rented or bought a DVD).
Vickerman has had a long life working within the digital piracy world - those with long memories and a dubious Internet history might remember him as 'FD' on the Suprnova bittorrent forums back in 2003 and running the 'Snarf-It' site shortly after - but his previous background was not on trial. The fact that he ran SurfTheChannel was not disputed, nor that the site was extremely popular. It is Vickerman's actions running STC and more pertinently, his "deliberate dishonesty" on which the judge places most strength: the four year sentence is deserved for "those who are inclined to conduct themselves as you have."
Rights holders will applaud the long sentence, though how far it will set a precedent for similar trials in the UK is unknown. It will certainly be used as ammunition against link site owners elsewhere in the UK. Perhaps Vickerman was unlucky to encounter a judge who was unprepared to engage in a discussion on whether offering links to infringing content is illegal in itself, or perhaps his lawyers were unprepared to argue that point in his defence; based on his sentencing remarks, it is possible that the judge would not have accepted the argument anyway. Vickerman has the chance to dispute the verdict by taking it to the Court of Appeal but he has limited grounds on which to do so and there has been no indication that he will appeal at present.
Written by David Price, Head of Piracy Intelligence, NetNames and Envisional