Monday, October 22, 2007

UK Linking Site Closed Down

An interesting if rather sketchy report from The Guardian that UK-based TV Links site has been closed down after a raid by a combination of Trading Standards officials, Gloucester police and FACT (Federation Against Copyright Theft). The question is what were the grounds? The report says merely that

""Sites such as TV Links contribute to and profit from copyright infringement by identifying, posting, organising, and indexing links to infringing content found on the internet that users can then view on demand by visiting these illegal sites," said a spokesman for Fact. "

The case is interesting because TV Links site is an ordinary website giving links to content which constituted (in some cases) infringing copies of copyright works eg Dr Who, Buffy et al. The site is not a host nor is it obviously "inciting" or "inducing" users to infringe as say Kazaa/Grokster did. It could be argued in fact that it does little more than what Google routinely does - makes links available to infringing copies and leaves the user to decide what to do next.

The most obvious ground of copyright infringement would be authorisation of infringement under s 16(2) of the CDPA 88 - but the UK courts have not been entirely keen on expanding the interpretation of this phrase - see CBS v Amstrad ([1988] 2 All ER 484 . The nearest we have in UK case law is the very early discussion of a link made by one newspaper (Shetland News) to another's headline stories (Shetland Times) which were "passed off" as its own - but even that case only reached the stage of interim interdict (Injunction for you Southerners :) and was based on law about cable progranmmes which has since been amended.

Interestingly also, the E Commerce Directive does NOT currently exempt even "innocent" sites from liability for hyperlinking - an issue which was raised but left unchanged in a UK DTI review a year or so back. The issue may be reconsidered during the upcoming revision of the ECD. Of course it might well be claimed that a site like TV LInks had at least constructive if not actual notice that it was linking to infringing material .

Another interesting point is that some of the materials linked to - British BBC TV progs of recent vintage, like Dr Who - are probably freely available under the new BBC iPlayer distribiution scheme. Is there not something inconsistent in terms of policy, if not law, in encouraging viewers to download copies by one legal means, but raid and close down other parties who provide the same material in a more user friendly (ie not DRM-locked) form?

Of course it is possible the raid was conducted under criminal law grounds other than copyright law at all. One suggestion Pangloss has heard is that there may have been money laundering offences attached to organised crime involved. It would be good to hear more details on this case soon. (It has considerable implications for the UK liability of BitTOrrent torrent sites as well.)

EDIT: the Guardian, clearly pleased with their scoop, has already blogged it :

EDIT 2: and the beat goes on.. a lovely example of the Internet routing around "damage" - .

While others take flight driven by the uncertainty of the legal liability for linking -

IPKat also now has comment. AS does FACT. And Struan Robertson of OUTLAW writing in the Register is as bemused as Pangloss is.
"We don't have a simple offence of facilitating infringement in the UK," he told us. "Though we do have offences concerned with distributing or offering infringing copies or communicating works to the public... to such an extent as to affect prejudicially the owner of the copyright. The maximum penalty is 10 years. However, I've never heard of links being characterised in this way in a British court."

EDIT THE FINAL: And then it turned out that they were actually being sued for trademark infringement!! Good grief.. Full coverage on Lex Ferenda, Technollama et al.


Anonymous said...

Bummer men...!! :( it's totally unfair, he wasn't hosting, just linking and that's not illegal... anyway, the best replacement is they have everything there, all the tv series, movies, and music vids... and also Stage 6 or dailymotion.. there are many alternatives... LOL

Anonymous said...

Is it right to use the Amstrad case? I am not sure about the analysis or the cursory examination of the Regs 2002. Lord Templeman goes to great lengths in explainng why the manufacturer could not be held to have induced copyright infringement. Now, I ask myself, what are the specific factual circumstances that distinguishes that case from this? A guess is the element of control may be a key factor. That said I am cautious about drawing too many conclusions from media reports - these are not legal or judicial fora. A timely case study for a seminar - maybe even in Second Life.