Man Arrested for Offences relating to the 'Facilitation Of Copyright Infringement Online'

26th November 2007

On Thursday October 18th a 26 year old Cheltenham man was arrested in relation to the closure of a major UK-based website. The arrest came following a joint operation between officers of Gloucestershire County Council Trading Standards and investigators from the Federation Against Copyright Theft (“FACT”). The operation was conducted with the assistance of BREIN, the Dutch anti-piracy body, who served notice on the site's hosting provider, Leaseweb, which is based in the Netherlands.

The man was behind the "TV Links" website which was said to have provided links to content filmed in cinemas (on camcorders and subsequently uploaded) as well as episodes of popular television shows which were said to have been illegally distributed.

In a joint Press Release issued by Gloucestershire County Council and FACT it was stated "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 view on demand by visiting these illegal sites". Kieron Sharp, FACT Director General, said: "We at FACT have stated very clearly that we intended to pursue those who are openly exploiting and facilitating the distribution of illegal film and TV content and this was the first major target".

The man was subsequently released on bail and has reportedly not yet been charged. Quite what he may be charged with is not clear. Whilst the FACT Press Release stated the arrest was "in connection with offences relating to the facilitation of copyright infringement on the internet", it is unclear how the provision of links to third party websites will be prosecuted.

The TV Links site was said to merely catalogue and provide links to other sites where various films and television shows were hosted. It has been reported that the site did not host any material directly, though may have featured embedded video clips. Even assuming that these had all been copied to the internet and were being broadcast in breach of copyright, it is still a significant step to conclude that merely hosting a website which provides links or access to infringing material hosted elsewhere is a criminal offence.

There is presently no provision in the Copyright Designs and Patents Act 1988 ("CDPA") which states it is an offence to facilitate the infringement of copyright. Whether or not prosecutors will hope to construe this as an offence of "distributing" infringing copies or "communicating" infringing copies to the public in the course of a business is unclear. If it is the latter, then the question of whether the site was a business or not will become material, and the man has reportedly said he viewed it’s maintenance as a hobby. The carrying of advertisements may be indicative, though even if the site did not produce an income, a criminal offence may have been committed if it could be proven the site affected copyright owners in a prejudicial way. Aiding and abetting may be another route.

Despite what the FACT Press Release states, IT news site The Register recently reported that Gloucestershire Police confirmed the suspect had been arrested under section 92 of the Trade Marks Act 1994 ("TMA") on suspicion of supplying property with a registered trade mark without permission.

Whilst the TMA does set out various criminal offences, their use in this context would be unprecedented. In practice the TMA is used to deal with issues such as counterfeit products, and even if the content linked to in this scenario included registered marks, it is likely to be argued that the mere supply of links is more akin to the provision of a service than the sale of goods.

The exact nature of the TV Links site can no longer be ascertained. However, rights holders and web site owners will be keen to know whether it did actually host any infringing material directly or merely organise and index links. Many sites, whether they be forums/comment pages or social networking sites, facilitate the reproduction of embedded video or audio content hosted elsewhere.

The popular Google-owned video-hosting site YouTube facilitates the viewing of content they host through pages or sites owned by third parties. Could those third parties now face sanctions? If so, they may well argue during the course of any complaint that their hands are tied as they have no power to remove the infringing content which they themselves are not hosting.