<< The Knack's Doug Fieger dies | Abbey Road up for sale >>

TV-Links case goes the way of Oink

by cmumusicnews 16. February 2010 13:53

A court case with similarities to the much previously reported Oink case has reached its conclusion, again with the content owner lobby losing, and this time with a potentially important ruling on the European Commerce Directive being made.

This wasn't a music case, but instead centred on TV-Links, a website that operated as a directory to TV programmes that had been uploaded to video websites like YouTube. Users could find a TV show they liked, and then link to video sites which were currently hosting episodes of that show for on-demand streaming.

The site was useful because YouTube et al had started to respond to so called take-down notices issued by the makers of uploaded TV programmes who hadn't given permission for their content to be uploaded. This trend meant that videos that were available at a specific YouTube link one day would be gone the next. Because TV-Links was constantly looking for new uploads on numerous video sharing websites, it meant that when access to one programme on YouTube (or whatever) was blocked, TV-Links helped people find the show they wanted to watch on another website.

Although helping users to stream TV programmes, rather than download music files, there were similarities between Oink and TV-Links in that both provided links to a lot of unlicensed content on the internet, and in doing so both made it easier for others to infringe copyrights, by accessing (streaming or downloading) content without the permission of said content's owners. Another similarity was that neither Oink nor TV-Links hosted any infringing content on their own servers, so neither could be done for direct copyright infringement.

With TV companies objecting to the fact that TV-Links was, in essence, reducing the effectiveness of the take-down notices they were busy issuing to the likes of YouTube - because the service ensured its users had pretty much constant access to unlicensed TV shows, even though YouTube et al were frequently blocking access to specific uploads - the UK authorities, backed by anti-piracy brigade FACT, moved to close down the service and prosecute the people behind it, in particular Dave Rock.

As with Oink founder Alan Ellis, the issue was what to charge Rock with, given he hadn't committed any direct copyright infringement. As previously reported, in English law the concept of 'authorising infringement' - where people are liable for infringement simply by helping (or 'authorising') others to infringe - isn't especially well defined, and therefore less useful to content owners than the similar concept of 'contributory infringement', used in the successful US legal fights against Napster and Grokster.

Like with Ellis, the authorities made their main charge against Rock 'conspiracy to defraud', but this is a hard crime to prove when there was no real evidence Rock was deliberately trying to profit at the TV industry's detriment. Unlike in the Oink case, copyright infringement claims were also included in the prosecution's case against Rock, though it's not entirely clear what these were specifically.

Either way, when the case went to court last month Rock's defence team raised a number of points of law and asked for the case to be dismissed. The judge hearing the case - Judge Ticehurst - this week concurred with those reps and threw the case out of court, denying Team FACT the right to appeal. Ticehurst in particular focused on the so called European Commerce Directive, section 17 of which, he said, provided a defence for Rock against any liability for the infringing activities of websites his service linked to.

I'm not sure how wide a precedent that might set regards other websites and online communities providing links to infringing content, including music, but I think it's fair to say that if you want to stop websites that simply help others to infringe, then English copyright law, as it currently stands, isn't overly helpful. Perhaps the music industry would have been better off getting Peter Mandelson to sort out this part of the UK copyright system, rather than focusing on all things three-strikes.

Tags: tv-links, european commerce directive, oink

Digital Business | Top Stories

Final Oink case dropped I think it is fair to say that the legal fight against the infamous British BitTorrent tracker Oin...Jammie P2P case goes back to court While we all await what could be the final chapter of the Recording Industry Association Of Americ...Lil Wayne gun case to discuss DNA A New York court yesterday began a discussion on DNA science which relates to ongoing gun charges ...

Comments

2/16/2010 2:29:41 PM#

Your graphic is incorrect. The site was Tv-Links.co.uk, not TV-Links.cc

Linking to the source of this information would be helpful to your readers as it explains exactly why the case was thrown out.

torrentfreak.com/.../

banksy

2/16/2010 3:02:42 PM#

Banksy - thanks for pointing out the image error, this has been fixed.

Our coverage of this was based on information from a number of different sources. Though, as you rightly point out, Torrentfreak.com follow these sorts of cases particularly closely and their coverage of such things is always well worth checking out; in this case at the link your provide.

With regards the issues surrounding 'authorising infringement' under English law, if anyone is interesting in this area, may we suggest our post-Oink review of the issue at this URL: newsblog.thecmuwebsite.com/.../...nfringement.aspx

cmumusicnews

2/16/2010 3:40:03 PM#

The charges were 7 counts of S1072A Copyright Designs & Patents Act (Communication to the public of copyrighted works by making available) and 1 count o conspiracy. Ticehurst ruled that, in line with Universal Vs Cooper, linking to a website that makes a work available work is not the same as making available that work itself. This was absolutely the right ruling to make, once we make linking illegal we start down a slippery lope.

For example, this website links to the TorrentFreak website which in itself links to many bittorrent and P2P websites. Should TorrentFreak be prosecuted? Should you for linking to TF? What about someone telling someone else about your story, a verbal link if you will, should they be prosecuted?

You see, its all very well thinking that linking should be made illegal but the consequences are rarely thought out. As someone said recently in a blog I was reading "you know who the copyright cartel need to prosecute - shoe manufacturers - those companies definitely know that pirates wear shoes and they keep providing the means for those pirates to go around pirating!".

This case shines a spotlight on the abhorrent behavior of FACT Ltd, a private company with massive access to state databases containing information on UK citizens. This vigilante company, staffed by former police and trading standards officers, regularly go around abusing the law in the name of copyright. Their private prosecutions, that they claim back the cost of from the UK public whether they win OR lose, are a weapon in themselves as, like this case, they are able to use them to ruin the lives of their victims who as we can see here are doing nothing wrong.

FACT didn't get a conviction, but they still ruined the lives of two innocent men.

Cing Brosby

2/16/2010 6:00:59 PM#

Cing Brosby - thanks for the extra info on the specific copyright allegations against poor old Dave Rock. As you rightly say, any legal precedent that said that if you link to a website, and then that website breaks a law, you should somehow be liable for the actions of that website, well, that would just be ridiculous.

There is, however, an argument that a service like TV-Links is doing more than just posting links.

As we say in our story, TV-Links really existed to help those looking for on-demand TV shows on the internet to circumvent efforts by the TV companies to stop their shows being made available illegally via YouTube etc. It is the nature of the take-down system that the likes of YouTube operate that there will always be a lag between unlicensed content being uploaded, and it being spotted by a content owner and taken down by the video platform provider.

For the content owner this is a weakness of the system, but realistically something they have to accept. But if, because of services like TV-Links, that weakness means that web-users have more or less constant illegal access to their content, well, you can see why that might be a little frustrating. Hence their efforts to tackle the likes of TV-Links.

The problem for FACT (and in the case of Oink the BPI and IFPI) is that these cases have relied on allegations of "perverting the course of justice" or "commercially communicating infringement", neither of which were ever going to stick given the facts of the case (to be honest I've never really understood why anyone within those organisations thought they would stick - either they genuinely believed TV-Links and Oink were much bigger operations than they really were, or they were just rather arrogant - either or both are possible).

It's probably also true that these should have been civil rather than criminal actions, though this would have put more of the workload on the content owners and their trade bodies, which they were probably keen to avoid. But civil proceedings would have allowed out-of-court negotiations to figure out whether Oink and/or TV-Links could be tweaked to satisfy both content owners and those services' users. And would have been less devastating for Alan Ellis and Dave Rock personally.

I'm still of the opinion that if the content owners do believe they have a case against the owners of services like TV-Links or Oink, then the case is one for authorising infringement. But, as we also said above, this is a concept on which the UK Copyright Act says very little, and where most case law precedent precedes the internet.

Personally I'd say some legislative clarification on the liabilities of people and companies who provide services that make it easier for others to infringe would be beneficial for all - both content owners and the operators of these services. So TV firms would have a better idea of how to protect their content online, and providers of services like TV-Links would have a clearer understanding of what does and doesn't constitute infringement.

Of course you might say content owners should turn a blind eye to unlicensed streaming and file-sharing and concentrate instead on reworking their business models for the internet age. Or that copyright law should force content owners to licence their content to new digital services at fairer rates. You'd probably be right. But on the flip side, if copyright law is designed to give those who invest time or money into creative endeavors rights over the content they create, in return for their investment, well, the law probably needs to provide some ways for those people to protect their rights, to an extent at least.

cmumusicnews

Add comment