Now, the sentencing has come down, and Vickerman will be spending four years in prison. Four years of his life... for operating a non-infringing website. All on the basis of a charge that failed against two extremely similar sites. Not only does this seem like an insane punishment, it is going to create a massive chilling effect on innovative online services. Of course, FACT is extremely proud of both these things:

"This case conclusively shows that running a website that deliberately sets out to direct users to illegal copies of films and TV shows will result in a criminal conviction and a long jail sentence," FACT Director General Kieron Sharp says.

"The sentencing indicates the severity of the offenses committed and the sophistication of [Vickerman's] criminal enterprise and should send a very strong message to those running similar sites that they can be found, arrested and end up in prison."

That's quite the picture to paint of STC. In reality, the site did not aim to direct users to illegal copies—merely to help users find film and TV content online. There happens to be a lot of it—including lots of legitimate content from a variety of sources like Hulu and the networks own websites. STC, with its community-driven model where users submit and vote on the quality of links, indexed all those legitimate sources—as well as many infringing links that were also submitted. STC even had commercial partnerships with networks like A&E and the Discovery Channel—and there were suggestions that the MPAA pressured those networks into ending the relationships before the trial, in order to better paint STC as a dedicated piracy service. And there was little or no evidence that Vickerman was involved in uploading or even sourcing the community content, infringing or otherwise, which is why a direct charge of copyright infringement didn't happen. Meanwhile, merely linking is not a crime. So what's left? Just the vague charge of "conspiracy to defraud", which sounds a lot like "felony interference with a business model", or basically "doing something we just don't particularly like." This isn't the first time UK conspiracy laws have been used in highly questionable ways—in fact, it's been a subject of controversy there since the 70s, when a judge infamously stated that a conspiracy charge could be based on as little as "a nod and a wink."

Anton Vickerman is paying the price for doing nothing more than making it easy to find content online. It's not unlike Google being browbeat into filtering results from supposed pirate sites—the entertainment industry doesn't want to compete by offering more legitimate options, and it doesn't want to go after the actual people doing the infringing, so it tries to find ways to put all the pressure on intermediate third parties who aren't directly guilty of anything, just because it's easier and faster. Innovation gets blocked, innovators get put in jail, and the industry doesn't have to lift a single competitive finger. This is an unfortunate outcome that, once again, does absolutely nothing to stop piracy, since eliminating one ultra-popular site like STC only clears the top spot for the hundreds of similar sites that are jockeying for the position. Even if it was effective at scaring all such sites out of the UK, they would only pop up in other countries, or people would just move on to the next easy method of finding what they want. Vickerman's questionable conviction and ridiculous sentence send only one message that has any impact: don't operate user-driven websites in the UK.

We just wrote about the extremely troubling ruling in the UK that has left Anton Vickerman, the operator of the TV linking website SurfTheChannel, facing up to ten years in jail. The charge is the rather ambiguous "conspiracy to defraud", which is not surprising, because it's still not clear what STC did that was actually illegal—it certainly wasn't copyright infringement, since similar sites in the UK have been found to be non-infringing in the past. These websites don't host any pirated content, they only index links to videos on other sites—and there's no evidence that their operators assisted in the uploading of that third-party content. At worst, it can be argued that they were somehow implicitly encouraging their users to upload infringing content and submit the links, which is why "conspiracy to defraud" is just about the only charge that could stick. The UK has a notoriously low bar for conspiracy charges, which can be used to go after people who have gotten on someone's nerves without really breaking any laws, and this has been the subject of controversy for some time.

But, even when it comes to the conspiracy charge, there are some serious questions that need to be answered—especially after a look at this collection of notes from the trial posted by an anonymous blogger. I'm taking this information with a grain of salt, because the source is unidentified, and it also can't be ignored that the notes are one-sided and focus on flaws in the prosecution's case—so there may well be another significant side to the story. But there is also enough specific information about the case that it seems unlikely that the notes are fake, and some of the things that happened look very bad no matter what other evidence was presented.

First, there are several things the judge did that are concerning:

• Judge leaves jury little choice after directing as a matter of law that knowingly linking to infringing content is illegal despite no such offence in the UK;
• Judge ignores SportsRadar High Court judgement that states if an infringement takes place it takes place in the country the server is based (linking to infringing content legal in Spain where SurfTheChannel was based);
• Judge states "if I have got the law wrong then a higher court than this one will sort it out";

What the entertainment industry has wanted all along is for linking to content to simply be illegal, so they twist around interpretations of various laws to try to make it so. From the sound of it, the judge let that happen to some degree, despite precedent to the contrary. The notes then go on to detail the activities of FACT, the Hollywood-backed private group that independently investigated Vickerman (without police knowledge) then helped set up the raid on his offices. Their investigation included posing as potential home buyers to gain access to his house, and telling service providers (like his ISP) that he was selling counterfeit DVDs to get them to share information about him. There was even a bizarre dispute about whether or not Vickerman was wearing a false beard at some point, but the details are unclear, and the FACT agent claimed in court to have lost the log book about the incident. FACT also admitted that it conducts about 15 of these surveillance operations a month. Other statements made by FACT reveal that it was extremely sloppy in its evidence gathering methods, and that it had a clear goal of shutting down STC regardless of legal authority:

• FACT Ltd staff admit to attending raid on Vickerman's address with USB stick that contains a replacement home page to be placed on SurfTheChannel website that states “This website is under investigation” despite having no legal authority to do so and in contravention of the Computer Misuse Act 1990;
• FACT Ltd contractor Ben Clelland admits to copying all case evidence from Vickerman’s computer to a USB drive, putting USB drive in pocket and leaving house without alerting Police that this evidence existed or bagging and tagging it. All forensic evidence in case emanates from this USB drive.
• FACT Ltd contractor Ben Clelland admits to “making a mistake” by not attaching a write blocker to his examination computer before examining USB drive data. All file creation dates on evidence are changed.

I don't know the details of UK procedure, but it sounds like there should be serious questions about the admissibility of that evidence. The other component of FACT's case was their star witness, Brendan DeBeasi, who had been involved with STC in the past and admitted offering to bring the site "to its knees" for the highest bidder. DeBeasi faces charges in the U.S., and testified in exchange for immunity and more:

• DeBeasi says he is not tailoring his evidence to help FACT despite admitting that his immunity deal in the US is dependent on him “performing well” in the Vickerman prosecution;
• DeBeasi admits MPAA offered him a job not long after he agreed to cooperate in prosecution of Vickermans;

A representative of the MPAA also testified, revealing that he posed as a potential STC investor to gain access to Vickerman. Then, some interesting facts about the MPAA's broader strategy were revealed. It turns out that STC had commercial deals with some networks, including A&E and Discovery, but those partners withdrew before the charges were brought—allegedly under targeted pressure from the MPAA:

• Defence accuses the MPAA of arranging commercially damaging news stories containing false information about STC in an attempt to isolate it as a “piracy site” so that its commercial partnerships with TV networks such as Discovery Channel, A&E Television Networks and others are destroyed;
• [MPAA representative] Pascal Hetzscholdt admits that senior MPAA personnel including John Malcolm contacted NBCUniversal to pressure them into terminating A&E Television Networks partnership agreement with SurfTheChannel;

The notes also highlight several serious errors on behalf of FACT's lawyer throughout the trial. Most notably, the prosecution repeatedly presented digital forensic evidence that was clearly flawed and in some cases seemingly presented in a very selective way to paint a picture of guilt. Though FACT did back down on some of these instances, it casts a lot of doubt on their approach to building a case:

• [FACT Prosecutor David] Groome opened case by saying that the Chinese websites linked to by STC are “run by Chinese Gangsters”, “obviously and completely illegal” and “owned by thugs” amongst other things. Anton Vickerman accuses him of misleading the jury when he presents evidence that the sites referred to (Youku & Tudou) are listed on the New York Stock Exchange and that another (56.com) is funded by the Venture Capital arm of FACT Director Walt Disney Studios. Vickerman also presents evidence that many of FACT's directors have partnership deals with these so called “Chinese Gangsters”;
• Groome tells jury that there were many many movie files found on Vickerman's computers and that he was uploading them to third party websites before linking to them from STC. This is again proven false when the defence shows that there is only 1 movie file found on any of Vickerman's computers and the other handful of video files are for TV shows all of which were downloaded for personal use. The defence also shows that there is not one shred of evidence that any uploading took place from Vickerman's computers despite 3 separate teams of forensic investigators inspecting the computers;
• Groome tells jury that Vickerman saved specific forum posts and private messages to his computer that talk about uploading and other controversial topics. Vickerman accuses Groome of again misleading the jury by showing that the posts they have exhibited are extracted from a backup of the forum which contained 91,000 posts which he had only seen a tiny amount when browsing the forum from day to day. Groome tells the jury that a spread sheet produced by the prosecution proves that links to movies were added to the STC site by Vickerman from his computer. When Vickerman says that is not true Groome tells him that he is therefore calling FACT witness Andrew Smith a liar. Vickerman then points out that the spread sheet is an extract created by Smith of a backup from the STC database that shows list of links to movies added to the STC database by those users. Not Vickerman adding the links from his computer. Groome eventually agrees.
• Groome ambushes Vickerman with a printout of a forum post and accuses him of running a server that staff uploaded material to which was then streamed to STC's users. Vickerman flatly denies this and explains that he is getting confused and that STC used a complicated system for hiding its links from its rivals. The next day Vickerman accuses Groome of misleading the jury again by printing out only the first page of the forum post when the third page actually shows that the forum thread is regarding the link hiding system not the hosting/streaming of content by STC.

Vickerman himself raised some damning points as well, including something that sounds a lot more like a genuine "conspiracy"—evidence of infringing links being added to the site by anti-piracy groups themselves:

• Vickerman explains that SurfTheChannel's then number one rival, BlinkX.com, has commercial partnerships with every one of FACT's directors despite BlinkX.com having the exact same links that FACT is using as evidence of illegality in this case;
• Vickerman provides unchallenged evidence that Anti-Piracy companies, in particular Aiplex Software, are responsible for automated adding of around a million links to the STC website.

(Interestingly, BlinkX.com—once a well-known pirated TV destination—seems to have been recently scrubbed of most infringing links.)

Again, it's entirely possible that there are errors and omissions in these notes—but the points of concern really are piling up. It seems insane that Vickerman faces ten years in jail for actions taken primarily, and perhaps entirely, by the users of his website and not by him. In court he noted that he researched the law and received advice that merely linking to infringing material was entirely legal—and from the many apparent flaws in the evidence showing that he participated in uploading, it looks like he was careful to ensure that he didn't cross that line. Some will call this exploiting a legal loophole, but it's not a loophole—it's a vital safety valve on copyright, a law that already flirts dangerously with curtailing freedom of speech. It is not illegal to merely point to something in the internet. The real legal loophole is the charge of "conspiracy to defraud"—a seemingly magic way to create a general sense of wrongdoing where no lucid laws have been broken.

It is one thing to take legal action against an alleged copyright infringer. It is quite another to do so at the expense of entirely innocent third parties, with no attempt to prevent or even mitigate the collateral damage.

That is what has happened here. When the government shut down Megaupload, it was one of the 100 most popular websites in the world, with reportedly 150 million registered users. One of those users, Kyle Goodwin, had recently started a business reporting on local high school sporting events across Ohio. In addition to backing up his files on a hard drive, Mr. Goodwin joined many others like him in placing his files on Megaupload’s servers, paying for a premium account, and taking advantage of the remote backup cloud-based system for storage and remote access to an unlimited number of files.

Moreover, it appears that the claims of civil conspiracy themselves are unfounded, because the plaintiffs have not pleaded the existence of an agreement among the alleged conspirators... Additionally, based on what has been pleaded, it does not appear plausible that plaintiffs could plead the existence of a conspiracy. Consequently, the court finds that the complaints’ allegations of civil conspiracy are only unjustified attempts to bolster the obtaining of irrelevant discovery about non-parties.

“A link distributed on December 3, 2006 by defendant DOTCOM links to a musical recording by U.S. recording artist ’50 Cent’. A single click on the link accesses a Megaupload.com download page that allows any Internet user to download a copy of the file from a computer server that is controlled by the Mega Conspiracy,” the indictment reads.

Dotcom told TorrentFreak that the file in question wasn’t infringing at all. He explained that he actually bought that song legally, and that he uploaded the file in private to test a new upload feature. He quickly picked a random file from his computer, which turned out to be this song.

“The link to the song was sent using the private link-email-feature of Megaupload to our CTO with the file description ‘test’. I was merely testing the new upload feature,” Dotcom said.

“The URL to this song had zero downloads. This was a ‘private link’ and it has never been published,” he added.

Hello Megavideo,

My name is Joshua from the Warner Bros. Advanced Digital Services department. I would like to know if your site can take a Media RSS feed for our syndications. We would like to upload our content all at once instead of one video at a time.

Thank you for your time and funny content,

Joshua D. Carver

On August 1, Wolk dropped his Pennsylvania complaint, and on the same day he filed a similar one in California, where the Reason Foundation, the nonprofit organization that publishes Reason magazine and this website, is based. On August 12 he dropped the California complaint as well, and he recently agreed to a resolution consisting of mutual releases in which he promises not to sue us again for our past posts and we promise not to sue him over his litigation so far. That's about as good an outcome as we could have reasonably expected, since the main issue for us all along has been maintaining the freedom to report and comment on issues of public concern. We are glad the litigation is over and grateful to Gayle Sproul for her patient, able, and indefatigable assistance in achieving that end.

Arthur Alan Wolk, Esquire, Walter K. Olson, David M. Nieporent, Esquire and Overlawyered.com agreed to settle Wolk's longstanding libel claims against Overlawyered.com, et al.

The parties agreed to dismiss with prejudice all litigation pending between them and also agreed to release each other from all claims. Overlawyered.com removed from its web site certain posts about Wolk that led to the case as well as other posts that commented on the case's dismissal by the Court last August. Wolk removed from his web site a post he wrote about Overlawyered.com.

Upon submission of materials to Overlawyered.com in the litigation, Overlawyered learned that Wolk took protections for his clients in the Taylor v. Teledyne case.

With the release of this statement, Overlawyered.com and Wolk will have nothing further to say on these matters and ask all others on the internet to take down their posts concerning this dispute since the controversy now has been settled on an amicable basis and should be laid to rest.

The defendants, hell bent on torpedoing the Wikipedia attempt to minimize their conduct's impact on the plaintiff's reputation, by themselves or some of their incited adherents or their own employees, including but not limited to Frank and Olson, edited the site with their false and defamatory logs so plaintiff could not effectively restore in some small way his reputation.

The defendants are attempting to extort something of value from the plaintiff, his reputation to enhance the visibility and credibility of their websites and to use that destruction as a means to obtain more illegal tax deductible contributions.

They are continuing to libel him so they can cause him to sue them, and thus make them appear as victims on the internet and thus enhance and encourage others to contribute to their tort reform causes.

The defendants want to publish the sorrow of their plight being sued repeatedly for their libel so their membership can blog more and more hate against the plaintiff.

But to my mind, the most obnoxious aspect of the new lawsuit is the transparent attempt to interfere with the defense of the libel suit by joining the defense lawyers as defendants in the case. Not only does this create a potential conflict of interest between the defendants and their lawyers, but it also poses the possibility of making the lawyers witnesses in the case. Yet it appears that the lawyers were doing no more than providing zealous representation to their clients by making reasonable legal arguments in defense of their clients’ free speech. The date of the blog post was set forth in the complaint; defendants were entitled to argue for dismissal based on that date. Nor is such litigation necessary: if Wolk believes the lawyers engaged in litigation misconduct, he is free to seek sanctions against them from the judge before whom the alleged misconduct took place.

Defendant Reason.com is another Internet bullying site organized under the laws of the State of California, with its principal place of business in Los Angeles, California. It is one of the mouthpieces for Overlawyered.com and its mentors, Manhattan, Cato and Enterprise, which are co-conspirators, and is the attack dog for inter alia, The Reason Foundation, a euphemism for the policies and goals of the Libertarian Party, a right wing fringe element that espouses what amounts to an abandonment of the institutions of our Republic and its substitution with a Govermnent by putative journalists, self appointed intellectuals and right wing pundits but whose real goal is to work with Overlawyered.com and Olson, Frank, Manhattan, Cato and Enterprise, and their respective trustees to assassinate the character of individuals chosen for that purpose because they are a threat to the America without laws Reason Foundation wants. Reason Foundation raises funds for their anti-consumer, anti-Government, anti-court, anti-judge and often anti-Semitic, anarchistic views by proving to their donors how vicious they can be on their various media sites including Reason television, Reason.com and Reason magazine Reason.com attempts to accomplish these ends by re-publishing with new commentary publications of Overlawyered, Frank and Olson for the purpose undermining the civil justice system in the United States, by forming an Internet tag team so if one of them is silenced for their falsity, the other simply republishes with more false and defamatory comment to keep the libel alive. The idea is to whip up a frenzy to prove their dedication to the causes of the Libertarian party, much like the Nazi's of the early 1930s, which will cull more donations from their very rich donors and blind them to the dangers to American institutions of their radicalism. It is believed and therefore averred that employees or agents of Reason. com are the anonymous bloggers.