TV-Links Triumphs With Landmark E-Commerce Directive Ruling
In 2007, while attention was focused on the OiNK bust, TV-Links, a site which embedded videos from YouTube-like sites, was targeted by the police and the MPAA-funded FACT anti-piracy group. Not only was OiNK admin Alan Ellis recently acquitted, but in a landmark ruling both TV-Links defendants have also won their case.
When news broke that TV-Links.co.uk had been raided by police and admin Dave Rock arrested, it was met with a certain element of disbelief. TV-Links was not a warez or torrent site, but one which linked to videos hosted on sites like YouTube. It carried absolutely zero illicit content.
This major detail wasn’t of much concern to the UK’s Federation Against Copyright Theft (FACT), whose investigation along with Trading Standards later came to involve the police.
Rather than go after giants like YouTube, Google Video, Veoh and DailyMotion who actually hosted the content, FACT built a case against the operators of TV-Links, David Rock – aka ‘Sin’ – and site partner David Overton who was raided 5 months later.
Dave Rock later explained that it would’ve been an easy task for FACT to track him down, since he never made any attempts at secrecy.
“To be honest I didn’t really attempt to hide my ID, as under UK Law linking to another site isn’t illegal, so I didn’t see the need,” he told TorrentFreak in a November 2008 interview.
There was confusion as to the basis for the initial raid, with FACT citing “offenses relating to the facilitation of copyright infringement on the Internet” – an offense that doesn’t even exist under UK law – with Trading Standards and the police referring to “supplying property with a registered trade mark without permission.”
After a long wait the official allegations became Conspiracy to Defraud and breaches of the Copyright Designs and Patents Act. Similar fraud allegations were leveled at Alan Ellis, the ex-admin of OiNK.
More than 2 years of waiting later, in January 2010 the TV-Links case went to court. On the 19th January 2010 the operators of TV-Links – represented by Morgan Rose Solicitors, counsel William Clegg QC and Alex Stein for David Rock, and Ian Bridge for David Overton – raised preliminary points of law and asked for the proceedings to be dismissed.
This week Judge Ticehurst gave his judgment, announcing that TV-Links had won their case. He ruled in detail for the first time in a Crown Court in relation to Section 17 of the European Commerce Directive 2000, stating that Section 17 indeed applied and afforded TV-Links a complete defense in criminal proceedings in England and Wales for their linking to other web sites. In a nutshell and to coin a familiar phrase, the site was deemed a mere conduit of information.
The Judge also ruled that the allegations under the Copyright Designs and Patents Act failed because there was no evidence that TV-Links made available to the public the films and shows they linked to. There is no appeal available to FACT against this ruling.
The Judge noted that FACT had not applied the Attorney General’s guidelines when deciding to prosecute the defendants with Conspiracy to Defraud.
Morgan Rose Solicitors also represented OiNK owner Alan Ellis in January 2010, successfully defending a Conspiracy to Defraud charge. In OiNK’s case there was no ruling on the e-commerce directive, but Mr Ellis was unanimously acquitted, the jury finding him not guilty.
Both cases cost the public purse a large amount of money and even though FACT ran a private prosecution, it is the tax payer which picks up the bill for both the defense and prosecution costs.
The Court of Appeal has twice stated in games console mod-chip cases (R v Gilham and R v Higgs) that cases involving complicated issues of copyright law ought not to be tried before a jury but should instead be dealt with in Chancery where specialist judges can try these cases more efficiently and grant an injunction if required.
Although TV-Links triumphed in the end, there were many obstacles to overcome. In late 2008 after Dave’s TorrentFreak interview, the defendants were served with a financial restraining order under Proceeds of Crime legislation. This meant that the necessary funds required to mount a full defense against the MPAA-funded FACT were simply unavailable. But things came good in the end.
“In the process of successfully obtaining a court order to discharge the Restraint Order against the defendants, a copy of the agreement came to light. Had the Restraint Order remained in place it would have severely hamstrung David Rock in presenting his defense – under legal aid Representation Order it would not have been possible to appoint Mr Clegg QC, who was outstanding,” TV-Links’ legal team told TorrentFreak.
“I’d just like to thank Simon Rose from Morgan Rose Solicitors, William Clegg QC, Alex Stein and Ian Bridge for the positive result,” Dave Rock told TorrentFreak, as he moves to put the last two traumatic years behind him.
