Should Linking To Copyrighted Material Be Illegal?By: Zach Walton - August 16, 2012
Despite how you feel on the matter, online piracy is illegal. Various courts throughout the country have said again and again that uploading pirated works on the Internet for others to download is illegal. The copyright lobby hasn’t really done much about it in recent years after finding out that suing everybody wasn’t good for their image. There is, however, a new war that the copyright lobby is waging that’s far more murky in its legality.
The courts are now having to deal with the issue of linking to content that may be illegal. Copyright law has generally been applied to those who host the content themselves. Now the law is being applied to sites that host zero content, but rather link to content on other Web sites. That’s where the case of Anton Vickerman comes in.
Should linking to copyrighted material be illegal? Where do we draw the line in copyright law? Let us know in the comments.
It was reported Monday that Vickerman was convicted on two counts of conspiracy to defraud. He now stands to serve four years in prison for running surfthechannel.com. The Web site hosted links to content off site – both legal and illegal. He was said to have made £250,000 through advertisements on the site in 2008.
The interesting part is that Vickerman could not be charged for copyright violation. The prosecution had to go with charges of conspiracy to facilitate copyright infringement. Facilitating copyright infringement is a hard sell in most courts because most people charged with the crime usually aren’t aware that the content they’re linking to illegal.
Unfortunately for Vickerman, he sold advertisements on his Web site. The mere fact that he made money by linking to this illegal content is what doomed him in the first place. The prosecution stated that Vickerman’s Web site “was created specifically to make money from criminal activity.” The defense obviously argued that this was not the case, but it’s hard to argue with the £250,000 made over the course of a year. That’s obviously more than what running a link aggregator would cost.
It causes one to think if the result would have been the same if Vicerkman had made no money off of the site. There are plenty of other sites out there that only link to illegal content, but make no money from it. They pay for the servers out of their own pocket or with donations from users. It seems to be a legal gray area that only becomes criminal activity once the site owner starts to make money off of it.
Vickerman isn’t the only UK resident who is facing charges over linking to illegal content, nor is he the most well known. We’ve covered the extradition case of Richard O’Dwyer extensively over the past year and it’s far messier than Vickerman’s case ever was.
For those who need a refresher, O’Dwyer is a 23-year-old from the U.K. who is going to be extradited to the U.S. for copyright infringement. What was his crime? He linked to online streaming videos of U.S. television shows and movies. The kind of shows that citizens in the U.K. can’t easily gain access to until months after their original airing in the U.S.
Just like Vickerman, however, O’Dwyer is being charged because he made money off of his Web site – TVshack.net. The site was reported to have had about 300,000 users per month and he made about £147,000 in revenue over three years from the site. For his crimes, O’Dwyer would be extradited to the U.S. where he could face up to 10 years in prison.
Of course, this brings us to the difference between O’Dwyer and Vickerman. Why can one be tried in the U.K. while the other has to be tried in the U.S.? Many groups and activists don’t see a difference and are fighting to have O’Dwyer tried in his native country. Wikipedia founder Jimmy Wales started a petition in June that called for the halting of O’Dwyer’s extradition. He even went so far to say that O’Dwyer is the “human face of the battle between the content industry and the interests of the general public.”
O’Dwyer’s mother even jumped into the fray with a passionate plea for her son to remain in the U.K. She said that her son’s extradition is not about copyright, but rather the U.S. wanting to flex its control over the Internet. She said that her son’s case is about “America trying to control and police the Internet.” She also said that it’s “wrong that America should lay laws down on the Internet for other countries.”
Both Wales and O’Dwyer’s mother bring up good points that lead to a much larger question. Why does the copyright industry care so much about linking to content? Why would they go out of their way to prosecute some guys that ran a Web site that never hosted any of this content, but rather linked to it. Most of the content on these sites were submitted by users. The DMCA has a safe harbor provision that protects Web sites from the actions of its users. Of course, a Web site can only qualify for safe harbor if they have no knowledge about the infringing content. It’s hard to say if Vickerman or O’Dwyer knew the content they were hosting was illegal.
Should O’Dwyer be extradited to the U.S. for merely linking to copyrighted material? Should either men receive DMCA protections? Let us know in the comments.
All of this is meant to lead up to the biggest problem at hand – Google. There are other search engines, but Google has been targeted the most for their actions. The copyright lobby has been constantly on Google’s back for linking to copyrighted content. They even claim that Google prioritizes infringing links over legitimate links in search results for those searching for something as innocuous as “Justin Bieber MP3.”
Back in January, when the debate over SOPA was in full swing, media mogul Rupert Murdoch said that Google was a “piracy leader.” He said that Google streams movies, which I assume he means YouTube, and sells adverts around them. That kind of response to Google is typical hence why Google and other search engines were given a code of conduct by the U.K.’s Department for Culture, Media and Sport.
The code of conduct says that Google and other search engines should “assign lower rankings to sites that repeatedly make available unlicensed content in breach of copyright.” It also calls upon Google to “stop indexing Web sites that are subject to court orders.” In short, it’s all about the copyright industry wanting Google to stop linking to illegal content. They might have gotten their wish last week.
The Internet collectively freaked out when Google announced that they were adding DMCA takedown notices to their search algorithm. Google’s SVP of Engineering, Amit Singhal, said that “sites with high numbers of removal notices may appear lower in our results.” Many people immediately began to assume that this was just Google bowing to copyright lobby pressure and why wouldn’t they? While it’s highly unlikely that Google would be convicted for copyright violations, the DMCA definitely protects them, it gives them a bargaining chip in Washington and Hollywood.
The mere fact that Google did this in the first place, however, is a major cause for concern. There are plenty of legitimate sites that receive bogus takedown notices all the time. Most of these sites thrive off of user created goods and media. Would Google knock them down in search results because of some overzealous copyright warrior?
Our own Chris Crum was quick to point out that Google’s new ranking signal was only one out of over 200. Sites that were already doing well are still going to keep doing well. Your favorite YouTube videos and Etsy stores are still going to stay near the top of search if Google has anything to say about. What is worrisome is that Google even had to address in the first place.
With Google backing the idea that linking to illegal content is indeed illegal, it only legitimatizes the current trend of going after those that only host links. Will Google’s move make the copyright lobby more aggressive in going after those who run link aggregate sites? Will it only go after those who link to television shows and movies? What about news aggregate sites that link to content from the overly protective AP?
It’s still too early to tell, but a war on links may be coming. The Internet was built on links, but that may not be the case for much longer if laws continue to punish the mere act of linking.
Do you think links are in danger? Would the copyright lobby try to destabilize one of the key tenets of the Internet? Let us know in the comments.