TV-Links, a website hosting links to TV Shows and movies, has been shut down, and the police have arrested the site's administrator. According to FACT, the man was arrested "in connection with offences relating to the facilitation of copyright infringement on the Internet." The man has been released pending further investigation.
TV Links is one of the growing number of websites who do nothing but aggregate links to TV shows. It is not a pirating site as such as it does not contain any content, but one could certainly argue that it serves to facilitate copyright infringement. The interesting legal question of the week is: does providing links to infringing material constitute copyright infringement? The ORG-Legal mailing list has been abuzz with legal analysis of just this question.
The question of linking has had a long and interesting history in copyright law. The issue has been the subject of some debate, but the assumption for the last ten years has been that links as such do not infringe copyright law. The two most cited linking cases have not actually dealt with the subject of linking. Coiepresse v Google was really mostly a trade mark dispute, and Shetland Times v Wills was mostly about deep linking and whether or not web pages were literary works.
One of the reasons why the linking question has been kept alive has been because of the WIPO Copyright Treaty, which reads in article 8 that "authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them." It seems clear that this article tries to cover online piracy, but as some commentators have remarked, it is not an easy fit against linking. Bittorrent in particular does not seem to be covered by the provisions on the communication to the public.
If the law on linking is so thin and tenuous, how is it possible that this man was arrested? We are not just talking about a civil lawsuit, we are talking about criminal liability here. Copyfighter extraordinaire Becky Hogge from the Open Rights Group phoned the Gloucestershire police, and they informed her that the man had been arrested under Section 92 of the Trade Marks Act 1994. Trade mark law? Yes indeed! Welcome to IP Maximalist land: when copyright law does not allow you to make a tenuous claim to an action that may or may not be illegal, use an entirely different area of Intellectual Property Law that allows you to get away with the most outrageous criminal claims.
I have now become so accustomed to abuses against copyright law that I thought nothing would ever surprise me, but this one has. I would believe that the criminal offence typified by s92 of the Trade Marks Act is very specific, the offender must commit the infringing act "with a view to gain for himself or another, or with intent to cause loss to another". I believe that the only part of s92 that would apply to this case might be paragraph 3:
"(3) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—Even this would be an extremely convoluted reading of the act. Daithí Mac Síthigh has commented that apparently this is one of FACT's favourite criminal sections, as it is listed in their site, and also has been used before. Why? because it allows for some draconian sanctions:
(a) makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, [...]"
"(6) A person guilty of an offence under this section is liable—Ouch! Perhaps FACT could suffer the fate of IFPI's dot com domain, which has been snatched by Pirate Bay.
(a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both. "
Update: A search engine in China has been cleared of linking to infringing content, which lends strength to the proposition that linking is not infringement.