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Wednesday, 29 August 2012

The missed opportunity in the closure of torrent tracker UK Nova

The closure of yet another website offering copyrighted TV content for free is no longer news.

Earlier this month, Surfthechannel owner Anton Vickerman was sentenced to 4 years in jail by Newcastle Crown Court.

Two things are interesting about Vickerman's case: firstly, it was a private criminal prosecution brought by UK trade body FACT, the Federation Against Copyright Theft, after the Crown Prosecution Service had previously declined to mount a public prosecution.

Secondly, Surfthechannel hosted no infringing content itself, only links to infringing content hosted elsewhere; hence Vickerman was convicted of conspiracy to defraud rather than copyright infringement, the argument being that his website incited others to commit copyright infringement, thereby depriving legitimate copyright owners revenue.

FACT were able to show legitimate owners were deprived of revenue whilst Vickerman profited through adverts hosted on his site.  Fraud.  Bang.

I don't necessarily agree that Vickerman deserved 4 years jail for his crime, but I'm more comfortable with this prosecution than I am about, say, the ongoing extradition of Sheffield student Richard O'Dwyer to the US for his role hosting TVShack - a one-time rival to Surfthechannel.

We can and should prosecute UK web users here in the UK.

But the closure this week of UK Nova is noteworthy as the website's owner took what they claim to be a highly ethical stance to the torrents they tracked on the site.

Like Surfthechannel, TVShack and countless other sites, UKNova did not itself host copyrighted content.  It hosted links to content elsewhere; in UK Nova's case these links were bittorrent trackers.

Depending on which side of the fence you sit in the great copyright wars of the new millennium, the concept of ethical copyright infringement might raise an eyebrow or two.

Ethical as in Co-op banking, or ethical as a kind of digital Robin Hood, stealing from the rich?  Robin Hood could be justified in helping the poor eat, but how can you justify stealing copyrighted content to give to those who can't afford it??

In this case the team running UK Nova policed their own content. No content was allowed on the site that was commercially available.  So anything available for example on DVD, on paid or free streaming services, currently showing on TV or in the cinema was disallowed.

The site, its owners claim, was there to provide links to rare content unavailable elsewhere.

It doesn't take a well-paid copyright lawyer to point out that even content not currently commercially available is still protected by copyright.

I've often thought it absurd that e.g a TV advert - which the owners pay stacks of cash to get into as many living rooms as possible - is still protected in the same way by copyright as a feature film.

So, in theory at least, uploading an advert onto YouTube without the copyright owner's permission could land you in jail, even though the copyright owner was paying through the nose to get as many people as possible to watch that advert.

Of course I doubt anyone's going to jail for such a trivial infringement. Arguments about implied consent through running an ad campaign might wash; plus the copyright owner is unlikely to complain in the first place - unless the ad is placed in an unflattering context by the infringer, but then it might be justified anyway as legitimate comment under Fair Dealing provisions of UK copyright law.

But I digress...

Back on topic, UK Nova wanted to avoid infringing on commercial profits by disallowing content that was commercially available elsewhere.

But copyright infringement is not couched in terms of commercial profits; so, on the surface, this puts the 'ethical' torrent tracker in the category of not evil but legally wrong.

Although there's a kicker.  The site, remember, hosts trackers: links to content stored elsewhere on the internet.  It hosts no copyright infringing content itself, therefore it would be tough - under UK law, at least - to prosecute them for copyright infringement.

As in the Surfthechannel case I mentioned at the start, prosecution authorities have in the case of trackers preferred to level an alternative charge: conspiracy to defraud.

But for UK Nova it might be possible to defend against a conspiracy to defraud charge.

A qualified lawyer I'm sure will make a better job of describing fraud, but in lay terms the prosecution needs to show the defendant has gained at the expense of the legitimate owner.

An ethical torrent site defrauds no-one as they disallow any content that is otherwise commercially available.

So it could be argued UK Nova commits no copyright infringement, because torrent trackers are just links, not an actual copy of the copyrighted material; and defrauds no-one because of the ethical hosting policy.

But I don't blame UK Nova for caving in without a fight.  I'm sure FACT or some other trade body will come up with yet another legal instrument with a conspiracy prefix; conspiracy to commit copyright infringement, maybe.

With the threat of extradition or jail time we're well into a dark era, with otherwise law abiding website owners running scared of copyright claims.

Own Goal

But the forced closure of UK Nova is a massive own goal by those claiming to represent copyright owners.

I've blogged many times that the solution to the digital copyright conflict will in all likelihood be a messy compromise, with neither side getting all they want.

Of course it's silly to chase down those trying to catch up on a missed episode of Parade's End after it has disappeared off iPlayer but before the DVD comes out.

But it's equally barmy to believe a free and open internet will allow free access to anything and everything, irrespective of commercial reality.

One-size-fits-all copyright is as dead as many business models from a bygone era.

Whilst most content on UK Nova would not cost copyright owners much in lost sales, the odd TV episode might; e.g. a show which becomes suddenly popular may find it difficult to bring an unplanned release if their show is already all over the internet.

The missed opportunity here for copyright owners was to work with ethical sites like UK Nova to help build them as a preferred alternative to other less scrupulous torrent trackers.

With a website seemingly keen and willing to play ball it appears as though its owners would have gone to great lengths to further minimise their impact on legitimate sales.

Instead, the copyright cops closed a website which had promised never to transgress on commercial profit, pushing the content and a stack of well-meaning users underground.


The dandy copyright defenders are probably at this moment confident, buoyed by a string of high-profile legal successes. The Pirate Bay: blocked; O'Dwyer and Dotcom facing extradition to the spiritual home of all English-language content (the US); TVLinks, Surfthechannel and numerous other links websites: closed; Vickerman: Jailed; Jammie Thomas and Joel Tenenbaum: bankrupted...

With the copyright police cocksure of mastering the internet why would they want to have to bother working with an ethical torrent tracker when there will soon be no underground file sharing?!

The reality was brought home to me at a party over the weekend.  No, I wasn't offered illicit drugs... I was offered loan of a terabyte hard drive stuffed full of the music being played at the party, plus a bonus of "over a hundred DVDs".

A law abiding citizen I of course said no.  But it wasn't so long ago a friend of the family offered me a similar package.  When I pointed out it was illegal the friend was genuinely shocked, "but I got this from a copper I play cricket with!"

In a democracy there will always be an underground supply route.  The measures required to close down the black market come at too high a price through loss of freedom, a price which far outweighs the benefits of closing the black market.

And physical data transfer isn't the only underground route.  Distributed trackers and trackerless torrents have emerged in recent years.  New methods which are almost impossible for authorities to shut down - at least without banning bittorrent and other peer-to-peer technologies outright - are making websites like The Pirate Bay redundant.

In turning their backs on UK Nova copyright owners have not only missed an opportunity to work with a torrent site to e.g. promote legitimate content and quickly remove content which harms their businesses, they have shown a blatant disregard for a new generation - of people and technology.


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