A recent decision of a criminal court in the United Kingdom
found an individual guilty of conspiracy to defraud and sentenced
him to four years' imprisonment as a result of copyright
The accused developed a website at surfthechannel.com ("the
Site"), which he operated from his home. The Site was designed
to make films, television programs and music available to the
general public through either live streaming or downloading to a
user's computer. The vast majority of the material available
through the Site infringed copyright.
In many cases, the Site enabled users to watch or download
mainstream films free of charge and, in some cases, even before the
film was released in England or within hours of its release.
The accused launched the Site in 2007, the Site grew rapidly
with the assistance of volunteers who were recruited to help with
its operation. These volunteers were primarily
"link-hunters" who located films on third party websites
(often based in China) and posted links to those websites on the
Site. In some cases, the link hunters located the actual film
files, uploaded them to Chinese sites beyond the jurisdiction of
the U.K. and then posted links to those films on the Site.
The evidence established that, notwithstanding the accused's
assertions to the contrary, he knew well that his activities
infringed copyright. In addition, the accused presented the Site as
an attractive advertising opportunity for businesses, knowing they
would reach the large audiences logging onto it.
He also took steps to hide his personal identity, registered the
domain name for the Site remotely and set up servers located
outside the U.K. that were difficult to trace.
The Site became so popular that it was ranked the 514th most
popular website out of hundreds of millions of websites available
on the Internet. The prosecution estimated the loss suffered by the
film industry resulting from the activities of the accused in the
hundreds of millions of pounds. At the same time, the accused made
substantial profits from the operation of the Site.
After a lengthy jury trial which lasted over seven weeks, the
jury found the accused guilty of two offences of conspiracy to
defraud. The presiding trial judge was left to pass sentence.
When considering the above as well as a lack of both cooperation
and remorse on the part of the accused, the trial judge sentenced
him to four years' imprisonment on each count, to be served
concurrently. The judge noted that the message had to be sent to
those inclined to conduct themselves as the accused had, i.e.,
that they would put themselves at risk of serving a lengthy
The intricacies of the criminal process, the standard of proof
applicable and the time and expense potentially involved make this
a remedy of limited application. Two previous attempts to obtain
convictions in similar cases were unsuccessful. In addition,
this may not be the final word since an appeal is possible.
However, the existence of a potential sanction of this nature
should have a deterrent value to potential facilitators of
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A recent decision of the Federal Court of Canada has highlighted the difficulties in asserting trademark and copyright rights related to the appearance of functional products with unique design elements.
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