Private justice: How Hollywood money put a Brit behind bars

Industry-funded prosecution leads to 4-year sentence for SurfTheChannel owner.

by Timothy B. Lee

Anton Vickerman, 38-year old owner of the once popular link site surfthechannel.com (STC), was sentenced to four years in prison on Tuesday by a British judge. But the prosecutors sitting across the courtroom from him didn't work for the Crown—they were lawyers for the movie studio trade group Federation Against Copyright Theft (FACT).

FACT, not public officials in the UK, was the driving force behind Vickerman's prosecution. Indeed, FACT effectively took on the role of a private law enforcement agency. Private investigators hired by FACT first identified Vickerman as the administrator of STC and built the case against him. His assets were frozen at FACT's request by a government agency—which was itself funded by FACT. And when the UK's public prosecutors decided not to press charges against Vickerman at all, FACT initiated a criminal prosecution on its own dime.

This is a new development for anti-piracy efforts. Organizations like the MPAA, RIAA, IFPA, and FACT have long lobbied law enforcement officials to prosecute "rogue sites" and have provided them with information and logistical support to do so. But public prosecutors generally have the final say on who will be indicted. In the Vickerman case, the public prosecutors concluded that there wasn't enough evidence to merit prosecution. FACT disagreed and invoked what one lawyer told us is an "archaic right" for a private organization to bring criminal prosecutions against other private parties.

Vickerman posted a lengthy testimonial to his site after he was convicted. In it, he describes FACT as a lawless conspiracy to shut down his site for the benefit of competing video sites, and he portrays Judge Evans as an "imbecile" who didn't understand the legal issues in the case. While many of the accusations seem overwrought, Vickerman did include a cache of documents that came out during his trial. From them we can paint a clear picture of just how far one private party was allowed to go in its bid for justice.

FACT confirmed the authenticity of the court documents for us but declined to get into the specifics of Vickerman's account—arguing that his conviction by a jury of his peers speaks for itself.

Surfthechannel.com grew rapidly—so rapidly that it soon came to the attention of Hollywood. The site hosted no videos, but its meticulously organized collection of links made it popular with those seeking infringing content. And plenty of people were interested. At the site's peak in mid-2009, STC attracted hundreds of thousands of users per day, earning Vickerman up to £50,000 ($78,500) per month in advertising revenue.

FACT wanted to shutter the site, but first it had to find out who was running the thing. Vickerman had kept a low profile, registering the domain through an anonymizing service and purchasing server space offshore. Undeterred, FACT hired an investigator named Pascal Hetzscholdt to pose as a potential investor who lured Vickerman to a London hotel on July 10, 2008. While the two ate lunch, a surveillance team recorded the encounter from a nearby table. Investigators working for FACT then tracked Vickerman back to his home 250 miles north of London in Gateshead.

The contents of that lunch discussion are disputed. Vickerman insists that he "did not discuss anything whatsoever about movies, illegality, or other such matters." Hetzscholdt has a different recollection. In a report filed after the meeting, he stated that Vickerman discussed plans to "experiment with using the BitTorrent network as the infrastructure to offer popular current films through STC." The whole thing was recorded, so the truth should have been a simple matter to verify—but FACT says that no audio of the meeting exists, making it impossible to check Hetzscholdt's story. Vickerman suspects foul play.

"I am firmly of the belief that such an audio recording did exist but that it was 'disappeared' by FACT Ltd due to it containing nothing controversial," he wrote.
Enlarge / Form seeking authorization under the Regulation of Investigatory Powers Act to conduct "directed surveillance" of Vickerman during the London hotel meeting. Contrary to FACT's claims, Vickerman was not in the business of selling counterfeit DVDs.

FACT soon discovered that the home Vickerman shared with his wife was for sale. So, two days after the London meeting, another FACT agent posed as a potential buyer in order to access the residence. The agent covertly recorded the home walk-through and filed a detailed report on the operation.

Meanwhile, FACT was busy collecting other information about Vickerman. The group asked the satellite provider BSkyB for information about the couple's satellite TV subscription, for instance. An investigator tailed Vickerman's wife Kelly on a day's errands. The Guardian reports that "other private eyes had already obtained detailed information about his bank accounts, cars, and telephone records." FACT was nothing if not thorough.

On August 18, 2008, Northumbria police raided the Vickermans' home. Vickerman says that FACT agents participated in the raid and that they were "clearly directing the police." A FACT spokesman declined to comment to us on this allegation, but court documents do indicate that FACT was heavily involved in planning the raid. FACT, for instance, hired the forensic investigator used in the case.

In an e-mail sent a week prior to the raid, FACT's Colin Tansley outlined a plan for FACT's investigators to take down STC and replace it with a seizure notice. Vickerman says this plan failed because FACT believed, inaccurately, that the STC servers were located inside Vickerman's house. (The servers were actually located in Sweden, beyond the reach of FACT and the Northumbria police.) When we asked, FACT again refused to comment on Vickerman's allegations.

During the search, Vickerman and his wife were both arrested. Vickerman told both police and FACT investigators that the STC site was, in his view, legal; it acted "as a search engine" and was exempt from liability, he said.

The Vickermans were soon released on bail, but the other shoe was about to drop. Their cash was about to be seized.
Enlarge / Work order requesting forensic investigator to take down STC site and replace it with a FACT logo.

Asset freeze

Two weeks later, on September 1, investigator Alan Connolly from the Bedfordshire Trading Standards Financial Investigations Unit showed up at the Vickermans' home. He knocked on the front door and presented them with an "asset restraint order," which the unit had taken out at FACT's request. Vickerman claims that he and his wife were then barred from accessing any of their funds, aside from £125 per week, per person, to cover living expenses. As a result of the order, Vickerman says that he "started to default on my bills and rapidly started spiraling into severe financial problems."

The Bedfordshire Trading Standards Financial Investigations Unit (BTSFIU) has a grandiose name but a strange history—and it's hardly the impartial agent of government justice its name might suggest. A statement on the agency's website explains that, in 2007, the "Bedfordshire Trading Standards Service was approached" by FACT and "offered a unique sponsorship opportunity" to create the Financial Investigation Unit. With FACT's generous support, the BTSFIU was soon able to focus on conducting piracy-related property confiscations.

Indeed, so deep is the partnership that, on the form used to request an asset confiscation, the agency states that "priority will be given to those referrals that involve cinematic piracy." Vickerman says he filed a Freedom of Information Act request that revealed that "BTSFIU had made 23 similar restraint order applications in 2008, all on behalf of FACT."

In a Tuesday interview, FACT spokesman Eddy Leviten brushed off any suggestion that the financial ties between FACT and the BTSFIU created a conflict of interest, however.

"The banking industry in the UK funds the check and credit bureau in the Metropolitan Police," he told us. "It's something that happens in the UK where private industry can fund specific units within law enforcement to take on a specific role. Those units still have to withstand the same scrutiny" as any other law enforcement agency. We e-mailed two BTSFIU agents seeking comment on the relationship but never got a response.

Unable to spend his own funds on legal representation, Vickerman borrowed money from his father to hire an attorney who challenged the asset freeze. According to Vickerman, "It turns out it is unlawful for BTS to act outside of Bedforshire County," so the asset freeze was cancelled about a month after it had been put into place.

And the news got even better for Vickerman. It soon emerged that the government had no interest in charging him with a crime. Indeed, the government wasn't even convinced he had committed one.
Enlarge / The instructions of the BTSFIU asset confiscation form notes that priority is given to piracy cases.

"I cannot advise any prosecution"

Vickerman was referred to Crown Prosecution Service (CPS), the arm of the UK government responsible for criminal prosecutions. CPS chose not to prosecute him, explaining its decision in a letter dated December 12, 2008.

"I understand that the investigation into the suspects was prompted by FACT and in effect this is an enquiry that has been undertaken almost entirely by FACT although with the assistance of the Northumbria Police," the letter explained. The CPS prosecutor then continued:

I understand from [Northumbria Detective Constable] Watkin that there have been no other successful prosecutions that he is aware of where we could point to this type of website being classified as amounting to "making available... by electronic transmission," the legal standard needed to find Vickerman guilty of copyright infringement. At present it appears uncertain if in fact what the suspect has done does infringe this particular legislation. Certainly on the evidence thus far provided it is impossible for me to determine if this is the case and therefore I cannot advise any prosecution on the evidence presented.

CPS also pointed to additional problems with prosecuting STC. "It is obvious that this suspect does not put copyrighted material on the Internet itself," said the letter. "His 'crime' is to make it easier for others to find what is already there. This begs the rather obvious question of why he is being pursued rather than those who actually breach the copyright by displaying the material."

The agency also wondered whether there are "civil law remedies available perhaps including an injunction to close offending websites down," and if those remedies existed, why they weren't being pursued. (Such civil process has been used in the US to shut down Napster, Grokster, LimeWire, and many others, though such cases have been less successful in the UK.) CPS also noted that "such well established sites as YouTube occasionally fall foul of copyright and that they are not prosecuted in the manner suggested here."

The letter concluded that "the evidence provided is too vague to establish what actual offences are alleged and thus I cannot advise any charge at this stage."

It sounded like the end of the case, and in most cases would have been—but FACT badly wanted Vickerman in jail and was willing to do the work itself if necessary.
Going it alone

In the United States, public prosecutors generally have the power to decide when criminal prosecution is appropriate. Eleanor Lackman, a copyright attorney at the New York firm of Cowan DeBaets, Abrahams, and Sheppard, told Ars that "criminal liability generally is only prosecuted by government entities" such as the Department of Justice. A private party can request a copyright prosecution—as in the Megaupload case—but the final decision rests with the government.

 
Enlarge / Vickerman outside the courthouse with an unidentified companion.

United Kingdom law differs. There, private parties can initiate criminal prosecutions if they're willing to cover the costs out of their own pockets. FACT was, and so it bypassed CPS and brought criminal charges against Vickerman directly. "It is now our intention to run a private prosecution," FACT's Colin Tansley wrote in an e-mail to his colleagues on December 12, 2008.

Litigation dragged on for years. Vickerman charges that FACT withheld key documents from him, including the CPS letter recommending against prosecution, that he says would have bolstered his case. Indeed, he became so concerned with FACT's conduct that he actually petitioned government prosecutors to take over the prosecution. The request was rejected.

"In July 2010, the stress and strain of the nightmare we have endured for nearly two years finally breaks our marriage," Vickerman wrote. "Myself and my wife separate. FACT Ltd's decision to charge my wife as well, despite them knowing she has no involvement in STC, has bore them fruit." But to FACT, and even to the judge in the case, the problems and the prosecution were of Vickerman's making.

"You didn't bother to check with the copyright owners"

The trial finally commenced in May 2012. Vickerman was optimistic because he thought he had a key precedent on his side. In its 2008 letter, CPS noted that "FACT are currently involved in a prosecution of others involved in a similar website known as tvlinks." By the time the STC case reached trial in 2012, another judge had ruled that TV-Links had not infringed copyright.

But a jury found Vickerman guilty of "conspiracy to defraud" (rather than of facilitating copyright infringement) and the judge pronounced sentence. In his Tuesday remarks, Judge Evans made a curious reference to the TV-Links case, saying that Vickerman "pressed on, knowing that TV-Links had been taken down following the intervention of FACT on the basis that what it had been doing was unlawful."

Of course, the courts, not FACT, determine what is and isn't unlawful—and the courts had ultimately found that TV-Links had not violated the law. Judge Evans seems to have believed that FACT's simple accusation of unlawful conduct should have been sufficient basis for Vickerman to shut down his website.

"Your arrest and the interviews that followed did not act as any kind of warning about the criminal activity in which you were engaged or as any sort of barrier to the continued operation of STC," Judge Evans said. "With an arrogance of a kind that you displayed repeatedly during your evidence at the trial you carried on as before and indeed only shut down STC days before this trial began in May."

In March 2009, Judge Evans said, STC had two million links, of which "in excess of 5,500 links" were to infringing movies. "You insisted that you couldn't know if it was infringing copyright, that the studios might have granted right holder licences to the films of which you had no knowledge," Judge Evans said. "That was certainly true and bound to be true if you didn't bother to check with the copyright owners and check you most certainly didn't."

Vickerman places blame for his conviction squarely at the feet of Judge Evans. "We were about to enter a parallel universe in which there were two prosecutors, FACT Ltd and Judge Evans," Vickerman wrote in his Tuesday statement. It was a universe "in which the Judge had no grasp of the Internet or copyright law and in which evidence that would never have normally made it up the courtroom steps due to its dodginess was readily accepted as factual here.... I was surprised to find that I was more upset about the way FACT Ltd had won rather than the actual fact that they had won."

But Evans was having none of it. "You demonstrate a complete absence of remorse," he told Vickerman. "In the trial, you levelled criticism of virtually everyone involved in this investigation. You would not countenance, and it’s evident from your demeanor now that you still do not countenance, the idea that you were doing anything wrong. I’m bound to say that in all the years I’ve worked in this court I have never encountered arrogance of the kind that you displayed during the trial... The vast majority of the material made available through that website infringed copyright."

The privatization of justice
Enlarge / In 2008, FACT compiled a lengthy dossier on Anton and Kelly Vickerman.

Ars sought comment from David Cook, a solicitor who successfully represented defendants connected to two other websites: OiNK and FileSoup. Those cases were formally handled by CPS rather than private groups, but even so Cook regarded the degree of industry involvement as "an abuse of the Court process as a result of the involvement of the International Federation of the Phonographic Industry (IFPI) at all stages of the investigation and subsequent prosecution."

Those cases, he said, were "brought by the CPS, with the trade bodies malevolently lurking in the shadows but with their fingerprints all over the evidence." In the STC case, by contrast, the industry dispensed with the "lurking" and drove the case itself from start to finish. Cook describes the right of private parties to initiate criminal prosecutions as "archaic."

He argues that the ability of private companies to bring criminal charges opens the door to abuses. For example, Cook questions whether it is right for the "police to be able to use the powers that are specifically bestowed to them to seize a person’s property, only to then decide not to do anything themselves and simply pass the material to an 'interested third party'" like FACT. (Cook concedes that this transfer of evidence was ruled legal by a UK appeals court.)

FACT's Leviten disagreed. He told us there's a "rich historical precedent" for private parties bringing criminal prosecutions. He compared FACT to the Royal Society for the Prevention of Cruelty to Animals, which brings criminal animal welfare cases. Private criminal prosecutions, he said, are "part of the democratic system in the UK."

But Cook worries that the "enormous financial resources and clout" of organizations like FACT, and the lack of public oversight of their activities, could deprive defendants of a fair trial.

"There is no doubt that copyright holders deserve the full protection of the law," he told me. "But I still think that the manner in which they conduct these prosecutions is offensive."