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Man arrested for linking to pirated content – but what's the crime?

A man was arrested in England last week for allegedly running a website that linked to unauthorised copies of TV shows and movies on the web. However, it is not clear how the provision of links will be prosecuted as a criminal offence.22 Oct 2007

Free OUT-LAW Breakfast Seminars, UK-wide. 1:The new regime for prize draws and competitions. 2:How to monitor staff legallyA statement from the Federation Against Copyright Theft (FACT) said that a 26-year-old from Cheltenham was arrested on Thursday "in connection with offences relating to the facilitation of copyright infringement on the internet."

The arrest came during an operation by officers from Gloucestershire County Council Trading Standards Service working with investigators from FACT and Gloucestershire Police. The man has been released pending further enquiries.

The site, TV Links, formerly at tv-links.co.uk, was providing links to movies and TV shows that had been copied to the web in breach of copyright. It did not appear to be hosting any of the content itself.

According to FACT's statement, "Sites such as TV Links contribute to and profit from copyright infringement by identifying, posting, organising, and indexing links to infringing content found on the internet that users can then view on demand by visiting these illegal sites."

However, the nature of any charges that may follow is unclear.

While FACT's statement cited "offences relating to the facilitation of copyright infringement," Gloucestershire police told IT news site The Register that the man has been "arrested for supplying property with a registered trade mark without permission."

The first of these is not an offence and the second does not fit the circumstances, according to Kim Walker, head of intellectual property at Pinsent Masons, the law firm behind OUT-LAW.COM.

"We don't have an offence in the UK for facilitation of copyright infringement," said Walker. "Instead, it is possible that prosecutors could attempt to characterise this as an offence of 'distributing' infringing copies or 'communicating' copies to the public in the course of a business."

"If TV Links carried advertising, it's arguably a business. If it didn't carry advertising, it can still be criminal if the site can be shown to affect the copyright owner in a prejudicial way," he said.

The offence carries a maximum penalty of 10 years' imprisonment – though Walker said the provision of links has never before been classed as a form of distribution or communication in terms of the legislation.

The use of trade mark laws to prosecute the individual seems an even bigger challenge, he said. "The Trade Marks Act makes the unauthorised use of trade marks in relation to goods an offence; but this is a law that was written to catch counterfeit goods," he said.

"The provision of links is surely a service, not a sale of goods," said Walker. "It seems an unlikely way to deal with the problem."

In 2005, the Norwegian Supreme Court found a student guilty of 'abetting' an illegal act after he ran a website that linked to infringing MP3 files. Frank Allan Bruvik was fined 100,000 kroner (approximately £8,000).

In April 2007, a proposed Directive on the enforcement of intellectual property rights was approved by the European Parliament. If approved by the Council of Ministers, aiding or abetting and inciting infringements will become criminal offences.