TV-links’ admins acquitted of all charges, linking deemed mere conduit

The administrators of British-based site TV-links, which provided links to movies and shows hosted on video-platforms like YouTube, Dailymotion and MySpace Video, have been acquitted of all charges brought against them. In 2007, the site’s admins were indicted by FACT, an anti-piracy organisation in Britain. Fact accused TV-links operators, David Rock and David Overton of “facilitating copyright infringement”. After two years, in January 2010, the case finally went to court and a verdict was issued last week. The court acquitted both defendants of all charges.

Most interesting about this case is that the Court held that linking can be seen as a form of ‘mere conduit’. The judge based his ruling on Section 17 of the 2002 Electronic Commerce Directive Regulations (the British implementation of the e-Commerce Directive (2000/31/EC), stating that if a site acts only as an indiscriminate conduit to content searched by users, it cannot be held liable.

This is a strange interpretation, given the fact that this protection is geared towards access providers who have illegal content flowing through their networks unwittingly. Extending this protection to linking is far fetched, it seems that applying section 18 of the ECDR (that deals with the safe harbour provided to hosting providers) is more appropriate. However, the existing case law seems to suggest that linking is not even protected by the hosting exception (see for instance: The Pirate Bay, MiniNova and ZoekMP3 cases). It must be noted however that the case law is predominantly in civil law.

While sites like Torrentfreak were quick to call the decision a ‘landmark victory’, it is questionable whether the verdict will have any impact on future cases. It seems that the idea that linking is a form of mere conduit is not in line with the interpretation of the e-Commerce Directive and the current case law, and therefore will most likely be ignored in future cases.

18 February 2010