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Legal
Oink man didn’t know he was an infringer
By CMU Editorial | Published on Friday 15 January 2010
The man behind the rogue BitTorrent community Oink has told Teeside Crown Court that he genuinely believed his service – which enabled others to illegally access and share all sorts of unlicensed content – did not in itself infringe anyone’s copyrights. He should have read my in-depth report on authorising infringement. Though, to be fair, I haven’t finished writing it yet, and he was busy setting up his tracker in 2004.
As previously reported, Oink man Alan Ellis is accused of conspiracy to defraud the record industry by setting up and running the invite-only BitTorrent service. Earlier this week he told the court how he originally set the website up as a part of self-teaching project in the final months of his degree, so he’d know some up-to-date web programming shizzle. That the site proved to be so popular among the file-sharing community happened by mistake.
During the second day of questioning in court, Ellis discussed the issues of copyright infringement. While the defendant has already admitted to personally sharing unlicensed music via his own community – therefore admitting to being a direct infringer – he said yesterday that it never occurred to him that operating the Oink service itself was also infringement, despite the fact the Oink servers never hosted any unlicensed content. He said he thought of the Oink service as being like a post office or telephone company – and therefore he could be no more liable for any illegal activity that occurred on his website than Royal Mail or BT would be if a criminal posted a letter or made a phone call.
According to TorrentFreak, Ellis told the court: “I didn’t think the site was abusing the copyrights. If these people [his members] chose to download music and in doing so were breaking the law, then that was their responsibility, not mine. I never saw that I was responsible for them downloading music”.
The concept of authorising infringement in the P2P domain is rather undeveloped in English law, as a result of all the landmark file-sharing cases occurring outside the UK (and, with the exception of the main Kazaa case, in jurisdictions with the related for subtly different concept of contributory rather than authorising infringement). Still, legal experts (well, me) think the case for doing the providers of file-sharing services for authorising infringement under English law is pretty strong, albeit with the constraints discussed in the Grokster file-sharing case in the US regarding the actions of the defendant in exercising powers to stop infringement and communicating copyright rules.
And, of course, ignorance of copyright law is no defence. Except, possibly, in this case. As previously reported, the specifics of what is and isn’t authorising infringement is only a side issue in this case, because of the prosecution’s decision to try Ellis for conspiracy to defraud – a decision presumably made to up the possible penalties the Oink man will face should he be found guilty. Given the jury will have to be convinced Ellis set out to deliberately defraud the record companies out of money, the fact he didn’t know his service was illegal is relevant.
And so the case continues.
