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Record industry to take civil action against Oink man?
By CMU Editorial | Published on Friday 22 January 2010
Back to Oink briefly, and back also to the aforementioned launch of the International Federation Of The Phonographic Industry’s big digital music report.
Billboard took the opportunity at that launch to specifically ask IFPI boss John Kennedy for his response to the ruling in Teeside Crown Court last week which said that Alan Ellis, founder of the Oink file-sharing community, was not guilty of conspiracy to defraud the music industry.
Kennedy told the trade mag: “I cannot sleep at night while that man has still got £200,000 sitting in his bank account, so we will find other ways of going about it, [even] if it has to be civil proceedings”.
As previously reported, while the prosecution never had a great case against Ellis for fraud, there is a much stronger case for doing him for copyright infringement. But because the Oink website did not actually host any infringing content itself, that would require taking an action under the English law concept of authorising infringement.
While related to the American concept of contributory infringement, which Napster, Grokster and, as of last month, BitTorrent tracker isoHunt were all successfully pursued for through the American courts, it isn’t 100% clear what would happen if an authorising infringement claim was made through the English courts in relation to an Oink style service.
The case against Kazaa in the Australian courts would be the most convincing legal precedent as to why Ellis should be liable for copyright infringement by operating Oink – authorising infringement exists in Australia too – but when feeding into the UK government’s Gowers Review of copyright law back in 2006 record label trade body the BPI admitted any authorising case in this country would probably have to go all the way to the Supreme Court, and even then success would not be assured for the record companies.
Which is possibly why that route was not taken first time round with Oink. The problem if a civil infringement action is now launched against Ellis – which Kennedy implies it might – is that, because of the nature of the conspiracy to defraud investigation in 2007, the record companies didn’t go through the sending cease and desist letter stage that normally precedes a copyright action.
Ellis could argue that had the labels formally told him his service was infringing copyrights he would have taken action to rectify that the situation. That isn’t necessarily a defence in itself – the labels could still claim the £200,000 that Ellis apparently amassed – but it would weaken the record industry’s case, making the outcome even more uncertain.
