Legal

The intent of Oink was learning, not fraud, says founder

By | Published on Wednesday 13 January 2010

The case for the defence has begun in the Oink trial. As previously reported, the man who created the once notorious file-sharing community, Alan Ellis, is facing charges of conspiracy to defraud the record industry for his role in enabling thousands of web users to share and access unlicensed music.

As also previously reported, the prosecution’s case, presented in Teesside Crown Court last week, focused in particular on the donations mechanism that operated on the site, and the monies amassed through it – which prosecutors claim amounted to $300,000 by the time the site was shut down in 2007. The prosecution’s argument is that generating cash was one of the motivating factors behind Ellis setting up and running the online community.

The fact money changed hands isn’t really relevant in assessing Ellis’ liability for copyright infringement. Ellis insists that – unlike the Oink users who were successfully pursued for copyright crimes – he isn’t personally guilty of infringement, because he didn’t personally host or share any infringing content. But there would seem to be a very strong case for doing Ellis for so called ‘authorising infringement’ in line with the cases pursued against Napster and Grokster in the US, Kazaa in Australia, and in Sweden against The Pirate Bay.

However, with the charges here being conspiracy to defraud, the authorising infringement seems to be a side issue, even though it’s much easier to prove. For the fraud charges to stick the jury needs to be convinced that Ellis intended to profit – at the music industry’s detriment – by providing the tools that helped others to illegally share music.

Which is presumably why Ellis was yesterday keen to position the whole Oink venture as a geeky programming project that got out of control. He told the court how he created the website while studying at Teesside University, and in the months after he finished his degree, mainly because he felt the programming skills he’d been taught were outdated and that he should endeavour to teach himself some up to date web-based programming.

He explained how the Oink service was originally hosted on a computer in his bedroom but how, as traffic started to build, he moved it to a commercial server in Amsterdam. Such hosting costs money, of course, which is possibly where the donations system came into the mix. Asked to clarify his intentions at the outset of the Oink project, the Press Association report that Ellis said: “I didn’t have an intention, I was furthering my skills as a programmer, as a software engineer”.

The case continues.



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