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Digital Top Stories
Final Oink case dropped
By CMU Editorial | Published on Tuesday 30 March 2010
I think it is fair to say that the legal fight against the infamous British BitTorrent tracker Oink was rather screwed up, even though it did successfully take the file-sharing community offline. Whether that is the fault of the police or the record industry’s anti-piracy experts I don’t know.
Either way, the Crown Prosecution Service has just dropped its charges against the sixth of those accused of copyright crimes in relation to the file-sharing website. While four of the six did plead guilty to copyright infringement, the most high profile of the accused – the site’s founder Alan Ellis – was acquitted, while the case against the final defendant was dropped yesterday amid allegations of dodgy tactics on the part of the piracy police.
As much previously reported, Oink was a BitTorrent community taken offline by the authorities in 2007. It provided members with links to unlicensed music content. Unusually, the site was not initially targeted with civil action by the record companies but rather the authorities agreed to take criminal action at the outset, with police collaborating with the International Federation Of The Phonographic Industry. This is a route more commonly used against those running profitable bootleg CD operations, and it is possible police believed the Oink operation to be much more organised and cash rich than it ever really was.
Six men were arrested, of which four pleaded guilty in late 2008 to copyright infringement for making music available to others without a licence; they got fines and community service.
But the most important case, against Ellis, floundered back in January after prosecutors chose to charge him with conspiracy to defraud the music industry instead of copyright infringement, presumably because English law is a bit vague when it comes to those who enable others to infringe through the provision of file-sharing services, the only precedent of relevance being the Kazaa case in Australia, where copyright laws and the concept of authorising infringement (which sort of covers enabling others to infringe) are very similar. But this was a foolish move on the part of the prosecution, due to the all round lack of evidence that Ellis had conspired to defraud anyone.
The sixth defendant, Matthew Wyatt, who was seventeen when arrested, faced similar charges to the other four Oink users who did plead guilty to copyright infringement, so the case against him should, in theory, have been pretty straight forward. But that case was halted yesterday amid claims the authorities and IFPI acted inappropriately following the teenager’s arrest.
Wyatt’s lawyer delivered angry criticism of the prosecution’s handling of his client’s case yesterday, accusing the authorities of an overly heavy-handed approach and dubious tactics. According to The Inquirer, legal man David Cook alleges that police unnecessarily invaded the teen’s bedroom in the search for evidence, that they let an IFPI official conduct much of the police questioning, and that they may have breached European privacy rules in acquiring Wyatt’s personal details via the IP address he was using. Cook also questions whether there was even a case against Wyatt under copyright law, accusing the prosecution of failing to present any evidence that anyone’s copyright was actually infringed.
Cook: “At no time during the course of this prosecution did the CPS actually produce any evidence that the material in question was in fact copyrighted. In a world where kudos can be gained through early leaks, and fake tracks consisting of live versions, white noise and loops are rife, we believed that this was a dangerous gap in the evidence. We also found it extraordinary that the copyright holder was never asked to identify the tracks as being theirs”.
On the allegations of privacy violations, Cook continues: “It was noted that the CPS would not explain how they came to ‘find’ Matthew. The story jumped from having an IP address to knocking at the door of his house. It was therefore apparent that either the CPS or the IFPI had breached both EC data protection laws and the UK’s Regulation Of Investigatory Powers Act by tracing Matthew via this route. We did request clarification, but the CPS dropped the case before being obliged to provide this”.
He concludes: “Every indication we had was that this should have been a civil, not a criminal, case. I think their eleventh hour decision not to proceed means that that is probably true”.
Had the case gone to court, I’m not especially convinced Cook could have successfully defended Wyatt by picking holes in the prosecution’s evidence. Attempts have been made in US file-sharing cases to say labels have failed to prove any actual infringement of their content took place, but generally, when defendants have used websites that exist almost exclusively to allow the sharing of unlicensed content, courts have been willing to overlook technicalities that arguably weaken evidence. Oink would have been heard in an English court, of course, but it wouldn’t have been too wild a jump for the judge or jury to take the infringement as read.
Regarding the privacy allegations, it’s not known what processes the authorities went through to secure the name and address of the defendant in this case, nor whether any privacy rules were violated during that process. Certainly when, in civil cases, the BPI went to court to secure the identities of suspected file-sharers based on the IP addresses they had identified, judges were generally very willing to force ISPs to hand over that information, without fearing they would violate European privacy laws in the process.
But I think Cook is very right to say the case against Oink should have been a civil action rather than a criminal one. Copyright actions only normally involve the police and criminal courts when large sums of money are changing hands, normally via sophisticated bootleg CD operations. None of this really applies to file-sharing, which is why the case against Ellis fell through earlier in the year.
Oink really provided an opportunity for the record industry to have the law clarified with regards the liabilities for copyright infringement of those who provide file-sharing services, ie those who don’t host any infringing content, but deliberately link to it. True, a civil ‘authorising infringement’ lawsuit against Ellis would have put the onus (and costs) onto the record industry, and, given the vagueness of this concept in English law, such a case would not have been without risks. It also wouldn’t have resulted in the immediate shutdown of the Oink service.
But, given international and, specifically, Australian precedent suggests the record industry would have won, it would have provided some clarity regarding the liabilities of the likes of Ellis, and would have stopped the record industry from again being portrayed as the bad guys, the shady characters in the dark who ransack the bedrooms of teenage boys, and then subject said teens to ruthless interrogation, and just because they shared a few albums on the internet.
Of course, supporters of the Digital Economy Bill would (rightly) argue that had the three-strikes system the Bill proposes been operational, Wyatt would more likely have been targeted that way, thus saving him the stress and embarrassment of the bedroom search and arrest.
Whether the Bill would help copyright owners go after Ellis is another matter. The BPI-penned Amendment 120, the new Clause 17 (now Clause 18), might prove useful in this domain, mainly because of its use of the word “via”, so injunctions can also be used to stop access to websites “via which” people access infringing content, a phrasing that would arguably have covered Oink (but, critics say, could also apply to Google). Though that amendment, of course, is proving to be the most controversial part of the proposed legislation, and will probably be open to a lot of judicial interpretation even if it does become law.
