How did OiNK get away?

"I'm not criminally liable for secondary infringement, officer!"

It was supposed to be the British equivalent of high-profile cases such as PirateBay and the Jamie Thomas trial.  It was supposed to act as a clear deterrent to a new generation of file-sharers against widespread copyright infringement.  Instead, Alan Ellis, the founder of torrent tracking site OiNK has been acquitted of the charges of conspiracy to defraud.  How did this case turn from sure thing to nightmare for the music industry?

OiNK was not your typical torrent tracker site. Websites such as PirateBay, Isohunt, and TorrentReactor are free to use and available to the wider public.  OiNK was a free-of-charge closed service, available only by invitation from an existing member, which could be obtained by paying $5 USD.  The site also operated through donations, which amounted to a staggering $300,000 USD.  OiNK’s statistics are impressive, it boasted 200,000 registered users, and it facilitated the exchange of 21 million files. I am going to go out on a limb here and claim that most of those files were infringing copies.

So, it is clear that OiNK was in the wrong, and the fate of Mr Alan Ellis was sealed, right? Not really.  The problem seems to have been that prosecutors chose to charge Mr Ellis with conspiracy to defraud, instead of anything related to copyright infringement.  This meant that they had to prove Mr Ellis was trying to defraud his customers, when it was clear that he was offering a service, and his clientèle knew fully well what they were getting into.  No fraud then.

Why didn’t the prosecution try for copyright infringement offences?  For example, s107 CDPA establishes criminal offences for various copyright infringement acts made “in the course of business”.  As Mr Ellis was clearly profiting handsomely from his services, it could be argued strongly that he was infringing copyright for commercial gain.  Or can it?  The main problem with torrent sites is precisely that no infringing copies are kept on the servers, and that the trackers act simply as facilitators.  Using a real-world analogy, torrent sites are more akin to bar lounges where illicit goods change hands.  Nonetheless, s107 also covers secondary infringement offences, such as communicating infringing copies to the public, which one might think is precisely what a torrent site does.  However, the wording of UK copyright law is problematic in this respect, as it seems entirely drafted with physical copyright infringement in mind.  For example, s108 CDPA says:

“108.-(1) The court before which proceedings are brought against a person for an offence section 107 may, if satisfied that at the time of his arrest or charge-
(a) he had in his possession, custody or control in the course of a business an infringing copy of a copyright work, or
(b) he had in his possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that it had been or was to be used to make infringing copies,
order that the infringing copy or article be delivered up to the copyright owner or to such other person as the court may direct.”

This clearly assumes that criminal commercial infringement will take place through some physical medium, and seems to preclude facilitating online acts.  It seems then that prosecutors were not sure to obtain a conviction through copyright infringement.  OUT-Law makes a good point that the best way to proceed was to pursue OiNK for authorising copyright infringement, which is a civil offence for secondary infringement (see s24(2) CDPA).

Good news for OiNK may be bad news for the rest of us, as I am afraid that the music industry may use this verdict to push for stronger copyright protection in the upcoming Digital Economy Bill.  It is clear that some torrent sites operate at the very fringes of acceptable behaviour.  As some independent musicians have pointed out in an interesting Guardian blog article, torrent sites may be guilty of not doing enough to curb infringement.  If legislators are presented with an idea of a virtual Wild West where everything goes, we may be in for a rough awakening when the Bill eventually gets through Parliament.