OiNK Admin Explains Why He Thought The System Was Legal

from the contributory-infringement dept

Thu, Jan 14th 2010 4:18am — Mike Masnick

TorrentFreak is covering the ongoing trial of Alan Ellis, the admin of the popular (and now shut down) private torrent tracker OiNK. Back when it shut down, Trent Reznor outed himself as a regular user of OiNK, pointing out that it really filled a niche that the industry itself was not providing. As he noted:

"I'll admit I had an account there and frequented it quite often. At the end of the day, what made OiNK a great place was that it was like the world's greatest record store. Pretty much anything you could ever imagine, it was there, and it was there in the format you wanted. If OiNK cost anything, I would certainly have paid, but there isn't the equivalent of that in the retail space right now. iTunes kind of feels like Sam Goody to me. I don't feel cool when I go there. I'm tired of seeing John Mayer's face pop up. I feel like I'm being hustled when I visit there, and I don't think their product is that great. DRM, low bit rate, etc. Amazon has potential, but none of them get around the issue of pre-release leaks. And that's what's such a difficult puzzle at the moment. If your favorite band in the world has a leaked record out, do you listen to it or do you not listen to it? People on those boards, they're grateful for the person that uploaded it -- they're the hero. They're not stealing it because they're going to make money off of it; they're stealing it because they love the band. I'm not saying that I think OiNK is morally correct, but I do know that it existed because it filled a void of what people want."

The problem, however, as more people looked at the issue was that it wasn't clear what laws were actually broken. The UK apparently does not have a concept like contributory copyright infringement (and, yes, one of the things ACTA is trying to require is that all signees add that to their copyright laws), and since he operated just the tracker, Ellis didn't copy any works on his own computer. He wasn't storing anything and he didn't transfer anything. So what did it do? After working through a variety of theories they came up with conspiracy to defraud the music industry, which sounds quite similar to felony interference of a business model.

Now that the trial is ongoing, Ellis is explaining that he didn't believe that what he did in running OiNK directly was copyright infringement, even if users of OiNK may have infringed on copyright (he does admit to downloading works via OiNK, however -- but that's separate from his admin role, and he claims that he only used it to sample new musicians, and bought the albums of those he liked). Without a contributory copyright infringement rule, it is difficult to see how hosting the tracker alone could infringe -- and if that's the case, it's not clear why the site was shut down. Hopefully the court recognizes this. However, we're still trying to understand how this "conspiracy to defraud" concept works. As Reznor pointed out above, there was little effort to "defraud" anyone. It was very much about sharing and promoting artists to help them in the OiNK community. But, of course, the industry will never admit to the promotional value of sharing.

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Filed Under: contributory infringement, copyright, oink, uk

17 Comments

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drewmerc (profile), 14 Jan 2010 @ 5:16am

i'd rather be done for copyright over fraud
as fraud = jailtime
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John Doe, 14 Jan 2010 @ 5:32am

I am so uncool
The more I read hear the more I realize how uncool and unhip I am. I have never heard of OiNK, I have never used Pirate Bay or any P2P file sharing site. I don't even know how torrents work.

I know this is off topic, but I felt the need to share this with the world. :)
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sexydiverguy (profile), 14 Jan 2010 @ 5:52am

OiNK
I had seen OiNK but figured it was some virus infected site...looks like the only viruses are the ones attacking Alan Ellis.

Interesting, as I was at one time interested in hosting a tracker.
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Stuartino, 14 Jan 2010 @ 6:06am

Defraud? hmmmmm....
Oink was free to use despite what is being reported. Donations were politely requested for running costs, but they were not mandatory. Nor did they ever put any pressure you users to donate. So if you are giving people a free service, as in not charging them, how then can he be charged with fraud, he wasn't selling anything.
Oxfam and all the big charities take their running costs out of the donations. Have they defrauded us too?

I hope that when the law works out who is behind the malware and scamware software that has been blighting peoples lives for the last few years, they take the same gung ho, kick the door down and invent new laws, approach in dealing with them.
I doubt it.

Finally any music artist that claims never to have recorded someone elses work as a child, or "borrowed" a riff from another artists tune is probably a liar.
Or worse still a pirate.

I hope someone on the jury likes music.
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Stuartino, 14 Jan 2010 @ 6:10am

Re: OiNK
Oink was the most virus free zone you can imagine. The site admins were notorious for removing things if they were not upto scratch. It was member only and if you got banned, then you stayed banned. A quality website, with good strictly applied rules & a good membership.
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Anonymous Coward, 14 Jan 2010 @ 7:04am

felony interference of a business model.
"felony interference of a business model."

I love this, If I set up shop, can I have my competitors arrested for "felony interference of a business model."
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Kilroy, 14 Jan 2010 @ 7:05am

Re: I am so uncool
I guess I'm with you ... but I still only digitize content from the CDs I purchase, and only for personal use. ... I figure I paid for it, I am entitled to it ... since they cannot tax me for the copy that is echoing around in my head, why shouldn't it be available to me on my MP3 player when I am out of the house running for 4 hours.
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RadialSkid, 14 Jan 2010 @ 7:27am

Yeah, me too.
"I'm tired of seeing John Mayer's face pop up."

I laughed out loud at this, I really did.
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Pitabred (profile), 14 Jan 2010 @ 8:11am

There was a time not so long ago when record companies used to have to pay to have their music played. They used to know the value of their music...
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Chris Cooke, Business Editor, CMU, 14 Jan 2010 @ 9:02am

There is infringement...
Although English copyright law does not recognise contributory infringement, it does recognise a thing called 'authorising infringement' which, in cases such as this, is basically the same thing.

The concept of authorising infringement isn't especially well developed with regards P2P file-sharing simply because none of the landmark file-sharing cases - so Napster, Grokster, Kazaa, Pirate Bay - have been in the UK jurisdiction.

However, the Kazaa case was heard in an Australian court - Australia's copyright laws are pretty similar to the UK's - and that was an 'authorising' rather than a 'contributory' infringement case.

Therefore, while none of the previous P2P cases would be binding on an English court, I think there would be a very good case for saying Ellis was guilty of authorising infringement.

I am assuming the prosecution have gone for fraud rather than infringement charges because doing so will result in a much more severe penalty - jail time rather than a nominal fine and maybe some community service. Obviously they want to send out a message: "Help others to infringe, we'll put you in jail".

The problem is - in my most humble of (un-legally-trained) opinions - the fraud case against Ellis is very weak, and fraud is quite hard to prove at the best of times.

That's why they've been obsessing about the donations thing - they need to show Ellis deliberately set out to defraud the record industry out of lots of cash. The main problem for the prosecution lawyers is, as far as I can see, he didn't do that.

Personally I'd have pushed for authorising infringement charges - clarify once and for all that providing the platform for others to infringe is in itself infringement. The penalties for the crime would be nominal, but then the record industry - if they so wished - could sue him for the $300,000 which is apparently sitting in his bank account.

Anyway, I'm waffling - I can and regularly do bore for Britain on this very topic.

You can read it all in the CMU Daily. We cover fun stuff too though. Like the fact the record companies' allegedly dodgy dealings in the early days of digital music might as yet come out in court. And that American metaller Dave Collins literally shot himself in the foot this week. See you at http://www.theCMUwebsite.com, and I'll stop blatantly plugging.
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Matt (profile), 14 Jan 2010 @ 11:21am

Re:
In the US, so does intentional copyright infringement.
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Fentex, 14 Jan 2010 @ 3:41pm

I'm not saying that I think OiNK is morally correct, but I do know that it existed because it filled a void of what people want.
This annoys the hell out of me. I think it's cowardice. After extolling the virtues of the service, speaking plainly about why it is good and desireable at the end refusing to say it is simply good seems to me like quailing before the threat of authority and not having the courage to take a stand. If you think it's right that the service exists and it's wrong for authority and priviledge to destroy it have the balls to say it was a good thing. I recently read a blog entry by a well respected figure who wroks for political parties in my home country, who is also heavily involved in Internet issues who posted a list of responses to moral questions and in commenting mentioned he thought downloading media was immoral. Yet I know him to enjoy watching downloaded media. The public admonishing of living in the online eco-system as immoral, while happily walking in it and eating of it's fruits is a rusting pious hypocrisy that flakes trust and good governance into dust.
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Fentex, 14 Jan 2010 @ 3:52pm

D'oh
(Didn't think hard enough about HTML formatting there, here's my comments better formatted...)

This annoys the hell out of me. I think it's cowardice. After extolling the virtues of the service, speaking plainly about why it is good and desireable at the end refusing to say it is simply good seems to me like quailing before the threat of authority and not having the courage to take a stand.

If you think it's right that the service exists and it's wrong for authority and priviledge to destroy it have the balls to say it was a good thing.

I recently read a blog entry by a well respected figure who wroks for political parties in my home country, who is also heavily involved in Internet issues who posted a list of responses to moral questions and in commenting mentioned he thought downloading media was immoral.

Yet I know him to enjoy watching downloaded media.

The public admonishing of living in the online eco-system as immoral, while happily walking in it and eating of it's fruits is a rusting pious hypocrisy that flakes trust and good governance into dust.
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James, 15 Jan 2010 @ 1:44am

Sad Day
Personally I think it would be a sad day if Alan is found guilty, though I fear it may be a foregone conclusion - classic case of big player going for a soft target presumably to send out a message or create a precedent case.

I'm no lawyer but if I was his defence I'd probably be looking at his system for removing content when copyright infringements were reported. If this was prompt/efficient then surely that's a mechanism for the protection of copyright within what is otherwise a very grey area?

And how is it different to copyright infringements on Youtube - this relies on the copyright holder to take action and complain - probably less prevalent now but rife back in the oink prime days.

And what about google who actually promote torrents and illegal sites by displaying them in search results? Alan might have taken donations, but this is a huuuuge cash cow for them I would have thought...surely making advertising profit from ads on the searches that "illegal" sharing creates could be construed facilitating access to copyrighted material?
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Paul Bainbridge, 15 Jan 2010 @ 7:42am

Re: Sad Day
quick update. He has been found not guilty. http://news.bbc.co.uk/1/hi/england/tees/8461879.stm
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Jollygreengiant (profile), 15 Jan 2010 @ 8:17am

Not guilty verdict returned.
He's been found not guilty...

http://www.theregister.co.uk/2010/01/15/oink_verdict/
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Anttix, 15 Jan 2010 @ 9:45am

Authorising infringement
Well he's been found not guitly of fraud, but what of the 'authorising infringement' angle? I wonder if anyone had thought how it would apply to a CD reader? Or a DVD writer? Or a hard drive for that matter? There are many means around to make copying of copyrighted material significantly easier. I suggest that being able to rip the cd's to a near identical digital file on one's hard drive has been far more key than one private bittorent tracker. So taking this logic further could we soon perhaps see Sony in court, sueing themselves for copyright infringement?
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