Tuesday, January 19, 2010

How did OiNK get away with it?

Andres has a succinct analysis of the issues in the OiNK torrent filesharing case.
"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 that Mr Ellis was trying to defraud its 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...
It seems then that prosecutors were not sure to obtain a guilty verdict 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)."

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