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01 March 2010
In May 2004 Alan Ellis, a software engineer, set up the Oink website in his bedroom. By the time the website was shut down in October 2007, it had over 200,000 members and had facilitated the download of 21 million music files.
The website's function was to link members who wanted to share their music files with other members. Oink itself did not host music files; instead, members used torrent software to share music between themselves.
Oink was free to join, but required an invitation from an existing member. Members were asked to donate £5 to the site for each invitation that they sent. A police raid in October 2007 revealed that Ellis had almost £200,000 in his bank accounts.
A criminal case was brought under conspiracy to defraud contrary to common law, the prosecution alleging that Ellis was trying to defraud rights holders of their revenue. On January 15 2010 Teeside Crown Court found Ellis not guilty - a decision that highlights the shortcomings of the law in such cases.
Conspiracy to defraud is a common law offence. The offence is committed where two or more people conspire to defraud a victim, so that the victim is deprived of something which is his or hers, or to which he or she is entitled.
Ellis told the court that he had created Oink in order to better his computer skills and employability, and that he had no money-making motive - the donations that he received were used to pay rent on the server, with the eventual intent of purchasing a server of his own. The prosecution failed to convince the jury that Ellis intended to defraud copyright holders and he was unanimously cleared of the charge.
An alternative to the criminal proceedings brought against Ellis would have been a civil case, perhaps under Section 16(2) of the Copyright, Designs and Patents Act 1988 for infringement of copyright by authorization. In some respects it is surprising that this was not pursued, given the lower burden of proof required to prove liability compared with the 'beyond reasonable doubt' standard in criminal proceedings. An action under Section 16(2) would have made an interesting test case.
Section 16(2) provides that copyright is infringed by a person who authorizes another to perform an act restricted by copyright, such as copying a work. In CBS Songs Limited v Amstrad Consumer Electronics Plc  1 AC 1013 Amstrad was accused of authorizing the copying of music by customers who purchased their twin-cassette hi-fi systems, which could record from tape to tape and from radio to tape. The House of Lords held that although Amstrad granted its customers the power to copy in this manner, it did not grant or purport to grant the right to copy. Given that the sole function of the Oink website was to procure the sharing - and therefore the illegal copying - of music between members, would the court have made the leap to say that, pursuant to that function, Oink was purporting to grant its members the right to copy?
The case actually brought against Ellis raises questions about how to prosecute companies or individuals that are not directly infringing copyright material. A criminal action cannot be brought under the act against a person who is not copying or distributing illegal copies of copyrighted work but, by the nature of a website's function, is clearly facilitating illegal downloading. A total of 21 million music files were illegally downloaded by means of the website, yet there is no criminal copyright offence under which Ellis could be tried. The music industry wants this legislative hole to be addressed.
One of the recommendations of the Gower Report in 2006 was to match penalties under the act for online infringement to those for physical infringement. However, in light of the Oink Case it is clear that this recommendation, if implemented, would not have helped. The act does not capture activities such as the referral of internet users to infringing material. New copyright legislation is required if the government is serious about prosecuting websites such as Oink. Amending the act and creating a criminal offence of facilitating copyright infringement would make it easier to bring successful prosecutions. In Sweden, where the founders of the Pirate Bay website were tried and convicted, there is a criminal offence of contributory copyright infringement. The Pirate Bay, like Oink, did not host music files, but hosted links to torrents for the benefit of users. If the act were amended to include such an offence, it would capture those who facilitate illegal downloading even though they do not infringe copyright themselves. For the music industry, this must be a more appealing prospect than seeking a prosecution under offences such as conspiracy to defraud, which require proof of intent to defraud copyright holders on the part of a website operator.
The government has sought to address the difficulties faced by rights holders in trying to prevent illegal downloading. In 2009 it published its Digital Britain Report and subsequently put the Digital Economy Bill before Parliament. The report included the extreme recommendation of blocking end users' access to the Internet for repeated illegal downloading. Predictably, this was poorly received by internet service providers (ISPs) and the public; even recording artists who publicly oppose illegal downloading disagreed with the stance. To place the burden of policing piracy on the ISPs by requiring them to monitor customers' internet use for illegal downloading seems counterintuitive, as the websites and torrent networks which promote illegal sharing are the catalysts of the problem and the ISPs have no control over them. If the government is serious about reducing the online infringement of copyright, and in particular the use of websites such as Oink and torrent networks in general, an alternative would be to ban access to such sites from UK internet protocol addresses, rather than expecting ISPs to act as infringement police.
For further information on this topic please contact Andrew Hobson or Henry Priestley at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (email@example.com or firstname.lastname@example.org ).
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