Friday, January 15, 2010

Oink site owner cleared of conspiracy to defraud

Well I guess we didn't see that coming.

"A man who ran a music-sharing website with almost 200,000 members has been found not guilty of conspiracy to defraud at Teesside Crown Court.

Alan Ellis, 26, was the first person in the UK to be prosecuted for illegal file-sharing...

Oink facilitated the download of 21 million music files...During the trial, which lasted seven days, Teesside Crown Court heard that users were required to make a donation to be able to invite friends to join the site.e jury was also told that Mr Ellis received $18,000 (£11,000) a month in donations from people using his website."

Well this is interesting. Is this the UK's own homegrown Pirate Bay case only coming out in reverse, or is it merely a blip from a perverse jury probably stuffed full of students and ne'er do wells? We may not find out for some time..

Some very strange elements here. Users had to make "donations" - yet they, who were looking for free music, donated £11,000 a month? How good was this site? An earlier Beeb story tells us "The court heard that membership to Oink was free, but by invitation only, and anyone wishing to propose a friend had to make a five dollar payment." Er that's an entry fee NOT a donation..

Te money was alleged to be used to buy a new server. You can buy a decent server for about £1000 or less these days..not £11K per month. The site was designed not to "defraud" but to allow the owner to practice his skills to bcome employable, he claimed. Yet "the website was developed from a free template, which had a torrent file-sharing facility included in it". In other words, it came as a kit. Not terribly skill enhancing? And this unemployed worker wannabe had $300,000 in his bank account when the police raided. All this rather points to the perverse jury theory.

Why did the CPS go for conspiracy to defraud anyway? Why not as in Sweden, a criminal copyright offence, since given the "donations" and profits, surely there is as much evidence of commercial trading in copyright infringement as with any normal geezer selling CDs off the back of a van? Did they decide not to take that approach because it was a torrent site not a hosting site? That would be my guess (although of course the Pirate Bay was a torrent site too) - it would be great if someone out there knows more.

Not a good week for the music industry altogether, as BIS back peddles on clause 17 of the DEB as well! Perhaps the most interesting sociological point here is to wonder why the jury came in with such a strange verdict. Has the music industry dug their own grave by making their enforcement tactics so alienating that juries will turn their back on overwhelming evidence of guilt? Hubris, ate??

5 comments:

Ste said...

Oh how wrong you are.

Oink did _not_ require payment for membership. At all.

There is no commercial equivalent to Oink.. if there was, many would be happy to pay.

The verdict is a victory for common sense. Most small artists benefit from sites like this. It's only the huge record companies that miss out, and really, there's no need for them to exist in the modern world.

geeklawyer said...

FYI: a server setup for a site like this might well cost £30,000 with bandwidth costs of 500/month+. It's not like running a word press blog on a homeserver!

A kit? Possible doubtful: it's more like he got a core site that needed customising to be useful. That can take a lot of work. A lot. As anyone whose every run an ecommerce site from 'free' template will tell you.

I'd love to know what the charging discussions were. Was this them looking for a precedent? Did they feel Fraud was a safe bet or a high publicity/deterrence bet? Non fraud criminal charges have their own difficulties here that may have been at least as intractable as the fraud ones.

pangloss said...

Thanks Geek, I know servers vary!! It would be really good if a transcript of this case could emerge..

nickj said...

My guess is that the prosecution went completely over the top and the jury got sick of the high pitched whining noise.

IIRC the prosecution were saying he'd got loads of pirated stuff on his site etc etc. My understanding is that he didn't have any stuff on his site but he offered an effective means of finding it.

The money seems to be a complete red herring; anyone can set up a web site and charge for access to it.

The prosecution case, put in a sober fashion, makes sense: yer man was charging for access to a site which enabled it's members to swap copyrighted/pirated content. However he wasn't "stealing" it and then selling it himself, which was the gist of the pre publicity.

I was also surprised he got off given the propaganda before the trial. I was also surprised he managed to get a jury, I thought they'd been pretty much done away with now? There will certainly be more pressure for "expert" panels to decide cases so that "perverse" juries "stuffed full of students and ne'er do wells" don't make monkeys of their betters.

Just so you know, I am actually in favour of artists being paid for their work... This isn't the way to go about it though.

Rob said...

It's been said before, but the site did not charge or even require users to donate or pay money for anything. If users volunteered to pay anything there were given one or two invites to send to friends. These invites were given to users who adhered to the community's rules and values in the first instance, so were not that great an incentive to donate money. However, the limited media coverage of the site since the arrest and to the present day has repeatedly reported these inaccuracies as fact. The site also ran a modified version of a standard website template, which hosted a vibrant discussion community including musicians, both professional and amateur. The music industry has a lot to learn about harnessing these communities to their advantage, especially given that other similar services quickly grew to take OiNK's place