Sunday, 24 January 2010

UK Oink P2P filesharing acquittal

In what's been widely reported as the first UK filesharing case, software engineer Alan Ellis, who ran the peer to peer music file-sharing site Oink (a BitTorrent tracker that enabled communication between other computers), was on 15 January 2010 unanimously acquitted by a Crown Court jury of the criminal charge of conspiracy to defraud - a common law offence.

There's a succinct summary of the verdict and legal position in the Financial Times. Some members of the Oink community who had been charged with copyright infringement offences had already pleaded guilty, previously.

What's puzzling is why they didn't try to get Ellis on some other basis like (as Technollama pointed out) "communicating" the copyright works to the public under section 107(2A) Copyright, Designs & Patents Act 1988, or - not as juicy as a criminal offence, granted, but more likely to give them a victory on liability - "authorising" others to infringe copyright under section 16(2) Copyright, Designs & Patents Act 1988, as Out-Law suggested.

Incidentally TorrentFreak said the charge was conspiracy to defraud the music industry, rather than to defraud the members of the site who made donations - possibly conspiracy to undermine the music industry's business model? Either way, full details of the exact charges laid would have been helpful to know.

There are some concerns, expressed e.g. in Technollama, that this acquittal will be used to try to help push through the disproportionate Digital Economy Bill - e.g. the FT article said "However, Friday’s acquittal indicates that it could still be difficult to pin down illegal downloading".

As may be obvious, I don't think that's right. The inexplicable failure in the Oink Ellis case to properly pursue the remedies available under existing law (under the sections mentioned above) is not a good reason to take away the right to a fair trial before an impartial court based on all the evidence whenever the person concerned is accused of copyright infringement.

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