File-Sharing Network Operator Acquitted Of Fraud Charges

The operator of a file sharing network that was raided by police in 2007 on suspicion of enabling copyright-infringement has been acquitted by a jury. Alan Ellis ran OiNK and was found not guilty of conspiracy to defraud by a Middlesborough court.

Ellis's site, OiNK, was a torrent tracker, which meant that it helped users to distribute and download files from the internet.

The trial heard that he received £11,000 a month in donations from site users and that its 200,000 members downloaded 21 million music files between 2004 and 2007.

Ellis told Teeside Crown Court that his site, OiNK, was not infringing copyright or breaking the law. He said that if people used the site to share copyrighted material then that was their business, not his.

"I always held the belief that the site wasn’t doing anything wrong," he told the Court, according to Middlesbrough's Evening Gazette newspaper. “I wasn’t the one breaking the law. If these people chose to download music and in doing so were breaking the law, then that was their responsibility, not mine. I never saw that I was responsible for them downloading music.

“I saw what the site was doing to be similar to a site like Google. It’s just providing a search or a mechanism for other people to get together," he said. “It never occurred to me at all that it could be illegal, what I was doing."

Police charged five men with copyright offences in relation to activity on the site and charged Eillis with conspiracy to defraud.

Ellis was arrested in a raid that also involved the seizure of web servers in Amsterdam. Trade body the International Federation of Phonographic Industries (IFPI) had claimed that the site was making albums available before their official release. It said that it had made 60 pre-release albums available.

Intellectual property law expert Kim Walker of Pinsent Masons, the law firm behind OUT-LAW.COM, said that while police might have taken heart from success in Sweden against file sharing network the Pirate Bay, this case was likely to put police forces off taking similar action.

"They might have been emboldened by the Pirate Bay decision but this will dampen down their enthusiasm," he said. "Fraud is a very high test and juries are not that keen to find someone guilty of fraud. As I understand it the only way he was making money was donations, which isn't fraud as one would normally think of it."

Walker said that the authorities could have cleared up one area of copyright law had they approached the case differently.

"I am surprised that in addition they didn't charge him with authorising copyright infringement, which is a civil offence under the Copyright Act," he said. "It's possible that they thought they didn't have enough to make that case stick."

"It would have been good to have a case that told us what authorising copyright infringement means is in relation to peer to peer file-sharing," said Walker. "The only case we have involved Amstrad and was about tape to tape copiers."

In that case Amstrad was found not to breach the law because it had made it clear in all publicity and manuals that the tape to tape copier was only meant for legitimate copying.

"The nearest we've got in relation to file sharing is the Australian Kazaa decision, which was helpful because Australia has got an authorising copyright infringement provision similar to ours," said Walker. "There the Australian court found that Kazaa was guilty of authorising copyright infringement because it took no steps at all to minimse the likelihood of file sharing."