Cook and Burrows Bussin successful defended a 17-year-old alleged uploader to the now-defunct music tracker OiNK, and a 56-year-old administrator of the BitTorrent forum, FileSoup.

It was reported in the national media on Tuesday 10th May that Anne Muir, a 58 year old woman in Glasgow has pleaded guilty to criminal file-sharing offences, for which she will be sentenced later this month. Although not a party to that case, I believe that this is a stark reminder of where we are at.

It seems to me that the media consciousness has been diverted by the Digital Economy Act 2010, and all that it entails. The infringement notification procedure and “technical measures” suggested for alleged file-sharers and website blocking has understandably caused great concern. However, the elephant in the room remains s.107 of the Copyright, Designs and Patents Act 1988 (CDPA). This legislation is the source of the ability of the State to prosecute someone in a criminal court for a copyright offence.

It is still possible for a criminal prosecution under CDPA, despite the availability of the civil remedies of which the public are now more than aware. The Digital Economy Act 2010 not only leaves the criminal copyright provisions unchanged, but, in fact, ups the ante. As well as the Crown Court having the power to impose a 10 year custodial sentence and an unlimited fine, the Digital Economy Act now gives the Magistrates Court the power to impose a £50,000 fine. Be under no illusions – people can and will continue to be prosecuted in criminal courts for file-sharing offences.

Reports that the British Phonographic Industry and International Federation of the Phonographic Industry played a major role in the prosecution of Anne Muir are of great concern.

In the recent OiNK case, in which we successfully defended a boy accused of similar file-sharing allegations, the International Federation of the Phonographic Industry and British Phonographic Industry used their influence to gain entry to our client’s family home, gather evidence and dictate the direction of inquiries. Despite Government ministers categorically stating they do not want to see teenagers arrested in their bedrooms for file-sharing, such assurances are evidently hollow. That prosecution was not only incompetently handled, it was also never in the public interest and the CPS were forced to admit that in March 2010 when they discontinued their case in the face of the rigorous and aggressive defence that we had forwarded.

In February 2011, we had another case before the UK courts. Again, a rights-holder group was heavily involved in the prosecution. The FileSoup prosecution was aimed at the peer-to-peer distribution of films, so the Federation Against Copyright Theft was the relevant body. Again, we mounted a robust defence and, again, the CPS dropped the case, offering no evidence and allowing our client to be formally acquitted by the Crown Court Judge.

It is of concern that our clients in the OiNK and FileSoup cases were members of the public whose alleged criminality appeared extremely limited. In OiNK, it was alleged that our client had found the music on one publicly accessible music site and simply moved it onto a members-only site (OiNK). In FileSoup, the prosecution was initially focused on a film (X-Men Origins: Wolverine) for which they had already prosecuted the person responsible for the real criminality in this case – the original leaker. That film was then circulated on the internet for a considerable period of time and its distribution was widespread. FACT then took the decision to prosecute a non-profit making community forum of film buffs. This FileSoup prosecution was clearly not directed at the person responsible for any loss or to blame for any leaks.

The OiNK and FileSoup investigations were carried out almost entirely by the rights-holder groups, who then gave the police and CPS the evidence they sought to rely upon, in order to prosecute. However, the duty is on the police and the prosecuting authority to independently investigate alleged offences. It appears that they simply did not do so in those cases. The only people who had investigated were the rights-holder groups, who are not independent bodies. FACT, BPI and IFPI are funded by the media industries and it was they who controlled the OiNK and FileSoup investigations. Little or nothing independent was carried out by the police. The role of the rights-holder groups became effectively that of investigators, witnesses and experts in their own case.

These internet sites are evidently, in the view of the rights-holders, encouraging breaches of copyright. While there is no doubt that a copyright holder is entitled to the protection of the law, it is nevertheless fundamental that a prosecution is conducted impartially and independently. This was not our experience in the OiNK and FileSoup cases.

I only know about the case of Anne Muir from the media reports that have been published. However, I am willing to bet that the rights-holder groups have acted in a similar way in the prosecution of Muir.

It was our view that the rights-holder groups target the people with the least chance of resisting a prosecution of this nature; those having made no commercial gain and often with little funds to defend such a case. They have prosecuted the very people who spend significant amounts of their time and money in pursuing their interests in music and film. It certainly appears that rights-holder groups are avoiding taking on those with funds at their disposal, perhaps for fear of them exposing the manner in the way in which these groups go about such investigations. It was only through a methodical and painstaking consideration of the evidence that we were able to draw the attention of the Court to the investigative failures and flawed evidence in the OiNK and FileSoup cases.

It is reported that Anne Muir was not a leaker or a site administrator, but a simple file-sharer on the Direct Connect client. She therefore appears to be an unremarkable file-sharer – part of a class of people that must include the vast majority of UK citizens between the ages of 14 and 30. This legislation and series of cases seek to criminalise a large proportion of the youth of this country.

The inequality in real terms is substantial. FACT, BPI and IFPI wield enormous financial resources and clout. They clearly do lobby Parliament and pressure prosecutors to take cases on their behalf. FileSoup and OiNK operated as forums for people with an interest in films and music and were not commercial or profit making organisations. Anne Muir was not alleged to have made any money from her file-sharing activities.

FileSoup, OiNK and the prosecution of Muir were directed at people who are considered in the most vulnerable groups of society. Our OiNK client was a 17 year old boy. Our client in FileSoup was, due to illness, largely housebound in his flat in Scotland. Anne Muir is reported to have suffered mental health problems.

These are the people who the mighty US film and music industries choose to pursue.

The frustrating part is that it falls to the British tax payer to fund these prosecutions. The defence funding, also borne by the British tax payer, is based on a page count of disclosed material controlled by these rights-holders groups. In the OiNK and FileSoup cases, the funding we were able to receive was inadequate to cover the costs that we had incurred in defending the prosecutions. These are the conditions in which alleged file-sharers are supposed to defend against the limitless resources of the US media industries.

As news of Anne Muir’s conviction washes over an indifferent British public, the repercussions may eventually be felt as the rights-holder groups become more buoyant by their successes in Court and through their lobbying. With vast proportions of the UK public involved in file-sharing to some degree, who will be next?

David Cook is a solicitor from Burrows Bussin Solicitors in Manchester.

Source: Scottish File-Sharing Conviction Dismays OiNK and FileSoup Lawyer

“Operation Ark Royal”, as the investigation into OiNK was named, also resulted in the arrests of five users of the BitTorrent tracker.

Previously, four users pleaded guilty to uploading music torrents. The four were charged with copyright infringement and sentenced to fines and community service, rather than the custodial sentences the prosecution had been pushing for.

This week the last OiNK case came to an end, as the remaining uploader Matthew Wyatt saw his case dropped by the Crown Prosecution Service (CPS).

Unlike earlier press releases from the music industry alleged, Wyatt was not the original source of the music files he made available. The prosecution had further difficulties providing evidence and never actually proved that the files Wyatt linked to were actually copyrighted.

Wyatt’s lawyer David Cook said that the music industry pushed for a criminal instead of a civil case just to set an example, which failed miserably. The Prosecution Service was acting as a proxy for the music industry and in doing so it failed to come up with solid evidence.

“Government ministers have categorically stated they do not want to see teenagers arrested in their bedrooms for file-sharing. This case makes clear such assurances are hollow. This prosecution was not only incompetently handled, it has never been in the public interest and the CPS was forced to admit that,” Cook commented.

A week from now the UK Government is expected to rush the new anti-piracy bill through Parliament, in part thanks to an aggressive lobby from the same music industry groups that pushed OiNK over. Critics of the bill are planning to run ads to convince MPs not to accept it and have already raised over £10,000 in just three hours.

If anything, the outcome of the OiNK investigation which cost tax payers hundreds of thousands of pounds should motivate legislators to think twice before they accept the Bill.

Article from: TorrentFreak.

The jury at Teesside Crown Court took just a couple of hours to return a unanimous verdict of “Not Guilty” – Ellis walked away a free man.

Ellis kept a low profile as he left court, refusing to comment to waiting reporters. The recording industry, fronted by the BPI, didn’t hide their feelings.

“This is a hugely disappointing verdict which is out of line with decisions made in similar cases around the world,” the group said in a statement.

“The defendant made nearly £200,000 by exploiting other people’s work without permission. The case shows that artists and music companies need better protection.”

Behind the scenes, some observers felt that while this defeat for the music industry was welcome, there were still concerns that things wouldn’t end with Ellis’s acquittal. And they appear to have been right.

Speaking at a press conference to launch the annual Digital Music Report, IFPI spokesman John Kennedy said that the ‘not guilty’ verdict was not the end of the road. The recording industry would “find other ways” to punish Ellis, and is now seriously considering taking action against him through the civil courts.

Kennedy said there is a commitment by the industry to retrieve the money the users of OiNK donated to the site, and give it to the artists whose music was shared there.

He also attacked the decision to charge Ellis with fraud instead of copyright infringement, and criticized UK legislation for being out of date.

Ellis confirmed earlier that his acquittal did not mean that OiNK was set for a revival. “Absolutely not,” he said, while adding that he would just like to get on with his life now.

It seems that IFPI have other plans.

Article from: TorrentFreak, check out our new blog at FreakBits.

Peter Makepeace, prosecuting, naturally painted an extremely negative picture, labeling the Pink Palace as a place designed from the ground up as a personal money-making machine for Ellis.

“21 million downloads. 600,000-plus albums. £300,000. This was a cash cow, it was perfectly designed to profit him and it was as dishonest as the day is long,” said Makepeace.

It is common sense to come to the conclusion that Oink was dishonest, claimed the prosecution lawyer, adding that Ellis knows that it’s dishonest “to promote, encourage and facilitate criminal activity,” and accusing him of telling the jury “persistent, cunning, calculated lies.”

It would, of course, be dishonest to promote “criminal activity”, but Mr Makepeace should be very well aware that the activity engaged in by OiNK’s users is covered under civil law.

Switching momentarily from criticism to praise and then back again, Makepeace said that the OiNK website was a “wonderful machine” for sharing music but noted that while the site had a really good brand name, it was a brand synonymous with “ripping off music.”

University of London professor Birgitte Andersenok gave evidence earlier in the trial, stating that file-sharing didn’t hurt the music industry and led to more sales. Mr Makepeace trashed her evidence.

“It’s nonsense, it’s flannel, it’s verbiage, it’s garbage,” he told the Court.

For the defense, Alex Stein said that Ellis had never knowingly acted dishonestly and that in 2004 when OiNK was launched, it was a “brave new world” on the Internet.

“In many societies he’d be an innovator, a creator, a Richard Branson. His talent would be moulded, not crushed by some sort of media organization,” he said.

The media organization being referred to by Stein was the IFPI, who he said had never requested that OiNK be shut down, and had instead “sat and watched.”

Gazette Live reports that Stein went on to launch a scathing attack on the IFPI.

“They used this site. Their own members used this site to promote their own music and now they’re crushing him. Maybe he grew too big for them, maybe they’ve taken a different marketing approach. I don’t know. But it was decided that this site should be taken down.

“All of us here are being manipulated to some sort of marketing strategy by the IFPI. If anybody’s acting dishonestly it’s them,” he said.

At the end of the two week trial the jury returned a unanimous verdict (12 to 0). Alan Ellis is not guilty of Conspiracy to Defraud the music industry. He walked out of Teesside Crown Court a free man today, his name cleared.

The verdict cannot be appealed and Ellis can finally put the past behind him and move on.

Breaking story…

Article from: TorrentFreak, check out our new blog at FreakBits.

Yesterday Ellis stated that he had initially hosted the tracker in his bedroom while studying at Teesside University, and used the coding experience to develop his skills in order to bring future employment possibilities.

Today more details became available, which appear to show that Ellis believed that he operated his site within the law.

While it’s impossible to say what goes on inside another person’s head, when it comes to the law the average BitTorrent site admin or keen BitTorrent user will be mostly tuned into the requirements of copyright and violations of copyright law. In basic terms relating to this case, the unauthorized copying and/or distribution of copyright works, both illegal under UK copyright law.

BitTorrent trackers such as OiNK do not distribute, store or duplicate copyright works, so when Ellis said yesterday that he viewed what he did as similar to how the post office or telephone company operates, i.e directing other people’s data (illegal or not), he clearly believes that type of operation is permissible under copyright law. Indeed, unlike in other jurisdictions, there is no offense of ‘facilitation’ under UK copyright law.

“I didn’t think the site was abusing the copyrights,” he said, and in the above context he was right. But if OiNK wasn’t abusing copyrights, that responsibility must fall elsewhere – at the feet of the site’s members.

“If these people chose to download music and in doing so were breaking the law, then that was their responsibility, not mine,” Ellis told the Court. “I never saw that I was responsible for them downloading music.”

While Ellis can’t be held responsible for what others do on his site, he was candid when it came to admitting that he made use of some of the material indexed by the tracker. Ellis told the Court that he spent a lot of money buying music, but had used file-sharing as a mechanism to discover new artists.

“From my experience if I download music and I like it, I would go out and buy it. I understood most people to have that view,” he explained.

According to Gazette Live, Ellis also told the Court that he responded “out of good will” to takedown requests received from the infamous Web Sheriff anti-piracy company on behalf of rights holders.

So, if OiNK didn’t break copyright law by not transferring, copying or storing copyright works, and there is no offense of facilitation of the same under UK law, why was the site shut down and why is this trial taking place?

Maybe because the BPI and IFPI knew that copyright infringement charges wouldn’t stick, they instead guided the police down another route, that of Conspiracy to Defraud.

Ellis denies that charge and the case continues.

Article from: TorrentFreak, check out our new blog at FreakBits.

From the very beginning, the music industry has pictured the site’s founder as someone who charges users for access to the site, claiming that it was set up to make profits from infringing on the rights of the major record labels.

Its users were criminals who conspired to steal from the music industry for reasons other than the enjoyment of music, music industry groups claimed. “This was not a case of friends sharing music for pleasure,” Jeremy Banks of the IFPI said shortly after the site fell, insinuating that profits were made behind the scenes.

Last week the prosecution in the OiNK trial continued down the same path, pointing out that Ellis had gathered nearly $300,000 from voluntary donations over the years. They made it seem like Ellis was running a profitable business but failed to mention that a large chunk of this money was continuously invested back into the site and its running costs.

No proof was provided that Ellis used any of the donation money to enrich himself. He had the equivalent of $32,500 in several savings accounts at the time of his arrest. Ellis planned to use this money to buy servers for the tracker.

This week Ellis has the chance to start telling the Court his side of the story, and has been detailing how he initially hosted the tracker in his own bedroom when he was studying at Teesside University.

Ellis explained how OiNK began as a pet project with the sole purpose of improving his “outdated” UK honours degree in software engineering. “I didn’t have an intention, I was furthering my skills as a programmer, as a software engineer,” Ellis told Teesside Crown Court today.

Ellis, who was working on the backend of the site to make sure that everything kept running, was merely providing a platform for OiNK’s users to share whatever they wanted. He denied the charges of conspiracy to defraud the music industry.

The case continues.

Article from: TorrentFreak, check out our new blog at FreakBits.

The jurors were further warned by Judge Briggs not to Google for OiNK or do any other form of research on the Internet. This might be a good suggestion, as many of the mainstream press reports thus far have been littered with inaccuracies.

Even the BBC report the site was free to join, but in the very next sentence say it cost £5. In another article they report it cost $5.

“It would be most unfortunate if any of you did any private research on the internet relating to this matter. Please don’t,” said Briggs. “It’s only likely to cause difficulties and could in theory abort the trial. So, ladies and gentlemen, no independent research.”

Judge Briggs told the jurors that the defendant, OiNK admin Alan Ellis, is charged with an offence of conspiracy to defraud.

“Put very simply it is suggested he was involved in a website that was used to distribute sound recordings and things of that nature in breach of copyright,” he said.

Ellis denies the charge that he “conspired with others unknown” to defraud the music industry.

Today the trial continued and the jury was told by the prosecution that the OiNK tracker facilitated 21 million downloads. Ellis, who accepted donations from members, had gathered almost $300,000 (£190,000) in several PayPal accounts over the years, money that allegedly came from donations.

“Every penny was going to Mr Ellis,” said Peter Makepeace, prosecuting. “He hadn’t sung a note, he hadn’t played an instrument, he hadn’t produced anything. The money was not going to the people it rightly belonged to, it was going to Mr Ellis.”

The prosecution failed to mention that the money was used by Ellis to pay for the servers and hosting, which probably cost him several thousand dollars a month.

The court was further told how OiNK did not host or distribute any music itself, but instead indexed files shared by its users for others to download.

When responding to a description of how BitTorrent works, that leechers share what they download with other peers, thus speeding up downloads, Mr Makepeace commented: “That is the beauty of the Oink website. It never had to upload any music itself, all it did was provide the facility of linking one person to another who wanted that music.”

After his arrest, the prosecution said that Ellis told officers: “All I do is really like Google, to really provide a connection between people. None of the music is on my website.”

The case continues.

Article from: TorrentFreak, check out our new blog at FreakBits.

The private site tracked hundreds and thousands of torrents linking to the finest recordings from virtually every musical genre. With millions of peers, it was more popular than many public trackers.

The site was shut down in a joint effort by Dutch and British law enforcement in October 2007, based on intel provided by two music industry lobby organizations, the IFPI and the BPI. The police arrested Alan Ellis, the founder of the site, and months later several uploaders were arrested as well.

Four of the uploaders pleaded guilty at Teesside Crown Court in December 2008, where they were all charged with copyright infringement offenses. The four were later sentenced to community service and fines.

The trial of OiNK founder Alan Ellis was pushed back and started today at Middlesbrough Crown Court. Due to a press boycott of the previous court hearings, there was no information available on the reasons for the delay.

What we do know is that Ellis has been charged with conspiracy to defraud the music industry for his role in the OiNK tracker.

During the first day of his trial little has happened. The case has been adjourned until tomorrow when the jury will be assigned. There is still a reporting ban in place on three specific issues, but the trial can and will be reported on.

We will cover the rest of the trial, which is expected to end next week, in the coming days.

Update: Court documents list the remaining uploader as part of the trial, but new information received by TorrentFreak says that his case is due later this year.

Article from: TorrentFreak, check out our new blog at FreakBits.