OiNK Admin Explains Why He Thought The System Was Legal (original) (raw)

from the contributory-infringement dept

TorrentFreak is covering the ongoing trial of Alan Ellis, the admin of the popular (and now shut down) private torrent tracker OiNK. Back when it shut down, Trent Reznor outed himself as a regular user of OiNK, pointing out that it really filled a niche that the industry itself was not providing. As he noted:

“I’ll admit I had an account there and frequented it quite often. At the end of the day, what made OiNK a great place was that it was like the world’s greatest record store. Pretty much anything you could ever imagine, it was there, and it was there in the format you wanted. If OiNK cost anything, I would certainly have paid, but there isn’t the equivalent of that in the retail space right now. iTunes kind of feels like Sam Goody to me. I don’t feel cool when I go there. I’m tired of seeing John Mayer’s face pop up. I feel like I’m being hustled when I visit there, and I don’t think their product is that great. DRM, low bit rate, etc. Amazon has potential, but none of them get around the issue of pre-release leaks. And that’s what’s such a difficult puzzle at the moment. If your favorite band in the world has a leaked record out, do you listen to it or do you not listen to it? People on those boards, they’re grateful for the person that uploaded it — they’re the hero. They’re not stealing it because they’re going to make money off of it; they’re stealing it because they love the band. I’m not saying that I think OiNK is morally correct, but I do know that it existed because it filled a void of what people want.”

The problem, however, as more people looked at the issue was that it wasn’t clear what laws were actually broken. The UK apparently does not have a concept like contributory copyright infringement (and, yes, one of the things ACTA is trying to require is that all signees add that to their copyright laws), and since he operated just the tracker, Ellis didn’t copy any works on his own computer. He wasn’t storing anything and he didn’t transfer anything. So what did it do? After working through a variety of theories they came up with conspiracy to defraud the music industry, which sounds quite similar to felony interference of a business model.

Now that the trial is ongoing, Ellis is explaining that he didn’t believe that what he did in running OiNK directly was copyright infringement, even if users of OiNK may have infringed on copyright (he does admit to downloading works via OiNK, however — but that’s separate from his admin role, and he claims that he only used it to sample new musicians, and bought the albums of those he liked). Without a contributory copyright infringement rule, it is difficult to see how hosting the tracker alone could infringe — and if that’s the case, it’s not clear why the site was shut down. Hopefully the court recognizes this. However, we’re still trying to understand how this “conspiracy to defraud” concept works. As Reznor pointed out above, there was little effort to “defraud” anyone. It was very much about sharing and promoting artists to help them in the OiNK community. But, of course, the industry will never admit to the promotional value of sharing.