Just about a year ago, a court in the UK found OiNK's operator, Alan Ellis, not guilty of criminal charges for running the community. Even though plenty of people had pointed out from the very beginning that it was crazy to charge Ellis with criminal charges for actions by people in the community, prosecutors still went through with it. What was even more amazing is that they continued to try to do the same thing to others as well. In the summer of 2009, we wrote about how UK police arrested the operator of the FileSoup community based entirely on claims by the entertainment industry, which showed a near total lack of understanding of the basic technology at play. It turns out that law enforcement pushed forward with the case, despite the fact that they did no investigating on their own and simply accepted the industry's claims as fact, despite numerous errors. Thankfully, the courts recognized all of this and noted that these criminal charges probably never should have been brought and dropped the case against two of the admins of the site. At what point do law enforcement folks realize that the entertainment industry is a biased party and that you can't just accept everything they say as fact?

As you may recall, a few years back, UK authorities took down OiNK, a popular BitTorrent tracker site -- and only after taking down the site did they realize that OiNK's admin, Alan Ellis, didn't appear to have done anything illegal. After testing out a few legal theories, prosecutors finally tried "conspiracy to defraud" the music industry -- a crime that sounds suspiciously like felony interference of a business model. Of course, years later, Ellis was found not guilty, since he didn't actually break any laws.

So how much did this entertainment-industry driven mess cost UK taxpayers? Well, police refused to release that information for a while, claiming that it "could undermine any ongoing and future investigations and cause potential damage to the criminal justice process." Uh, right. About the only way it would do that is when people realized how much money was being wasted on bogus investigations. Eventually, however, it came out that the investigation itself cost about £29,000 -- including £7,800 on overtime (OiNK after dark?) and £4,300 on "travel and subsistence." Of course that doesn't even get into what the actual trial cost taxpayers, which I'm sure is many times greater than that. And, as plenty of people predicted at the time of the raid, none of it mattered, because others stepped in to replace OiNK in no time flat. Perhaps, next time, the police can spend a little more money to realize that they had no case. Or, maybe, not spend the money at all, and let the entertainment industry focus its efforts on actually adapting to a changing market place.

We were as surprised as anyone that a UK court correctly realized that OiNK itself didn't violate copyright law, and thus admin Alan Ellis hadn't done anything illegal. But rather than understand the difference between infringing copyrights and hosting a tracker, the recording industry is now flipping out and insisting that Ellis must be punished somehow, and it may file a civil suit against him because apparently punishing people is more important than actually coming up with business models that work.

We were just explaining why it appeared that Alan Ellis, the admin for OiNK had not actually violated any UK laws, and it looks like the jury agreed. Ellis has been found not guilty. I have to admit that I'm really surprised by this, but it is certainly a good thing. You shouldn't be found guilty of actions done by others, and if people were using OiNK to violate copyright law (as, certainly, some were) that shouldn't fall on Ellis. Separately, as has been noted previously, OiNK really highlighted where the recording industry itself failed to fill the demand that was there.

Of course, it will be interesting to see what comes next. My guess is that the entertainment industry will use this to support Mandelson's Digital Economy Bill as necessary, or to push for even more draconian copyright laws, such as adding in "contributory" copyright infringement into the law in some manner. This was a good ruling, but it may be used to push through bad laws in response.

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.

About a year ago, we noted that the IFPI had continued its totally counterproductive game of whack-a-mole and convinced UK authorities to shut down the popular private BitTorrent tracker site, OiNK. The site was quite popular -- and even Trent Reznor noted how useful it was and how it filled a void in the music space that the industry wasn't filling. However, with every whack of a mole, it was only a matter of days until plenty of alternatives sprung up.

Since then, though, there's been some question about additional fallout from the closure, as authorities were arresting certain folks who used the site. While, authorities kept postponing filing actual charges, there was talk that they were going to charge them with "conspiracy to defraud the music industry," which sounds a lot like "felony interference of a business model" -- the mocking term we use whenever companies seem to think it's illegal for others to compete in their industry. And, make no mistake about it, as Reznor pointed out, OiNK was about filling a niche for music lovers, as a place to discover and learn about new music.

Well, now the other shoe has dropped, and the administrator of the site has, indeed, been charged with conspiracy to defraud while two users of the site, each of whom only uploaded a single CD, were charged with criminal copyright infringement. For a single CD upload. This all seems a bit extreme. Once again, the government is basically making criminal charges over what is really a business model issue. OiNK filled a needed void in the music industry -- one that the industry itself could fill if it wanted to. But, because it refuses to do so, that's somehow conspiracy to defraud the industry and people may go to jail for it. At some point, years from now when people recognize the promotional value of free music, they're going to look back at the industry (and authorities') overreaction to these sorts of things and shake their heads in amazement.

Last fall, authorities in the UK shut down OiNK, a private file sharing community, complete with plenty of hyperbole over what was going on. In discussing how silly this was, we pointed out that it seemed like the only real charge here was "felony interference of a business model." We meant it as a joke (interfering with a business model isn't a crime -- it's called competition, normally). However, it looks like UK authorities are taking it seriously. They're going around arresting users of the site and charging them with "Conspiracy to Defraud the Music Industry." Most specifically, those who uploaded albums before they were released are being hauled off -- even though the UK doesn't treat pre-release infringement any differently than post-release infringement. Other countries do have such laws, and the entertainment industry has long pushed for "pre-release" leaks as being considered criminal, rather than civil, offenses. But without such a law in place, it does seem a bit extreme to claim that anyone uploading a pre-release album is guilty of "conspiracy to defraud the music industry." There was no conspiracy to defraud -- there was just people who want to listen to music and share it with others. No one seems to be able to explain how this is actually a criminal issue at all, rather than a civil issue. In the meantime, we're waiting to see if the police try to arrest Trent Reznor of Nine Inch Nails, who has proudly stated that he was an OiNK member who supported the site.