Alex Stein from No5 Chambers London office, who successfully defended Alan Ellis at Teeside Crown Court, the first person in the UK to be prosecuted for illegal file-sharing, believes the new Digital Economy Bill is fundamentally flawed.
The Bill has already caused much heated debate since it began its journey through Parliament last November, as it is proposing a legal framework for tackling copyright infringement via education and technical measures, including powers to disconnect persistent pirates from Spring 2011. However, as Stein points out, limiting internet access for those alleged to be file-sharing is technically difficult to achieve and extremely costly – with estimates suggesting an additional £24 per year on household broadband bills. It is also far from clear how it can be fairly implemented.
Alex Stein also believes that the new proposals which promote the use of criminal sanctions, when civil remedies are available, are set to backfire on the music industry, alienating its customers and damaging the UK’s growing digital economy. This also supports the evidence presented in the landmark case of Alan Ellis, which showed there was good empirical data proving that file sharers spend more on purchasing legitimate media, than those who don’t.
During its three year period, Oink had become an extremely popular Bit Torrent site, a peer-to-peer file sharing protocol, used for distributing large amounts of data, and specifically in this case music. It had attracted over 600,000 members from 2004 – 2007 and is estimated to have facilitated over 21 million downloads, generating around £150,000 in donations. Bit Torrent sites do not host or stream copyright infringing material on their servers, but allow users of PC’s and even mobile phones to share files between themselves without the need to upload or download material from a specific site.
The International Federation of the Phonographic Industry (IFPI) monitored Oink for the entire period of the indictment, and at no point suggested that it should be shut down. In evidence John Kennedy, Head of the IFPI even agreed that some copyright holders used sites such as Oink to promote their music.
Throughout the indictment period Alan Ellis had complied with a large number of take down requests sent by copyright owners asking for specific torrents to be removed from his site. The evidence showed a level of co-operation between the industry and Oink that distinguished it from Piratebay, the high profile Swedish site whose owners were convicted following an IPFI prosecution in spring 2009.
As an essential element in conspiracy to defraud is dishonesty, Alex Stein is of the opinion that the jury came to the conclusion that the prosecution against Alan Ellis failed to prove that element of the case.
“The tax payer has therefore had to foot the bill for a criminal trial instead of the issue being litigated in the high court. Had the IFPI taken the sensible course suggested by Stanley-Burton LJ in Gillham (2009) EWCA Crim 2293 and litigated in the Chancery Division, a reasoned judgment indicating whether or not Bit Torrent sites breach copyright legislation would have been obtained and both parties would have had a right of appeal”, he concluded.
No5 Chambers’ Ian Bridge was instructed in another high profile copyright theft case during the same week. The Bristol Crown Court dismissed conspiracy to defraud and copyright allegations made in a private prosecution by FACT (the federation against copyright theft – a private limited company) against the managers of TV-Links was a successful website used by millions of people to hyperlink to films, TV shows and music videos hosted on other sites. generated revenue through advertising. It was shut down in October 2007, following a raid by Gloucester Trading Standards and FACT.
This was the first time a UK court has had to consider whether a linking site, which did not host video material, could benefit from the defence afforded by regulation 17 (mere conduit) of the Electronic Commerce (EC Directive) Regulations 2002 No. 2013.
The court awarded the corporate private prosecutor costs to be paid from the public purse, despite the private nature of the prosecution and the successful dismissal application.
The detailed judgment is still awaited. There is a possibility that the ruling will be subject to further legal challenge as the prosecution has indicated that they may seek a voluntary bill of indictment.
Alongside the jury decision in Oink, the TV-Links case is likely to increase the clamour from sections of the new
media industry for legislative reform.
Ian Bridge and Alex Stein are members of the No5 Chambers Regulatory Law Group.