For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 12 September 2008

Tribunal jobs, police charge file-sharer

Fancy a new (part-time) job?

The Judicial Appointments Commission has announced that it will be starting selection exercises in October for a Fee Paid Deputy Chair for the Copyright Tribunal and an Appointed Person for the Trade Marks 'Tribunal'.

File-sharing supremo charged

The Guardian reports that
Alan Ellis, the founder and administrator of the 'Oink' file-sharing network has been charged with conspiracy to defraud by Cleveland (in the UK, not Ohio) Police. Four people who uploaded on to the site have been charged with copyright infringement. The site did not actually make the music available, but was instead a 'torrent tracker', which told users (who numbered 200,000) which other users had what material to download. The site was free, with revenue only coming from occasional donations.

Use Oink? Me? Never!

The IPKat is intrigued by the nature of the charge against Mr Ellis. Is this a tacit admission that secondary infringement wouldn't work here, or is there some difference in possible sentence that the IPKat isn't aware of? And who is the conspiracy between - the users of the site and Mr Ellis, or is it a bit more intimate?

2 comments:

cabalamat said...

How do they figure it's conspiracy to defraud? Fraud involves an element of dishonesty or lying, and running a BitTorrent tracker doesn't involve lying (unless you tell people that it isn't a BitTorrent tracker, I suppose).

So I'd be interested on which legal theory they base this.

Francis Davey said...

Ah, but there does not have to be a fraud for there to be a conspiracy to defraud. Here we are talking about the common-law offence of "conspiracy to defraud" which was preserved by s.5(2) of the Criminal Law Act 1977 rather than a statutory conspiracy to commit fraud.

Conspiracy to defraud is (from the point of view of a prosecutor) usefully protean in many respects. There does not have to be an intent to deceive (so no actual lying - or fraud as we would post Fraud Act understand it).

It is sufficient for there to be a "dishonest agreement to expose the proposed victim to some form of economic risk or disadvantage" (Blackstones' Criminal Practice).

The nearest example I can think of is the case of Cooke [1986] AC 909 where British Rail catering staff agreed to sell their own refreshments to customers while on duty (which of course defrauded BR of the profits it would otherwise have made). No untruth was told, but the action was no an honest one.

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