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A Brief History of the Oink Trial Pt1

January 15, 2010 Leave a comment

So the oink trial is over, and Alan won.

In a larger sense, many of us won. The Oink raid and trial was, at it’s essence, a show-trial, every bit a spectacle trial (or ‘spectrial’) as last years Pirate Bay one – if not moreso. After all, the Swedish Police didn’t do the raid accompanied by TV cameras – in fact they covered up cameras – but otherwise it was similar.

So let’s go through the case. It started with a raid, covered by the BBC in a regional news program that covered the talking points of the victim (the IFPI/BPI) and the police. Worse, the police, in the form of Detective Inspector Colin Green, made definitive statements that were at odds with the facts.

“There’s approximately 180,000 members, who pay subscriptions to enter the website and download any music that’s available. And music that’s been made available on that website, it’s pre-release, it hasn’t gone into the record shops”

As we all know, subscriptions were not required. Nor was music downloaded from the site. As for the pre-release claims, a small percentage may have been, but the better question is where it came from, presumably a music industry person that decided to upload, and not acquired by Mr Ellis himself.

The ominous warning put on Oink.cd

The domain was also hijacked, by the IFPI and BPI, displaying their logos and an intimidating message. Interestingly, the representatives of the alleged victims, the IFPI and BPI, were not only participating in a criminal investigation, but headlining it. A definite conflict of interest at the very least, but the hijacking of private property owned by the defendant, by the accuser, to post intimidation and attempt to influence people, is clearly an attempt to prejudice the trial. 3 days later, thankfully, the website was redirected, but it shows the levels of influence these industry bodies have over the police.

Meanwhile, Alan Ellis, was released, and spent the next 11 months on bail before being finally charged with “Conspiracy to defraud the music industry”. The UK lobby group FACT has a description of the offence which actually pretty much gave the case as a win for Ellis (and archive.org says the page is still the same as in May 06). The specimen charge they give reads

On a day between the … Day of… 19.. And the … Day of… 19.. In the county of… And elsewhere, conspired with … And with persons unknown to defraud the copyright owners of various video films by marketing/distributing/manufacturing infringing copies of video films contrary to the common law

No-one was defrauded of films, they still had them. The only way the charge could work, is if the claim is that the copyright owners had been deprived of money they might have got. Great, except that argument can be made by anyone you’re in competition with. Oh, and copyright, not a property – it’s an assignable right.

Next time – the build up, the users, and the pre-trial playabout.
Categories: Analysis, Copyright, Piratey Stuff Tags: ,

Oink and the Technicolour Lie-coat

January 5, 2010 19 comments

One of the core philosophies of reporting is that you only print what you’re sure of. If you don’t know, don’t say. That way Libel lies.

Someone really should tell the Northern Echo (Update; see comments, it’s written by the Press Association) that. Today, they ran a piece about the restarting of Alan Ellis’ trial. Alan, if you didn’t know, was associated with oink, the music bittorrent tracker. If you know about bittorrent, and the case in particular, it’s a real head-slap moment. The majority of the piece appears to have been copied from the RIAA/BPI filings made to police, and 30 seconds research (even to past news stories covering this case) would prove the lie.

Let’s look at some of the errors

A man suspected of operating one of the world’s biggest pirate music websites from a bedsit had his trial adjourned today.

I’m pretty sure the site was operating from a Hosting company. Despite claims made by ISPs, their residential connections aren’t all that fast.

“Computer equipment and documents were seized from his home in Middlesbrough in 2007 and he was charged by police with conspiracy to defraud the music industry and copyright infringement.”

Actually, things seem cut and dried, but it’s not quiet accurate (again). The raids and seizures were made in October 2007 (and ‘coincidentally’ with a BBC camera unit in tow) but Mr Elis was not charged until 11 months later. With Conspiracy to Defraud the Music Industry – a charge unheard of before (possibly because it doesn’t actually exist?)

“Police and music industry investigators suggested that he could have made hundreds of thousands of pounds a year from the OiNK website, which he set up in 2004.

“Could have”, yes. Did do, no. Over the same time period he *could* also have murdered 300 people, or run for the House of Commons. It’s actually music investigators (the plaintiffs) making that accusation first – that’s one of the things that triggered the raid.

“He is the first person in the UK ever to be charged with illegal file-sharing. “

Oh, not even close. We could cover Barwiska (although that’s a civil case). The uploaders to oink that police arrested as a result of this raid, who were sentenced a year ago would also probably dispute that.

The OiNK website was a complex computer programme created to help share music and audio files amongst a community of online users.

The oink website was a fairly simple website which accessed a tracker database backend. It’s no more complex than Amazon, or any other database-driven site, and is certainly not a computer program, complex or otherwise.

Members of the community would seed the system by uploading music files or leech from it by downloading music files.

Sorry, They would seed torrents, which are independent of the tracker or ‘system’. Likewise, they would leech from torrents, using bandwidth from other users, not doing anything with the ‘system’ directly.

To do so they had to register their email address and a unique user name, and make donations by debit or credit card to ensure full access and maximum usage of the site.

Yes, yes, and no. Donations were not required – this is back to the ‘hundreds of thousands of pounds’ argument above. Telling the lie that you HAD to send money, means there’s a minimum financial value associated with each user, which can be counted, which then leads to the money claims above. Since there was no requirement to pay to use the site, the rest of the argument falls down badly.

The technology used – a method known as BitTorrent file-sharing – had three main advantages: It broke files down into small pieces of data, which made that data more easy to share, giving a higher quality download in a shorter time.

First, that seems like only one advantage to me, and a nonsensical one at that. Higher quality means bigger file, regardless of protocol used to share, which means LONGER time not shorter. What I think they mean to say was “it breaks files down into smaller chunks of data (just like all data transfers do) which can then be distributed with a far greater efficiency than using any other protocol”

The beauty of the system was that each time a person leeched – or downloaded – an album from the internet, they became a seeder from whom other OiNK users could download the same album.

True, but only as long as the specific torrent in question was not only still in the persons client, but actively running as well, not permanently, as is suggested.

Early online file-sharing systems were so slow it could be more expensive to download an album than to buy it in a shop.

I would really LOVE to know how they came up with this statement. I suppose if you were on dialup, calling a non-local Point of Presence that was not free, you could maybe rack up some charges (7.9p/minute at current BT national call rates). Dialup (when I had it with blueyonder in 99-2002) would do approx 1MB every 5 minutes, and a 3 minute song is about 3MB. 15 minutes per track comes to 118.5p. In that way, yes it’s more expensive than 99c from itunes, BUT, it’s less than the cost of going to HMV or Virgin, and buying a single for 10 songs, its £11.80 – which is less than I seem to recall albums costing now, or then (and we’re not factoring in travelling costs), so another false claim.

But advances in technology meant OiNK users could download very high quality music files, very quickly.

Oink users, iTunes users, BBC iPlayer users- that’s not something specific to Oink. The technological advances are in broadband rollout and speed, bcause if you’re still on dialup, bittorrent won’t be any faster – would almost certainly be SLOWER in fact.

Ellis’ trial at Middlesbrough Crown Court was adjourned until tomorrow, for legal arguments.

Wow, they managed it! They managed an entire sentence that was wholly accurate.

You want to know what’s quite fun about this piece though? Since it’s a newspaper, distribbuted in the area of the trial, and which contains a severely slanted perspective on the case, including a lot of factual errors, it could be considered prejudicial to the case, and cause a mistrial. Nor is it the first time such action has happened in this case. Immediately after the raid the domain was hijacked by the music industry, long before charges were made, let alone a day in court.

Fun eh? I’ve sent a link to this to the News Editor of The Northern Echo, I wonder what his response will be.

UPDATE:i’ve just been informed that the Mirror is also running the exact same story Wonder what their editor thinks of it.

UPDATE 2: Just has word from Alan “didn’t even get my job right.” – nuff said really.

P2P Hurts UK Music Sales?

December 4, 2009 10 comments

… or so we’re told.

There is a belief, that music sales are being harmed by the internet. MP3’s and peer-to-peer (p2p) networks have made swapping music easy, ever since Napster burst onto the scene in 1999. There is even a section on the BPI’s website that deals with it (strangely titled “File-sharing FAQ’s

Why is it a problem; does filesharing damage music sales?
Aside from the fact that filesharing infringes and undermines the rights of the creators and investors in music, it’s enormously damaging to music sales.

Is is true though?

Well, according to figures from the UK music industry themselves, the answer is No.

I have already published this info once, in my recent consultation response submitted to the UK government. What I didn’t do, however, was show what those figures look like. After all an arcane group of numbers might look like anything, what’s needed are some illustrations.

Without further ado, let’s get to the data then.

The data is provided from two sources. The data comes from the Official UK Charts company information pack, And the BPI “Top market lines” publication. Also, as the BPI notes, digital album data was only collected from Q2 2006 onwards, so prior to that, any sales were unrecorded.

Lets’s start with Albums. First, the raw figures (figures are in millions of units)


And likewise the singles figures (again, figures are in millions of units)


This might look like boring data, so lets add the graphs.
Album sales look like this

While singles sales look like this

Doesn’t look all that damaging to sales to me.

One last test though, let’s look at all those sales numbers combined, see just how much the sales have been ‘hurt’ over the last 10 years by P2P.

Anyone want to point me to where the sales are damaged?

3 Strikes for Corruption?

November 22, 2009 1 comment

Lord Mandelson’s Digital Economy Bill has in it the proposal to terminate the internet connections of people repeatedly accused of copyright infringement. It’s claims that because this is such a big loss maker, and so time consuming and costly to enforce, justice should be circumvented and punishment be made to deter the actions from being committed.

There is, however, a bigger crime out there, that is harder to prove, and more costly to the country as a whole. It’s name? CORRUPTION

It not just causes a huge loss in financial terms, with public funds being misappropriated into uses not benefiting the country as best it could. It also substantially undermines the whole political process, removing faith in the democratic process, and in the validity of the government. It is even, unlike copyright infringement, a criminal offense, so the general acceptability of corruption is zero.

Thus a 3-strikes procedure for corruption of a public official should be even higher on the agenda.

Unfortunately for Baron Mandelson, he’s already got two past allegations of corruption on his record.

  1. In 1996 there was an incident with Geoffrey Robinson over a £373,000 interest free loan.
  2. In 2001 there was an incident with Srichand Hinduja

On both occasions he resigned his government position.

There have been further hints of corruption, such as

  • In 2004, he spent December 31st on the yacht of Microsoft co-founder Paul Allen, while he was a EU Commissioner for Trade, and Microsoft was being investigated for antitrust violations (antitrust being a substantial trade concern)
  • In 2008 it was alleged that he had maintained contact with a Russian businessman, Oleg Deripaska, and had, during his time as EU Trade Commissioner twice cut traffics that benefited Oleg’s RusAl aluminium company, as well as swift entry visa’s being arranged by one of Deripaska’s senior employees when Mandelson wanted to visit.
  • Finally, this past summer, he reportedly showed no interest in the Digital Britain report, until after a holiday in Corfu, including meeting with Dreamworks co-founder David Geffin. On returning from this holiday, he then modified an already open consultation in order to speed the timeline up. Another action that has the appearance of corruption.

There are, then, 5 instances of corruption alleged. Were these simple copyright infringements, that would be suitable for strong sanctions to be automatically taken. However, since these are allegations of the serious crime of corruption, rather than the completely unproven damage alleged of copyright infringement.

With 5 ‘strikes’ against him, he would be eligible for the appropriate counterpoint to termination of internet services – termination of liberty. Prison, in other words.

It won’t happen though, because it strikes right at the heart of politicians; because corruption is a serious problem and copyright infringement is only a serious problem for those afraid of losing control; because too many government officials would end up in prison; and because current government officials, above all else, do not want to have to be honest, truthful, or accountable.

The Times Backs Me Up

November 16, 2009 Leave a comment

Wow, mainstream media, or more specifically The Times, did you happen to read my consultation response to the UK Government? I did point out in it how much of an increase in sales there has been since P2P came about (pages 10 and 11), with a roughly 25% gain in both album and singles sales in 2008 compared with 1997.

However, the Times went further, in looking at how the revenue from sales is broken down between artists and labels, and included live gigs. The Times quite rightly labeled the graph as one they don’t want you to see, and you can understand why. Their own figures show that the claims made by the industry, about how artists are losing out, is patently false. My data which was, like The Times’, taken from the BPI, and other industry bodies, shows the lie of their ‘diminishing sales’ claims, like this one:

Why is it a problem; does filesharing damage music sales?

Aside from the fact that filesharing infringes and undermines the rights of the creators and investors in music, it’s enormously damaging to music sales. If record companies are unable to derive income from music sales, that means less money to invest in new music. This is not only bad news for record companies but also for musicians who rely on that investment and for consumers, who want to keep on listening to exciting new British music.

The ‘non-confidential’ responses (and I won’t even go into the whole confidential responses business right now) will be published sometime in ‘A matter of mere days…‘ according to BIS’ Mike Klym. Presumably, that would be the same time as the law goes to Parliament. They’ve had all the responses for at least 7 weeks, and they can’t give us a day or two to review them ourselves, to point out inaccuracies. Inaccuracies such as the bald-faced lies made by Audible Magic in their Digital Britain submission last year, as my long-time friend Ben has just pointed out.

It would be very embarrassing for the Government, and Lord Mandelson, if the bill he puts forward, ends up being based on false information, wouldn’t it. It would be better all round if the submissions were published as soon as possible, in the name of fair, transparent, and honest government. And if you can say that, thinking of the current Labour Government, and keep a straight face, you’re a better man than I.

Categories: Copyright, politics Tags: , , , ,

ACTA Must be Public!

November 3, 2009 4 comments

Many of you will have heard about ACTA. For those that haven’t, ACTA (or in long form the “Anti-Counterfeiting Trade Agreement”) is an agreement between countries that purports to reduce counterfeiting to benefit the consumer. What it actually will do, we don’t know. See, the treaty hasn’t been made public. In two years of negotiations, it’s been kept quiet. There was a leak in mid-2008, which made it to wikileaks, but apart from that, very little. Recently a number of companies, including one or two consumer based groups (the majority being movie, record and software companies – see the full list here) saw the ACTA agreements. Viewing the agreement only happened after non-disclosure agreements (NDAs) were signed, as apparently a treaty about copyright infringement is a national security issue, by Executive Order.

It’s not a National Security Issue, but a Job Security issue.

It’s fear of the outrage that public knowledge of the treaty would create. It’s fear that once the scope of the corruption these public officials, including President Obama, is known, they will be unelectable for life, and have to actually work for a living, losing all the power and prestige they have.

Knowledge Ecology International is one group not standing for it though. They found out the names of those who have viewed the documents, and it’s not a particularly voter-friendly list. There is now a petition circulating concerning the transparency aspect of this document, asking President Obama to make it open, and show there are no shenanigans, no illegal or unconstitutional activities being proposed and no false arguments and bad evidence being used to subvert rule of law, to bolster the coffers of another industry that is in a (self proclaimed) bad way.

While the physical copy of the petition was sent today, you can still sign the on-line version, and I would strongly urge people to do so. It’s your freedoms being bought and sold by your own politicians. Remember, they work for you, not for lobbyists.

Categories: Copyright, Piratey Stuff, politics Tags: , ,

Ben Bradshaw’s Number10 “FACT”s

October 21, 2009 Leave a comment

Two weeks ago, Culture Secretary Ben Bradshaw took part in a webchat on number10.gov.uk

Put simply, it was a farce. The questions were so soft you could use them to swaddle babies. The one strong, serious question posed, got a response filled with unproven claims and appeals to emotion. Not a single hard fact.

David Roberts:
If I wanted to share my record, film collection with a group of like minded people for a non profit motive. What is the problem ? So now you have to regulate what people can and can not let others share because Mandelson has been on holiday with some Media Execs. Please set your time machine for the 21st Century as you obviously in the wrong century.

Ben replies:
David, maybe if you’d written or produced the song or made the film and were unable to create any value as a result of your efforts you might feel differently about it. British musicians lost £180million last year because of illegal file sharing. You are right that the industries need to find new and novel ways of charging for on-line content, but we can’t go on doing nothing to defend our creative individuals and businesses that make such an important contribution to our culture and economy.

Ben makes several errors here. First, there’s no proof, or even basic evidence that British musicians lost £180, let alone £180million. The figure comes from the IFPI’s 2009 Digital Music report. You know the IFPI, that wonderfully unbiased source of data on the music industry, that wouldn’t stoop to ENRON-esque accounting procedures to make it’s member companies look even better. The one claiming losses and poverty despite sales being UP (the same claims they made 20 years earlier about home taping, that strangely didn’t come true.

If I open a business, and make a forecast of sales of say £10,000 for the first year, and instead make only £5,000, have I lost £5,000? Has it been stolen? No, I made an incorrect prediction, which didn’t match with reality. That is the basis of these loss figures – it’s derived by subtracting what they actually made, from what they think they should make.

Secondly, that they ‘make such an important contribution to our culture and economy.’. The big 4 music companies comprise roughly 70-80% of the market (depending on where you get your stats). Only one of those 4 is British, the smallest, EMI. Nielson has their 2005 share at 9.55%, while the IFPI gives it at 13.4%. Even assuming all the independent labels were UK based (18.13% Nielson, 28.4% IFPI) thats only 26.7% (nielson) or 41.8% (IFPI) of the economy these companies have enriched the UK with, staying in the UK. Economy is like a wheel – It may only have a limited circumference (just as there’s a limited amount of money) but the more it goes around, the further it goes. Taking money out of the economy, sending it to foreign countries, doesn’t really help. Also, is culture contributed to, when it’s under such draconian, long term restrictions? Maybe the esteemed culture secretary should ask Edwyn Collins his opinion.

This leads on to the third point. Usually artists CAN’T ‘create any value’, because they have to sign those over to the middleman companies. That was the ‘traditional’ way. Even now, most bricks+mortar stores won’t deal with anyone not with a label, with any creator that’s attempting to create any value themselves.

Perhaps Mr Bradshaw would do better at his job, if he actually sought out the facts, rather than relying on industry lobbyists to provide him with FACTs. When the various industry groups can’t even get close on figures for the same thing, some serious doubts should be raised about the quality of ALL of their data.

Clueless MP in Charge of Filesharing Crackdown

October 1, 2009 1 comment

The MP apparantly in charge of UK government’s policy on p2p, hasn’t got a clue what he’s talking about. In today’s Birmingham Post, Siôn Simon, the Parliamentary Under-Secretary of State for Creative Industries at the Department for Culture, Media and Sport, is quoted as saying the following at the Labour Party conference in Brighton.

The lesson of iTunes and Spotify is that what people want is ease of use and convenience and cheapness. And you only have to look at the decrease there has been in filesharing since the increase in popularity of Spotify.

“You only have to look at the number of people who came off illegal filesharing when iTunes came out to know that filesharing isn’t the answer, it’s not the future, it’s not valuable of itself – it’s a technology that currently is being used to circumvent the law.

“There isn’t an inherent tension between the digital future and a belief in intellectual property. The two can and will coexist. We’ll find business models for people to monetise things like music and video and video games online in a more sophisticated way than they’ve currently done

Sorry Mr Simon, there was no reduction in copyright infringement after Spotify, or iTunes came out. The rate of increase wasn’t as great, but there was no decline. Whoever has told you there was, was telling you lies, and it might be a good idea to ignore them in future. I do agree with you on one aspect though – it’s perfectly plausible for new companies to build new business models to deal with the progress of technology, in fact it’s essential! The truth is, though, there is no evidence that P2P has harmed sales. There is strong evidence (including data published by the very people claiming losses) that it has helped INCREASE sales, certainly sales figures have shown rapid growth in recent years.

There’s also the problem of all those pesky ‘independent studies’. The ones where the people funding, and conducting the study are not involved in the debate.  The vast majority of them find that P2P and filesharing increases sales. The only studies that show it causes a loss are the ones conducted by, or on behalf of, the groups claiming a loss.

Your claim that ‘the technology itself isn’t very useful’ is also staggeringly ignorant. The BBC uses the technology, CNN, countless software companies, bands, independent filmmakers, protesters, and millions of ordinary people around the world use it and find it incredibly useful. I’ll also bet you use P2P a lot, and find it useful. FTPs are a form of P2P, and without that how would any website have new content uploaded? When the Digital Britain report was released, the server hosting it was heavily overloaded, so I helped create a torrent of it, which took a few thousand users of load off the BIS servers, enabling them to serve more people. Is that not ‘useful’?  I’ll tell you this as well, EVERY technology can be used to circumvent the law.

The simple fact is this, Mr Simon, go get the data. Get sales figures, get the raw data behind the studies that claim losses (and better yet, make it public, so we can independently assess the quality of the data and conclusions) and make policy based on it all. Don’t cherry-pick claims from an industry that doesn’t want to change, and wants to stifle competition. Don’t make policy based on the claims of a few industry bigwigs, without questioning the validity of their claims. Acting in that manner will have you called names; names like ‘corrupt’, unethical, and bribe-able. It also shows you not acting for the interests of your constituents, but for the interests of a few large corporations, wishing to keep their stranglehold on an industry.

Walk outside the clutches of lobbyists, and do some basic research. The facts are out there, if you have the integrity to look. I’ll leave you with this comment by Billy Bragg in The Guardian yesterday (thanks for the heads up, Gareth):

…the recording industry will continue to ask legislators for ever tighter sanctions, leading ultimately to an internet controlled by and for big business, which can only be accessed by those willing to pay.

The loss to the creative community would be catastrophic. The internet has made it possible for individual artists to make, distribute and promote their own works with the active support of P2P networks. For new artists to flourish, it is vital that the internet remain free to all.

Like all extortionists,  the Rights-owning industries know that once you’ve paid them off once (with legislation) you’re on the hook to them forever.  Accept one set of fantasy figures and you’ll have to carry on, or else. The only way to avoid it, is to stand up now, for honesty, and demand the raw data. To do anything less would mean the real criminal, is you, Mr Simon.

UK P2P Consultation Response

September 30, 2009 6 comments

The UK P2P consultation closed yesterday. I submitted mine 10 minutes after the deadline, which was to quote Mike Klym in response to a question from my longtime friend and co-worker Ben Jones, “One second to midnight tonight!”

Mine was a little after the deadline, Google records the time as 14 minutes after the hour when it was finally sent (some typos and formatting errors needed correcting last minute). In the email, I apologized for being a little late.

Luckily, they were a little flexible with it, which is unusual for a government department. At 8:25am (BST) this morning, Mike Klym sent me the following reply:

Andrew

We do allow for injury time!

mike

Which is good:-). He also commented to one of the members of the  UK Pirate Party this morning, congratulating them on being the last response in before the deadline. It seems Mike has a sense of humor. That’s great! All I can say is that reading the consultation document, I was certainly not laughing.

So, my response. As always, produced in OpenOffice, and exported directly to pdf. You can download it here. The document, like the site, is under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.

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