OiNK Raid Raises The Question: What Risks Are You Really Taking When Downloading Music?

Experts say OiNK and other illegal-download site users may not need a lawyer yet, but legal consequences can be quite severe.

On Tuesday, a consortium of policing agencies teamed up to pull the proverbial plug on OiNK, an invite-only file-sharing site that provided illegal downloads of pre-release music and media to its more than 180,000 members.

A series of well-orchestrated raids, overseen by Interpol, led to the arrest of an unidentified U.K. man on suspicion of conspiracy to defraud and infringement of copyright law charges, and the seizure of the site's Amsterdam-based servers, culminating a two-year investigation into OiNK (see "Music File-Sharing Site OiNK Shut Down Following Criminal Investigation,"). A message on OiNK's home page — from the law-enforcement entities behind Tuesday's raids — hints that more bad news could be coming for OiNK fans, as "a criminal investigation continues into the identities and activities of the site's users."

Given the legal woes that have plagued certain downloaders (see "RIAA Sues 784 For File-Sharing, Gives Props To Supreme Court Ruling", "Single Mother Of Five Takes On RIAA In Downloading Case"), if you were one of the OiNK loyalists, should you be worried?

According to Eric Garland, CEO for Big Champagne, a Los Angeles company that tracks illegal downloading on the Internet, you probably don't need to retain a lawyer just yet — but that does not mean you're home free.

He said that it's become standard practice for law enforcement to splash such messages across the front pages of sites they've dismantled. The missive on the OiNK site, he added, "is not necessarily, in and of itself, any indication of their intent.

"It has been used as a deterrent device in the past, but here's the difference," Garland explained. "Sites like Kazaa, Grokster and Napster had users that numbered in the tens of millions — more than 100 million, collectively. That's not scalable. No law enforcement effort can go after 100 million people. If they did, they'd be going after every second or third man, woman and child. It would include so many people who were at best casual users, even one-time infringers," which, of course, includes many of the people targeted by the RIAA.

But OiNK, he believes, was specifically targeted for its relatively lower user count, as well as the sensitive nature of much of the material it offered. OiNK, according to Garland, attracted a certain subset of infringing downloaders and uploaders — a dedicated mass that took file-sharing more seriously than the casual visitor.

"OiNK is a relatively seasoned group of dedicated infringers," he said. "We're maybe talking about tens of thousands of people. In that case, you're talking about the top one-tenth of one percent — the most dedicated, seasoned, experienced, deliberate infringers, a relatively elite group who may well make a good target.

"Of course, we don't know if they're going to be subject to an investigation," he continued. "But this wasn't just any subset of that much larger group, but a specific subset. And [OiNK] had a reputation of making available pre-release material, with a very deep catalog of material that would not necessarily be of interest to the casual music fan. OiNK had a very well-established reputation and tremendous reach in that niche."

It is possible, Garland said, that law-enforcement officials could track down OiNK's users, as their membership was generated through invites from established members. It all depends on how much personal information users provided to the site: Some members contributed unsolicited donations to OiNK, via debit or credit-card payments.

"Any time you register for a Web site-based file-sharing community, you're sharing personal information necessarily," he continued. "And these Web sites for which one must register, and where one goes to seek infringing material, are by definition incredibly risky."

OiNK wasn't one of the Web's most popular file-sharing sites; Garland points to the Pirate Bay as possibly the most used. There are a number of ways law-enforcement officials, should they shut down similar sites in the future, can track past users, he said — so using any such site to download illegal files could come back to bite you.

"Strictly speaking, you don't have to take any risk, because the only information that might be available to a third party about your visit to a Web site like Pirate Bay that you do not register for would be your IP address, and that address might be associated with torrent tracker files," he explained. "Even Pirate Bay doesn't host movies or music or anything else — just these little pointer files that direct you to where the content resides on other users' hard drives. So if law enforcement seized server logs from Pirate Bay, they'd have a long list of IPs that might include yours, which may be associated with torrent files that you downloaded. Whether you went on to download that material is another story, but keep in mind that IP addresses may not point to you at all."

Garland said some infringers do their downloading at work, while others may use public WiFi connections. "If you were using your neighbor's WiFi, that IP address may not be useful [to police]. If you're at a [public place], using their WiFi, you're truly anonymous.

"On the other end of the spectrum, if you are downloading and — more importantly — uploading, which is what catches the attention of the authorities and the music industry, and you're uploading stuff from your own connection, registered to you, and you've registered on this site, created a user name and given them a valid e-mail address to retrieve log-in information, there may be a huge body of information about you that's indisputably personally identifying."

Suffice it to say, if you never download or upload illegal files, you're in the clear. If you only download, you could be in the clear too. "If you're a LimeWire user, who never uploads any material and just takes stuff, you're not taking much of a risk," he said.

Generally speaking, Garland said most people targeted by organizations like the RIAA in civil suits aren't as hard-core as OiNK's constituents.

"It's become a little like speeding," he posited. "The people who get caught in speed traps are usually pretty innocent — a soccer mom who's late to pick up her kid, or someone who's late for work. The habitual speeder, who drives 100 miles an hour all the time, is less likely to get the ticket because he's taken steps to reduce his risk. [Thus], it's less likely that the RIAA is going to get a really dedicated, eye-patch wearing, 'aargh'-sputtering pirate; it's more likely that they're going to get who doesn't know how to reduce personal risk and exposure.

"The really serious pirates skate by, and that's why OiNK becomes interesting, because I think if you were going to target a user base, you would target one like this — where it's unlikely that a lot of relatively innocent people will get caught in the net."

However, a more serious take came from John Palfrey, the executive director of the Berkman Center for Internet and Society at Harvard Law School and a clinical professor of Internet law. He noted that people are never as anonymous as they think when they hop online.

"One of the very important disconnects here is people think they can be anonymous on the Internet, and if someone wants to find out who you are, unless you've taken extraordinary measures to cover your tracks, you're not anonymous online," he said.

Palfrey said he too suspects OiNK was targeted because of the nature of the site. "Where the recording industry has focused has been places where people are uploading things in the first instances," he explained. "They go after pre-release file-sharing, and OiNK is an environment where that has been happening. They're trying to get to the root of the problem as much as possible."

Ultimately, Palfrey said under U.S. law, downloading copyrighted material is a clear violation of the law, and if caught, you could face thousands in fines. Over the past few years, he said there have been about 15,000 cases in the U.S. of lawsuits being brought against individuals for file-sharing. "The economic consequences can be quite severe," he said.

Based on the music industry's previous practices, it's the sites themselves that are pursued first, and not always the individual users. "The strategy of the recording industry has generally been slash and burn, so they've had at least a two-pronged war," he explained. "One side of it was trying to sue the service providers, like Napster and Grokster. Then, they sue the individuals, particularly those doing the uploading, so I see no reason why the recording industry will stop. They believe it's been a successful campaign, and seem to be continuing to do it.

"It's not that it's illegal to use these services — it's illegal to do illegal things on these services," he pointed out. "The services themselves are not illegal, in most cases; they can be completely lawful, so long as you are uploading files you have the copyright on."

On Wednesday, a spokesperson for the Recording Industry Association of America deferred comment to the organizations that were involved in Tuesday's raid. In a press release issued within hours of the raid, British Phonographic Industry CEO Geoff Taylor said the arrest would deter future file-sharing offenses, and assured that the shutting down of OiNK would "cause major disruption to this illegal activity.

"That this individual now faces criminal charges will deter some but no doubt others will be looking [to] move into this territory, and the authorities must keep up the pressure to deter the digital freeloaders," he said.

For complete digital music coverage, check out the Digital Music Reports.