As previously commented, pursuing Ellis for conspiracy to defraud was always ambitious, given the slightly slapdash nature of the Oink operation in its early days, and the lack of any obvious deception, or the sort of all round shady behaviour required to prove fraud. The case for copyright infringement really was stronger.

Why the prosecution went for conspiracy to defraud isn't clear. It is the crime more traditional music pirates - those who bootleg CDs in their garage for example - are often successfully prosecuted for, so perhaps the piracy police felt they were on more familiar ground pressing those charges. However, while it's hard to believe anyone would set up a bootleg CD operation for anything but dishonest intent, it is entirely possible a geek would set up a file-sharing website in his bedroom just for fun. The dishonesty required for a fraud conviction is therefore much harder to prove in this case.

It's possible that prosecutors and the IFPI wanted a tougher penalty than a copyright infringement conviction was likely to deliver, preferably jail time, to make a big bold statement to other internet pirates, and a custodial sentence was more likely with conspiracy to defraud. It's also possible that at the start the authorities genuinely believed the Oink operation was a lot more organised and disciplined than it really was. It's easy to forget just how easy it is to cover up a shambolic operation with a half decent website.

It is also possible prosecutors feared they wouldn't have a case for copyright infringement, or at least not without taking the whole thing all the way to the UK's shiny new Supreme Court. As with the services that have featured in all the key file-sharing lawsuits of the last decade - from Napster to Grokster to Kazaa to The Pirate Bay - the Oink platform never actually hosted any of the infringing content itself. While Ellis had admitted to personally sharing unlicensed music files via his own community - which would constitute so called direct infringement - the operation of the website itself would not amount to such a thing.

By operating the Oink community Ellis would instead be liable for so called 'authorising infringement'. This is a tricky concept about which the UK's Copyright Act says very little. The last time the record industry tried to use the concept in the battle against music piracy - in a pre-internet case related to home-taping - it failed. Arguably precedents set in cases like Napster, Grokster and The Pirate Bay, which centred on a related though slightly different legal concept of contributory infringement, would be persuasive in any attempt to do Ellis for authorising infringement. The precedent in Kazaa even more so, because that was heard in the Australian jurisdiction which also recognises the English Law concept of authorising infringement. Though none of the foreign cases would actually be binding on an English court.

And the last time authorising infringement liabilities, with regards the provision of file-sharing services, were formally discussed, during the previously reported Gowers Review of intellectual property law in 2006, the BPI itself admitted that the outcome of any actual lawsuit on the matter would be uncertain. In their submission to Gowers they wrote: "The outcome of a case against a P2P provider in the UK remains unpredictable - obtaining a definitive judicial interpretation would likely involve pursuing proceedings all the way to the House of Lords. [Such proceedings] are likely to be costly, time-consuming and not without risk".

The BPI asked Gowers to recommend that the government provide some clarity on the liabilities of file-sharing service providers in the UK with regards copyright infringement, perhaps be expanding the section on authorising infringement in the Copyright Act. Gowers promptly refused. And not such clarification has been discussed as part of the Digital Economy Bill either. Personally, I'd say such clarification is as important as the three-strikes ballyhoo that is included in the DEB, possibly more so - in reality you'll never stop individuals file-sharing, but you could make it difficult for people to operate and profit from online services which make file-sharing easier.

The lack of any such clarification makes things difficult for the UK record industry. Friday's ruling did not actually say that you can operate an Oink style service without being guilty of copyright infringement, but many will interpret that it did.