The trial of The Pirate Bay in Sweden
This article is also available in:
Deutsch: [Der Pirate-Bay Prozess in Schweden | http://www.unwatched.org/node/1303]
The big, long and extremely mediatized trial filed on 31 January 2008 by
Swedish prosecutors against the four Pirate Bay founders for “promoting
other people’s infringements of copyright laws” started at Stockholm’s
District Court, on 16 February 2009.
The first day of the trial was dedicated to the opening statements of
the prosecution and the defendants, the latter denying any criminal act.
Prosecutor Håkan Roswall presented the claims of the plaintiffs Warner Bros,
MGM, EMI, Colombia Pictures, 20th Century Fox, Sony BMG and Universal and
spent most of the morning trying to describe how the Pirate Bay works
suggesting it was a commercial organization with Carl Lundström as a
shareholder and financier of the company. The prosecutor made a presentation
of a series of movie, music and game downloads “coordinated by The Pirate
Bay” before 2006. He continued trying to explain the change from a seed
status to that of a peer as part of the evidence previously gathered by the
plaintiffs.
The civil parties represented by IFPI and MPAA expressed the intention to
ask for 11 million euro damages.
The second day of the trial started with a big victory for The Pirate Bay
founders with the dropping out of most part of the accusations against them.
The prosecutor announced the defendants would not be accused of “assisting
copyright infringement” changing the accusation into “assisting making
available copyright material”.
The prosecutor was unable to prove that the .torrent files introduced as
evidence were actually using The Pirate Bay’s tracker. Furthermore, he has
shown to be technically unprepared and failed to explain the function of DHT
which allows for so called “trackerless” torrents. This means the
screenshots the prosecution provided as evidence did not necessarily
belong to The Pirate Bay’s tracker. Pirate Bay claimed it did not break the
law because it did not host or disseminate copyright-infringing content but
only links to that content and reproached the prosecution, the police and
the music industry of not understanding the technology. According to Fredrik
Neij, the entire accusation was based on a technical misunderstanding.
On 18 February, the prosecution asked for about 11 million euro compensation
and damages on the basis that the defendants should have obtained worldwide
licences for the content it distributed. The defence rejected any discussion
related to damages considering there had been no damage. “EU directive
2000/31/EC says that he who provides an information service is not
responsible for the information that is being transferred. In order to be
responsible, the service provider must initiate the transfer. But the admins
of The Pirate Bay don’t initiate transfers. It’s the users that do and they
are physically identifiable people. They call themselves names like King
Kong,” was defence lawyer Samuelsson’s statement to the court.
“According to legal procedure, the accusations must be against an individual
and there must be a close tie between the perpetrators of a crime and those
who are assisting. This tie has not been shown. The prosecutor must show
that Carl Lundström personally has interacted with the user King Kong, who
may very well be found in the jungles of Cambodia,” the lawyer added.
The plaintiffs insited on The Pirate Bay’s behaviour that refused to
withdraw the .torrent links from their index, except for the cases when the
content did not correspond with the one announced by the user placing the
torrent file. In the prosecution’s opinion, this would make The Pirate Bay
more than a simple technical intermediary.
The defense argued that uploading a torrent does not imply that the
copyrighted files are actually ‘available’, as the torrent has to also be
seeded and that, on the other hand, torrent files are not linked exclusively
on The Pirate Bay and can be found through other search engines, including
Google.
Two of the defendents were heard on the fourth day, the technician Frederik
Neij and the administrator Gottfrid Svartholm Warg who were both pretty much
sticking to their initial position. The day did not bring very much change.
Neij proved that it was possible to create a torrent file and host it
somewhere else, like on TorrentSpy using the trackers opened by The Pirate
Bay to distribute the files, in which case The Pirate Bay cannot know what
is exchanged. In his opinion, the prosecusion had not succeeded in proving
that the incriminated files had been actually downloaded on The Pirate Bay.
The lawyer of the movie industry tried to show that The Pirate Bay had an
active role in the choice of the content presented by its users and asked
Gottfrid Svartholm Warg whether the site had withdrawn content related to
child pornography. The administrator replied that they had notified the
police on such torrent files and they had retired them at the request of the
police. “We can’t do investigations of our own. And if the police say we
should remove a torrent, we will,” he said.
Peter Sunde was interrogated on Friday morning. The strategy of the
prosecusion seemed to be clearer than during the first days being focused on
trying to prove that The Pirate Bay had been created with the purpose of
gaining money from “pirating”. The prosecutor tried to show that The Pirate
Bay was actually managed by a hierarchical organization with a commercial
purpose. However no material evidence was brought to support this idea. When
asked what the purpose of The Pirate Bay was Sunde answered: “It is to
enable users to share their material with others.” “Even though it is
copyrighted?” questioned Danowsky. “That can sometimes be the sad
consequences,” Peter replied.
The defendant stated to the court that in his opinion the entire trial was a
political one and that the reason for which the plaintiffs brought the case
against The Pirate Bay was not the fight against illegal downloading of
their works but a a fight to preserve the monopoly on the distribution
means.
The trial started again on 24 February when the prosecutor also added to the
charges that the site allowed its users to upload torrents that it further
on stored. Magnus Mårtensson, a lawyer for the IFPI testified during the
morning but the evidence brought by him consisted only of screenshots and
the witness also admitted having difficulties in answering some technical
questions.
Both him and policeman Magnus Nilsson of the Anti-Piracy Office who was the
next witness for the prosecution were unable to bring forth any real
evidence that the Pirate Bay trackers were actually used for the downloads
investigated.
Mårtensson admited that he had no evidence of having any contact with The
Pirate Bay’s tracker during the downloading he was claiming to have made
from the site. Nilsson was made to admit that the actual downloading of the
pirated files happened outside of The Pirate Bay.
The trial is supposed to last until the 4 March 2009. We will present the
conclusions of the trial in our next newsletter.
The Pirate Bay trial: 1st day under the sign of boredom (only in French,
16.02.2009)
http://www.numerama.com/magazine/12023-Proces-de-The-Pirate-Bay-1ere-journee-sous-le-signe-de-l-ennui.html
Half of Pirate Bay case dropped in courtroom drama (17.02.2009)
http://www.out-law.com//default.aspx?page=9803
The Pirate Bay cries victory after the dropping out of some charges ! (only
in French, 17.02.2009)
http://www.numerama.com/magazine/12041-The-Pirate-Bay-crie-victoire-apres-l-abandon-de-certaines-charges.html
The Pirate Bay (day 3): “We are winning on legal principles” (only in
French, 18.02.2009)
http://www.numerama.com/magazine/12066-The-Pirate-Bay-jour-3-Nous-gagnerons-sur-des-principes-juridiques.html
Day 3 – The Pirate Bay’s ‘King Kong’ Defense (18.02.2009)
http://torrentfreak.com/g-defense-090218/
The Pirate Bay (day 4): “Are you a coward, Fredrik Neij ?” (only in French,
19.02.2009)
http://www.numerama.com/magazine/12087-The-Pirate-Bay-jour-4-Etes-vous-un-lache-Fredrik-Neij.html
Day 4 – Pirate Bay Defense Calls Foul Over Evidence (19.02.2009)
http://torrentfreak.com/day-4-pirate-bay-defense-calls-foul-over-evidence-090219/
The Pirate Bay (day 5): Peter Sunde counter-attacks (only in French, 20.02.2009)
http://www.numerama.com/magazine/12100-The-Pirate-Bay-jour-5-Peter-Sunde-contre-attaque.html
Pirate Bay Trial Day 5: Peter’s “Political Trial”(20.02.2009)
http://torrentfreak.com/pirate-bay-trial-day-5-peters-political-trial-090220/
Pirate Bay Trial Day 7: Screenshots for Evidence (24.02.2009)
http://torrentfreak.com/pirate-bay-trial-day-7-screenshots-for-evidence-090224/
EDRI-gram: Pirate Bay in legal battle with IFPI (11.02.2009)
http://www.edri.org/edri-gram/number7.3/piratebay-ifpi-battle