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Protestors demonstrating against the trial against The Pirate Bay on the first day of the trial.
Peter Sunde, Gottfrid Svartholm, Rick Falkvinge and Marcin de Kaminski at the demonstration by the court house on the first day of the trial

On January 31 2008, Swedish prosecutors filed charges against four of the individuals behind The Pirate Bay, a torrent tracking website, for "promoting other people's infringements of copyright laws".[1][2] The charges are supported by a consortium of intellectual rights holders led by the International Federation of the Phonographic Industry (IFPI), who have filed individual compensation claims against the owners of The Pirate Bay. The trial, currently ongoing in Stockholm, Sweden, started on February 16 and is scheduled to finish on March 4; it is broadcast live by Swedish public radio.

The defendants are Fredrik Neij, Gottfrid Svartholm, Peter Sunde, who run the site; and, Carl Lundström, a Swedish businessman who has donated to the site. The prosecutor claims the four worked together to administer, host and develop the Web site and thereby facilitated other people's breach of copyright law. In total, 34 cases of copyright infringements are listed, of which 21 are related to music files, nine to movies and four to games.[3] If convicted the defendants could be liable for fines up to $188,000 USD and face up to two years in jail.[4] In addition, claim for damages of 117 million kronor (US$13 million) have been filed.[5]

The Pirate Bay

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Main article: The Pirate Bay

The Pirate Bay is a Swedish website that indexes and tracks BitTorrent (".torrent") files. It bills itself as "the world's largest BitTorrent tracker"[6] and is ranked as the 102nd most popular website by Alexa Internet.[7] The website is primarily funded with advertisements shown next to torrent listings. Initially established in November 2003 by the Swedish anti-copyright organisation Piratbyrån ("The Piracy Bureau"), it has been operating as a separate organisation since October 2004. The website is currently run by Gottfrid Svartholm ("anakata"), Fredrik Neij ("TiAMO") and Peter Sunde ("brokep").

The police raid

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Main article: The Pirate Bay raid
Swedish protesting the police raid during the pro-piracy demonstration on June 3, 2006

On 31 May 2006 in Stockholm, The Pirate Bay was raided by Swedish police, causing it to go offline for three days. Upon reopening, the site's number of visitors more than doubled,[8] the increased popularity attributed to greater exposure through the media coverage. The raid, alleged by Pirate Bay to be politically motivated and under pressure from the Motion Picture Association of America (MPAA),[9] was reported as a success by the MPAA in the immediate aftermath, but with the website being restored within days and the raising of the debate in Swedish culture, The Pirate Bay and other commentators considered the raid "highly unsuccessful".[10]

Trial and courtroom charges

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On January 31, 2008, Swedish prosecutors filed charges against four of the individuals behind The Pirate Bay for "promoting other people's infringements of copyright laws".[1][11]

First day of the trial

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Defence lawyer Per Samuelsson has stressed to the court that "File-sharing services can be used both legally and illegally". Samuelsson argues that "It is legal to offer a service that can be used in both a legal and illegal way, according to Swedish law" and that The Pirate Bay's services "can be compared to making cars that can be driven faster than the speed limit". Defence attorney, Jonas Nilsson, insisted that "the individual Internet users who use Pirate Bay services ... must answer for the material they have in their possession or the files they might share with others."[12]

Second day of the trial - charges partially dropped

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On the second day of the trial, half of the charges against The Pirate Bay were dropped.[13] According to defence lawyer Per Samuelson "This is a sensation. It is very rare to win half the case in just one and a half days and it is clear that the prosecutor took strong note of what we said yesterday".[14] The prosecutor was unable to prove that the .torrent files brought as evidence were actually used The Pirate Bay’s tracker. Furthermore prosecutor Håkan Roswall did not adequately explain the function of DHT which allows for so called "trackerless" torrents. These shortcomings in the evidence resulted in prosecutor Håkan Roswall having to drop all charges relating to "assisting copyright infringement" (the remaining charges are "assisting making available"). Roswall stated that "Everything related to reproduction will be removed from the claim".[15]

Third day of the trial

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On the third day of The Pirate Bay trial, prosecution witnesses claimed damages on the basis that it should have obtained worldwide licences for the content it distributed. Where content wasn't officially available, a Beatles song, for example, that should be charged at 10x the going rate. This calculation underlines the prosecution's demand for 117 million kronor ($14.3 million) in compensation and damages.[16]

"King Kong" defence

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On day three of the trial, defence attorney Per Samuelson presented an argument later dubbed the "King Kong defence":[17]

"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 .... 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..."[18]

Samuelson is referring to a real Pirate Bay user who posts via the username "King Kong", whom Samuelson hypothesizes could be located in Cambodia. He used this scenario to illustrate that Lundström had no control over the actions undertaken by Pirate Bay users. His main objection was that although the prosecutor had said that the accused would be tried individually, he had not once referred to them individually, but always as "them", "they" or "Pirate Bay". Samuelson said the persons behind The Pirate Bay could not be held collectively responsible for a crime committed by other identifiable individuals, such as King Kong.[19] He spoke the words "King Kong" three times during his argument.

The term "King Kong defence" was quickly popularized by blogs, file sharing news feeds, and media reports on the Pirate Bay trial.[20] It has been compared to the Chewbacca defence from the TV series South Park, citing a reference to the "jungles of Cambodia" as "the kind of extraneous detail that makes the Chewbacca defence hilarious".[21]

Parties

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Defendants

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Complainants

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The criminal charges against The Pirate Bay are directly supported by the following prosecution witnesses:[22]

Feature films included in the case

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Television dramas included in the case

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Personal computer games included in the case

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Support campaign

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On February 18, 2009 the Norwegian socialist party Red began a global campaign in support of The Pirate Bay and filesharers worldwide that will last until May 1. The campaign was timed to coincide with the trial.[23] Through the website Filesharer individuals are encouraged to upload their photographs, as "mugshots", to "let the music and movie industry know who the file-sharers are." The site encourages participation urging people to "Upload a picture of yourself and show them what a criminal looks like!". Red politician Elin Volder Rutle is the initiator of the campaign and she states to the media that "If the guys behind Pirate Bay are criminals, then so am I, and so are most other Norwegians."[24]

Events during the trial

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The website of the International Federation of the Phonographic Industry (IFPI) was hacked and defaced with a message to Håkan Roswall, the prosecutor in the trial. The website subsequently became inaccessible, possibly owing to a Denial-of-service attack. It was shortly brought back online. Peter Sunde, one of the defendants, responded to news of the attack with the comment "Our case is going quite well as most of you have noticed. In the light of that it feels very bad that people are hacking web sites which actually puts us in a worse light than we need to be in." To the perpetrators of the attack he also pleaded, "If anyone involved in the acts going on is reading this—please stop, for our sake. We don’t need that kind of support."[25]

See also

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References

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  1. ^ a b "Pirate Bay Future Uncertain After Operators Busted | Threat Level from Wired.com". Blog.wired.com. Retrieved 2008-09-28.
  2. ^ Larsson, Linus (2008-01-31). "Charges filed against the Pirate Bay four". Computer Sweden. Retrieved 2008-02-01.
  3. ^ Larsson, Linus (2008-01-31). "Charges filed against the Pirate Bay four". Computer Sweden. Retrieved 2008-02-01.
  4. ^ http://www.betanews.com/article/Sweden_formally_charges_Pirate_Bay_owners/1201799919
  5. ^ Half of Pirate Bay charges dropped, The Times, February 18, 2009.
  6. ^ Pfanner, Eric (2008-01-31). "Swedes charge 4 in case involving copyright infringement of music and films". International Herald Tribune. Retrieved 2008-10-01.
  7. ^ "Thepiratebay.org - The Pirate Bay". Alexa Internet. Retrieved 2008-10-01.
  8. ^ "Should The Pirate Bay thank MPAA for its cult following? | Startup Meme". Startupmeme.com. Retrieved 2008-09-28.
  9. ^ Steal This Film.
  10. ^ "The Pirate Bay Not Impressed by Announced Prosecution". TorrentFreak. 2007-05-04. Retrieved 2007-05-20.
  11. ^ Larsson, Linus (2008-01-31). "Charges filed against the Pirate Bay four". Computer Sweden. Retrieved 2008-02-01.
  12. ^ Pirate Bay chiefs deny illegal downloading at trial, AFP (via Google News), February 16, 2009.
  13. ^ Pirate Bay prosecutor amends charges The Local, February 17, 2009
  14. ^ Lawyers say it is a sensation, Trelleborgs Allehanda, February 17, 2009.
  15. ^ 50% of charges dropped Torrentfreak, February 17, 2009
  16. ^ Half of Pirate Bay charges dropped, The Times, February 18, 2009.
  17. ^ Day 3 - The Pirate Bay’s ‘King Kong’ defence Torrentfreak, February 18, 2009
  18. ^ Dag 3 - Advokat Per E Samuelson sakframställning för Carl lundström svtplay.se, February 18, 2009
  19. ^ Swartz, Oscar (February 18, 2009). "Pirate Bay Crew Chums Up to Foes Over Lunch". Threat Level. Wired News. Retrieved February 19, 2009. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
  20. ^ Swedish: Internet hyllar King Kong-försvar On Metro accessed at February 18 2009
  21. ^ Chris Dannon (2009-02-19). "Torrent Site Fights Legal Action with 'Chewbacca defence'". FastCompany. Retrieved 2009-02-19.
  22. ^ Allmänna åklagaren v. Neij and others, Swedish Prosecutors Agency
  23. ^ Kalstad, Lise Marit (February 18, 2009). "Rødt med egen piratkampanje". Vårt Land (in Norwegian). Retrieved February 18, 2009.
  24. ^ "Alle disse er kriminelle". Nettavisen (in Norwegian). February 18, 2009. Retrieved February 18, 2009.
  25. ^ "Pirate Bay Plea: Stop Hacking the Music Industry!". TorrentFreak. 2009-03-19. Retrieved 2009-03-19.
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Wikimedia Commons has media related to The Pirate Bay Trial.

[[Category:2009 in Sweden]] [[Category:Crime in Sweden]] [[Category:Intellectual property activism]] [[Category:Criminal defenses]]

sv:Rättegången mot The Pirate Bay

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