The third day of the The Pirate Bay trial has now passed. What’s happened since the first day?
Yesterday, IFPI dropped part of the prosecution. The half that was dropped was the charge of being an accessory to producing copies; the charge that’s still there is that of being an accessory to making copyrighted works available where such an act infringes on the work’s copyright.
IFPI did not save the original torrent files. The evidence of the network traffic may be ample, but beyond that, there’s little documentation of basic things. IFPI can’t prove that the torrent would have unconditionally used the TPB tracker. Several trackers can, and often are, be named in a torrent file — something IFPI flatly denies. IFPI can’t prove that the tracker’s URL goes to the TPB tracker. (I have little reason to doubt this part, but in a court, you’re convicted by the evidence the prosecution brings.)
IFPI can’t even prove how many times the torrent files, while downloaded, are used, and thus the damages can’t possibly be calculated accurately. The preliminary investigation specifically drew attention to this, and considered a reasonable “lost income” from an album to be the price the label received from
legalsponsored music services — €6.5. The prosecutor used the full average sum of €10. As a base. They also added another factor that varied, per torrent, from 2 to 10 (for pre-release leaks). This is a highly organized way of making shit up.An enormous amount of time is spent proving that TPB has responded in a… straightforward manner to legal correspondence, and speculating that the organization around TPB has been deliberately planned around minimizing taxes. These things do not prove a crime. These things exist solely to pinpoint TPB as being rude to threats and to worsen a sentence by giving the alleged crime the pretense of activity for commercial gain — i.e. organized crime.
Peter Danowsky of the IFPI made the argument that TPB is liable for damages since TPB has curbed the establishment of legal music services and since the alternative — making music available for free — creates an “insurmountable barrier to competition”. First of all, “iTunes”. Second of all, “bottled water”. It’s not insurmountable, you lazy fucks just don’t want to stop beating up your damn customers.
I use “IFPI” for the prosecution-at-large since they’re the biggest firm represented, but many firms are included. Monique Wadsted, playing for the american movie industry — and also infamous for defending the “Church” of Scientology in Panoussis v. Scientology — defined the crime as users having downloaded the full work and seeding, when Danowsky (batting for the music industry as per above) defined it as users seeding parts of the work; including parts taken from incomplete downloads.
TPB argues that not only are the downloads themselves not the primary work, they are not even necessarily enablers. If the initial seeder stops seeding and no one else is around to seed, the work is not distributed or even “made available”.
Finally, TPB argues that the torrents available are contributed by the users, that any copyright infringement happens before the torrent is created and would happen after a torrent is downloaded. I argue, personally and strongly, that the mode of distribution is irrelevant.
Why isn’t the Post Office being sued for “enabling” or “making available” an infringing copy of a DVD sent by mail? Because it is ridiculous; the Post Office and the distribution services they provide are a conduit. Similar protections do actually exist to some extent for TPB, as established in an EU directive that any intermediary in electronic communication is “not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission” — this directive was implemented in Sweden as SFS 2002:562. When people talk about “safe harbor”, this is what they mean.
IFPI has had three years to prepare its case. The evidence is sorely lacking, the charges are so weak that half of them are dropped after one day and the parts in the prosecution must have some sort of performance-based pay based on misunderstanding, misrepresenting or misjudging the technology.
So yes, I’ll say it again: ridiculous.
Thanks for taking the time to report on this. (I didn’t look hard but) your coverage is the most detailed I have seen so far.
Of course the whole thing is ridiculous. On the one hand one wouldn’t want the ‘content’ ‘industry’ to be right. On the other hand it seems hard to take most of the people exchanging TV shows on torrents seriously when defending themselves. At least in the situation where they could just buy the junk…
But what I really find ’shocking’ is how poorly the ‘content’ ‘owners’ seem to be prepared. I would have expected them to pull some nasty legal tricks as all their shows make us believe lawyers have up their sleeves. Is that simply because they’re idiots or are there actually sane laws in Sweden?
By ssp · 2009.02.18 22:08
Well done, Jesper. Detailed without being boring. This is better than more of the press coverage I’ve seen of the trial.
By Phil Nelson · 2009.02.18 22:37
Thanks.
Primarily, I follow the swedish weblogs of Rick Falkvinge, leader of the Pirate Party and Christian Engström, first name on the Pirate Party’s ballot for European Parliament representation (the election’s in June).
You might, if you were so inclined, call it biased reporting. I call it “sourcing”. These guys were in the room, posting live what was said. I’m reacting to the foolish things coming out of the prosecution’s mouths, and I will admit to borrowing angles for skewing. If it turns out that any of them made something up about what was said, well, that’d be a lie and waffle’d regret the error, but nothing indicates that since the more outrageous quotes (and that’s basically the lot of them) can be readily verified.
Regardless, finding something to take issue with in this trial isn’t exactly rocket science.
By Jesper · 2009.02.18 23:09
And as far as TV shows go, I’d be happy to “buy the junk” if they’d sell it to me. The clueless part of the industry (the one that’s hoping to walk out of this trial with a cheque in hand) has made this hard if not impossible with DRM, delayed premieres, subscription schemes and especially the killer here in Sweden, which is location-based licensing. Meaning they don’t offer it here, and stop asking, and oh by the way also do not circumvent this kthx,
I’d gladly pay for the convenience of seeing House under decent terms, but they won’t let me. And I still want to see House.
By Jesper · 2009.02.18 23:16
Perhaps if the Post Office called itself ‘The Pirate Office’ or ebay ‘The Thieves Marketplace’ they would draw more attention to themselves. They do not actually advertise themselves on their usefulness in committing civil offences.
A similar distinction would be accountants – in the UK they cannot advertise themselves as providing tax evasion services, even if all their methods are perfectly within the law – they can of course offer tax advice to their clients.
It’s also hard to sympathise with the kind of person who triumphantly tweets ‘Epic Fail’ from the court room, like a 12 year old.
It’s that smugness that is really annoying – that and the fact that they are essentially parasites on a system they claim to despise, rather than creating the better system it should be replaced with.
And yes, it’s annoying that they haven’t sorted out global licensing yet, but I think IT people hugely underestimate the difficulty of the task – i.e. we see a trivial technical distribution problem, rather than one that involves different legal systems and dozens of different parties and trade associations.
I mean look at the problems even within the EU – there’s pressure to replace the national bodies and royalty agreements with EU ones – and you can imagine what hell those negotiations are. If we go back to software, it’s more like trying to ratify HTML standards vs developing a browser to implement them.
By JulesLt · 2009.02.19 00:33
Thanks for taking to the “12 year old” non-argument. I was beginning to suspect that one’s freedom to behave however one wants within the reigns of the law would go unchallenged. You can sympathize with who you want, but that’s not what’s on trial.
For what it’s worth, one of the other claims that the defense — TPB, that is — put forward was that 80% of the material in the torrent works were in fact not copyright-infringing. I think 80% is a bit much, and I can find no other reference to this number nor a source, but it’s clearly not just used for “piracy”. Since it’s apparently so crystal clear — so clear that mere machines could do it mechanically — I suppose anyone could build a crawler and find out… right?
There are artists and creators that publish everything they put out to TPB, so I’m not sure I agree with the single-minded “parasite” summary. And like we talked about, there’s the statistics and surveys that more often than not prove that file sharing actually increases consumption, so I’d call it a benign “parasite”.
And seriously, do you think there’d be a good “legal” music service now if it weren’t for a program like (the original) Napster to lead the way?
I never said global licensing was easy. I did say that until they do solve it, there won’t be any alternative source and that thus I know where I’ll go instead. (I see no reason not to! They’re out my money anyway, and they don’t lose money if I download that episode, which is the only way I’ll get hold of it short of waiting until we get it and watch it on TV here, which I’m already doing.)
I will say that if you’re a major enterprise with offices in every country anyway, you might be able to solve it in a satisfactory manner and provide a service to your customers, especially if you imagine that you’re being sucked raw by a “parasite”.
And as for wording, this industry has no reason to feign outrage. Time-shifting a TV show down to a VHS tape was not to TV shows what “the Boston strangler [was] to the woman home alone”. “Home taping” helped spread good music, not “kill it”, and now they’ve finally made up their mind that what they meant all along is that it’s completely comparable to “stealing a car”. I don’t suppose it has ever crossed your mind that the name is in fact sarcastic in nature?
By Jesper · 2009.02.19 01:04
I’m afraid I think TPB should be shutdown and the people responsible should be punished and if the law doesn’t allow for that, then it should.
The big problem I have with your Post Office analogy is that the Post Office primarily exists to conduct legal business i.e. a very high percentage of what they do is for legally distributing things. On the other hand, TPB exists primarily to aid people to distribute things illegally.
I get frustrated when people say they want freedom to do what they want, but you don’t have freedom to walk into a bank and take other people’s money so I don’t see why you should be able to go onto the Internet and take other people’s software/music. It’s stealing. Plain and simple.
Don’t get me wrong. I’d be quite happy for TPB to exist if the majority of traffic they facilitated was for legal purposes.
Also, please don’t think I have any sympathy for the incompetence and laziness shown by those that are attempting to prosecute the culprits.
So, I say, let’s do whatever we can so that the owners of the software and music can decide what happens to their stuff rather than other people, in the same way that you decide what you do with the money in your bank.
I’m an independent software writer (that’s frustrated by the piracy we’ve suffered) and if you don’t like the way I choose to make software available, there’s an easy way of letting me know: don’t buy it.
By Chris Suter · 2009.02.19 03:59
No. TPB exists primarily to distribute torrents, just as the Post Office exists primarily to distribute letters and packages.
No post office/tracker exists that would open your package to see if it’s legal to send what you’re sending. Please pay attention to what this would mean for a torrent: you can’t possibly know when an album is uploaded if it’s being uploaded by the artist or by someone who has the artist’s permission.
Legal protection is in place to see that the post office/tracker can’t possibly be blamed for the contents of the package. There’s a reason the phrase “don’t shoot the messenger” exists.
So, on a site where users provide the content, you are perfectly happy suing the maintainers and mostly non-editors of the site instead of the ones doing the infringement you feel is wrong — by making the original copy or by downloading? I hope you’re aware that this won’t solve anything.
Even if TPB lost the case and were forced to go to jail, pay up and close all Swedish operations — including the distribution of what you would view as “legitimate” torrents — TPB wouldn’t cease to exist since it’s hosted in other countries. And TPB isn’t the only site of its kind, as you probably know.
You can’t stop piracy that way. You especially can’t stop it by shooting the middleman. What you have to do is compete with it in a way that doesn’t inconvenience actual users. You know this already.
The simple reason why I follow this is because shutting down Napster and Mininova didn’t do anything, and the tightening grip to shut down more middlemen under the flag of stopping piracy is used as an excuse in Sweden and worldwide to deprive citizens of freedom and civil liberties in a stunning reversal of democratic principles and human rights, including ones that don’t have to do with redistributing infringing material at all. I’m not saying that you have to be for my side, but I hope that you’ll at least be against the opposing site.
By Jesper · 2009.02.19 07:57
No, you’re probably right that it won’t solve anything. I was more trying to make the point that we need there to be more of incentive for this kind of thing to not occur. At the moment, it’s too easy to steal stuff and get away with it.
TPB primarily exists to enable people to share stuff illegally. Please don’t tell me that you seriously believe anything different. People go to the TPB to get stuff illegally. You don’t call your site TPB if you intend differently. Furthermore, there are plenty of other ways to legally distribute your stuff in ways that don’t enable piracy so shutting down TPB isn’t going to make a difference there.
Just because they’re not actually doing the stealing, doesn’t mean that they shouldn’t be held accountable so yes, I’d be perfectly happy suing these people. There are plenty of other worthy things that they could go and maintain instead. You argue that they’re not committing a crime, and it may well be that in current law that’s the case, but if it’s not, I think it should be; it’s wrong for something to exist primarily to facilitate crime. Nobody would want a thief training school or an assassin’s guild.
I think the reason that shutting down these people doesn’t work is because it’s difficult to do so. I don’t know what the solution is in the long term, but in the same way that we go after other criminals, knowing full well that it’s not necessarily going to stop others, let’s go after TPB if we can get them. TPB know what they are doing and it’s about time they took responsibility for it.
By Chris Suter · 2009.02.19 23:41
As far as I can tell, the legal doctrine seems to be that if something can be used in a legal way and in an illegal way, then that thing is not in itself illegal; only those uses of it are illegal.
Today in the questioning, one of the accused let slip that as part of the defense, a study had been made with a thousand randomly picked entries from TPB and a thousand randomly picked videos from YouTube. Apparently, and this was the tease, more videos on YouTube than entries on TPB were infringing material. This is as much as anyone knows until this study can be presented further along in the trial, but it is something to think about. Would you argue that YouTube is harmful and ought to be shut down as well, since there are programs that facilitate downloading material — hosted directly on YouTube’s servers, for a change! — for keeping?
I started investigating something now to end this comment with, and it turned out so interesting that I’m typing it up as a new post instead.
By Jesper · 2009.02.20 01:47
Of course, it’s bad that YouTube is enabling infringement but I think there are a few things that are different:
There's a difference in quality. You can't get DVD quality on YouTube so even though you might watch something illegally on YouTube, you'd still buy a DVD or other media if you were going to anyway.
It is monitored and Google do seem to be working hard to monitor infringements. Infringing material does seem to be removed fairly promptly.
Infringing material can be removed. It's not easy to do once it's on a P2P network.
You're less anonymous than you might be on a P2P network.
By Chris Suter · 2009.02.20 03:15