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Content industry finds its case in dire straits

In an attempt to refine its criminal case against The Pirate Bay, prosecutors once again altered the charges placed against Pirate Bay figureheads Fredrik Neij, Gottfrid Svartholm, Peter Sunde, and Carl Lundström.

Swedish newspaper The Local reports that the prosecution made two adjustments:

  • Completely dropping a sentence that read, “All components are necessary for users of the service are able to share files with one another.”
  • Changing “upload” to “upload and store” in the sentence “provide the ability to others to upload torrent files to the service.”

In an interview with Wired, Stockholm University legal scholar Daniel Westman said the ‘all components’ line likely placed extra difficulty in proving the prosecution’s claims, as it may feel “uncertain” it can show that “all components” of the site – its search engine, its tracker, and its torrent database – are necessary to commit infringement.

“The question is whether the defendants fulfill the requirements in the penal code for complicity in a crime,” said Westman. “One could maybe argue that the degree of complicity were higher if all three components could be proven, but the court may as well decide that only one or two is enough.”

Tuesday also saw the first round of testimony from the plaintiffs, with International Federation of Phonographic Industries lawyer Magnus Mårtensson taking the stand.

Mårtensson testified that he successfully searched for, downloaded, and listened to a copy of the album “Intensive Care” by British pop rock star Robbie Williams. He then presented screenshots documenting the download process.

In the defense’s cross-examination, however, Mårtensson later admitted that part of his testimony was based on assumptions, on account of his lack of expertise in file-sharing; when asked whether his was sure his BitTorrent client used The Pirate Bay’s tracker, he replied, “I just assumed it.”

Defense attorney Per E. Samuelson pressed further, asking Mårtensson to confirm exactly what his BitTorrent client was doing. “I can’t answer that,” replied Mårtensson.

When asked whether he knew he could also download .torrent files on Google, Mårtensson’s answer was the same.

“I’ve never done it using Google. I can’t answer that,” he said.

Immediately following Mårtensson’s testimony came a similar, though far more solid, briefing from ex-police officer Anders Nilsson, who now works to the anti-piracy group Antipiratbyrån.

The media industry appears to find itself on increasingly shaky ground – an authors community on Facebook, asked for a few choice quips for prosecution to use in its closing arguments, recently observed that “the whole situation is dominated by the pirates.”

Humorously, the author who posted that comment – Carina Rydberg – had previously and begrudgingly praised The Pirate Bay, in the same Facebook group, for helping her track down books and movies that she could not find otherwise.

“The Pirate Bay is an invaluable source for content that publishers, record labels and movie studios for some reason can't or won't offer,” she wrote. “If someone on The Pirate Bay chose to download the book I wrote in 1989 I would have no objection to that. That novel is practically impossible to get hold of and as an author I want to be read.”

The hybrid civil/criminal trial against The Pirate Bay kicked off last week to a packed courtroom, and is expected to conclude by the end of the week.

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It's all very strange
By mindless1 on 2/25/2009 7:57:06 AM , Rating: 2
Why are they hearing testimony from supposed experts when the courtroom can just look at a PC loaded up with TPB website, download something and see for themselves whether they think this is meeting the standard necessary?

Realtime, reproducible 1st-party proof is about as good as evidence gets isn't it?

I'm not suggesting this proves guilt of these dynamically changing charges, but it does raise questions as to whether any of them have any common sense.

RE: It's all very strange
By phxfreddy on 2/25/2009 8:05:21 AM , Rating: 2
Remember you are talking about lawyers here. In their world thinking is not an option for us. We are supposed to do as told. My thought method is thus: congress is 99% lawyers. When was the last time they treated you as an adult? I can not remember. I have not seen it.

RE: It's all very strange
By TheSpaniard on 2/25/2009 8:12:56 AM , Rating: 2
the problem isnt whether or not there is copyrighted stuff on their site. (they already admitted that)

the question is whether or not they are responsible for it because:

1. they do not store

2. they do not monitor

3. their only connection to the entire thing is hooking someone up with someone who has what you want

I find this to be like craigslist getting charged with prostitution. except cragslist would be in more trouble b/c they pseudo-monitor their listings and therefore could have known about it

RE: It's all very strange
By zshift on 2/25/2009 10:55:18 AM , Rating: 4
EXACTLY, craigslist is basically the same thing. If stolen items were commonly sold on craigslist, and then craigslist was charged with aiding in the distribution of stolen goods, this would be a near perfect analogy. the difference is that were dealing with software on the pirate bay.

IF (and that's a really big IF) TPB goes down, someone somewhere else will take over. There are still sites out there like mininova, isohunt, demonoid, rapidshare, etc. where you can find stuff. what happens when someone writes an automated script to find torrents, mp3, video, pics, etc. on google and it becomes insanely popular? are they going to attack google for allowing such a script to run on their site?

These companies need to realize that the market is changing. some people are willing to pay $1 for a song (itunes and such), but there are MANY that will not. who wants to pay $1000 to listen to a small library of songs? thats ridiculous. and as for not being able to share the songs? how many times have people traded cds, cassettes, and such back in the day before downloads? does this mean the companies want each individual to download every song they want to hear? The way I see it, if the entertainment industry had its way, each person in a household would have to buy their own copy of any cd/movie/etc they wanted to watch/listen to instead of being able to share it with others.

I'm for the freedom of distribution, the freedom of being able to learn something new, feel emotion, or just relax by sitting and watching a movie without having to spend *multiple* paychecks just to do so.

Remember: pirates will always be among us.

RE: It's all very strange
By A Stoner on 2/25/2009 5:30:28 PM , Rating: 2
The way I see it, if the entertainment industry had its way, each person in a household would have to buy their own copy of any cd/movie/etc they wanted to watch/listen to instead of being able to share it with others.

Actually you need to go further. If the entertainment industry had it's way, they would charge you for each person in your houshold, times the number of media capable devices you own. On top of this, it would like to have a direct link to you wallet/bank account, and have wires implanted in your head such that if you ever see/hear anything remotely similar to one of their precious copyrighted peices of material they could just deduct the full price for that material each time.

"We can't expect users to use common sense. That would eliminate the need for all sorts of legislation, committees, oversight and lawyers." -- Christopher Jennings
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