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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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By omnicronx on 2/25/2009 8:26:35 AM , Rating: -1
You guys are unbelievable, the one time the corporations are in the right and you flip out.

Going after individual downloaders/uploaders is wrong, going after those that help to pirate on a massive scale is not.

I feel no pain for torrent sites and release groups, they know what they were getting into when they started.

By phxfreddy on 2/25/2009 8:41:53 AM , Rating: 5
You can use google to perform essentially the same task. If you set a precedent such as this where the search engine function is criminalized you will set back the cause of freedom.

You may not like guns...however you can not punish the gun manufacturers when someone in the hood robs a liquor store.

If you start down this road you might as well check into the Grey Rock Hilton right now and not bother to wait because we are all criminals by the time the lawyers who are constant gaming for an edge against us normal folk are done.

By omnicronx on 2/25/09, Rating: 0
By meepstone on 2/25/2009 9:28:06 AM , Rating: 1
Your missing his point. you can use google, yahoo, msn to find the same torrents and start downloading them. should we arrest the ceo's of those companies? then we'd be arresting bill gates.

By omnicronx on 2/25/09, Rating: 0
By DASQ on 2/25/2009 10:53:05 AM , Rating: 2
If you go with your definition that TPB is 'merely' the user upload site, then the corporations have exactly 0 ground to stand on. They are trying to prove that TPB is hosting or encouraging the spread of copyright materials.

Who's side are you on?!

By omnicronx on 2/25/09, Rating: -1
By Tegeril on 2/25/2009 2:08:05 PM , Rating: 2
The expression you were looking for was:

"couldn't care less"

By jRaskell on 2/25/2009 2:23:13 PM , Rating: 2
I was stating the differences between the two search engines, Google is a crawler, TPB is not. Google adheres to take down notices, TPB does not.

Google is a global corporation, and legally HAS to adhere to take down notices. TPB is NOT a global corporation, and Swedish law provides no requirements whatsoever to respond to any sort of take down notice.

Bottom line, Google is simply obeying the laws they have to obey, and TPB is obeying the laws they have to obey. The fact that TPB does not adhere to take down notices is 100% irrelevant.

Google does not fall under this category as they do not provide the ability to upload torrent files

TPB does not provide any more ability to upload torrent files than Google does. That ability is provided by the bittorrent client, and to my knowledge TPB does not provide their own bittorrent client.

and the lack of adhering to take down notices tells me that they think this is acceptable. This is what I have a problem with.

So, your only problem is with the fact that TPB is only obeying Swedish law, and thus should be punished for it. It appears as if you really just have a misplaced notion of exactly where the source of your problem actually is.

And don't believe for one second that Google would adhere to takedown notices if they weren't legally required to do so.

By omnicronx on 2/25/2009 3:12:57 PM , Rating: 1
Google is a global corporation, and legally HAS to adhere to take down notices.
Are you trying to imply you need to be a global corporation to be required to adhere to take down notices? If you personally created a website with illegal content, you could be subject to a take down notice. If you fail to comply, you could be taken to court.
So, your only problem is with the fact that TPB is only obeying Swedish law, and thus should be punished for it.
They have already been charged! Am I the only one that notices this? Your point is nothing more than personal opinion. We will find out after this week whether or not the charges were justified but there certainly ARE laws in place, whether or not TPB falls under the category of these laws in another issue, and it is one for the courts to decide not yours or mine.
TPB does not provide any more ability to upload torrent files than Google does. That ability is provided by the bittorrent client, and to my knowledge TPB does not provide their own bittorrent client.
Sure they do, you physically upload the torrent tracker to their site, can you please tell me where I can do this with Google?

I think you guys also fail to realize that you can't force a company to sue/lay charges against Google. While I don't agree that TPB is under the same category as Google, even if they were, they are complying to IFPI requests, i.e they takedown links upon request.

This is no different than say me getting assaulted by person A and B. Person A appoligizes and person B does not.

I then decide to lay charges only against person B and not A. I am under no legal obligation to lay charges against both attackers.

By Penti on 2/25/2009 4:59:10 PM , Rating: 2
As Google is an American corporation, Google isn't responsible for materials published by users under the CDA. In Sweden TPB actually is even if they didn't even have a registered entity. Youtube wouldn't be legal if it where based in Sweden. They could be charged with accessory here. US law actually frees them from this liability. In Sweden there is no need for a take down notice if it's apparent that the user infringe copyright. So of course if you show intent not to remove something that's illegal you will get a harsher sentence. However the lawyers doesn't seem smart enough to be able to sentence them for anything.

By lco45 on 2/26/2009 12:31:24 AM , Rating: 2
Hi Omnicronx, I'm disagreeing with you, but I will say you're a coherent arguer.

My disagreement is that Google does allow users to upload and store copyright content. They do this using their youtube service.

I like the TV show Scrubs, which is copyright content. I have never uploaded and stored this show onto youtube, but a quick search will show you that many other people have.

This is a more serious infringement of copyright than allowing the upload and storing of a link, because this is uploading and storing of the actual material itself.

I suspect the prosecution will fail, however if it succeeds we will see some extremely interesting cases against Google soon after.


By maverick85wd on 2/25/2009 1:24:49 PM , Rating: 2
actually, Mr. Gates is retired.

By tastyratz on 2/25/2009 9:03:59 AM , Rating: 2
Torrent sites, yes there is a problem.
Release groups? well that is separate.

Torrent sites are public domain for any content and non discriminatory just as any kind of search engine. People can put legal and illegal stuff on there, and there is plenty of both.

Release groups are actually going out, getting the software, and doing the distribution. Those are the people actually performing the infringement, those are the people in the legal wrong zone.

Your blaming the pen instead of the penman with the torrent sites.

By omnicronx on 2/25/09, Rating: 0
By nycromes on 2/25/09, Rating: 0
By omnicronx on 2/25/2009 11:55:22 AM , Rating: 1
IMO the above comments are akin to someone saying we shouldn't charge a getaway driver with the crime because they didn't actually go into the bank to get the money, they just sat outside and helped the real criminal(s) escape.
Aside from this, I would have to agree. (in this case being a party to the crime of armed robbery would be the charge)
Do any of you seriously think TPB was created to distribute legal works? Their name states quite clearly that the creators knew what their service was for.
Can't say others agree with this, as I got flamed in the previous article on the subject when I said the same thing.
Personally, I think that there is much blame on both sides of the fight (with corporations and TPB).
Thank you, best comment I have read all day.. I don't feel sorry for either sides here, both are in the wrong.

By L33tMasta on 2/25/2009 1:34:19 PM , Rating: 2
I swear omnicronx works for the MPAA. Just look at how he defends them and how he's all for them taking our freedoms away.

By omnicronx on 2/25/2009 2:56:04 PM , Rating: 2
I swear omnicronx works for the MPAA.
Its true, you got me.. I can't believe my cover lasted this long.
Just look at how he defends them and how he's all for them taking our freedoms away.
Ok I concede, what was I thinking? I mean what on earth compelled me to believe pirating IP was not a right.

By tastyratz on 2/26/2009 9:36:22 AM , Rating: 2
I think it would be more akin to a taxi driver carting people all over town. The **AA wants the driver to run a background check on every passenger to see if they are fugatives, and the taxi just wants to drive people and not dedicate his resources into something that's not his job... While letting the police hunt and track fugitives.

A getaway driver is not escorting an girl to see her grandmother (legal content) they are knowingly and purposely engaging in illegal activities ONLY. This would be a good comparison if there was no legal content at ALL, and they sorted the site discarding anything that looked legal.

In reality, tpb doesn't really look at anything. This makes them more like Google to be honest.

By notolerance on 2/25/2009 6:55:26 PM , Rating: 2
And your point is? In the rest of the EU this is illegal, and come April 1st in Sweden, it will probably be illegal too.(this is the date that Sweden is expected to implement the EU enforcement of intellectual property rights).

You have just in one post, completely contradicted almost every other post you have made on this subject. So, now you are saying that presently what TPB are doing is legal in THEIR country... and it is only probable/expected that come April 1st, it will be illegal? How can you make statements on something that is not definitive?!!

Then in an earlier post, you get upset over someone giving their opinion, when in fact, what you are doing is one in the same?!!

The hole is getting deeper, I suggest you stop digging... /opinion

By A Stoner on 2/25/09, Rating: 0
By Samus on 2/25/2009 4:36:10 PM , Rating: 2
I just don't see how these guys are responsible for the users of their site. Did they pirate anything? Do they work for any release groups?

“We do believe we have a moral responsibility to keep porn off the iPhone.” -- Steve Jobs
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