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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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RE: GO PIRATE BAY
By adiposity on 2/25/2009 7:45:16 PM , Rating: 2
quote:
This would be the equivalent of (Given my example) Disney releasing a blockbuster movie in the theatres, but never putting it out on DVD.


This is either a poor example or a great one, depending on your purposes. The truth is that Disney already does this. They sell DVDs of old animated movies, but frequently pull them from the shelves for long periods of time. Then when sufficient nostalgia has built up, they re-release it with added features or transfer improvements and call it a "special edition." The result is that they sell more in a short time of these DVDs because people who are aware of the situation jump on these sales out of fear that the DVDs will be off the market for another 5 years. They can also charge more due to this limited availability.

So basically, they do exactly what you warn the MPAA is doing with shows and other hard to find media, except the re-release medium is not necessarily film.

Does Disney have a right to do this? Of course they do. And of course any publisher has the right not to publish things that they feel wouldn't maximize their profits. This does not equate to them giving up the rights on this media, as they may wish to take advantage of it at a future date. This is already being done in the short term with the timing of summer blockbusters and christmas comedies. Does their failure to release imply a right to watch bootlegs before the fact? Or does the release in theatres somehow obligate providing personal copies via DVD within a short time frame and perpetually after the fact?

These are not easy questions to answer and I suspect "pirates" haven't thought about all of them in depth.

My personal view is the "abandonware" rule If a publisher refuses to publish something because it just won't make them any money, after a long enough time I don't care about pirating it. I don't care if it's legal or not.

-Dan


"Game reviewers fought each other to write the most glowing coverage possible for the powerhouse Sony, MS systems. Reviewers flipped coins to see who would review the Nintendo Wii. The losers got stuck with the job." -- Andy Marken

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