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The Pirate Bay Trial – day 3

I’m reading through the English articles I found over at Scaber Nestor. He’s also tracking articles in the rest of Europe, Asia and South America. Most of them are fairly neutral, but this one was a favorite. But that probably mostly because it has a video clip and I could rest my eyes for a bit. I’m wondering though why the reporter keeps calling the site The Pirate Web when all text, logos and everyone interviewed calls it The Pirate Bay? BBC also has a good and thorough article. It even covers some of the very shady dealings the content industry have a hand in. Theres a huge list in Swedish over at Political Blogger of the year award winner Opassande. I’ve been dying to translate it, perhaps later tonight.

As you might expect Prosecutor Håkan Roswall continues to deliver. This morning he was claiming that the amended charge sheet was merely a small adjustment(sv) and should not be seen as the prosecution dropping the charges. The court requests to know if either of IFPI, MPAA or the Anti-Piracy Bureau wants to pick up the charges. Mr Roswall responds by saying that prosecution might need a recess to discuss this, but then decides not to…

Thankfully he is getting a lot less room today when IFPI lawyer Peter Danowsky, MPAA lawyer Monique Wadsted and Anti-Piracy Bureau lawyer Henrik Pontén will be making their cases against the crew of The Pirate bay and attempt explain and justify their ridiculous 13.9m € damage claims.

Danowsky argues as follows:

  • When these downloads occurred legal download sites offered the same content at an average price of 10€.
  • The record labels cut of this was 6.5€.
  • Every download is lost sale.
  • TPB are mean to rights holders that are demanding TPB follows non-applicable law (usually the DMCA).
  • TPB has hindered the development of legal services since IFPI can’t compete with gratis.
  • Sharing of songs that IFPI isn’t even selling is particularly bad and IFPI will thus demand up to 10x the ordinary 6.5€ for each such download. (Beatles 1Q is 10x)

Well, Statens Kriminaltekniska Labratorium (SKL), which is the closest Sweden has to CSI, who investigated the hardware and other materials seized during the raid against TPB, did among others things look at the code for HyperCube. This is the webserver software that Ankata wrote in C and was previously used to run TPB. SKL found bugs in the download counters. Since the prosecution is unwilling to detail the bugs I’m assuming that they either don’t understand how the bugs effects the number of reported downloads or they are trying to downplay the significance of the bugs.

Further more the claim that each download is a lost sale is based on nothing more than fantasies. It’s being thrown out of US courts and defies the most basic concepts of supply and demand. In fact independant research shows that the economy benefits from file sharing. KTH and Hardvard have published similar reports, i might update with links later.

Humorous side note, Danowsky had to clarify that one the songs in the original charges had been removed (labeled 1J), this because it turned out that they did in fact not own the rights to this song.

Pontén argues as follows:

  • APB agrees with the reasoning of IFPI/Danowsky
  • Were TPB to acquire a world wide license from the clients of APB this would have cost 700 000 sek (~64 000 €)
  • Alternative they could go for 60% of an average full price sale (their cut) per download. ~6€
  • Bugs in HyperCube is not the fault of APB or their clients and should be ignored.
  • Goodwill has been lost since release date are “planned in great detail”.
  • We seek twice the amount in damages for loss of goodwill.
  • The movies in question have been seen next to ads for sexual services.

Sexual services? Brokep comments on twitter. We are dying to see them try to prove that one! Prosecution are also cheap bastards that refused to pay for Brokeps pizza after the trial today (also on twitter). :)

Wadsted argues as follows:

  • Policing torrents on a site with 22m users is just as easy as deleting a word document.
  • Production of copies and giving access to copies are sides of the same coin.
  • Even though the DVD of Harry Potter and the Goblet of Fire was released on DVD on in March 2006 it was available on TPB in February 2006.
  • TPB recievs huge traffic and has ads, therefore earns huge amounts of money

Here it bares pointing out that the most common source for pre-release material is from people inside of the industry. Maybe you have an uncle that operates a projector at a cinema, a music journalist that’s a child hood friend of yours and so on. The argument about the ads is quite funny aswell. She knows that any serious adds on TPB are targeted by the lawyers and the companies behind them are threatened with contributory copyright infringement unless the remove their ads from TPB. Further she has yet to provide any froof of the claim that TPB has earned these huge amounts of money. TPB is a top 100 site and has ads, thus it makes money.

Cum hoc, ergo propter hoc.

She also has the gall to complain that there is more demand for content without DRM than there is for content infected with it. In her world DRM adds value and we should all pay extra for that…

At this point the defense replies to the charges:

Wadsted counters with a claim that:

“The works were available on the day in question”.

The Court:

“It would be useful for the court to know, in the case that the court decides to reject the case before it, does the plaintiff wish assume the responsibility to proceed with the dropped charges on behalf of the prosecution”?



Ok, maybe a slightly convoluted translation, but I think you get the point.

Further arguments of the defense:

  • The statistics on the TPB are unreliable.
  • The content on the site is generated by the users.
  • No copyright protected material can be found on the servers.
  • The crew of the site is in fact much larger that the four being charged today.
  • The mere existence of a torrent on TPB is not equal to making copyright protected material available
  • The torrent on TPB does in no way prove that the user that uploaded it was connected to the server at the given time let alone prove that the uploader actually had the file on his or her computer.
  • The supplier of a search engine can never be made responsible for the information found through it, or file transfers made.
  • A cornerstone of the Internet is links to information, and a torrent file is such a link, meaning you have a right to provide such links.
  • European e-commerce law declares freedom from responsibility for the parties that supply the technology. And in the case of BitTorrent what’s being transfered isn’t even the copyright protected content.
  • There is no correlation between the number of downloads and economic loss.
  • Its claimed that the majority the torrents on TPB link to copyright protected works. This is not true, hasn’t been proven and the lawyer of Peter Sunde promises to expand on this later.
  • The legal counsel for Carl Lundström claims that no more than 20% of the material on TPB is protected by copyright.
  • On each of the specific charges it is clearly stated what user is responsible for uploading the torrent to TPB.

The different lawyers for the different defendants made further arguments on top of this, but they are concerning the specific and individual involvement of each individual defendant. I see little reason to list them. They all deny all forms of involvement in any form of copyright infringement. Carl Lundström denies any and all involvement with TPB since 2005 (raid was 2006).

SR International interviews The Bureau of Piracy and STIM, and their lawyer Lars Henriksson naturally confuses free with gratis. He also says that developers of file sharing platforms should come to them and conform to their business model.

Parallel to the trial, ABBA founder Björn Ulvaeus demands we stop criticizing the law just pay dammit! Long time ABBA fan and author Anna Troberg responded with “I don’t mind paying with money, but I’ll sure as hell not pay with my freedoms or rights!” Writer Gene Oberto responds on The Local and on Newsmill, a liberal debate site, hundreds of readers commented on Mr Ulvaeus article saying pretty much the same thing.


Other day 3 reports:

TorrentFreak, Another 15 Minutes, Happily Ever After Time?, P2pNET

7,201 comments to The Pirate Bay Trial – day 3

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