Pirate Bay attorney outlines arguments for appeal
The judge had a conflict of interest--that's one argument that will be used in appealing the Pirate Bay verdict, an attorney of one of the defendants told CNET News on Friday.
Peter Sunde, Gottfrid Svartholm Warg, Fredrik Neij, and Carl Lundström were all found guilty last month of having assisted in making 33 copyright-protected files accessible for illegal file sharing via the Piratebay.org Web site.The four were sentenced to one year in jail and ordered to pay $3.6 million in damages to copyright holders.
Now all four are appealing the decision in separate cases, according to Swedish technology weekly Ny Teknik (in Swedish).
"The first thing the high court of justice Svea Hovrätt must decide is if the judge has had a conflict of interest, Peter Althin, Peter Sunde's defense attorney, said in an phone interview from Sweden.
Peter Sunde, one of four defendants appealing the decision in The Pirate Bay case.
(Credit: Pontus Alexander/Fabian Landgren)As CNET has reported, Judge Tomas Norström, who ruled against the Pirate Bay defendants, is a member of two copyright organizations. Some allege his membership is a conflict of interest.
CNET was unable to reach Norström on Friday to comment for this story. In a previous interview with Swedish daily Dagens nyheter (in Swedish), he said the accusations were wrong and that he was only sharing his competence.
"To spread knowledge about a legal area is one thing, to promote is something different," Norström said.
But Althin said he does not accept this argument. "If you are a member of an organization whose purpose is to strengthen the copyright holders' interest together with the accusing companies in the trial, then the trust is broken, considering impartiality," Althin said.
Peter Althin is Sunde's defense attorney.
In Sunde's appeal, Althin is asking the high court of justice to grant a retrial in the district court of Stockholm. In addition to the alleged conflict of interest, Sunde's appeal objects to the verdict's conclusion that his company helped develop The Pirate Bay. Rather, he has only admitted being a spokesman for the site. Sunde also says the damages to copyright holders were too high and calculated in an unreasonable way, according to Althin.
Also, Althin says that even if his client's company was found to have had a development role, Pirate Bay is not responsible for the crime of assisting copyright violation.
"Pirate Bay does not encourage anybody to commit a crime. Cars can be used for speeding and drunk driving, but no car manufacturer is held responsible for that," Althin said.
The appeals are now to be evaluated by the high court of justice, Svea Hovrätt.
It's a shame not everyone understands this very simple logic.
A car's primary purpose is to drive from place to place. If you misuse it, you can do things like drunk driving and speeding. The pirate bay's primary purpose is to provide torrents to copyrighted material for free. It's a shame not everyone understands this very simple logic.
SOME cars have that primary purpose and are still abused. Other cars, such as v8 could not easily be justified as merely driving from place to place. Performance vehicles are another category again where their velocity capacity and torque clearly outweigh any legal purpose. Sports cars again are not only advertised in roles that defy law but are not designed for any practical use beyond driving fast.
The same happens here. TPB is a search engine. It will give you the ability to find torrents WHICH ARE LEGAL. However, some of the torrents are to copyrighted material. Torrents themselves aren't illegal but copyright infringement is (and it isn't theft, any more than a car parked too long in a spot is guilty of theft, it is a parking infringement not theft of the parking space. 'Piracy' is copyright INFRINGEMENT not theft). Google will also give you the same legal and illegal torrent links. However they aren't suing Google because it is your more all purpose sedan, so it can still speed and the driver can be booked but it isn't as likely as the high performance car. But notice with the high performance car, no one is taking Porcshe to court...
I want to see Ferrari and Aston Martin brought up on charges!
Zoom-Zoom...
Were calculated too low imho if all the violations were added over the years i'm sure it would be trillions
This then leads to should file sharing become illegal? Well that would immediately destroy cloud networks as they are based on this. And lets face it, the whole internet is sharing of information. Look at the dodgy legislation that cnet commented on last week that tries to regulate file sharing - it has implications to basic ftp functions.
The car analogy is actually very accurate.
1. Cars are advertised as something to go fast in (ie break the law). And many cars, such as sports cars, could be argued that they are designed to not go the speed limit or to be used for day to day purposes.
2. Speeding or drink driving are infringements on laws, not criminal acts. Copywrite infringement is the same. It is not a crime nor is it theft. It is an infringement. It is the equivalent to parking in a space 5 minutes longer than the meter. In fact many countries have heavier legislation around drink driving and speeding than they do copyright infringement. So before you start incorrectly calling it theft, please check your statues. It is not.
3. There are set fines for infringements such as speeding and these were not considered in this case, instead the copyright owners were given too much power to dictate terms
The fact is that these idiots doesn't send take down notices to Google, when their search engine returns several orders of magnitude more torrents then TPB does.
The corporations have tried to make it sound like "piracy" is equivalent to theft but it's clearly not. First of all, if you steal somebody's car, then you've deprived them of the ability to use that car and drained their finances by the value of the car. If you copy their music, then you've deprived them of nothing and drained their finances only by the amount that they would have earned if you had intended on buying it. The reality is that the large majority of people who pirate music and video wouldn't have bought it anyway so you've deprived the owner of absolutely nothing. Furthermore, it sometimes provides free advertising which can be beneficial to the artist. It's probably harmful to opulent, elite artists/companies who have billions of dollars but beneficial to small time artists. You know what? The reality is , i don't give a damn about those billionaire artists/companies! Screw you Metallica! I hope you do lose 75% of your profits!! Or more!
The reality is, is that no one who deserves money for what an artist does (including the artist) is getting it from the likes of the RIAA. And no one is losing money, jeebus, these organisations are posting record profits. The movie industry has never had is it so well. Come on guys, get a grip.
That clearly isn't the point. If a company or copyright holder finds a link to something illegal, all they have to do is issue a 'take down notice,' to which responsible companies like Facebook, YouTube and Google respond appropriately. TPB did the opposite, effectively thumbing their noses and mocking such notices publicly. This isn't a Free Speech argument; it's a responsibility issue.
Any legal precedent will hardly affect Google. Google's primary purpose is not copyright infringement. Google does not encourage copyright infringement. It even responds to e.g. DMCA requests by taking copyrighted material down from some of its sites (YouTube, for instance), and while it could certainly be more pro-active in removing things itself before copyright holders have to demand it, there's relatively little to complain about overall.
The Pirate Bay on the other hand, is primarily intended to promote and assist in copyright infringement. The contrast with what I wrote about Google could not be more stark. Not only does it not respect take-down notices, it actively publishes them on its website in an attempt to humiliate and poke fun at the copyright holders or their legal representation.
And please stop the rubbish about "corporate entities". First off, corporate entities are run by people, for people. Even if you don't think you're involved in running or benefiting from one, you probably are, particularly if you are in a pension scheme. Second, a company with one member of staff is a "corporate entity" just as much as a giant multi-national corporation with a hundred thousand workers. And third, there are lots of copyright holders who are simply individuals, small groups of individuals, or very small companies. And the Pirate Bay hurts them disproportionately more than it hurts the larger organisations whose behaviour is often used as some kind of excuse for copyright infringement.
Did you know that here in sweden, where this whole thing has been going down, a bunch of high-profile book-authors have been cheering on the prosecution, and (naturally) telling everyone that, in conjunction with the prosecution, "the name says it all".
Funny story, a bunch of them have been publishing books for years under the publisher known as "Piratförlaget", which translated is "The pirate publisher". Does that mean they're illegal? I mean, they DO have "Pirate" in their name, and that's all it takes, isn't it?
Or could it POSSIBLY indicate that they have more of an "underground" or "not-so-establishment" profile?
"Pirate" doesn't make something illegal, neither does "Ice cream", "Speed bump" or "Midwest". Stop flaunting that utter lack of comprehension. Thank you.
Fair use has been thrown out the window in the name of corporate greed. Music, film, literature, science - these are all made FOR the people. When you decide to not be fair in the distribution of these then people will retaliate. Yes you can threaten and scream but in the end, people will want to see justice, not just whoever has the most money to pay for appeals, to win.
And yes, all those corporations are MEANT to be there for the people but you have to wonder why people hate them so much. Corporatate law is another dogs breakfast legislation whose original intention has been so horrifically distorted they have all the pros with none of the cons. Who would have a buisness as a natural person now when you can limit your liability behind incorporation? The corporation has all the rights of a human being with none of the responsibilities, in fact, in protects those that should be held responsible. So yes, there is a lot of hate for corporations because, by legal definition, you have made real people 2nd class citizens to the corporate citizen. You interfer with politics unduly and then flaunt lawlessness and a complete lack of ethics.
The pirate bay mocked calls for it to cease providing links to copyrighted material, why? Because those requests had no legal jurisdiction, they were using US law to make a request of someone not US. They mocked the arrogance of such requests, as they should. Why should a sovereign nation kowtow to US law? It is amoral to simply expect someone to obey you just because you make lots of money and are american. Which seems to be the primary arguement against tpb.
Who pirates movies? Movie fans. Why pirates video games? Gamers. Who pirates music? Music buffs.
The people who download X for free off the internet are also the same people helping to make X popular and also typically spending more money on X than the average person. Sometimes I download pirate versions of games I already own, simply because I've lost the disk or the disk has become scratched. Do you have any idea how many hundreds of games, CDs, and Movies the typical pirate owns? The typical pirate is already spending all he can afford on these products, and is downloading pirated copies precisely because he loves this stuff so much but can't afford to buy any more of it.
All this makes attacking pirates counterproductive. Companies would be better off promoting their products and trying to attract new customers.
Just imagine the scenario. Bob loves Valve's new game, but can't afford it, so he downloads it. Valve sues Bob. What is the outcome? Is Bob going to remain a Valve fan? No. Is he going to show Valve's new games to his friends? No. What is the point of attacking Bob? If he can't afford your game, do you really think he can afford any court settlement? Valve has accomplishing nothing more than shrinking it's fan base. When Bob gets a better job, he will happily buy games because spending $50 is not a big deal for him anymore.
Arguments against piracy are based on incorrect analogies with theft and the completely unrealistic assumption that the retail dollar value of the item pirated equals the dollar value of lost revenue for the industry.
This argument is oh-so-easy to destroy!
1. Theft deprives another of his possessions, copying does not. Would I care if a "pirate" came along and "copied" my car then drove off with the copy? Nope.
2. The dollar value of the item pirated does not equal the dollar value of lost revenue, because if the person had not pirated the item he would have most likely 1) not bought the item 2) bought a used copy from Ebay 3) bought the item later when it was on sale for 1/4th the original price or came in a bundle.
Of these (1) and (2) are at least 95% of the cases. The simple fact is you can buy just about anything used on Ebay, and that is the real alternative to piracy, not buying new, because pirates are obviously people with limited funds. Suppose I wanted to play the latest hot PC game, Empire: Total War, and I am a person of limited means who might consider pirating the game. Am I going to shell out $46 on Amazon for a new copy, sending money to the publisher? Or am I going to buy a used copy for $18 and send the money to some other consumer? Not a tough decision.
Now I admit that technically piracy does cost the industry some fraction of the retail dollar amount in lost sales, but I contend that this is more than made up for by increased exposure and fan base. There are so many franchises, bands, series, etc. I simply would never have become interested in had I not downloaded a copy and tried them myself. This includes games, music, TV shows, Movies, etc. Were it not for piracy, my devotion to these media would not be half what it is today.
Companies need to work with their fans and figure out how to get them to pay money for products. Taking them to court is entirely the wrong approach. Hulu and MMORPGs are examples of the RIGHT approach.
Some of the things I download now are just TV episodes Australia doesn't get for months. I rarely download games anymore and I much prefer going to the movies and seeing it in all of its glory rather than watch a dodgy copy on my PC.
Piracy is a alternative but limited choice to buying retail. Yes, it's free, but it'll never be as good as the real thing. The movies won't be as crystal clear, the games will always lack multiplayer support (and possibly patch support) and music will- well, I actually can't think of a good metaphor for that.
That the impartiality of a Judge Tomas Norström is rightfully questioned is a major flaw. Why did they let that happen? What about the reason of the Swedish state?
MPAA/RIAA, you have found yourself entrenched in a battle that will never end. You are fighting an archaic legal war that will be of no benefit to you or your property holders. Sweden, you just became a butt-puppet for this army who fights an ineffective war. Listen to the teachings of Sun Tzu: "No army will benefit from a drawn out war." People will do what they want, and your application of justice is powerless to stop them.
It is terribly sad that the application of justice, as you put it, is about the distortion of law. Laws are created with a specific intention. Copyright and patent legislation were developed to encourage people to create by giving them a short period of time where they could benefit financially. After that, it was to be given to the people and the legislation was designed to ensure that the created item was well documented to allow full use of it for FREE. Unfortunately, the intention of the legislation has been burried under corporate greed who not only deny the artists/creators the very revenue they purport to be protecting but also do all they can to remove any form of fair usage. They keep extending copyright and patent times while benefiting from and exploiting those that have become fair use. How often do we hear beethoven and no one is paying his family for it. Why? We have a right to be blessed by Beethoven's greatness. Just as we have a right to be blessed by all art and invention and research and development. Who else is is all done for if not for humanity? So all this crap about lets do all we can to deny people access to art and science is against the intention of the copyright legislation.
The MPAA/RIAA may be defending their 'intellectual property' but who defends the people against greed? So many posters keep accusing the 'pirate' as the greedy one when they've never considered that the actions of the RIAA/MPAA are in direct violation with the intention of the legislation they are exploiting to prosecute people.
Justice is as much about the intention of the law, about fairness, about being reasonable - all that, not just litigation for your slice or a pie that never really existed.
Are the people stealing it not just as greedy?
You complain about money to the artist well they still get a percentage on every song sold. Just because they don't get as much as they should does that mean they shouldn't get money at all?
If copyright and patents should work the way that you say you probably wouldn't have a job for very long considering your company would probably go bankrupt without its intellectual property.
As regards a company loosing it's intellectual property, surely they are supposed to stand on their own two feet and get business by being the competitive winner. Originally patents and copyright was a short term protection to allow a company to make the best of their ideas before others were able to join the fray. Nowdays we have a situation where good ideas are almost locked up forever and companies don't have to be competitive any more as they own the flippin patent or whatever. The world is stagnating in corporate greed.
How can one care so much about the interests of the "industry" and ignore the clear signal that a big part of the society is sending? Number of "copyright infringements" shows the percentage of people who can't afford to pay the price. Prices 20 - 40 - ? % lower (and its possible, considering the digital distribution and other ways of cutting expences) would encourage people to use "legal" versions and offer more control and statistics to the "industry".
So why sue Pirate Bay, when they are only mirroring the reality?
the very idea of applying law on the internet is disgusting in the first place. how can anyone be so arrogant to think the entire world should have to work the way they want it to? the internet is not bound to the laws of any country, as it is above all.
/soapbox
So you are saying these surveys are showing 60% of Swedes are are without morals and theives? No wonder Sweden is going after Pirate Bay.
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TPB is no more guilty as the companies who publish phone books. ANY phone book contains the names, addresses and phone numbers of murderers, rapists and illegal drug dealers.
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Is law enforcement arresting and prosecuting the publishers of these phone books as accessories to murder, rape and illegal drug dealing?
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Have any of these Moron judges ever been on the Internet? I doubt it. They are too busy trying to get their 8 Track Music Tapes to play.
- by UnrealPcube May 15, 2009 12:23 AM PDT
- As a student in CE, I can say that it's the attitude of people like these fellows that make it unappealing to go into software development, which is a shame. I firmly believe in the right of authors to prevent their work from being copied without permission... It saddens me that just because a majority of people approve of something that it's largely accepted... Sure, I'll admit as openly as anyone else that far too often copyrighted material that can be illegally attained is generally overpriced, but in the end, who is getting hurt? As I see it, the CEOs sure aren't going to lower their pay; they're going to reduce benefits, they're going to lay off employees, etc. etc. ... True enough, piracy doesn't account for a large percentage of a company's losses, but it's still pretty sad that all of the time and effort that an individual or group may pour into a certain work can be totally taken for granted.
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(49 Comments)Still, the owners of TPB have the right to say whatever they want, and this case is entirely symbolic, beyond the scope of just "stealing".
There is no such thing as a victimless crime...