by on April 17, 2009

So, jail terms for the Pirates of Pirate Bay.

“Judge Tomas Norstrom told reporters that the court took into account that the site was “commercially driven” when it made the ruling.”

Commercially driven? What then, your honour, is the difference between Google, and The Pirate Bay?

Yes, you could outlaw all trackers, but that’s not going to happen. The fact is that the verdict – as the defendants have always pointed out – is merely theatre. The music industry had to do something, so they did this. It is significant that the trial was a pretty close run thing, and the prosecution didn’t get nearly all they wanted.  The damages awarded in no way reflect the music industry’s fiction that every illegal download is a lost sale, and the appeals process has yet to begin. The site itself will carry on, and the entire affair will be more fuel for the likes of I2p and others.


Clearly this will run and run – and I would imagine that donations for Piratbyrån are piling in as I write this. I don’t get the fact that there was a leak before the official ruling – from presumably the lowest level of the Swedish judicial system. I am sure the Piratbyrån’s lawyers are looking at all this as well as the fact:

1. Is hubris and taunting really tantamount to secondary infringement?
2. The fact the judge appears to have stated that he only looked at “intent” and none of the technical aspects of the case.

I am sorry me lud – half of the facts of the case were ignored?

Bring on round two – I just hope the quality of the coverage between now and then improves. It concerns me that the media, who are part of one of the few checks and balances we have in this country, seem unable to report legal and technical facts well – seems to encourage the fact that we are sleep walking into a modern world of surveillance. Would we tolerate the government logging who we wrote to, which shops we visit – I think not but if it’s online its another state of affairs. Maybe I’ll move to Pyongyang …

The issue of intent is pretty significant though, because the technologies involved are morally neutral. Whether or not we should ban anyone trying to use those technologies because they *could* be used to infringe copyright is a different matter. On the face of it, the media industry would be on safer ground going after the infringer rather than the facilitator of infringement – but they tried that too.

Yes of course it is far more black and white going after the infringer. However secondary infringement is somewhat greyer and looks at various things such as 1) knowledge of another’s infringing conduct and (2) causation, inducement, or material involvement.

Of course this issue is not new. There have been numerous attempts by publishers to stop libraries not only photocopying under exceptions in law, but from providing photocopy machines and paper to users to facilitate them photocopying.

You couldn’t make some of this stuff up.

Home taping kills music… or fills rubbish tips? The real money’s in media… blank tapes, blank discs, hard drives, copier paper, toner… and landfill sites. I’ve lost count of how many cassettes we’ve chucked out!

If Pirate Bay were to redesign their site to present nothing but carefully selected, transparently Google results, would the onus then at least shift to Google?

Or if Google ran a Bitorrent tracker? Some are saying that the technical difference between a search engine and a tracker is significant, but I disagree (and the Swedish court said they didn’t take any technical issues into consideration, which if anything makes it worse for Google). Both are ways of finding content to download.

Heh – I found Pirate Bay via Google, but it was Mac that made the computer (based on copying technology) that allowed me to find Google. Where does secondary liability end?
Did you see the Norwegian Survey that found Pirate Bay users were 10 times more likely to buy music than your average non-Pirate Bay user.
It seems clear to me that the financially poorest link in the chain is being gunned for.

Lawyers for the four men jailed for running The Pirate Bay file-sharing website are calling for a retrial, saying the judge could have had a conflict of interest.

Judge Tomas Norstrom is a member of the Swedish Copyright Association and sits on the board of Swedish Association for the Protection of Industrial Property.

But the judge has told Swedish Radio: “These activities do not constitute a conflict of interest.”

Clearly no conflict of interest there then;-)

Phew – for a moment there I though the entire trial was orchestrated by the recording industry and that Swedish justice had been exposed as a corrupt sham!

Lucky he put me straight.

Made all the more mysterious by the fact another judge was dismissed from hearing the case for not dissimilar interests.
And if you watch the film “Steal this Film” you can see what pressure the US has put on Sweden to convict these pirates – putting Sweden on the WTO blacklist of IPR infringing countries! ouch.

I think our summer holiday will be in Sweden this year.

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