This morning the district court in Stockholm announced the conviction of the four defendants in the trial against The Pirate Bay (TPB) – Peter Sunde Kolmisoppi (Brokep), Carl Lundström, Fredrik Neij (Tiamo) and Gottfrid Svartholm Warg (Anakata).
A Google translation of The court decision is now available in english from the IFPI website. What follows is culled from the Swedish press and a cursory examination of the court decision (from the Google translation of the original Swedish version).
The crux of the matter is that they were convicted on one charge, assisting in copyright infringement (violation of the ‘making available’ right), and cleared on the other – ‘preparing a violation of copyright law.’
Sentences handed out were in line with the request of prosecutor Håkan Roswall in March: one year in jail. In addition the defendants have also been ordered to pay 30 million SEK, around 2.72 million euros, in damages to the entertainment companies behind the case. That sum was calculated in relation to the 33 works listed on the indictment, distributed on TPB between July 2005 and May 31 2006. Marten Schultz, an expert on damages in Swedish law has criticised the scale of the award, and argues that it highlights the error in treating the criminal liability and the damages claim as part of the same proceeding.
Reactions to the Result
Naturally the lawyers and businesspeople involved in the prosecution are rejoicing at the result; Henrik Pontén from the anti-piracy office stated it removed any doubt as to the illegality of TPB as a site, and would pave the way for an expanded legal offering of entertainment works online. Per Sundin, CEO of Universal Music in Sweden, and former CEO of Swedish Sony BMG was also pleased – during the trial he had compared the defendants to ‘digital fences.’ Monique Wadsted, acting on behalf of the MPAA’s Swedish franchise expressed her satisfaction not only at the result, but at the written opinion, which she claimed would withstand higher court scrutiny. But she must have been a little disappointed, after all, she did request the judge to give the defendants two years each….
As for TPB, Peter Kolmisoppi held a press conference over the net from Malmo, where he declared that he’d rather burn everything he had than pay any of the damages, and expressed confidence that they would triumph on appeal. the two stream are archived at Bambuser here (nb first five minutes in Swedish) and here. The Pirate Party declared the decision a scandal, and have announced demonstrations in major cities for tomorrow. their web site has also slowed to a crawl under the traffic, and they say that 2000 new members have joined in th last 24 hours. Lawyers for the defendants were also shocked, and Peter Althin in particular was outraged that the decision had been leaked prior to its official release (there is now an investigation taking place in regard to the leak).
Meanwhile in Moscow, Pirate Bay supporters threw a street party…
Infringement of the Making Available Right
The court followed a series of steps in coming to the guilty verdict (see pages 56 and thereafter in the judgment).
First they stated that the works listed as having been infringed were in fact protected by copyright – this was undisputed.
Second, were the works made available without the consent of the rightsholder – again, there was no dispute on this point.
Third, had a communication/transmission to the public – a new element of the exclusive right of ‘making available’ introduced by the Swedish implementation of the EU copyright directive (July 1st 2005) – taken place? For that right to be violated, a user must have had the possibility to access the work at a time and in a place of their own choosing. The court deemed that this was what happened in the case of accessing a work via a torrent download.
IFPI and anti-piracy staff Magnus Mårtensson and Anders Nilsson had downloaded the specified files during the period, and this was taken by the judge as evidence that the works had been the object of a communication/transmission to the public.
Fourthly, although some of the downloads took place in other jurisdictions, the presence of TPB’s servers in Sweden meant that the violations were punishable in Sweden. Under section 4 of the Swedish criminal law, liability for a crime lies not only with those who committed it, but also those who ‘promoted’ it by ‘advice or deed’ (p.62).
To sum up, TPB:
“….encouraged the main crimes by making it possible for users to load up and store the torrent files to file-sharing service The Pirate Bay provided a database linked to a directory of torrent files, making it possible for users to search for and download torrent files as well as to provide functionality through which the users who wanted to share files could have contact with each other by sharing the service tracker function.” (p.62)
The court stated that TPB was liable for continuously assisting copyright infringement during the period alleged. Furthermore, they insist that in order for the making available right to be infringed, it is not necessary for a full copy of the work to be copied, a portion of a work is sufficient. (p.64)
Collective Responsibility of the Four
There was little doubt about the role of Fredrik Neij and Gottfrid Svartholm Warg in the site, as they admitted to having taken care of much of its technical functioning.
According to the Court, Peter Sunde Kolmisoppi’s liability stems from his involvement in the flow of advertising payments and the use of his company HAIQ for the issuance of invoices in relation to same. In addition his suggestions with regard to the site development were taken as a further indication of involvement.
Carl Lundstrom’s purchase of servers, provision of bandwidth and correspondence of Oded Daniel, specifically in relation to 8.25% share were considered sufficient to establish his involvement,
The judge stated that the defendant’s claims of ignorance regarding the works listed in the indictment is immaterial to their liability – it is enough that they knew that copyright infringement was taking place in general through the site.
Claim of Safe Harbour under the EU E-Commerce Directive
The court found that TPB was a commercial information service provider as defined by the law (the commercial element being derived from their advertising revenue). As they stored torrent files, rather than providing transient storage necessary for a given transmission, they would have had to have in place a process for dealing with copyright complaints in order to be exempted from liability. They didn’t do this, although they knew that some of the torrent files related to copyrighted materials. (p.77)
He concluded that TPB’s operations were conducted in a commercial and organised manner.
The last twenty pages of the judgment explain the formula used to establish the damages awarded to the plaintiffs.
For the individuals involved the situation is grave. The plaintiffs will begin immediately to pursue payment of damages. As the decision will be appealed, and the charge does not relate to serious violence, implementation of the prison sentence will be delayed or stayed pending the appeal. In any case, neither Fredrik Neij and Gottfrid Svartholm Warg nor Carl Lundstrom are currently resident in Sweden.
Thanks to its now decentralised infrastructure, TPB will certainly remain online.
A huge part of the Swedish population will feel alienated by this decision – out of the eight largest political parties in Sweden, seven of their youth wings support the decriminalization of filesharing and are sympathetic to the Pirate Bay. Sweden is an incredibly consensus-oriented society, and this decision, together with the local application of the Intellectual Property Enforcement Directive (making pursuit of filesharers easier), will create a significant breach in the consensus model. The hegemonic Social Democrats will pay a stiff price for this, but the most immediate impact will be felt at European Parliament ballot in the first week of June. My prediction is that the Pirate Party will succeed in electing at least one candidate. Top of their list is Christian Engström,, a former campaigner against software patents, who I’ve met, and who can probably start packing his bag for Strasbourg/Brussels today.
Lastly there will be a lot of people from the mainstram press talking up authorised services for accessing movies and music, expect to hear a lot about Spottify, Hulu etc. If the entertainment industry had a real strategy they would use this moment of maximum visibility to launch other new services, but I’m not holding my breath.
Further coverage on the reaction to the TPB decision can be found here.
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