Prosecutors Change Pirate Bay Charges Again; Weak Evidence Exposed

from the it-took-them-two-years-to-prepare-this? dept

Before the trial of The Pirate Bay started in Sweden, it seemed like the defendants were being a bit brash in declaring the whole trial a spectacle, with no real legal basis. While I have a difficult time seeing how The Pirate Bay is guilty of being anything other than a search engine, I had assumed (at the very least) that in the two or so years that Swedish prosecutors and various entertainment industry lawyers were preparing the case that they would at least present a competent case. So far, they haven't shown that at all. First they were forced to drop half the charges on the second day of the case, after realizing that half the charges didn't apply. Then, the prosecutors have been called out repeatedly for introducing new evidence, against the rules of the court. Then, there was the snafu of asking a proclaimed Pirate Bay user to talk about how The Pirate Bay is bad.

The stumbling has only continued. It started with the prosecution modifying some of the remaining charges, as they once again seem to have realized that what they charged these guys with doesn't apply. Isn't that the sort of thing you're supposed to do well before the case is actually in the trial stage? Then, they put some of the anti-piracy investigators on the stand, where it was quickly shown that they were technically incompetent -- and the examples they were showing may have been found via The Pirate Bay, but didn't involve The Pirate Bay at all in the actual sharing of content (which makes sense, since The Pirate Bay doesn't host any content itself). When challenged on whether or not the file sharing actually involved The Pirate Bay's trackers, the IFPI's Magnus Martensson admitted: "I think I've said this three times, that I just assumed it." Great bit of "evidence" there.

Furthermore, Martensson was asked about how using The Pirate Bay differed from using Google, and he appeared unaware that Google could be used to find torrents. Yes, this is the guy in charge of "anti-piracy" efforts, admitting when questioned that "I don't know about Google." Did it really take this long for the prosecution to assemble such a weak case?


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  1.  
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    hax, Feb 24th, 2009 @ 2:22pm

    Busy doing something else.

    Do you get the feeling that the prosecution thought this would be a slam dunk? So perhaps they decided to go out for drinks for 2 years instead of study?

    That happened to me a few times in college :)

     

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    Mario Koch, Feb 24th, 2009 @ 2:29pm

    Shame on the music industry that they even thought about sueing Pirate Bay. This is a big joke. Why they dont put yahoo google lycos to court???

    Mr. Bjoern Ulvaeus (Known from ABBA) had to comment the case too without any knowledge of the matter. But thats just similar to the prosecutors.

    Downloading copyrighted stuff is not right, no question about it. But calling search engines responsible for illegal downloads is simply wrong.

    They are just ten thousands individuals who share music or films. This wont change any court on earth. Big 4 have to attack everyone sharing, one by one. Difficult task for sure.

    No, the future are music flatrates but not pay for single albums or songs. Yahoo once had a promising flatrate but I dont find it annymore. Music industry will find out one day too. Consumers are ongoing disappointed that Music Industry completely ignores them. So some CEOs must wake up from their comfortable armchairs and face the future instead of creating frustration among music lovers.

     

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    Mike G, Feb 24th, 2009 @ 2:33pm

    This is such a farce

    Really? Dropping half the charges on the 2nd day of the trial? Changing charges and introducing new evidence? What a complete embarrassment.

    I wonder if those at the RIAA have the press release together on how this was a "blow" to piracy. They might want to hold it for a bit.

    I've long since argued that Google could be used for finding torrents AND copyrighted material. Just pick up a copy of "Google Hacks" (or google that term) and find the right search syntax. The line of legal attack being used here could certainly apply to Google.

    That said, they've come after The Pirate Bay and not Google because they're called "The PIRATE Bay" and a PIRATE ship for a logo. Not illegal, but it's symbolic.

    Oh...and Google has good lawyers...not that they would need them in this case.

     

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    SteveD, Feb 24th, 2009 @ 2:51pm

    Spectacle

    This trail has been nothing if not entertaining, but I do wonder if the outcome will have the effect either side is looking for?

    If the Pirates loose, the site will simply relocate. If they win the Media industry types won't be deterred, and will switch tactics.

    I suspect that the political spectacle is most of what will come out of this. Pass the popcorn.

     

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  5.  
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    anonymous coward., Feb 24th, 2009 @ 3:17pm

    -.-

    Perspective 1.

    I can prosecute better than these crappy lawyers.

    Perspective 2.

    The prosecutors are in actuality Pirate monkeys and love the SCENE and are doing a shitty job to keep The Pirate Bay alive. lol.

     

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    GHynson, Feb 24th, 2009 @ 3:36pm

    Prositution Losers,..

    I say we make them walk the plank after they lose.

     

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  7.  
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    Liberty McAteer, Feb 24th, 2009 @ 4:08pm

    I'm actually writing a paper on this...

    So I am currently a law student.

    There are a ton of reasons that TPB is different from google. Those in the tech community tend to be a bit myopic when it comes to legal issues. So, basically, two things to take note.

    1. Yes, these prosecutors are truly incompetent. Having to drop half the charges so early on demonstrates that these guys have absolutely no idea what they are doing.

    2. Secondary liability is a tricky beast. In America, there are two types of secondary liability for copyright infringement: vicarious and contributory. Contributory liability consists of 1) knowledge of an infringing activity and 2) material contribution to the infringing activity. Vicarious liability consists of 1) a defendant that has the right / ability to control an infringer's acts, and 2) receives a direct financial benefit from the infringing activity. The problem that most techies have is that they think algorithmically, i.e., saying that what Google does is not functionally any different from what TPB does. I have a very hard time swallowing this argument, so, i will deal with it in two ways. First, I will attack it directly, and then, I will take it at face value, and demonstrate how, legally speaking, as opposed to algorithmically speaking, this defense fails.

    1. Google is a search engine, based on automated web content spidering, and TPB is a BitTorrent tracker, based on manual user uploads. Frankly speaking, guys, the fact that both sites use 'searchable databases' does not mean, in fact, that they are categorically the same. Automated processes are treated, legally speaking, differently than voluntary human activity. It has been acknowledged, time and time again, that there is an 'overinclusion' problem with search engines, i.e., that search engines will list some illegal content on their sites, that is legally acceptable, because the service provided by the search engines is acceptable. However, when you put human motivations into the search engine, this automation argument goes out the window immediately. TPB is, algorithmically speaking, much more similar to AdWords than the traditional Google search, and, as a result, there is a somewhat distinct body of law governing this business method. Simply speaking, no, Google and TPB are not identical.

    2. Bad Actors. Google is a legally formed corporation that obeys court orders and, in general, does things that governments like, such as pay taxes, respond to cease & desist demands and DMCA takedown notices. The Pirate Bay are so obviously bad actors that to even have to make this argument forces me to question if tech-heads even are aware of the idea of facetiousness. TPB is predicated on, without question, the systematic violation of intellectual property law. The fact that there may be a 'substantial non-infringing use' of TPB, and that a ton of their content is, in fact, legal, or open source, or public domain, is utterly negated by the fact that they have openly admitted to criminality.

    Also, to clear up a legal issue that seems to have many of the tech community seriously confused, the reason that companies like Grokster and Napster were done in by the courts is because of secondary liability. The fact that TPB actually hosts no infringing content is utterly irrelevant; additionally, the fact that the prosecution in this case did not understand that is a head-slapping-inducingly eye rolling moment, as, clearly, TPB is not guilty of direct infringement, but, rather, secondary liability. If this case were being brought in America, I would venture to argue that a movement for judgment on the pleadings (where a judge can actually decide a case before it goes to the jury when the evidence makes it painfully obvious there is no actual chance of one side winning) may actually hold water. The only, ONLY reason that TPB continues to function is because of the extremely, extremely lenient state of Swedish Copyright law.

     

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    Grokk, Feb 24th, 2009 @ 4:08pm

    Re: Prositution Losers,..

    Yarrrrrr!

     

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    some old guy, Feb 24th, 2009 @ 4:19pm

    Re: I'm actually writing a paper on this...

    "The only, ONLY reason that TPB continues to function is because of the extremely, extremely lenient state of Swedish Copyright law."

    "The only, ONLY reason that TPB cannot exist in the US is because of the extremely, extremely absurd state of American Copyright law."

    See, I can do that too.

     

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    Slackr, Feb 24th, 2009 @ 4:19pm

    Who's paying the bill?

    Charges filed. Check.
    Shall we bother with anything else? Hmmm nah, it's pretty clear we'll win, they're called the Pirate Bay for crying out loud.
    Day 1: OMG! Why can't we charge them with that?
    Day 2: OMG! OMG! What are we charging them with again?

     

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    Anonymous Coward, Feb 24th, 2009 @ 4:31pm

    Re: I'm actually writing a paper on this...

    If I remember correctly Grokster and Napster were NOT done in by the courts, but by out of court settlements. They never saw the inside of a courtroom. Would be nice to see someone actually mount a defense in the U.S., but the civil court system in the U.S. is set up for the one with the most money wins.

     

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    Evil Mike, Feb 24th, 2009 @ 4:47pm

    Re: This is such a farce

    I wonder if those at the RIAA have the press release together on how this was a "blow" to piracy. They might want to hold it for a bit.

    No, no! It was supposed to read:
    'They want to blow pirates.'

     

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  13.  
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    Anonymous Coward, Feb 24th, 2009 @ 5:00pm

    Re: Re: I'm actually writing a paper on this...

    Exactly.

    TPB is a perfectly legal site under Swedish Law.

     

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    Erv Server, Feb 24th, 2009 @ 5:13pm

    poor case

    be something if the prosecution actually won

     

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    Liberty McAteer, Feb 24th, 2009 @ 5:13pm

    Re: Re: I'm actually writing a paper on this...

    That is false.

    MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005) http://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd.

    A seminal internet law case. Well worth the read.

     

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  16.  
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    Liberty McAteer, Feb 24th, 2009 @ 5:14pm

    Re: Re: Re: I'm actually writing a paper on this...

    No, it is not perfectly legal under current Swedish Copyright law. This is what you call an issue of "first impression," i.e., whether or not it is legal will be decided by this case.

     

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  17.  
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    Liberty McAteer, Feb 24th, 2009 @ 5:17pm

    Re: Re: I'm actually writing a paper on this...

    For 'some old guy' you sure argue like a child.

    I am not one of these crazy pro-industry copyright nutjobs. However, honesty, the state of Swedish Copyright law is a source of international mockery. A good analogy is to Swiss Banking law: they are open, and conscious, harborers of international criminals.

    I am not saying, by the way, that American Copyright law does not need a tremendous amount of reform. Of course it does. There are a dozen and one nonsensical things about it. However, tech-heads have a way of arguing that the baby should be thrown out with the bath-water, and, genuinely, if you cannot square yourself with the idea that artists deserve rights in their works, I will not bother to try and persuade you.

    I suggest that, rather than rage against copyright law itself, you research what a 'work for hire' is, and lobby your congressmen to have musical works removed from the list of 9 default work for hire categories.

     

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    Liberty McAteer, Feb 24th, 2009 @ 5:18pm

    Re: Spectacle

    Agreed.

    You should look up the concept of 'security through legality.' Enforcing out of date business models with legal liability will not work. For the industry to 'win' against TPB, they need to be moving in the direction of Hulu.

     

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    Liberty McAteer, Feb 24th, 2009 @ 5:19pm

    Re:

    Read my post, below.

    Google is not the same as TPB for a host of reasons. That they both "search" is trivial.

     

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    Mike G, Feb 24th, 2009 @ 5:36pm

    Re: I'm actually writing a paper on this...

    There are a ton of reasons that TPB is different from google. Those in the tech community tend to be a bit myopic when it comes to legal issues. So, basically, two things to take note.

    Forgive us. We're boiling this down to (what we believe) are the fundamental issues and NOT the legal ones.

    While it's true that TPB is not identical to Google, the line of legal attack here (as far as I can tell) wouldn't make that distinction. According the line of logic from the prosecution, you use TPB to find infringing copyright and therefore you must be held accountable for these actions. However, you could say the same for Google...you use can use Google to find infringing copyrighted material or torrents to infringing material.

    I would also maintain that this is Swedish law and not US law, so I wouldn't necessarily be inclined to believe that all the contentions you put forth (eloquently I might add), are directly applicable to this situation.

    I think you make some good points if the case were being tried in the States. I agree that it's not likely the case would ever make it to trial (the amount of money required to defend a venture like this would be prohibitive). And I would say that there are certain things us non-Swedish speakers will ever fully understand, so we're left with this:

    We're technology folks passing by a blog that reports how this case is going, and we'll boil it down to what we can understand.

    TPB is providing a place where other individuals can point to ways to get to infringing material. Google can do the same. It seems a little odd that the prosecution is using such a broad attack (from what we can tell), that would also apply to other search engines.

    Is TPB being picked on because of their hubris? Yeah, probably so. However, if this is the best that the Swedish Copyright Law can muster, then the law should be changed before the State goes to war on this.

    Just an opinion...and I don't go to law school.

     

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    SteveD, Feb 24th, 2009 @ 5:38pm

    Re: Re: Re: I'm actually writing a paper on this...

    Some curious arguments McAteer, but as has been pointed out time and time again; This is Sweeden not America, and arguments from an American lawyers perspective bare little importance.

    Regardless of what you think of Sweedish copyright law, it remains still precisely that. I'd be much more interested in a paper explaining the intricacies of that law and its application in these circumstances then a paper arguing Sweedish copyright law should be more like American.

    And your google argument seems to have a hole. If its all about the intent of the individual, I could upload a copyrighted picture to a website right now, google could index it, and others could download it.

    The intent and end are precisely the same; only the method differs. But if Googles actions are acceptable 'because the service provided by the search engines is acceptable', then all your argument really comes down to is 'what is acceptable?'. And that really doesn't sound much like a point of law.

     

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  22.  
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    Liberty McAteer, Feb 24th, 2009 @ 5:50pm

    Re: Re: Re: Re: I'm actually writing a paper on this...

    You make several very valid points!

    Of course Swedish law is controlling in this issue. Ironically, however, it is probably not in Sweden's best interests to have a weak IP regime, as a very substantial part of your economy is based on intellectual property, such as software, film and music. That is neither here nor there.

    With regard to your point about Google, however, this theory is called 'legal realism.' It is basically that, when it boils down to it, judges and juries are going to make calls about how they perceive a particular defendant morally. I am not saying this is a good thing; I am not saying it is a bad thing. I am saying it is a fact. It is basically just living up to the fact that the popular vote does still matter in court.

    Additionally, I still think people are really reluctant to understand the distinction between Google and TPB. Google scans every site it can get its spiders on, and pretty much posts them all, according to their patented PageRank algorithm. There is no human accountability in this process. TPB, however, functions on the model of individual users, illegally ripping content and then personally providing access to it, via the uploading of a torrent, to TPB.

    Additionally, these arguments are not 'my' arguments, they are the law's arguments. The tech community may want to argue principle, and I would love to engage in that debate (I am, in fact, going to see Lessig on thursday), but that is neither here nor there. Academia takes a back seat to legal reality: courts are powerful, professors are not. For one to argue that the legal issues are not fundamental, is, in my humble opinion, rather naive. In an ideal world there would be no lawyers, because there would be no disputes. This world is not ideal, and though lawyers are inefficient, costly, and, as often than not, highly self interested, they are a reality. To say that legal issues are not fundamental is like saying that you can ignore electromagnetism when designing an inertial engine: maybe, sometimes, in highly limited circumstances, but, most likely, your calculations will be drastically off. To discount the interest of a bunch of huge, extremely wealthy organizations, in addition to the interests of the artistic community and international treaty, is, in my opinion, to be signing your own suicide pact.

    I would like to see a much more open IP culture. That this suit may amount to nothing more than political theater, however, is still largely irrelevant. TPB is not a sustainable model, because it pits gigantic interests directly at odds. Progress is necessary, but TPB is not progress. It is simply piracy. Sorry, but that is just plain fact. To quote Homer Simpson, "In theory, communism works. In theory." Well, he is wrong, and, with that in mind, "In theory, a business predicated on not paying content producers for their labor works. In theory."

    I would like to thank all commentators, by the way, for their feedback.

     

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    Macca38, Feb 24th, 2009 @ 5:56pm

    The REAL state of Artist Contracts with the Music Industry

    Take a Read...

    It may open your eyes....guys!!

    http://www.janisian.com/article-internet_debacle.html

    Its the large corporations making most of the money....

    People need EDUMACATING!!!

    These Lawyers are fighting for large corporations....NOT ARTISTS.....the artists see Fxxx ALL OF ANYTHING....

    You are better going to their concerts and supporting them that way...and buying a T-SHIRT!! The Large companies even tell these artists how much they can sell their CDs for...so a T Is a better option Imo...

    Go TPB....they have my support...This has been coming to a head for years, and as a 46 year old man, I have watched our rights be more and more eroded over the years,,,,,and am old enough to have noticed teh changes...and all this Is basically about

    Rich Vs Poor, and FREEDOM!!

    The Haves and Have Nots!!!

    So called PARENTS Vs Fledgling Children!! (They want Control)

    The Corporations want to monopolize everything...What you see, what you hear....WHAT YOU PAY!!

    We all work Daily Jobs for hourly Rates...

    If I helped build the Sydney Harbour Bridge...Do I get anything extra for the Term Of My Life...plus 70 years....

    Fair enough...these artists are sure talented people...but when your job Is doing something you would do for fun...It then doesnt really become WORK...yet some of these Artists earn MILLIONS...

    No wonder the world Is stuffed....Its similar to all the HOOHAH concerning he large amounts paid to Bank Managers, and the current World economic climate

    I appreciate their artistic talents, and would appreciate them much more, If I knew they were actually getting most of the money for their work, but sad truth Is, THEY DONT...and also, sad truth Is....Its way too expensive for what Is offered, and Its due to all the Overhead these corporations have told Artists Is essential to protect them, which Is ALL BULLCRAP.

    Ild scream blue murder also, If I had control of everything...held all the cash/control for years, and suddenly find that my monopoly was crumbling...

    Thats what these large Corporations are doing...

    Ultimate Power Corrupts, Ultimately!!

    They Simply cannot see the lovely forest, for all the trees!!

    Cheers

     

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  24.  
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    Phillip (profile), Feb 24th, 2009 @ 6:00pm

    Re: I'm actually writing a paper on this...

    Actually if you want to compare this directly to a google technology it is much more like YouTube than AdWords.

    YouTube has user uploaded content that is legal/illegal which google allows you to search and use.

    The main difference is that under UNITED STATES law if infringing content is found Google has to take it down. This does not appear to be the case in Sweden.

     

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    Hokey, Feb 24th, 2009 @ 6:22pm

    Re: The REAL state of Artist Contracts with the Music Industry

    > You are better going to their concerts and supporting them that way...and buying a T-SHIRT!! The Large companies even tell these artists how much they can sell their CDs for...so a T Is a better option Imo...

    There is actually something to this... I read an article a few years ago (can't remmebr where, damn it!) that was talking about the "Three Biggest Stadium Tours" that year (I think it was Rolling Stones, Pink Floyd and Metallica) and how the bands LOST money on the concerts and made practically nothing on CD sales that year... yet all earnt tens of millions of dollars each... ALL on t-shirt and programme sales.

     

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    Mike (profile), Feb 24th, 2009 @ 6:24pm

    Re: I'm actually writing a paper on this...

    2. Secondary liability is a tricky beast. In America, there are two types of secondary liability for copyright infringement: vicarious and contributory. Contributory liability consists of 1) knowledge of an infringing activity and 2) material contribution to the infringing activity. Vicarious liability consists of 1) a defendant that has the right / ability to control an infringer's acts, and 2) receives a direct financial benefit from the infringing activity.

    Well, let's be clear here. Some of that secondary liability isn't written into the law at all, but is a result of some highly questionable legal decisions that overturned years of established legal precedent.

    And, again, that's only in the US. As others have pointed out, Sweden's copyright laws don't seem to be as draconian when it comes to secondary liability. And, since the lawsuit is in Sweden, that's kinda what matters.

    Even so, it's still difficult to see the distinction, under the law, concerning Google and TPB. The fact that Google searches *more* stuff is rather meaningless. TPB is specifically designed to search for content -- much of which is perfectly legal. So, I fail to see how the distinction matters much under the law.

    TPB is, algorithmically speaking, much more similar to AdWords than the traditional Google search, and, as a result, there is a somewhat distinct body of law governing this business method. Simply speaking, no, Google and TPB are not identical.

    Definitely an interesting point. But, of course, TPB is not a "business" so the "business method" is a bit misleading as well.

    Also, as others have pointed out, the charges which have been filed do not make the distinction you have laid out above. Based on the charges filed, Google is, in fact, equally guilty.

    The real issue, which has been stated numerous times by the defendants is that the real liability should be on those who have uploaded the offending torrents. The entire lawsuit is misdirected.

    Also, to clear up a legal issue that seems to have many of the tech community seriously confused, the reason that companies like Grokster and Napster were done in by the courts is because of secondary liability.

    Again, this was a major shift in the law, and went entirely against earlier precedent. And, again, you're talking American law, which is significantly more draconian and innovation-antagonistic than Sweden's law.

    The only, ONLY reason that TPB continues to function is because of the extremely, extremely lenient state of Swedish Copyright law.

    And that's a bad thing?

     

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    Mike (profile), Feb 24th, 2009 @ 6:27pm

    Re: Re: Re: Re: Re: I'm actually writing a paper on this...

    Of course Swedish law is controlling in this issue. Ironically, however, it is probably not in Sweden's best interests to have a weak IP regime, as a very substantial part of your economy is based on intellectual property, such as software, film and music. That is neither here nor there.

    Actually, that is very much both here and there. As we have discussed at length around here, your initial assumption is wrong. The economic evidence suggests that a stronger IP regime does not, in fact, encourage larger market opportunities. In point of fact, it shrinks the market opportunity, by artificially limiting the resources used to build that market.

    Many Swedish content creators have recognized this, and embraced the freeing of their works, knowing that when they put in place smart business models focused on scarcities, they only benefit well beyond what they did in the past when they tried to sell such infinite goods.

     

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    Jason Rad, Feb 24th, 2009 @ 7:33pm

    Re: I'm actually writing a paper on this...

    Quote "Contributory liability consists of 1) knowledge of an infringing activity and 2) material contribution to the infringing activity. Vicarious liability consists of 1) a defendant that has the right / ability to control an infringer's acts, and 2) receives a direct financial benefit from the infringing activity."

    So I present to you this arguement:

    The majority of hardware vendors, to include media manufacturers the world over, are guilty of both Contributory liability as well as Vicarious liability.

    Reasons being:

    1. They provide material contribution to the infringing activity with the knowledge of that infringing activity.

    2. They have the right / ability to control an infringer's acts, and do receive a direct financial benefit from the infringing activity - Monies for products that they openly declare can be used for the purpose of violating copyright laws.

    As you yourself wrote:

    The fact that there may be a 'substantial non-infringing use' of those vendors products, and that a ton of their products use, in fact, is legal, it is utterly negated by the fact that they have openly admitted to criminality.

    Let's take Sony for example:

    Sony has provided hardware for the reproduction of copyrighted music CDs as well as copyrighted DVDs for over a decade. In your arguement, as I stated above, Sony knows fair well that the appeal of the devices they sell is the ability to reproduce copyrighted materials, legal or not. They have openly amitted that the device is capable and will be used for such a purpose, making them guilty to some extent of Contributory liability. They know of the activity and provide materials to make it so.

    Harder to prove would be Vicarious liability, but I will continue below:

    Does Sony or another vendor have the ability to control an infringer's acts? Surely they can produce hardware that will not allow the reproduction of copyrighted materials - look at the list of attempted trials - all however unsuccessful not in part due to the fact that financially they will not commit to anything that would overburden profits. Do they recieve a direct financial benefit from
    the infringing activity? Yes again. As does any vendor that supplies blank media or hardware/sofware devices known to be used for reproducing copyrighted materials.

    I know it sounds like symantecs but when shown in the light, The same music companies, Sony for example are more guilty of the same type of copyright infringement they sue over. The only reason they do not legally attack one another is they cannot squeeze anyone but the little guy. Threaten him with prison, sue the grandparents it was their computer system, $25,000 per song that will show them!

    As far as bad actors... well I think I've said enough, but I wanted to mention that because an organization is legally formed, pays taxes, supposedly doesn't cook their books, they are not the saints of the business world.

    And any arguement that you have about one form making it easier then any other to reproduce copyrighted materials just does not and will not hold water. If one is guilty, they all are.

    Just a few thoughts from my algorithmically thinking mind...

    I would like to end with one last thought, tort reform - you should write your paper on that. Half the reason this planet is so screwed up is because of lawyers. The other half... because those who aren't solicitors won't pass a law to form a hunting season for them.

    toodles!

     

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  29.  
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    Robin, Feb 24th, 2009 @ 7:45pm

    Pirate Bay Is A Business

    I don't know if you noticed the following little nugget Mike, but these kids were practicing what you've preached 'round here for several years. i.e. giving away an infinite service in support of a finite good.

    Buried in the news reports was the news that from the server farm the Swedish authorities seized, only around 20-30 % of the servers were used to support the website TPB. ALL the servers though belonged to a small company called PRQ, a company owned by one of these kids, who was hoping to build a web-hosting company. That's right, the Swedish cops carted off the entire physical inventory of this kid's small, nascent business!...

    ...in pursuit of something that wasn't there with zero understanding of what actually was there.

    To recap, TPB service was used to sell a finite good/service: shared and/or dedicated webhosting.

    There's no doubt these kids are disruptive, but I suspect Mr. Schumpeter would approve :).

     

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  30.  
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    Anonymous Coward, Feb 24th, 2009 @ 8:38pm

    Re: I'm actually writing a paper on this...

    Are you a Swedish law student? Because the laws are a bit different, and the DMCA does not apply.

     

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  31.  
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    Anonymous Coward, Feb 24th, 2009 @ 9:39pm

    Re: I'm actually writing a paper on this...

    (better finish up law school and have a little experience before you put on the white wig.)

     

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  32.  
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    TechWetWorks, Feb 24th, 2009 @ 10:49pm

    I was writing a comment on this topic but when I pressed submit something happened and I received an error message.

    Anyway I would like to say that I whole heartedly agree with commenter's on this site named Jason Rad and Macca38.

    As far as the farce of the TPB trial, I would really like to know what the prosecution has been doing all this time. I know from personal experience ( car accident -rear ended twice and broadsided once) that quite a few if not all lawyers waste quite a bit of time doing nothing with other lawyers. For an example of this look at our (US) legal system which is backed up by up to 12 months. Anybody with knowledge of how websites or more specifically search engines work would know that TPB is no different then google albeit TPB is a search engine for a specific thing, torrents.

    The general public needs to be informed that the the music/movie industry has been stifling any innovation that comes along. An blatant example of this is allofmp3.com and mp3sparks.com. Both are owned by the same group which followed Russian law and acquired the licences from the music industry. AllofMp3.com sold music for pennies, the site offered a wide variety of digital formats and sold the music by the size of the file the user selects. This usually ended up being around 2-3 dollars for a whole album. Obviously the music industry couldn't stand for it and put pressure on the US gov. who in turn put pressure on the Russian gov. saying that they would protest Russias admission into the WTO. In the end the Russian site was stopped and Mp3sparks was put up. The only problem with the other site is that the credit card companies at the behest of the US gov. and the music industry have shut off access from the Russian site(s). Thus stopping purchases for a large audience and in essence killing the site, at least from the US.
    The sites operated for quite a while until a large group of people were using it. Simply put when the site became popular the music industry effectively killed it. God forbid there be an alternative to DRM laden music from itunes or other music sites. It's quite clear that if the music/movie industry doesn't like anything then they will either sue the people behind it or have there government shills put pressure on the people/county.

    Maybe the general public needs to have a Public service announcement for the truth behind the cost of music/movies as well as wear all that money is going since it is obviously not going to the artists/actors. It's said but people for the most part don't care about cost. Yes they bitch and complain but for the most part they still pay the high prices set by the music industry. For an example just look at itunes. Itunes charge $1 a song that has DRM and is stuck in apples crappy format.

     

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  33.  
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    Anonymous Coward, Feb 24th, 2009 @ 11:02pm

    Re: I'm actually writing a paper on this...

    2. Secondary liability is a tricky beast. In America, there are

    Oh brother, here we go again, trying to apply US law to Sweden. After that kind of remark, I'm not even going to brother with the rest of your comment.

     

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    Cabalamat, Feb 24th, 2009 @ 11:21pm

    I wrote a BitTorrent search engine

    I was bored so I wrote a BitTorrent search engine.

     

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    aloonymous cowdirt, Feb 24th, 2009 @ 11:47pm

    Re: I'm actually writing a paper on this...

    American intellectual property principles, legislation and enforcement is a joke. The rest of the world, apart from the UK, laughs long and hard at it, and right now I am trying very hard to breath because of all the laughing I've been doing. I haven't laughed so much since reading some of the correspondence between - typically - American "lawyers" and TBP where DMCA is cited here there and everywhere. Why the héll do Americans think that everybody on the planet is subject to American law, yet when Americans rip around the world murdering people in the name of liberty, suddenly the thugs are not subject to any UN guidelines or international law in respect of their actions?

    Now if you'll excuse me I'm going to tackle something with a bit more intellectual rigor and challenge than your puny misinformed and inexperienced rant exhibits: a nice cold beer from the fridge. Cheers!

     

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    booahhh scallywag, Feb 24th, 2009 @ 11:51pm

    Re: Re: Re: I'm actually writing a paper on this...

    I'm glad you're not saying that American copyright law doesn't need a tremendous amount of reform. You're on the right track there. Actually, maybe not. In some cases where the shît is just so thick it's time to throw it all away and start again. Start from the premise that nothing really is completely new under the sun, and it is all built on the thinking that has developed and been handed on over the centuries. Yes, there is originality and it needs to be rewarded, but it is and will always be built on the efforts.

     

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    Claes, Feb 25th, 2009 @ 12:08am

    Liberty McAteer said: "The only, ONLY reason that TPB continues to function is because of the extremely, extremely lenient state of Swedish Copyright law."

    This statement makes me wonder how much you really know about Swedish Copyright law. Let me first say that I don't have any special law education, but I'll try my best to give an accurate description.

    The Swedish law for Responsibility for eletronic notice-boards (yes, this wording sounds oldish and strange to Swedes too) says:

    1 § This law applies to electronic notice-boards. By eletronic notice-board this law refers to a service for eletronic mediation of messages. In this law message refers to text, image, sound, or other information in general.

    2 § contains some exceptions like strictly providing the network for transmissions, messages within authorities, services protected by liberty of speech/press laws, and messages with a fixed and small group of receivers (e-mail).

    4 § The one who provides the eletronic notice-board shall, in order to comply with obligations in 5 §, exercise such supervision over the service as can reasonably be demanded with respect to the extent and focus of the service.

    5 § If a user sends a message to an eletronic notice-board the one who provides the service shall remove the message or in other way hinder the message from being spread if:

    1. the contents of the message is obviously such that is covered by the law against agitation, agitation against an ethnic group, child pornography, illegal portrayal of violence, or

    2. it is obvious that the user has violated copyright or right that is protected by chapter 5 in the law about rights to literary and art works by sending the message. In order to fullfill his duty according to the first paragraph the one who provides the service has the right to acquaint himself with messages occuring in the service. The obligation according to the first paragraph and the right according to the second paragraph also applies to the one who on behalf of the provider of the service performs supervision of it.


    Please note that we don't have any DMCA safe-harbor provisions. So it would actually be possible to argue that our Swedish copyright law is in a sense stricter since the one who provides the "eletronic notice-board" (which I interpret as site with user-generated content) cannot know exactly how much he needs to do in order to fullfill his obligations, and it's based on active supervision rather than passively relying on abuse reports. There is another area where the Swedish law is definitely stricter: we don't have any concept of fair-use, only a text quotation right (and possibly a few exceptions in other areas). If you would want to exercise your american fair-use using images, sound or video in Sweden you wouldn't come far - unless you count on Swedes being less litigious of course, which is true.

    I read somewhere that it would be practically impossible to host YouTube in Sweden, which is quite possibly true given the law cited above. Maybe this is something people should think about before they call our laws lenient.

     

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  38.  
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    Anonymous Coward, Feb 25th, 2009 @ 1:00am

    Re: I'm actually writing a paper on this...

    And so.... what is wrong with the "extremely lenient state of Swedish Copyright Law"?

    Isn't it supposed to be that to do business in any country, one respects the laws of the land?

     

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    Claes, Feb 25th, 2009 @ 1:17am

    Liberty McAteer said "Progress is necessary, but TPB is not progress. It is simply piracy."

    There is a relatively new ad-financed music service in Sweden called Spotify (developed by a Swedish entrepreneur) which has been a major success here. Let me cite an article about it in the Swedish newspaper metro:
    All music is free and available legally. This is Spotify's business model. But it is thanks to the illegal file sharing and music pirates that the idea was born. The Pirate Bay is the big inspiration source for the music service.
    - Actually it is. Absolutely. I give them cred for that, says Daniel Ek, CEO and joint owner of Spotify.


    Of course this doesn't in itself legitimate the service TPB provides, but to say that TPB is not progress and simply piracy is still somewhat of a misrepresentation if you consider how they have popularized the technology which now forms the foundation of the most successful legal music service here.

     

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    Mike (profile), Feb 25th, 2009 @ 1:25am

    Re: Re: Re: Re: Re: I'm actually writing a paper on this...

    Progress is necessary, but TPB is not progress. It is simply piracy. Sorry, but that is just plain fact.

    I missed this comment earlier, but it definitely deserves a response.

    This is so wrong it makes me question almost all of your other points (which did seem well thought out). "Progress" is not for you to determine. The fact that so many people use The Pirate Bay suggests that it is, quite clearly and definitively, "progress."

    It's not progress to you because you're too focused on old business models. But it's progress in that it's a much better and more efficient distribution and discovery system than what was out there before. That's what makes it so useful to so many people. To brush that off as "not progress" is simply wrong.

    I'm getting pretty sick of lawyers thinking they get to define what is and what is not progress. You don't get to decide. The market does. If it finds something to be "progress" it will flock to it.

    To declare it "not progress" because it's "piracy" shows a pretty massive ignorance of history as well. I would suggest checking out Matt Mason's book, which shows just how much "progress" was first "piracy." Piracy is often the leading indicator of progress, creating more efficient ways to do things in a market.

     

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    TechWetWorks, Feb 25th, 2009 @ 1:45am

    Re: Re: I'm actually writing a paper on this...

    For a large majority of Americans don't think that our law applies to the whole planet. Only the stupid ones that never bothered reading/writing or even listening believe that they do. I would appreciate it if you have a little respect for America regardless of what the last president did. I have the respect not to bash you and your county you live in/born in.

     

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    mrGTB, Feb 25th, 2009 @ 1:48am

    Winning it easy

    From the way things have gone so far, I would say it's looking like the pirate bay are winning this case right now. Way to many weaknesses have been exposed in the prosecution's evidence.

     

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    cram, Feb 25th, 2009 @ 1:50am

    define progress, please

    Hi Mike

    "You don't get to decide. The market does. If it finds something to be "progress" it will flock to it."

    Intriguing! Does that mean anything that's the most popular is indicative of "progress"? And do we have a common measure for "progress" in different areas, such as technology, arts, science, etc?

     

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    TechWetWorks, Feb 25th, 2009 @ 1:51am

    Re: Re: I'm actually writing a paper on this...

    Aside from your ignorant and ass backward rant trying to bash America. The case against TPB regardless of the country is still wrong and shows that TPB is clearly not illegal. It just shows the extremes that the music/movie industry with go to in order to prop up there failing and out dated business model.

     

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    Mike (profile), Feb 25th, 2009 @ 2:15am

    Re: define progress, please

    Intriguing! Does that mean anything that's the most popular is indicative of "progress"?

    It means that it's progress for those people, because they chose it. Otherwise, they wouldn't have.

    It doesn't mean that things that aren't popular aren't "progress" because it could just mean that it's "progress" for a smaller market. But if people are flocking to something, then it's, by definition, progress.

    And do we have a common measure for "progress" in different areas, such as technology, arts, science, etc?

    Progress is determined on an individual level. If it's progress for you, then it is.

    However, the issue here is the constitutional point of "progress" which is to create progress for the greater good of society. So, in that sense, what's important is creating the largest overall impact.

     

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    Mario Koch, Feb 25th, 2009 @ 3:34am

    I dont know who did send Mr. Mc Ateer to come here. His arguments may be valid in his own world but dont apply to the case.

    Its a fact pirate bay and google are search engines

    A Pirate Bay for torrents / B google for websites

    (far most websites and torrents are not illegal)

    A people are uploading torrents to servers (not to pirate bay) and pirate bay is indexing/tracking them
    B people are uploading websites to servers (not to google) and google is indexing/tracking them

    Who is responsible for illegal content on servers - Of course the x-thousand uploaders are. Welcome big 4, go and get them. That would be the way really to fight for justice.

    Its so simple even prosecutors (outside Sweden) could understand.

    Im glad EIRCOM wont be the e-donkey for the music industry
    "Irish ISP: We Won't Block The Pirate Bay" PC World

    Also in Norway protests are raising against such blackmail attempts. Is absolutely not right how they treat governments, ISPs and individuals.

    Anyway its legal to download music via radio radio trackers for private use so it makes no sense to buy music which is played every day on the radio.

    napster would be interesting for me if its a bit cheaper than 10 EUR. Yahoo flatrate was 6.99 and cheaper if paid for a year. I think 5 EUR for US and EU consumers would be pretty interesting if you can use the music however you want in your private environment. Selling CDs instead of mp3s has no future.

    Russian mp3sparks.com offering music downloads since 2006.
    I would like some comments to them: legal or illegal for foreigners?

     

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    Claes, Feb 25th, 2009 @ 3:48am

    Mario Koch: "people are uploading torrents to servers (not to pirate bay) and pirate bay is indexing/tracking them"

    You are wrong. People are uploading torrent files to the pirate bay server.

     

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    R. Miles, Feb 25th, 2009 @ 4:00am

    RE: Why they dont put yahoo google lycos to court???

    Give it time. Eventually, this will be the case in the US, because more companies are trying to control IP.

    I search Google for an image. I find the image, and it's in copyright. In the results display, by defintion, Google just infringed because it made a copy of the image to post in its results despite the fact it merely used the image URL to display it.

    People who argue against piracy seem to forget the fact it's the copying that's causing the uproar, not the distribution. How it's distributed doesn't matter.

    TPB does exactly what Google does. It doesn't host the file. It doesn't own the file. It merely lists the file.

    The user enacts the "piracy" by making a copy as it takes one additional step to infringe. Even the person offering the song isn't infringing. You are by downloading it.

    This is where the entertainment industry fails to distinguish the difference. To them, someone who posts tons of music or movies on a website is infringing, and that's simply not true.

    I could easily put all my MP3s on my website and say "Here, take what you want." The case against TPB is the prosecution feels the system is encouraging piracy, but not actually committing piracy.

    I'm glad the case is falling apart because it's time people finally fight back against an industry that over values its products, restricts their use (even after purchase), and continues to put profits over customer wants.

    In short, the entertainment industry is getting what they deserve. It's about damn time.

     

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    Mario Koch, Feb 25th, 2009 @ 4:12am

    Re:

    Well you are just wrong as prosecutors. Its easy to forgive here that mistake but not in court. Not one single file is located on pirate bay servers.

     

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    Mario Koch, Feb 25th, 2009 @ 4:18am

    Re:

    "No copyright material is stored on Pirate Bay's servers, and no swapping of files actually takes place there. Rather, Pirate Bay locates file sharers on the Internet and acts as a directory of so-called torrent files. "

    http://www.reuters.com/article/internetNews/idUSL2723733820080127

    Did you get it now? You and the prosecutors.

     

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    Claes, Feb 25th, 2009 @ 4:21am

    Maria Koch,
    Torrent files are stored on the pirate bay servers (user-generated content). The torrent files contain file IDs and references to trackers. When someone uses a torrent file their bittorrent client connects to the trackers and requests IP addresses to the users who share the files having the ID (hash value) in the torrent file. I think you have misunderstood what a torrent file is.

     

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    Mario Koch, Feb 25th, 2009 @ 4:36am

    Re:

    Only torrent files are saved at the server. That means no copyrighted and/or illegal material are stored.

    You wrote: "The torrent files contain file IDs and references to trackers."

    Lets say these are just data like in a phonebook. Pirate bay is a search engine for torrents but not the place where they are uploaded or download.

    The files are located at the ( x-thousands of) filsharers computer.

    Hope you got it now!!! Grrrr

     

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    Claes, Feb 25th, 2009 @ 4:42am

    Mario Koch,
    You said that people are not uploading torrent files to the pirate bay server. This was wrong and I corrected it. I understand the technology so I don't understand why we argue about it.

     

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    Anonymous Coward, Feb 25th, 2009 @ 5:17am

    Re: I'm actually writing a paper on this...

    "1. Yes, these prosecutors are truly incompetent. Having to drop half the charges so early on demonstrates that these guys have absolutely no idea what they are doing."

    This comment coming from a lawyer is so insanely stupid as to make one believe that the author is an idiot at best. And, this is not a personal attack. This kind of comment coming from a lawyer really is that stupid.

    Why is this comment stupid?

    The trial is about winning, period! And any lawyer worth his salt would know that.

    So, what has this accomplished?

    Well in the months before the trial the extra charges forced the defense to spend immense amount of time preparing, researching, and planning for something that is a non event. These action thus prevented the defense from doing relevant preparation, research, and planning.

    One also sees the same tactics used by the prosecution attempts to introduce data in improper fashions.

    When there are billions of dollars at stake on one side and the opposition is a group of school drop outs these type of tactics assure that the desired results, entertainment industry, have a high probability of succeeding either in the court room or by bankrupting the defense even if the defense winds in the court room.

     

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    Mario Koch, Feb 25th, 2009 @ 5:20am

    People can upload torrent files simply everywhere.

    I missed the point that registered users can upload torrent files to pirate bay too.. ok.

    "assisting copyright infringement generally"

    Thats what google or yahoo or pirate bay are not doing. Hey, they are just search engines. The case is a real bad joke.

    "When asked about the differences between TPB and Google, Kennedy said there is no comparison. “We talk to Google all the time about preventing piracy. If you go to Google and type in Coldplay you get 40 million results - press stories, legal Coldplay music, review, appraisals of concerts/records. If you go to Pirate Bay you will get less than 1000 results, all of which give you access to illegal music or videos."

    Ignorant guy. If you type "coldplay torrent" in google you get 800thousand links. 90 Percent of links on google lead to illegal downloads.

    They must shut down google, in their logic they are criminal.

     

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    Anonymous Coward, Feb 25th, 2009 @ 5:29am

    Re: Re: I'm actually writing a paper on this...

    Maybe the problem is that a lawyers actually think a legal opinion is more important than a tech opinion.

    The law should be a trailing indicator of societies progress. Over time it should embrace the morality of the people.

    Currently lobbying efforts attempt to use it as a leading indicator. The law is in no way static, and if it wasn't for the money involved, copyright would already be on the way out of the door.

    Musicians would have a right to their work though. Just like anyone, they get paid to perform their work. But the right to restrict copying is an artificial grant of large government.

     

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    Mario Koch, Feb 25th, 2009 @ 5:50am

    800 Thousand coldplay torrents via google. I really cannot see how IFPI and ten guys inside google work together.

     

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    Claes, Feb 25th, 2009 @ 5:54am

    Mario,
    To my knowledge the Pirate Bay web site (the web front end - not the tracker) only indexes torrent files uploaded to their own site, so it's not those files "too" as you say. Google on the other hand only indexes material found on other sites. Try to google for coldplay filetype:torrent and you'll get around 2000 hits (not that the number of torrent files is very significant anyway).

     

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    Mario Koch, Feb 25th, 2009 @ 6:24am

    The Pirate Bay does not host content itself, but indexes files hosted by users of the peer-to-peer filesharing tool BitTorrent. Users search the site to find the files they want, and then download them directly from other users' machines.
    http://www.guardian.co.uk/technology/2009/feb/17/pirate-bay-internet

    So they are tracking torrent files anywhere.

    Will IFPI now try to shutdown google since cooperation doesnt work?

     

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  60.  
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    Jon, Feb 25th, 2009 @ 6:25am

    Re: Re: Re: Re: Re: Re: I'm actually writing a paper on this...

    I wish this site could vote up comments.

    Well played sir.

     

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  61.  
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    Jon, Feb 25th, 2009 @ 6:30am

    Re: Re: Re: I'm actually writing a paper on this...

    This is an excellent point that I have expressed before. This is a democracy. By that definition, if the majority deem it acceptable, the laws should be changed to that effect. Not kept to the status quo for the benefit of the rich.

    It is the problem with the golden rule. He who has the gold, makes the rules.

     

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    phosphor, Feb 25th, 2009 @ 7:18am

    The thing I find the most concerning about the MPAA/RIAA actions is that, if the current dissemination of creative works was applied in any historical context then we would have no idea of Shakespeare, or Bacon, or Dante, or Goethe etc..because there work would never have been shared enough for their to be a historical record. Nor can I picture Mozart, Beethoven, Grieg, Vivaldi etc... sitting around thinking that no one should share their works, or spread the music -- I'm pretty sure that instead they wanted their works listened to by people, and as such dissemination was a good thing.
    But yes why would eternal credit and being remembered be a valuable thing, when you can get money instead right? After all thats why Darwin, Freud, Socrates, Milton, Hemingway, Fitzgerald, Joyce all did it right , for the money?

     

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  63.  
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    BTR1701, Feb 25th, 2009 @ 7:18am

    Re: Re: I'm actually writing a paper on this...

    > The trial is about winning, period! And any
    > lawyer worth his salt would know that.

    Actually, that's not completely true. This is a criminal case, not a civil case. Yes, in a civil case, the goal is to win. But prosecutors in criminal cases are ethically bound to have justice as their goal, not winning. If, for example, evidence comes to light during trial that the defendant is innocent, a prosecutor is ethically bound to see justice done and the innocent person acquitted, or the charges dropped, even if means he loses the case.

     

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  64.  
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    Anonymous Coward, Feb 25th, 2009 @ 7:29am

    Re: Re: Re: I'm actually writing a paper on this...

    I'm an American and I don't support what Bush did. While I wish the previous poster would realize that not all Americans think the way the loud-mouth idiots do, Bush made a lot of stupid decisions and broke the law for pointless reasons.

     

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    Claes, Feb 25th, 2009 @ 8:06am

    BTR1701,
    as far as I understand the damages claimed by the recording and film industry representatives are part of a civil suit being handled in parallel with the criminal case (don't ask me about the details - this seems strange to me too). They may also assist the prosecutor in the criminal case if I understood it correctly.

    Mario Koch,
    Your terminology is somewhat nonstandard. Please note that Bittorrent is both the name of a computer program and a file sharing protocol and normally one means the latter. Torrent files are uploaded, stored and indexed on the Pirate Bay's website and their database. The only files you can find there are the ones uploaded to their website on their server (by users). Pirate Bay also runs an open tracker server which also tracks torrents from other sites.

     

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    Liberty McAteer, Feb 25th, 2009 @ 8:30am

    For the record

    in a previous post, I characterized a fellow commenter, 'some old guy,' negatively, and I apologize. Additionally, as one of 'those industry nutjobs,' I apologize for characterizing anyone who works in the industry that way. Chalk it up to a long day of writing papers and standard internet flamery.

    It will be interesting to see how this case turns out.

     

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  67.  
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    Anshar, Feb 25th, 2009 @ 8:50am

    Re: I'm actually writing a paper on this...

    Liberty McAteer: There is one flaw in your argument that TPB is different from Google that I (as a tech head) would like to address: You suggest that because Google uses spider robots to build the index for it's database it's acceptable. You also suggest that because TPB uses manually uploaded index entries that the situation is different. (Please correct me if I've misinterpreted your remarks.) Did you know that Google, Yahoo! and other mainstream search engines accept manual submissions to their indices? With that in mind, Google (used here as the posterboy for mainstream search engines in general) IS like TPB. Or to be more precise: Google does everything TPB does - it just does other things too.

     

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  68.  
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    Anonymous Coward, Feb 25th, 2009 @ 9:26am

    Re: Re: Re: I'm actually writing a paper on this...

    But prosecutors in criminal cases are ethically bound to have justice as their goal, not winning.

    You're joking, right? I've observed the behavior of enough prosecutors over the years to know that winning is all they care about.

     

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  69.  
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    Anonymous Coward, Feb 25th, 2009 @ 9:36am

    Re:

    2. it is obvious that the user has violated copyright or right that is protected by chapter 5 in the law about rights to literary and art works by sending the message.

    I would like to point out that "it is obvious" that users were not posting copyrighted material on TPB and thus not violating this clause.

     

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  70.  
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    RD, Feb 25th, 2009 @ 9:41am

    Oh please

    What a bunch of sh*t. Gun stores have guns, that is their reason for being. They dont make the gun, they dont control what someone does with the gun after it leaves the store. Why are gun stores not sued for all the death and illegal guns out there? After all, they are "enablers" and "contributors" to the gun problem, just as surely as any search engine is for infringing activity. So why not sue them? Because anyone with an ounce of brains and common sense (And a moron in a hurry) can tell you that PEOPLE KILL PEOPLE BY USING THE GUN. The manufacturer didnt "influence" them, the store didnt "induce" them.The individual is at fault, not the layers of people in between. And everyone god damn knows that. Even lawyers. But put that metaphor and structure on "that internet thingy" and suddenly its BAD! EVIL! The fault is the INTERNET! Get a freaking clue people. No one understands the underlying PRINCIPLE of ANYTHING anymore, especially corrupt lawyers and judges.

    Oh and by the way, absolutely YES you HAVE TO go after Google if you go after TPB in the same manner. The law says so. If you want your right to defend your TM and Copyright, then BY LAW (american that is) you MUST defend it against EVERY time you are made aware of it. I heard of a tape trader years ago who got sued by the big tv studios. This was before any of this was available on DVD like it is now. Anyway, he was told to close up shop yadda yadda. He then said, "fine but why pick on me? I'm not the only one. here are 20 others doing the same thing." You know what the fscking lawyer told him? "We can go after whoever we want." WRONG! You lose your Copyright and TM if you do that, sorry, FAIL. But thats how these big corps think. We can target ONLY those we choose, like TPB but not Google. Pick on the little fish and hope the others fall in line. Isnt legal, but hey, when has that stopped big media from doing anything?

     

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  71.  
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    drjp81, Feb 25th, 2009 @ 9:58am

    Re: I'm actually writing a paper on this...

    *Buzzzzzz*

    Wrong.
    Google results are partly automated but human made submissions are also possible.

    DMCA works in the USA *only*. So if the piratebay doesn't respond to DMCA notices, it is because they are moot in Sweden. If google responds to legal challenges such as takedown notices, it will be by states it recognizes where they do business. Unlike google, TPB is solely based in Sweden, hence, takedown notices from Zimbabwe are not suopposed to affect them because it is a foreign state, with no jurisdiction in Sweden.

    And hence the relevance of hosting or not the content.

    Clearly, Swedish law versus american law is different on this point. Why napster or grokster were done in: they were USA based.

    Just because an argument makes perfect sense (legally) in the U.S. it doesn't reflect on Swedish law in any way.

    So in court, your argument of direct infringement versus secondary would also be moot.

    If you took a moment to read (assuming you knew nothing and not being a hoity toyty law student) you would have noticed that they are accused of facilitating copyright violation.

    Thus closer to the "secondary" infringement to which you allude.

    P.S. I am not a law student anywhere, so perhaps this is why I don't work on the same (erroneous) presumptions.

     

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  72.  
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    nasch, Feb 25th, 2009 @ 9:59am

    Re: Re: I'm actually writing a paper on this...

    Why the hell do Americans think that everybody on the planet is subject to American law, yet when Americans rip around the world murdering people in the name of liberty, suddenly the thugs are not subject to any UN guidelines or international law in respect of their actions?

    Obviously because we have the most, biggest, and best guns.

    I kid, I kid!

     

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  73.  
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    Xiera, Feb 25th, 2009 @ 11:52am

    Just wanted to thank "Liberty McAteer" for posting a legal analysis on this. Even if I don't agree with it verbatim, it opens some different ways of thinking about this that I hadn't thought about previously.

    I think Mike's response (26) covered my biggest argument against McAteer's original post (7): TPB *does* offer legit content that does not violate copyright (or other) law. It is a focused search engine, plain and simple.

    That it has acknowledged that illegal activity happens is irrelevant. Illegal activity occurs via all kinds of online service providers. It's up to the service provider to decide to what degree they're willing to police their service. They have every right to not invade the privacy of their users, just as other services have the right to compromise their users' privacy.

    The argument of moral judgment by judges and jurors (many of whom don't actually understand the business/economic/legal/technological facts involved) is the unfortunate truth of the matter though. McAteer argued that TPB does not pay taxes, or respond to cease and desist letters or DMCA takedown notices. Does TPB even earn profits? In U.S. law, TPB (and other online service providers) would not be required to respond to cease and desist demands from businesses (though not sure about court orders), nor would they have to respond to DMCA takedown notices (they would just lose the safe harbor provisions thereof).

    Ultimately, I'm not convinced that TPB is different from Google and other search engines, except in that it focuses on a more specific niche.

     

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  74.  
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    Liberty McAteer, Feb 25th, 2009 @ 12:03pm

    A summary of my research

    Can be found here.

    http://libertymcateer.blogspot.com/2009/02/brief-history-of-pirate-bay.html

    I hope it is enlightening. Please keep in mind that I am trying to remain as neutral as possible, though I may have failed. My goal is simply to explain the legal issues, as seen through the lens of comparative law. My goal is not to offend anyone, merely provide as disinterested a summary as I am capable of.

     

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  75.  
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    Assar Bruno, Feb 25th, 2009 @ 12:23pm

    ... realizing that half the charges didn't apply

    What none of you has mentioned, is that the prosecutor wasn't too happy to get this case on his desk. In fact, if the The Swedish minister of justice hadn't instructed the police to take actions (as minister he was not allowed to do that), I think it's relevant to wonder if the case would have made it into the courtroom at all.

    Whatever legal grounds this case may stand on (or fall through ..., AINAL), I think those TPB guys have a point calling it a spectrial. Heck, the minister of justce had not much of a choice but ordering a quick razzia when he his options were either that, or face trade sanctions.

    I'm not trying tho defend any of them, but there are more than just legal aspect involved in this case.

     

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  76.  
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    Mario Koch, Feb 25th, 2009 @ 1:04pm

    Face trade sanctions. Thats how they could treat Switzerlands corrupt UBS bank and their criminal managers. Do nordic governments have no sense of law or no "nuts" where US jurisdiction ends?

    See russian sites selling cheap and legally music online since a decade. World is not so corrupt as it seems on first view, Russia and China are bit harder to crack down than small scandinavian countries.

    Again: illegal file sharing sucks, but hunting search engines instead of (of course too many) copyright infringers is a bad joke on the back of 4 young guys.

    No wonder Pippi Langstrumpfs dad was fed up with sweden and immigrated to TakaTuka Land. Mr. Ulvaeus still wont be able to explain what torrent files are or what TPB really does.

     

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  77.  
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    boris yeltsin, Feb 25th, 2009 @ 7:43pm

    Re: A summary of my research

    Your research states: "The Pirate Bay, ... is a veritable bazaar of copyright infringement, allowing users to download torrent files of everything from ... " This shows how partial you are. Many people will be confused by the way you have expressed this, as it implies that the material is downloaded from TPB or TPB is somehow facilitating the transfer of the material from the source to the destination when it is NOT. You know what I mean. If you don't, it's back to primary school for you.

     

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  78.  
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    boris yeltsin, Feb 25th, 2009 @ 10:45pm

    Contradiction?

    Seems there is a contradiction here.

    One of the witnesses for the prosecution claimed that they had gone online and downloaded stuff using TPB. Music and films or something? This was presented as evidence for the prosecution.

    Now, it has been pointed out that this is a criminal case, not a civil case, hence the involvement of the Swedish prosecutor.

    There is a generally-held tenant that if evidence is illegally obtained, then it is not admissible in court.

    The question is, would the "evidence" gained by downloading copyright material as presented by the prosecution be considered to have been obtained illegally?

    Seems to me that they can't have their bread buttered on both sides here. If merely using TPB is somehow "illegal" and it is part of the "process" of breaking the law, then they broke the law in obtaining this "evidence". If not, then how exactly can TPB be said to be part of the mechanism?

    Just a thought ... off for another beer ..

     

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  79.  
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    Claes, Feb 25th, 2009 @ 11:39pm

    boris yeltsin wrote: "would the "evidence" gained by downloading copyright material as presented by the prosecution be considered to have been obtained illegally?"

    If they have been given the right to download by the rights holders they don't do anything illegal when obtaining their evidence. I don't think the prosecution is making the case that using TPB is illegal, only that TPB is assisting (or whatever the legal term is in English) crimes which is not exactly the same thing. The question is perhaps rather whether the uploader is committing a crime if the downloader has the permission to download a certain file.

    Interestingly though IFPI included one artist on their list which it later turned out they did not represent. When they downloaded his work it seems they must have committed copyright infringement.

    "There is a generally-held tenant that if evidence is illegally obtained, then it is not admissible in court."
    This does not apply in Sweden.

     

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  80.  
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    boris yeltsin, Feb 26th, 2009 @ 12:16am

    Re: what Claes said

    Hmmm.

    Perhaps the reason why TPB isn't "assisting" is that they have no way at all of telling whether a person (or entity) downloading a particular torrent in fact has or doesn't have the right to view the content being downloaded.

    If what you say is correct - and I am not sure that it is - that somebody has given a person/entity permission to download something they own the rights to, how does TPB know whether this is true or not.

    Further, what if I, Boris, upload my material that I have created and the prosecution's researcher downloads this to check out as part of their research - have they then broken the law?

    In terms of illegally-obtained evidence, are you saying that the police in Sweden - or anybody for that matter - break the law in obtaining evidence that is then admitted to court, that this evidence is acceptable in a Swedish court? If so, do they then not get prosecuted for their illegal activity?

    Thanks.

     

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  81.  
    identicon
    Mario Koch, Feb 26th, 2009 @ 1:47am

    Of course copyrighted material as evidence was obtained illegally, court did not order to download.

     

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  82.  
    identicon
    Maio Koch, Feb 26th, 2009 @ 2:01am

    Re:

    Plus they found media file on TPB as they would have found it on google too.

    Very mpressive cooperation between IFPI and Google (10 people working on this, probably fulltime!.

    You find there thousands of illegal downloadable torrent files.

    Anyway search engines are not responsible for illegal contents offered by a third person. Hope at least the judges will understand or they would have to shutdown Google as next task.

     

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  83.  
    identicon
    Mario Koch, Feb 26th, 2009 @ 2:06am

    Oh I forgot that would be just for google.se! Not such a big loss for google. Pirates have many save havens.

     

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  84.  
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    Mario Koch, Feb 26th, 2009 @ 2:41am

    Fight for your rights Eminem! See how unfair Universal pays its artists for music downloads.

    http://nyheter24.se/noje/musik/143147-eminem-stammer-universal

     

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  85.  
    identicon
    Claes, Feb 26th, 2009 @ 3:56am

    Today is the by far most dramatic day in the pirate bay trial. Professor emeritus Roger Wallis at the Royal Institue of Technology in Stockholm was called as a witness. His research group's work shows among other things that file sharers on average buy more concert and movie theater tickets. He also provided a simple calculation example to show that even if CD sales go down and the increase in concert ticket sales doesn't go up enough to compensate it the creaters will still earn more since they get a much larger share of the concert ticket proceeds. Furthermore he said that based on scientific research it's not possible to claim there is a clear connection between lower CD sales and file sharing (contradicting what John Kennedy claimed yesterday), since there are so many other factors, of which he mentioned the introduction of mp3 players (making the CD format unpractical) and changed consumption behaviours (eg. the price development of CDs compared to DVDs being different, and more money spent on concert tickets). It's easy to understand why the plaintiffs are afraid of how his testemony can affect their possibility to claim damages.

    Apparently the representative from the Swedish anti-piracy agency ("Antipiratbyrån") Henrik Pontén had phoned Roger Wallis' employer the other day and asked all kinds of critical questions about his academical background. Professor Wallis said in passing that he felt this was a form of undue influencing on a witness and under different circumstances he might even have reported it to the police. Now it's perhaps understandable that the plaintiffs want to check his background in order to question his credability, but this in an indication of just how heated the witness interrogation got. They tried to question his credability, but have so far failed completely in doing so, although Wallis' being quite upset about these attempts might slightly damage the way he is perceived. The judge ordered a 10 minute recess in the trial, presumingly to let the feelings cool down a bit. Prof. Wallis is a composer who has written very well-known songs and he is a chairman in the government's IT counsil and has been part of the board of one of Sweden's two big music rights collecting societies. With this background it's not hard to understand the frustration of the plaintiffs.

    Wallis has been quite vocal in the debate. He supports broadband tax/fees and compares this to how music is licensed to radio where the creater doesn't have any absolute control over the distribution. The professor has also expressed the view that the interest of the public and the creaters need to be balanced or the result will be a public opinion in support of complete abolishment of copyright - something which he would like to avoid. The plaintiff laywers tried to portray this as Wallis having a political agenda, but the professor objected and said his conclusions were based on scientific research.

     

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  86.  
    identicon
    Mario Koch, Feb 26th, 2009 @ 4:57am

    Beside the fact that the case is not based on anything it draws a clear picture about dinosaurs.

    What I wrote yesterday about a music flatrate is just an option!

    But at the end it will come out most people will prefer to get music for free. Makes sense Mr. Ulvaeus, really.

    You can record music as mp3 from thousands of radio stations. Radio stations are legal music recording is legal for private use.

    If you want to buy albums - ok have a flatrate or buy songs at reasonable fees. And thats not like 1 song 1 Euro or giving artists less percentage than for CD sales.

    The big 4 and all the artists have all rights to get paid for good music. But in future its like battling stars to expect individuals pay for music. Yes you can - change your business model.

    I burn maybe 5 CDs a year from music recorded (di.fm, xtc-radio.de and others...) just for my cars cd player, but of course the future is not disks but mp3. Why not putting a fee on any player, why not organizing masses of radio stations instead of battling search engines and governments.
    Why yahoos music flatrate had to die?

    itunes cant be the ultimate music industries answer to really left-behind-frustrated consumers.

    Everybody just can profit from this new situation. Crisis in some languages is the word for chance.

     

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  87.  
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    Claes, Feb 26th, 2009 @ 5:20am

    The counsel for the defence just presented one of their main objections for the first time:
    The prosecutor has not proven what date the copyrighted works mentioned in the case were first made available. Since torrent files may be created and uploaded at a later time after the file sharing starts he has not proven that the main crime - making copyrighted works available - took place in the time period relevant in the case. Therefore he has neither proven that TPB has assisted such a main crime, they claim.

    I guess it is a matter of interpretation of "making available". Will be interesting to see how it unfolds.

     

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  88.  
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    Mario Koch, Feb 27th, 2009 @ 6:21am

    Youtube (a google company) shares agressive nazi propaganda videos which are blocked for german users only. Furthermore it contains millions of privately uploaded music files which recording industry cannot have approved. Millions of people are downloading this stuff.

    It would be a favour for the music industry and about time to shutdown youtube.se presented by google since they are providing technology that makes it possible to share illegal files.

    Search engines are no threat at all. In my opinion google and pirate bay are simply search engines and absolutely not responsible for law ingringments of third parties.

    But:
    Youtube dont check any uploads before publishing and so share knowingly illegal files from their own servers.

    If this is no crime I dont know.

     

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