Norwegian Band Told It Can't Post Its Own Music To The Pirate Bay, Even Though It Wants To

from the how-nice dept

Having recently returned from Norway, where I was impressed at the optimism and the willingness to embrace new technologies and services, it's disappointing to read the following story (found via brokep) of a Norwegian band who recently released an album on their own label and decided to put it up on The Pirate Bay themselves, as more and more indie labels are doing. Except... the band members are a part of the Norwegian music collection society TONO, who is among those fighting to have The Pirate Bay blocked in Norway. Since the band has allowed TONO to enforce its copyrights in performance situations, TONO is claiming that it can forbid members from putting their music on sites like The Pirate Bay (translation from the original Norwegian):

The management contract in TONO means that we can not allow the TONO-members post things on your own at some commercial sites.

Once again, examples of these performance rights groups working against the wishes of artists, rather than helping them out.

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Company Trademarks The Pirate Bay Logo

from the missing-the-point dept

Quite a few people have pointed to the story about a Swedish company that has trademarked The Pirate Bay logo, and plans to sell USB keys with the logo included. The company claims that this is fine because The Pirate Bay had not registered the trademark itself. In the meantime, some folks associated with The Pirate Bay are saying they're going to try to overturn the ruling.

I don't know how Swedish trademark law works, but at least in the US there is a concept of a "common law trademark," which is supposed to prevent others from registering a mark on a brand that someone else is using -- even if they haven't registered it. It would seem like quite a silly trademark law if the Swedish trademark law doesn't include anything like that.

As for those who think it's ironic or even hypocritical that The Pirate Bay guys are somewhat bothered by this, you need to understand a few things. First, they clearly state that they have no problem with anyone doing anything else with The Pirate Bay logo. So, if this company just wanted to sell those USB keys by itself, it could do so. The issue they have is with this company "locking up" the trademark so others can't use it. That seems entirely in support with what they stand for.

Separately, it's worth pointing out (yet again, because some people still get confused by this) that trademarks are wholly different beasts than copyrights or patents. Trademarks are not about protectionism, but about preventing consumer confusion over who actually made or offers a specific product. It's a very different concept.

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The Pirate Bay Goes More Distributed, Shuts Down Tracker

from the legal-issues? dept

So this is interesting. The folks at The Pirate Bay have shut down its tracker for good, and switched entirely to a distributed, decentralized system, called DHT. As others are noting, this is quite a milestone, but I actually wonder if it will also have legal implications. Basically, using such a distributed system takes The Pirate Bay even further out of the equation in terms of its role in the sharing of content, and in theory could impact the ruling against The Pirate Bay. Of course, the entertainment industry will say it doesn't matter, and the courts (who don't seem to understand these things very well) might not realize the difference, but it is meaningful in terms of how involved The Pirate Bay actually is in the activity that's happening.

But, of course, even if this makes no difference in how the courts view The Pirate Bay (as expected), it does show the inevitable trend of these things: making them ever more and more decentralized and harder to shut down. When the RIAA shut down Napster, what came out of it was even more decentralized and harder to stop. Now the same thing is happening with the attempted shut down of The Pirate Bay. Even if you don't like what sites like The Pirate Bay do, at some point you have to wonder what good it does to keep shutting down these offerings when all it does is drive people to the "next" offering that's even more difficult to stop? At some point, someone is going to get the message that you can't stop this stuff. So why not figure out a way to use it to your advantage?

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Would Google Be Liable Under The Pirate Bay Ruling?

from the answer-is-hazy dept

Michael Carrier, a law professor specializing in intellectual property law, was kind enough to let us know about a paper he recently wrote analyzing the Swedish court's ruling in The Pirate Bay Case, and seeing how the reasoning set forth might apply to two other services: Grokster and Google. Grokster, of course, was a key player in a similar US lawsuit, that eventually resulted in the service shutting down. While many believe that the Supreme Court said Grokster was illegal, in reality, the ruling on the case only found that Grokster could be liable as a third party. Grokster itself settled before the lower court could rule on the issue, though co-defendant Streamcast was eventually found liable.

Carrier's analysis suggests that the Swedish ruling over The Pirate Bay did not go into nearly enough detail on why it made its ruling. Many of the explanations are quite vague, and could be broadly applied to other services. The most interesting part of the paper looks at how Google would fare under the same conditions -- and it finds that while Google has some distinct differences from The Pirate Bay, one could read the ruling in such a way that it absolutely would apply to Google as well -- which has troubling implications. At the very least, it suggests that the Swedish court did not fully understand the technology or the implications of such a ruling, and was more influenced by the fact that it seemed like The Pirate Bay must be bad, and therefore decided to support that in the ruling. But without carefully highlighting why The Pirate Bay is different than Google, the ruling is too vague and potentially dangerous.

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Court Says Telenor Doesn't Need To Block The Pirate Bay

from the onwards dept

I'm heading over to Norway in the next few days to give a talk at the Nordic Music Week event, and it's nice to see that the courts in that country seem to recognize how silly the IFPI's demands that major ISP Telenor block access to The Pirate Bay are. Telenor was smart enough to fight back, and the courts have now said that Telenor is not liable for what its users do, and should not have to block access to a site like The Pirate Bay. From TorrentFreak on the ruling:

The court ruled that Telenor is not contributing to any infringements of copyright law when its subscribers use The Pirate Bay, and therefore there is no legal basis for forcing the ISP to block access to the site.... In making its decision, the court also had to examine the repercussions if it ruled that Telenor and other ISPs had to block access to certain websites. This, it said, is usually the responsibility of the authorities and handing this task to private companies would be "unnatural."

Good to see a court recognize that the entertainment industry doesn't own the internet, and shouldn't be the one to determine what is and what is not legal online.

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Court Tells Pirate Bay Founders They Can No Longer Work On The Pirate Bay

from the yeah,-that'll-work dept

You can't say the entertainment industry isn't persistent in their attempts to shut down The Pirate Bay (though, a portion of the site's popularity can be attributed to their neverending campaign against the site). While the industry won its lawsuit against four of The Pirate Bay's founders earlier this year, the ongoing appeals process is taking too long for the industry -- and the court had not issued an injunction against the site, so it's still running (though, plenty of users have since bailed out due to concern about the failed attempt to sell the site). Still, the entertainment industry has been trying a bunch of different ways to shut down the site in the meantime. Initially it got an ISP serving the site to stop, which caused a brief downtime. However, the latest, as pointed out by brokep, is that the industry appears to have convinced the court to bar two of the defendants -- Gottfried Svartholm-Warg and Fredrik Neij -- from doing any work on the site (Google translation from the original, so would appreciate any detail corrections if the translation isn't accurate).

It's difficult to see what this accomplishes. Brokep points out that the two aren't involved with the site in the first place, and don't live in Sweden any more as well, so it's not clear what this does. On top of that, even if they were involved, it's not like others wouldn't quickly take their place anyway. The whole crusade continues to be a massive waste of time and resources by the entertainment industry for no clear gain.

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Dutch Court Orders Pirate Bay To Delete Torrents

from the yet-again dept

Earlier this year, a Dutch court issued a default judgment against The Pirate Bay, ordering it to delete certain torrents and block Dutch web surfers from reaching the site. The Pirate Bay's founders protested the ruling, noting that they had not been properly informed of the case in the first place, and that other items in the lawsuit were highly questionable -- including what appeared to be falsified documents submitted by BREIN, the Dutch anti-piracy agency.

The court has now annulled the original default judgment, but the new ruling is basically the same thing. The founders were told to delete torrents and block Dutch surfers from at least part of the site. The court also rejected the claim that the founders do not still own the site, saying they presented no evidence that the site had actually been sold to another entity, or any evidence of who now owned the site. While I still think it's questionable to force the site to block results of what is really a search engine, there is a point about who owns the site. I recognize why The Pirate Bay has done what it's done, but it almost feels like they're trying to be too cute about the ownership issue.

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File Sharing Sites Team Up To Help Promote Indie Films

from the no-legitimate-purpose? dept

While some continue to insist that there's nothing good or legal that comes from file sharing sites, many content creators who have embraced those sites have found them to be wonderful tools for distribution and promotion. Now, it looks like a bunch of them are teaming up to do even more. Mininova, The Pirate Bay, isoHunt, Miro, Vuze and Frostwire have all agreed to work with a new project called Vodo, which will help promote indie films. Filmmakers can offer their films through Vodo and get promoted on the various file sharing sites -- and the system is designed to let people easily donate. While I'm not a huge fan of a pure "donation" business model, it should be interesting to see how Vodo evolves over time. Certainly, it could be a valuable tool to indie filmmakers who recognize that obscurity is a much bigger threat to their efforts than piracy.

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Pirate Bay Appeal Lay Judge Employed By Spotify?

from the a-bit-of-bias dept

There have been all sorts of questions about unfair bias in the Swedish trial against The Pirate Bay and its founders, and the latest claim is that one of the "lay judges" on the appeal is employed by Spotify, currently a music industry darling trying to set up a licensed, authorized online music streaming system. Given that Spotify could reasonably see sites like The Pirate Bay as somewhat competitive, and that it counts major record labels among its ownership, it's hard to see how allowing an employee to be on the lay judge panel (sort of, but not really, the equivalent of a jury) is even close to fair.

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Pirate Bay Appeal To Be Heard By Judge Tied To Copyright Group As Well

from the well,-that-seems-fair... dept

As The Pirate Bay gears up for the appeal of its trial in Sweden, it's worth noting that the judge chosen to hear the trial happens to be the same one who was removed from reviewing the fairness of the original trial because she happens to belong to the same pro-stronger copyright group as the original judge. How is that fair?

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GGF Shareholders Approve Pirate Bay Buy... But No One Knows Where The Money Is

from the still-sketchy dept

We're among those who think it's quite questionable as to whether or not the acquisition of The Pirate Bay by GGF will ever really go through. GGF's CEO Hans Pandeya has had a lot of trouble answering basic questions ever since the deal was originally announced. The company has had trading in its shares halted twice now, and many of the "big name" people that Pandeya used to show he was legit have separated themselves from the company -- often questioning Pandeya's ability to do this deal. So, lots of people are interested in the news that GGF shareholders have apparently "approved" the deal. But, that's somewhat meaningless as there still remains little evidence that GGF can actually scrape together the money needed to complete the purchase. This whole thing has been pretty questionable from the start, and there's nothing yet that suggests there's a real deal here at all.

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Is Assisting With Assisting With Assisting With Potential Copyright Infringement Illegal?

from the perhaps-in-Sweden dept

With a Swedish court trying to shut down The Pirate Bay by forcing what it thought was the site's main ISP to block it, many folks are talking about how quickly the site came back, and the site's rather defiant response to the attempt. There's also some buzz about the fact that an antivirus company, Avast, has started blocking The Pirate Bay as being "malicious." While Avast defends the decision, it certainly makes me question Avast's competence as a security company (Update: Avast now says it was a false positive and has been fixed -- but that wasn't what the company said originally). It should be looking at actual malicious behavior -- not just blocking a site that you could go to where you might possibly if you did something dumb get some malicious files on your computer. Why not just do what a security product is supposed to do and stop the actual maliciousness from occurring, rather than blocking the entire site?

But, more to the point, this highlights one of the slippery slope problems with The Pirate Bay ruling and others. When you start to blame the tools for the problem, where do you stop? Peter Sunde made this point with a short Twitter message about the order against the ISP (I think that's what it's about):

It's now decided that Assisting with assisting with assisting of eventual copyright infringement is a crime.

Indeed. This is the problem when you allow for some sort of "inducement" or "contributory copyright infringement" standard. Where do you stop? The Pirate Bay itself doesn't infringe on copyrights. It's the users who do. But, the courts blamed The Pirate Bay. And when that didn't work, it went after the site's ISP, who is so tangentially related to the actual infringement that it's ridiculous to put the burden on it. Who's next? Already we have the entertainment industry trying to get individual ISPs to block their customers from The Pirate Bay. Basically, it seems like anyone in the chain, no matter how loosely connected can now get pulled into this as potentially violating copyright law.

Update: A separate point raised in the comments: apparently the court only told the ISP to block access to a small list of specific content, but without being able to do that, it just blocked the whole site.

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Swedish Court Get The Pirate Bay Taken Down

from the sunk? dept

When the original ruling came out against The Pirate Bay's founders, one odd part was that there was no injunction forcing the site to stop doing anything. The entertainment industry quickly filed for one -- which seemed a bit odd, considering that the case was under appeal. The latest, however, is that a judge has ordered one of the main ISPs servicing The Pirate Bay to stop, making the site largely inaccessible. In the meantime, the gov't agency that was responsible for getting the founders to pay up has basically found that they can't find any money to collect, which aligns with what the four guys have been saying all along (that they don't own the site and don't make money from it).

Either way, congrats to the entertainment industry for temporarily wac(k)ing another mole. Considering the whole mess with GGF, it seems like most of The Pirate Bay's users are already migrating elsewhere, and a few people are setting up clone sites. Again, this certainly isn't condoning their behavior, but at what point does the industry realize that it's not helping matters. It's just further distributing the problem, making it that much more difficult to do anything legitimate. Update: And, of course, it only took a few hours until the site was back online. Keep on mole hunting, Hollywood.

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No Surprise Here: Pirate Bay Acquisition Falling Apart

from the and-there-it-goes... dept

Back at the beginning of July we expressed our doubts about GGF's "acquisition" of The Pirate Bay ever actually happening. The quotes from the CEO made very little sense, and he was clearly hedging his language. Some have suggested that the whole thing was just a pump & dump scam (and, in fact, there were early questions about insider trading). As more details came out, the "plan" behind the acquisition just didn't make much sense, and those on the inside started bailing out.

Greg Sandoval's been on the story, and has a few more updates that make the whole deal seem quite unlikely. First, remember how the same day GGF announced a plan to buy the company Peerialism, which would be the key component to making The Pirate Bay function as a legit service? Yeah, well, apparently GGF hasn't actually followed through on that deal at all, and Peerialism notes that GGF hasn't lived up to its contract terms or delivered any of the promised money at all -- and that no development work has been done. Then, this morning, trading in GGF shares was suspended again, as more doubts are being raised about the whole effort. From all this, plenty of people are now starting to realize there's as good chance that the deal itself is never going to happen.

The real question, though, is whether or not it was ever really expected to happen?

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Italian Recording Industry Sues Pirate Bay As Well

from the but-of-course dept

Another day, another lawsuit for the Pirate Bay team. This time, it's taking place in Italy, where the local recording industry associations FIMI (Federazione Industria Musicale Italiana) and FPM (Federation against Musical Piracy) have announced plans to sue three of the individuals believed to be responsible for The Pirate Bay. This isn't a huge surprise. A year ago, after complaints about The Pirate Bay, a court ordered ISPs to block access to the site, only to have a court overturn that ruling. And, of course, in the end all it really did was bring a lot more attention to The Pirate Bay in Italy. Considering that The Pirate Bay doesn't appear to have any operations in Italy either, it's not entirely clear that this lawsuit actually matters. And, also, there's the issue that the three guys being sued here claim to not have any ownership of The Pirate Bay at all.

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Dutch Court Sides With Anti-Piracy Group; Says Pirate Bay Must Block Dutch Web Surfers

from the or-else-what? dept

We've seen more than enough stories already about questionable court rulings around the globe saying that certain ISPs must block access to The Pirate Bay or other sites. Historically, such blocks have been a disaster. They don't work (people find an easy way around them) and the announcement of the ban itself almost always generates a lot more traffic to the banned site. It's like free advertising. However, the anti-piracy group BREIN appears to have taken a different strategy in the Netherlands. Rather than asking the court to have ISPs block The Pirate Bay, it asked the court to tell The Pirate Bay to block Dutch web surfers. BREIN, of course, has a history of overreaching, including demanding names of file sharers against local privacy laws and declaring that a usenet group, by itself was illegal.

And yet again, a court has ruled in the entertainment industry's favor, going against basic civil rights. The court has said that The Pirate Bay must start blocking Dutch web surfers from reaching the site. Somehow, I doubt the folks at The Pirate Bay will comply. They've already complained about the process, noting that they were never summoned to the court to defend themselves, while the ruling itself actually spends a fair amount of time claiming that the folks from The Pirate Bay were fairly summoned through a variety of means. The court basically concludes that they should have known about the case, and their failure to show up will not stop the case from moving forward.

Not surprisingly, the Pirate Bay folks find the whole thing to be a farce. They're already suing BREIN's lawyers for falsely claiming that The Pirate Bay had launched a DDoS attack on BREIN's website. Also, amazingly, the court wouldn't even give them a copy of the ruling against them. Of course, as brokep notes, The Pirate Bay doesn't have any operations in the Netherlands anyway, so what can the court do?

In the meantime, is it worth mentioning that it was a Dutch study that recently said that file sharing had a positive impact on the economy?

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Pirate Bay Sale Looking Even Less Likely

from the was-it-ever-real? dept

At the beginning of July, we questioned whether or not the announced purchase of The Pirate Bay by GGF was ever really going to happen. From the statements made by GGF CEO Hans Pandeya, it really seemed quite doubtful. Not only did he do a terrible job of explaining the plan, he contradicted himself multiple times and suggested a few times that the deal could fall through. That may in fact be happening. Two weeks ago, we noted that Pandeya had supposedly hired Wayne Rosso (former Grokster boss) to negotiate with record labels concerning a business model that didn't make much sense to us. Rosso has now admitted that he's no longer working with GGF and doesn't believe the company has the money to make the purchase, and has problems with Pandeya's credibility. So, once again, we're left wondering if this deal will ever happen.

Separately, it should come as little surprise that a bunch of entertainment companies are demanding that the Swedish courts shut The Pirate Bay down. It was noteworthy that in the original ruling against the four people associated with The Pirate Bay, the court did not issue any sort of injunction to stop the site from functioning. The folks at The Pirate Bay are claiming this sudden demand for a shut down is because the entertainment industry is trying to mess with the sale to GGF, but it certainly looks like that's falling apart on its own (as if there was ever any real meat there). Still, for all of the complaining by the entertainment companies, it seems quite premature to shut down the site when the original ruling is still under appeal. But, since when has that ever stopped the industry? In the meantime, it might not matter much even if it is shut down. Since the announcement of the GGF plan, lots of others have stepped up to try to take the place of The Pirate Bay as a key source for torrent searches. It makes you wonder who the entertainment industry will single out next? After all, The Pirate Bay was a relatively small player itself before the US entertainment interests first called it out...

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Now BREIN Says The Pirate Bay Should Block Dutch ISPs

from the either-way dept

Various entertainment industry lobbying groups have pushed for courts to force ISPs to block access to sites like The Pirate Bay, but now it looks like BREIN, the Dutch anti-piracy group, is trying to hit this from a variety of angles. If it can't get ISPs to block access to The Pirate Bay, it's demanding that The Pirate Bay block access from Dutch surfers. Even more bizarre, it's already dragged representatives from the proposed buyers of the The Pirate Bay, GGF, into court, despite the fact that the deal hasn't concluded (and may never actually happen). When do judges recognize that these organizations don't have any logical basis for what they claim, but that they'll simply throw everything at the wall to see what sticks in a mad dash to protect an obsolete business model from innovation?

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Pirate Bay's Plans Too Clever By Half: Arbitrage Consumer Bandwidth

from the this-looks-like-a-mess dept

There's a bunch of news coming out about the sale of The Pirate Bay to GGF, though it's still not making very much sense, I'm still wondering if the deal will really happen. However, it appears that GGF has started working with Wayne Ross, who ran Grokster and Mashboxx, in an attempt to get him to negotiate with the labels. In an interview, he more or less reveals GGF's plans for The Pirate Bay.

Basically, you'll have to pay to leech, but the more resources you "contribute" to the system, the less you'll have to pay, and if you contribute enough resources/bandwidth, then you might actually make some money. Then, on top of that, they believe that some content providers/ISPs will pay for offloading their bandwidth. That explains some of the earlier statements made by GGF. In theory, the idea is that it makes everyone happy. Those who pay for bandwidth on hosting content can pay a lot less. Users who contribute bandwidth end up getting free content (or potentially even making some money). And, of course, the content owners get paid.

Except... that idyllic picture starts to break down when you start to run through the details. The second the paywall goes up, an awful lot of users will abandon The Pirate Bay for friendlier non-barrier-happy sites. That takes away pretty much the entire advantage of The Pirate Bay to make this work. Even the appeal of potentially making money probably won't attract enough users. Second problem? There's no way the economics works out nicely on this one. We've already seen the sort of ridiculous rates that the RIAA wants to charge for individual streams/downloads of music. Put those numbers into this model and start doing the math... and start laughing. There's no way that much money comes into the system. None.

Finally, it leaves out an important party who clearly will not like this setup at all -- even if all the rest of it works: consumer ISPs. The real "ingenious" part of the plan appears to be that some content hosters/service providers are effectively pushing bandwidth costs away from themselves, and dumping them on retail ISPs, who offer flat-rate connections. So the real "costs" are hidden in the typical flat-rate plans of ISPs.

It's effectively a sneaky arbitrage play, whereby The Pirate Bay tries to aggregate all the unused flat-rate ISP bandwidth, and wholesale it to others, paying copyright holders in cash, and downloaders in free/cheap content. But the ISPs whose bandwidth is getting used don't get paid, meaning they're more likely to push back even more against unlimited connection plans. I just can't see how this works.

Oh, right, in the meantime, it's not clear the recording industry has any interest in playing along. They're already demanding that cash from the sale go to them, rather than the founders. Of course, that's a bit misguided, since the founders no longer own The Pirate Bay, having handed the ownership over to others in 2006. So they won't be getting any of the money from the sale. The recording industry basically says it doesn't believe that to be true, and will use the sale as evidence that the founders should pay up. Thus, it's difficult to see them rushing out to embrace this already questionable arbitrage play.

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Norwegian ISP Fights Back Against Pirate Bay Ban

from the democratic-principles dept

The IFPI (the international version of the RIAA) has been working around the clock lately to try to get various ISPs to block access to The Pirate Bay and other file sharing sites. Some have caved in, while others have lost lawsuits. In Norway, however, leading ISP Telenor is fighting back, saying that taking orders from the entertainment industry to block sites it doesn't like goes against democratic principles:

"Instead of demanding that Internet providers censor the Internet and monitor the content that's transferred, Telenor believes that the best way to decrease illegal file sharing is to put more effort into making legally downloadable content available."

But, as we've seen over the years, there are still many in positions of power within the recording industry who believe that the best new business model is to try to stomp out anyone who challenges their old business model. Eventually, they'll realize what a failed plan that is.

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