David M Williams
Sunday, 22 February 2009 07:41
Business IT -
Networking
Page 2 of 4
Before long, the Pirate Bay was back on the air. The raid had been deemed illegal and unwarranted and there were no negative ramifications for the site save some unexpected downtime.
Nevertheless, it was definitely only a matter of time before the next attempt to shut down the Pirate Bay began, which finally led to the court case that commenced last week, February 16th 2009, 8:30am.
Pirate Bay founders Gottfrid Svartholm Warg (“Anakata”), Peter Sunde Kolmisoppi (“Brokep”), Fredrik Neij (“TiAMO”) and benfactor Carl Lundström are presently defending charges of commercial copyright infringement. The plaintiffs are a virtual who’s who of Hollywood: Warner Bros, MGM, EMI, Colombia Pictures, 20th Century Fox, Sony BMG and Universal.
The prosecution said that the Pirate Bay was aimed at Swedish users until late 2004 when Lundström helped develop the project by donating funds and resources. The prosecution suggested that the Pirate Bay is now a commercial organisation funded by advertising.
Somewhat ironically, prosecutor Håkan Roswall attempted to deliver a PowerPoint presentation but was unable to get his laptop to project onto a screen. Ultimately the judge ordered him to stick to his papers and continue.
By day two the fortunes of the prosecution had sunk even lower. Neij explained how torrents work and explained how the evidence presented against them – screenshots of torrent files – failed to show any connection to the Pirate Bay’s trackers.
Consequently, Roswall was forced to withdraw 50% of the charges, dropping everything relating to “assisting copyright infringement” which gave rise to much victorious twittering and blogging by the defendants and their legion of fans.
Nevertheless, the prosecution is still seeking damages of $USD 13 million which has been calculated as essentially the revenue the recording industry would have expected to receive if every known downloaded equated to one lost sale.
For some material – like “Let it be” by the Beatles, the damages have been calculated as 10 times the perceived lost sales because the song is not officially available in any digital form.
This multiplier was also applied to material made available through the Pirate Bay prior to official digital release.
The defence claimed they do not have funds to pay a fine of this amount but the prosecution have continued their theme of advertising revenue, claiming the Pirate Bay nets “significant revenues.”
Bolstered by half the charges being dropped, the defence claimed no responsibility for the remaining charges. Their argument was that the download figures reported were inaccurate and therefore not valid as either evidence or the basis for calculations.
Additionally, they argued, uploading a torrent does not mean copyrighted files are actually “available” because unless they are seeded they cannot be downloaded in entirety. Additionally, the torrent files are not exclusively on their site.
In a defining moment in legal history, Lundström’s lawyer, Per E Samuelsson, took the floor and played the King Kong defence, since compared to South Park’s Chewbacca Defence.
Here’s how it went.
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