Swedish prosecutors have dismissed about half the charges brought against defendants accused of copyright violations through their operation of a P2P (peer-to-peer) Web site that connectsusers to content — mainly music and movies — on other users’ PCs.
Last year, the owners of The Pirate Bay — a Sweden-based Web site that’s reportedly one of the world’s largest BitTorrent trackers — were charged with “promoting other people’s infringement of copyright laws.”
The owners — Hans Fredrik Neij, Per Svartholm Warg, Peter Kolmisoppi and Carl Lundstroem — countered that they did not profit from the site because they reinvested revenue to offset operational costs.
Copyright holders applauded the initial prosecution of The Pirate Bay, not only because huge volumes of materials were reportedly traded through it, but also because of the site’s blase attitude toward the alleged violations. The proprietors were viewed as thumbing their noses at the law.
Now, it appears that the defendants may indeed have had some justification for their confidence. Close to a year after the complaint against them was filed, and two days into their trial, prosecutors have dropped the charge of illegally distributing materials. Now, the defendants are faced only with making copyrighted material available.
Smart Move?
The about-face could be a smart move, from the industry perspective.
The prosecution will now be able to focus on the main issue, noted the IFPI.
The end result will be the same under the revamped charges, the group maintained, assuming the prosecution is successful.
The arguments will have to play out in Sweden’s courts, of course, and industry associations around the world will be watching closely, especially now that the prosecution’s case is perceived as weaker.
“This type of activity is a cat-and-mouse game,” Michael Kelber, partner with Neal, Gerber & Eisenberg, told the E-Commerce Times. “If the defendants prevail, it will be open season in Sweden, conceivably creating a haven for other such activities.”
Limited Impact
The court’s decision half a world a way will have a limited legal impact in the view of Doug Panzer, an attorney with Caesar, Rivise, Bernstein, Cohen & Pokotilow.
“While any verdict — for or against Pirate Bay — will be of interest in the U.S., it will be one step removed from applicability to our legal system,” he told the E-Commerce Times.
“The attenuation of any content industry win in terms of application in the U.S. is particularly true because Sweden appears to allow for a finding of liability based on making copyrighted material available, without actual distribution,” he explained. “That is almost diametrically opposed to recent holdings in the U.S. — for example, the Jammie Thomas case — that say actual copying is required to show infringement.”
That’s not to say that a win in the Swedish courts would have no effect on the rate of file-sharing, Panzer hastened to say. It might actually shut down The Pirate Bay, and it could scare others away from stepping into the void it would leave.
Perhaps most importantly, “it will provide a battleground in Sweden that is friendly to the content community,” Panzer continued. “If the content owners can make inroads in any court — be it a U.S. court or somewhere abroad — those holdings may or may not be echoed in other countries, but [the case] may provide a new strategy to the content owners where they can chip away at the file-sharing sites through the courts of the friendly country.
“The Internet is a worldwide network,” he continued. “If you can force the shutdown of an infringing site through the courts of Sweden, the U.S. or Timbuktu, you potentially take it offline around the world.”
The question remains, though, whether the prosecution can indeed shut the site down. Dropping half the charges does not appear to be a winning strategy — at least, at face value.
“It appears that the prosecutors may have dropped the distribution charges simply based on their ability to prove the distribution, but only the prosecutors can tell us for sure,” Panzer said. “In the U.S.,a copyright owner or his agent cannot infringe his own copyright. Therefore, distribution in U.S. terms would require proof that a user other than the owner or his techno-detective downloaded the materialthrough Pirate Bay. It’s possible the proof just wasn’t there.”
Recycled Arguments
Many of these issues have been addressed in U.S. court decisions, Ray Van Dyke, a technology attorney in the Washington, D.C., office of Merchant & Gould, told the E-Commerce Times. “Napster caused a similar sensation years ago, and the U.S. Supreme Court formally addressed the liability of service providers — in Grokster — that failed to police their sites.”
The Swedish defendants appear to be trying out similar arguments as their U.S. counterparts, he continued. “As with Napster, the defendants claim, in essence, to be above the law and operate for a greater good. In their opening arguments, they state that since their product can operate both legitimately and illegitimately, just as a car can be driven over the speed limit, they cannot be held liable for the actions of their customers downloading from their site. The Swedish prosecutors, along the lines of our Supreme Court, argue that inducing others to bad acts and contributing to those acts make you liable. In the Supreme Court’s Grokster case, the see-no-evil, hear-no-evil and speak-no-evil defense did not work, and service providers can and will be found liable.”
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The Swedish prosecutors, along the lines of our Supreme Court, argue that inducing others to bad acts and contributing to those acts make you liable.
This is a great comment from the Swedish prosecutors. Does this mean that all car companies are responsible for causing millions of people around the world to get speeding fines or in some cases go to prison. The provide cars which are capable of exceeding the speed limit, all we do is drive them, so are they inducing the driver to drive fast?