Day 3 – The Pirate Bay’s ‘King Kong’ Defense

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The Pirate Bay trial is moving forward rapidly and again the day in court has ended early. On the third day the prosecution presented the amended charges. The defendants all called for acquittal while Carl Lundström's lawyer scored points with the already legendary 'King Kong' defense.

The third day of the trial started with prosecutor Håkan Roswall who presented his updated/amended charges to the Court, taking into consideration the developments of yesterday (50% charges removed). He characterized these amendments as a “small change”.

The defense lawyers responded saying, “We don’t agree that this is just a small adjustment of the claims, but we’ll return to the matter later.”

According to IFPI’s Peter Danowsky, the damages claimed from The Pirate Bay are the same as if the site had ‘legally’ obtained licenses to distribute the music world-wide, regardless of whether all the downloaders had later decided to buy the music or not. Effectively, they are trying to say that one download=one lost sale. They are talking about imposing the costs of a “global distribution license” on TPB.

For the song “Let it Be” by The Beatles, IFPI is asking for 10 times the damages, since the band’s music isn’t officially available online. Interesting logic here – perhaps if The Beatles music was made officially available, people wouldn’t even need to pirate it. The same 10X multiplier is used for all material ‘made available’ before official release, referring to this charge as a special “preview license.”

Peter Danowsky disputes the claims of the defense that they have no funds and cannot pay damages. He called TPB “organized crime on a grand scale,” which netted “significant revenues.”

“If I have all this money they claim, someone has apparently stolen it from me,” Peter Sunde twittered in a reponse.

“Maybe [they are not able to pay] the whole of the claimed damages, but a lot anyway,” said Danowsky. The damages being claimed against the four defendants total 117 million kronor ($13 million).

Sony complained in court that The Pirate Bay never remove torrents on copyright holders request, but that they have the ability to do so since they remove torrents that are named in a way that doesn’t reflect the material they link to. They note that The Pirate Bay has a bad attitude to complaints and ridicules the complainer. Sony says they have suffered many lost sales, suffered damage to their goodwill and other damages to their market.

Henrik Pontén from Svenska Antipiratbyrån (Swedish Anti-Piracy Bureau) said that their position is very similar to that of the IFPI. Their claim for damages is based on what it would’ve cost for The Pirate Bay to have acquired a global distribution license. This value was doubled to account for an alleged “loss of goodwill”.

Next up, Monique Wadsted for the movie industry. She talked about various alleged infringements, including those on the TV show ‘Prison Break’. Again, she feels that since the infringements took place before an official launch of the media, the damages are calculated based on the cost of a special “global preview license”.

During the second half of the morning session the defense lawyers had the chance to respond. Due to the reduction in the charges, the four defendants say they have no responsibility for the charges that remain.

The lawyers representing all four called on the court for the acquittal of their clients.

Fredrik Neij’s lawyer pointed out that the download figures as reported by the site were far from accurate, and that they should therefore not be used as evidence. It was further argued that uploading a torrent does not mean that the copyrighted files are also ‘available’, since it then has to be seeded. The torrent files, on the other had, are not exclusively on The Pirate Bay, and can also be found through other search engines such as Google.

Gottfrid Svartholm’s lawyer stated that users generate the content on The Pirate Bay, and that his defendant has no control over it. Peter Sunde’s lawyer pointed out that his client was merely the spokesperson of the site, and said that Peter was not responsible for anything else. It was further argued that the correlation between the number of downloads and damages suffered by the copyright holders is non-existent.

As Carl Lundström’s lawyer, Per E Samuelsson took the floor and pointed out the weaknesses in the prosecutor’s case. The defense argued that prosecutors have failed to prove that Lundström has been involved in any transfer of any copyrighted material. He played the King Kong defense.

“EU directive 2000/31/EG says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don’t initiate transfers. It’s the users that do and they are physically identifiable people. They call themselves names like King Kong,” Samuelsson told the court.

“According to legal procedure, the accusations must be against an individual and there must be a close tie between the perpetrators of a crime and those who are assisting. This tie has not been shown. The prosecutor must show that Carl Lundström personally has interacted with the user King Kong, who may very well be found in the jungles of Cambodia,” the lawyer added.

After the King Kong defense the court decided to adjourn the court case, which will continue tomorrow on day 4. Thus far, the trial is ahead of schedule.

Peter said that after today’s proceedings they all went for some pizza, where they met the whole opposing side. He asked if they could pick up the check. “They refused,” he said.


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