Background and History of the File Sharing Movement
In 2000, Napster became the first major case against a national organization that was helping individuals pirate copyrighted material. The individual artists Metallica and Dr. Dre sued the service for connecting users to each other so they could share music. The service itself did not offer the music, but it only provided a search engine that allowed people to look for music provided by the service's users. Other artists offered their condemnation of Napster, such as Madonna and Eminem. However, these lawsuits were redundant in the big picture. According to a news report in June by CNET, "Warner Bros. Records is already suing Napster for the more generic availability of all the label's music though the software's service." [*1]
The legal battle eventually led to Napster being shut down, sending a shock wave through the global community of file sharers and file sharing services. In 2005, another service that allowed file sharing named Kazaa was lost a legal battle in Australia. [*2] The following year, after paying a fine of $100 million, Kazaa became a pay-to-download service. [*3] In 2006, a network named Elite Torrents was taken down by the United States government, and its administrator received five months in prison. [*4] In 2007, the British network named Oink's Pink Palace was raided, and its administrators were arrested by police for facilitating copyright violation. [*5]
In one particular battle, the network TorrentSpy resisted the lawsuits targeting its service and users. In 2006, it was the most popular Website for torrents, an optimized method for file sharing. Then in August of 2007, it was ordered by a judge to keep logs of all of its users. More than that, it was obligated to give these records to the MPAA, or the anti-piracy group known as the Motion Picture Association of America. TorrentSpy responded by blocking access to American users. [*6]
After enough threats and intimidation, the owners of TorrentSpy closed up on their own accord, in March of 2008. The next month, a court ordered the TorrentSpy owner to pay $110 million to the MPAA. Dan Glickman, a representative of the MPAA, had told the press, "The demise of TorrentSpy is a clear victory for the studios and demonstrates that such pirate sites will not be allowed to continue to operate without facing relentless litigation by copyright holders." [*8] There was no trial or jury, but the court based its decision on allegations that TorrentSpy administrators "had tampered with evidence." [*9]
With the fall of Napster, plenty of new networks surfaced, but plenty of them went under. The torrent and file sharing community had no sense of stability. As an old file sharing tracker is taken down, an effort is started to bring over the files it had to newer services. But then, the administrators of that network would face a variety of challenges: hacking, intimidation, lawsuits, and criminal prosecution.
When the Pirate Bay began, it came into a world where the average piracy Website had a lifespan of three years or less. It has survived seven years, so far, after intense litigation, media scrutiny, and even a raid. Today, it still provides the same service for file sharers as the day it started. When the copyright organizations attempted to bring down the Pirate Bay, it became a rallying point for those using torrents and file sharing Websites. The willingness of its administrators to keep the service going has proven exceptional and unique.
The Pirate Bay is Born
Piratbyrån, or "Piracy Bureau" in English, is a pro-piracy organization that was founded in Sweden in August, 2003. [*10] By the end of the year, on November 21, this think tank had invented the Pirate Bay. [*11] Three founders of the Pirate Bay were brought to trial. Gottfrid Svartholm, born 1984, provided programming and hosting to the project under the name "anakata." [*12] Fredrik Neij, born 1978, also provided hosting, server maintenance, and technical skills using the name "TiAMO." [*13] And Peter Sunde, born 1978, is a spokesman for the group, using the alias "brokep." [*14]
However, there was no hierarchy or ruler in the Pirate Bay. At the trial, a lawyer asked Fredrik Neij who was giving orders. The prosecutor said "But someone must ultimately decide whether to put up a certain text or graphic." Neij gave the following response...
Early in its development, the Pirate Bay attracted the attention of anti-piracy lawyers, including some in the United States. In August of 2004, Dreamworks sent a complaint to the crew, claiming that Shrek 2 was being made available for download to any user on the Website. Gottfrid Svartholm responded...
Shortly after this incident, in October of 2004, it was decided that the Pirate Bay would become its own independent organization. Now it became its own self-governing group, and it was originally just a side project of the Piratbyrån made "as a way of promoting the new BitTorrent technique." [*17] BitTorrent was a new, efficient and growing way for people to share files. The Pirate Bay made the decision as a group that they would resist any efforts to remove files from their public database. They publicly announced on their Website...
During its early years, it continued to taunt those who promised to fight copyright violation everywhere in the world. Only a few weeks after becoming its own organization, the users of the Website uploaded an illegal copy of the game Grand Theft Auto. The Pirate Bay crew responded by briefly changing their logo to "The Grand Theft Bay." [*19] Visitors of the site could see the irony of pirating a game that was about stealing. In 2005, there were leaks of material by Intel and games by ID Software, which came with similar modifications of the Pirate Bay logo. [*20]
The militant position by this piracy organization was unusual in an atmosphere brooding with threats from gigantic, media corporations. If Napster was taken down, how could the Pirate Bay expect to stay up? How did they imagine they would survive longer than others who were currently being investigated or sued? Before there was time to plot a course, the crew had to worry about some new difficulties.
The Pirate Bay is Raided
On May 31, 2006, thirty police officers raided the headquarters of the Pirate Bay. Nearly two hundred servers are confiscated by police, including the servers used to operate other Websites, such as Piratbyrån. According to the Pirate Bay, only fifteen of the servers belonged to them, with the others belonging to customers of PRQ, a Swedish Internet service provider. [*21]
Several members of the Pirate Bay were brought in for questioning by the police, where they were each forced to give a DNA sample. Mikael Viborg, whose role is a legal advisor for the Pirate Bay, was arrested at his apartment and forced to give a DNA sample. All of Viborg's computer equipment, including his keyboard and microphone, were seized. [*22]
The Motion Picture Association of American was celebrating. On the exact day of the raid, they release a memo, "Swedish Authorities Sink Pirate Bay - Huge Worldwide Supplier of Illegal Movies Told No Safe Harbors for Facilitators of Piracy!" John G. Malcolm, who heads MPAA's efforts in fighting piracy, said, "We applaud Swedish law enforcement for their effort to stop egregious copyright infringement on The Pirate Bay." [*23]
The Pirate Bay's equipment was seized and those working for it were harassed. Anyone attempting to view the Website found a "SITE DOWN" message, indicating that the police had executed search warrants against the site's administrators. Piratbyrån set up a blog the day of the raid to keep the public informed about what was happening, as well as to link them with protests and actions. [*24]
In a shock to everyone, the Pirate Bay's Website was brought back online in only three days, on June 3, operating on servers in both Belgium and Russia. [*25] In a casual, mocking tone, the crew of the Pirate Bay posted this message on for their viewers...
When it returned, the Pirate Bay's Website changed its logo again. Now, it was an image of a pirate ship shooting cannonballs at the Hollywood sign. [*27] By the time the site was operating again, the amount of people using it more than doubled. [*28] According to an interview with Peter Sunde by Wired, the Pirate Bay administrator expressed "confidence that The Pirate Bay will outlast efforts to shut it down." He went on to say, "We're ... setting up sites in other countries still." [*29]
In the days following the raid, before the Pirate Bay was back up and running, a number of cyber attacks took place. Turkish and Chilean hackers defaced and took down several Websites owned by Sony and Warner Bros., members of the MPAA. [*30] Similarly, the Website of the Swedish Police Department was disabled for several days when hackers coordinated a Distributed Denial of Service attack. [*31]
On the day of the Website's return, there was a protest in Stockholm, the capital of Sweden, for the Pirate Bay. According to one of the protestors, "over 100 servers were seized. This without any proven criminal offence." The protest was organized by a variety of groups, including Piratbyrån and Left youth organizations. One group included a political party formed earlier in 2006, which would campaign for the Pirate Bay: Piratepartiet, or, "The Pirate Party." [*32]
Before the end of June, several Swedish newspapers published a story about the MPAA hiring private detectives to follow members of the Pirate Bay. On June 21, Gottfrid Svartholm wrote on the Website's blog, "This must've been very entertaining for the poor Tex Murphy clone doing the actual groundwork, as my daily activities can basically be summed up as 'eat, sleep, work' (often on very odd hours)." [*33]
Waiting for Trial
Reacting to the New Situation
After such a raid, where police accumulated truckloads of evidence, one might expect that the trial would be in a few days or weeks. It wouldn't be long before charges were announced and the members of the Pirate Bay were arrested by authorities. This is the natural impression, but it would be several more years before the trial even started.
Eleven months after the raid, on May 4, 2007, Swedish prosecutor Håkan Roswall publicly stated that he was positive he was going to press charges against the Pirate Bay founders. Members of the Pirate Bay responded that "they will simply move to another country if they are outlawed in Sweden, without downtime!" [*34] The charge will include violation of copyright law "and for helping others to break copyright law and conspiring to break copyright law." [*35] It wouldn't be until 2009 when the trial actually starts, three years after the raid. There was enough time for the Pirate Bay to become an international point of resistance for hackers, pirates, and other misfits.
On May 19, 2007, administrators of the Pirate Bay tell reporters that they have a source within the Swedish police department. Allegedly, the officer in charge of the investigation against the Pirate Bay had no evidence to give to the prosecutor. [*36] By next year, in January of 2008, the Pirate Bay was tracking over one million torrents, with over ten million users. [*37] A few days later, the prosecutor finally pressed charges against the site administrators. The list includes "34 cases of copyright infringements are listed, of which 21 are related to music files, nine to movies and four to games." Carl Lundström, a Swedish businessman, is also a defendant for investing in the Pirate Bay. [*38]
The Internet service provider PRQ and Piratbyrån both demanded the return of their equipment and servers from the police. None of these groups are being investigated, but their property was seized along with property of the Pirate Bay. However, the police refused to return the computer equipment. The prosecutor, Håkan Roswall, justified his reasoning, "I don't know how to say this, but one could say that Piratbyrån is like the IRA [Irish Republican Army] and the Pirate Bay is like IRA's armed forces." [*39]
If found guilty, the three founders and one investor could each face one year in prison. But they would have to wait years for their trial. During this time, independent hackers and pirates were able to reveal some interesting facts about the enemies of the Pirate Bay.
Investigating the MPAA
It was not long before rumors started to circulate that the raid against the Pirate Bay was not orchestrated by Swedish police, but that it was a police action by the United States. If a government agency takes action in a particular case, because of the influence of a foreign government, then it is known as "ministerstyre," which is unconstitutional in Sweden. According to the constitution, "No public authority... may determine how an administrative authority shall decide in a particular case relating to the exercise of public authority..." [*40]
On June 20, 2006, only a few weeks after the raid, a letter was leaked indicating that Sweden was threatened by the MPAA with trade sanctions if they did not take action against the Pirate Bay. The letter to the Swedish secretary of state, stated, "I would urge you once again to exercise your influence to urge law enforcement authorities in Sweden to take much-needed action against The Pirate Bay." The letter was dated two months before the raid of the Pirate Bay. [*41]
Håkan Roswall, who is prosecuting the case against the Pirate Bay, confirmed the suspicions that "the USA pressured the Swedish government and threatened to blacklist the Swedes within the WTO (World Trade Organization)." The criminal behavior of the MPAA in trying to influence government agencies was proven with another leaked letter in 2007. [*42] One of the members of the Pirate Bay made a response to government officials who admitted violating the constitution...
There was no criminal prosecution against any of the leaders of Sweden who either admitted or confessed to breaking their own constitution. One might become slightly suspicious about the authorities, and how much they protect the people, but further leaks made this case far more dubious.
Jim Keyzer is the police chief who led the investigation against the Pirate Bay, conducted the raid against its founders, and now would be playing the role of the key witness against the Pirate Bay. None of this seemed to be a problem, until it was discovered that Jim Keyzer is an employee of the MPAA -- the association that filed the complaint against the Pirate Bay. At first, it was denied by the Warner Bros. that they were directly employing Swedish police who were taking action against the Pirate Bay. But, they eventually admitted hiring Keyzer before the investigation into the Pirate Bay. Several complaints were filed against the police officer, but he was not suspended, investigated, and the evidence he obtained was not dropped from the case. Peter Sunde told the press...
After the trial, Jim Keyzer received a plush, six-month job from the MPAA, and upon finishing that, he was promoted in the Swedish police department to the head of "IT Crime Unit." When asked about police officers working for the MPAA, a Swedish prosecutor responded, "[There is] no reason to believe that a crime has been committed by anyone employed by the police." [*45]
Government agencies were threatened by the MPAA with trade sanctions to press charges against the Pirate Bay. The police officers conducting the raid and the investigation were employed by the MPAA. People around the globe, especially those following the case, were growing pessimistic and cynical about the legal system. It was becoming more and more apparent that the law serves the rich and victimizes the poor. And then, before the start of the trial... Media Defender happened.
The company Media Defender describes itself as an anti-piracy firm that works to protect copyrighted material. According to its Website, it calls itself "the leading provider of anti-piracy solutions in the emerging Internet-Piracy-Prevention (IPP) industry." [*46]
In September of 2007, hackers broke into the e-mail server of the Media Defender company, and then released several thousand e-mails to the BitTorrent community. The e-mails proved that the company was completely criminal. As part of its "anti-piracy" activity, Media Defender hacked and trashed Wikipedia, modified hardware and software to evade detection, and sabotaged and attacked web servers across the globe. This company had violated almost every American law on computer hacking. [*47]
The hacker who broke into Media Defender was a student in high school. After the e-mails were released, more kept coming. Calling themselves "Media-Defender Defenders," the student named "Ethan" kept releasing more sensitive material from Media Defender. Next was a 25-minute, wire-tapped phone call between a manager of Media Defender and a New York District attorney. In this call, the prosecutor was coaching Media Defender on how to describe the quality of the evidence it collected to court -- even though both people on the phone call admitted that such evidence provided by Media Defender was questionable. The last leak was the software used by Media Defender, allowing everyone to see how the company was able to attack so many computer systems. [*48]
The intention of "Media-Defender Defenders" was to bring up evidence of corruption in the case against the Pirate Bay -- and, by accident, it proved corruption in the American court system. One might imagine that Media-Defender's response would be damage control. Rather, the company thought it would be a good idea to launch an all-out, cyber attack against any news agency covering the story. On top of these hack attacks, they shot off a few thousand letters claiming copyright violation. A journalist for ARS Technica said that the company "...might want to lay off of the threats for the time being." [*49]
Companies paying for terrorism and sabotage include Activision, Paramount, Sony, Twentieth Century Fox, Ubisoft, Universal Music, and Universal Pictures. In late September, 2007, the Pirate Bay formally pressed charges against these companies for attempts to hack, dismantle, and destroy the functionality of the Pirate Bay Website. Peter Sunde wrote on the Pirate Bay blog, "Now we see no other alternative but to report these incidents, as they don't seem to stop and as they are really serious crimes they commit." [*50] The Swedish government declined to investigate or press charges against companies of the MPAA. [*51]
Police in Sweden and the United States ignored Media Defender and the growing evidence of its hacking activities. Since it had no problems with hack attacks on community groups without money, Media Defender continued in its tactics. In May of 2008, by "mistake," Media Defender launches a widespread hacker attack against the television company Revision3. The television company has announced a lawsuit against Media Defender. Shortly after this, the FBI made plans to investigate Media Defender, stating "denial of service attacks fall afoul of the Economic Espionage Act and the Computer Fraud and Abuse Act." [*52]
The Trial Begins
Day 1 - February 16, 2009
It was almost three years after the raid when the trial started on February 16, 2009. Founders of the Pirate Bay, Gottfrid Svartholm, Peter Sunde, and Fredrik Neij, showed up in their S23K bus. It's a vehicle that has been touring throughout Europe, adorned with pro-piracy logos, trying to raise awareness for the crew. In January of 2009, members of the Pirate Bay decided to use it as their court case press center. [*53] Since the beginning, they have been referring to the case as the "Spectrial," a combination of "spectacle" and "trial." [*54]
The plaintiffs included most of the members who were exposed in the Media Defender scandal: Warner Bros, Sony, MGM, Universal, EMI, and 20th Century Fox. They were also suing for damages of $13 million. Each defendant had only one lawyer, except for 48 year-old Carl Lundström, who came to court with two lawyers, one of them a copyright lawyer. They all pleaded not guilty to charges relating to copyright infringement.
Håkan Roswall, self-described "expert on computers" and Swedish prosecutor, had problems getting his computer to start up. He was struggling to show his PowerPoint presentation on why he was certain that the Pirate Bay was committing digital piracy. After a few minutes of mouse clicks echoing through the courtroom, Roswall was ordered to stick to paper.
Roswall tried to present a history of the Pirate Bay, describing Lundström as an investor and shareholder in a commercial enterprise. This concluded the first day. Peter Sunde pointed out that Roswall was unable to distinguish between a megabyte and a megabit, telling viewers, "How the hell did they think this was going to be something else than EPIC FAIL for the prosecution? We're winning so hard." [*55]
Day 2 - February 17, 2009
Some of the screenshots being used by Håkan Roswall have been questioned. The proof submitted to the court came with the disclaimer, "there is no connection to the [Pirate Bay] tracker." Fredrik Neij requested permission to explain to the court how BitTorrent actually works, and he was allowed to do this. After his explanation, Roswall withdrew half of the charges against the Pirate Bay operators. This was during the morning session of the court. Defense lawyer Per E. Samuelson said to the press, "It is very rare to win half the target in just one and a half days..." [*56]
International Federation of the Phonographic Industry, or IFPI, is an anti-piracy organization that stated the dropping of charges helped them in prosecuting. They released a statement to the public, "It's a largely technical issue that changes nothing in terms of our compensation claims and has no bearing whatsoever on the main case against The Pirate Bay." [*57]
Roswall spent the rest of the day discussing servers, e-mail, hardware of the Pirate Bay, and some invoices, but nothing too concrete. The court ended the day early at 1:30 PM. Next day is planned for more deliveries by the prosecution. The defense has not yet had a chance to speak, which is planned for day four. [*58]
Day 3 - February 18, 2009
The day started with Håkan Roswall presenting the new list of charges to the court, noting that the dropping of half the charges is a "small change." Peter Danowsky, a lawyer for the anti-piracy group IFPI, described how the damages were calculated against the defendants: for each download, the group had to pay the retail price of the product, and for each download of unreleased material, it would have to pay ten times the retail price. At this point in their development, the Pirate Bay Website had between twenty and twenty-five million people using it at any given moment. If each person had downloaded ten songs, that would mean more than a quarter billion dollars.
Sony took the stand today, saying that the Pirate Bay "has a bad attitude to complaints and ridicules the complainer." Monique Wadsted, for the MPAA, suggested that paying ten times the normal rate was a logical calculation for a "global preview license." The lawyers representing the defense asked the judge for an early acquittal. It was pointed out, for instance, that the number of torrent downloads does not represent the number of copyrighted downloads; since it was the latter, and not the first, that the Pirate Bay is accused of, that is what needs to be proven. Per E. Samuelsson, lawyer for the businessman Carl Lundström, stood up and told the court plainly...
The "King Kong Defense" became infamous. The principle being referred to directly is Corpus Delicti: a principle of law that you must prove a crime was committed before attempting to prove that someone assisted in that crime. So far, the prosecutor had not touched, nor even hinted, that a crime was broken. No evidence was about copyright violation, but rather, the assistance of copyright violation. [*59]
Day 4 - February 19, 2009
Fredrik Neij took the stand today. His first action was to point out the statistics brought up by IFPI on the number of illegal downloads from the site. Anti-piracy groups like Media Defender, who have hacked the site on behalf of the MPAA, cause the number of downloads to exponentially increase. In fact, this is exactly how the Distributed Denial of Service attack works: by sending and requesting information from a Website at a speed significantly greater than it can handle.
When questioned about the legal complaints on the Website, Neij replied that he had seen the complaints about copyright violations, but that these hinted at US, not European, law. He described the tracking software as "completely open and anyone can and does add to it regularly, completely without any input or correspondence with TPB staff." After a few more questions, the attorney Monique Wadsted asked about Neij's involvement with OscarTorrents and EurovisionTorrents, other torrent Websites. Then the judge pointed out that it the prosecutor was introducing evidence that had not been made available to the defense before trial.
Another prosecutor, Peter Danowsky, brought up an e-mail that he thought would incriminate Neij. But, the witness kindly pointed out that the e-mail was a reply, and the text being quoted was the e-mail he was replying to. Then the prosecutor gave Neij a piece of paper with the Pirate Bay's Website printed on it, asking "You call this a screenshot?" Neij replied, "This isn't a screenshot, just a printed page."
Gottfrid Svartholm took the stand next, where he was questioned about the activities of his co-defendants on the Website. Prosecutor Wadstad asked about the censorship policy of the Pirate Bay and the presence of child porn. Svartholm responded that anything that looked suspicious was sent to the police, and if it was determined to be illegal, it would be removed. When asked why they waited for the police, Svartholm replied, "We can't do investigations of our own. And if the police say we should remove a torrent, we will..." Finally, late in the day, the prosecutor again tried to introduce new evidence, and the judge closed the session for the day. [*60]
Day 5 - February 20, 2009
Today, Peter Sunde took the stand. Prosecutor Roswall questioned him, "When did you meet [Gottfrid] for the first time IRL?" He was making a reference to the Internet acronym "In Real Life." Sunde replied, "We do not use that expression. Everything is in real life. We use AFK – Away From Keyboard." The prosecutor continued, asking Sunde if he was just a spokesman, and Sunde replied that "he took the unofficial position since no-one else in the team wanted to do it."
Peter Sunde was next asked why he was receiving earnings reports from a member of an advertising company. He replied, "I think it is his way of trying to motivate people. He sends so much weird email, I don't read half of it." From several angles, the prosecutor tried to prove that Sunde was making money off of the venture. First, there was mention of the project VideoBay, which would look similar to YouTube. However, this never materialized. Another project involved selling statistics from the Pirate Bay Website, so people could see what was popular or not. He didn't have time to make this project a reality yet, either. However, Sunde's questioning concluded with his statement that he had made no money from the operating of the Pirate Bay.
Next, prosecutor Danowsky questioned Peter Sunde about newspaper reports that contradicted his story -- but the judge became irritated that more evidence was being introduced that was not available pre-trial. Danowsky was reprimanded and told to "cut out this American-style trial strategy." After a ten-minute recess, the judge ordered all "surprise material" to be handed over immediately. Another break was taken so that Sunde would know what he is being accused of before answering questions.
When trial started again, Sunde was asked about one the lectures he has given titled, "How to dismantle a billion dollar industry." Peter admitted to holding this lecture. Next, Peter was asked about comments he made on his own blog and about his personal opinion on copyright laws. The defendant responded, "That is a political issue. Is this a political trial or a legal trial?" Danowsky tried to ignore the question, but Sunde became louder: "I want an answer from the lawyer Danowsky. Is this a political trial? Can I get a reply?" Danowsky replied, "How can copyright law be a political issue?" At this point, the prosecutor finished his questioning.
The court breaked for lunch briefly, and then Sunde's lawyer began cross-examining his own client. When asked about how much material on the Pirate Bay was copyrighted, Sunde said that in a sampling of 1,000 torrents, only 20% of them linked to copyrighted material -- pointing out that YouTube has a significantly higher rate of copyright violation.
Next, Carl Lundström took the stand and responded to questions from prosecutor Roswall. He admitted that he knew the Website was "a file-sharing site, a torrent site." He also said that he provided the founders with the equipment they needed to start up, also coming up with the plan for advertising on the site to keep the operation afloat. His only intention was "to make the biggest BitTorrent site in the world." The equipment donated was worth roughly $1,300, but he stated that he was not a business partner in the operation. The day ended with prosecutor Wadsted asking Lundström "Why would a 48 year-old businessman hang out with people from TPB?" His lawyer objected and told him not to answer. [*61]
Day 6 - February 23, 2009
The court decided to spend day 6 as a rest day. [*62]
Day 7 - February 24, 2009
This day of the trial started off very interesting. Jim Keyzer, a police officer and employee of the MPAA, was excused from testifying. This is not due to the MPAA's lack of need for this witness. Håkan Roswall explained that the prosecuting team "hadn't been able to get hold of him but had sent an e-mail to try and find out." Officer Keyzer skipped out on his court date.
The next witness was Magnus Mårtensson, a lawyer for the IFPI. Even though he claimed to have been working with the IFPI for fifteen years in tracking down piracy, his testimony quickly came under fire. The only evidence that Mårtensson produced were screenshots from his computer showing that he was downloading copyrighted material. One of the defendants, Gottfrid Svartholm, questioned the lawyer on whether he was monitoring his network connections or if he verified that he was downloading files from the Pirate Bay. The response to both questions was negative. The IFPI lawyer struggled with some of the most basic questions that the defendant asked him...
Svartholm, presumably feeling more technically-enabled than his lawyers, continued questioning the witness of the prosecutor. He asked the IFPI lawyer "if he was aware that Google can also act as a torrent search engine." Again, Mårtensson responded negative, unaware that virtually the entire search engine for the Pirate Bay was accessible through Google listings. However, he did point out something he knew positively, that "they [IFPI] never had any problems with Google."
Next, the prosecutor examined Magnus Nilsson, a former police officer. Similar to Mårtensson, he claimed that he, too, was able to download copyrighted material with UTorrent. Unlike the IFPI lawyer, however, he came out and offered his professional opinion "that he was sure that a majority of the content on The Pirate Bay was copyrighted." When the defense lawyer asked why he had this opinion, Nilsson responded, "I have no documentation as to the claim that most material is copyrighted. It is just an opinion..."
The defense lawyer then asked Nilsson how he obtained Torrent. Nilsson responded that he had to download it from another Website that was not operated by the Pirate Bay. This brought up another question from the defense lawyer: "So the actual downloading happens outside of TPB?" The ex-police officer responded affirmatively. After some further probing, this time by Svartholm, it was revealed that Nilsson investigated the case according to the instructions of the MPAA and not as an independent, police investigator. Perhaps this was the intended replacement for Jim Keyzer, another officer working on the case who has unusually close ties to the MPAA. [*63]
Day 8 - February 25, 2009
John Kennedy, CEO for IFPI, took the stand today. Describing the Pirate Bay, he said, "...it was quickly becoming the #1 source of illegal music and this was damaging to the industry." Most of his testimony was not even about the trial, the accused, or the case. A few statistics were thrown out about declining sales in music, but there was no mention about the numerous cases against IPFI members for monopoly and illegitimate business practices -- some of them exceeding several billion dollars in damages against consumers in the United States. [*64]
When asked about Google being compared to the Pirate Bay, Kennedy admitted that they provide the same links, but complained that Pirate Bay provides significantly fewer links to legal material. His message was clear: "the reduction in sales in the music industry is directly attributable to illegal downloading." Of the media companies he represents, Kennedy said that "only one company is making a profit."
Then, the defense took to cross examining Kennedy. When asked why he didn't take legal action against the people sharing the files, Kennedy replied, "he couldn't say and didn't know who these individuals are." At the beginning, he claimed to be familiar with how BitTorrent worked, but then eventually admitted to "not knowing how The Pirate Bay works." Kennedy was then asked why he didn't sue Google, even though Google links to the exact same torrent files as the Pirate Bay. His response was "...if Google hadn't announced they were a partner [to IFPI], IFPI would have sued them too." When asked about whether he commissioned the studies he was quoting, Kennedy also responded that he did not know.
Bertil Sandgren, a member of the Swedish film institute, took the stand next. He testified that movie sales in Sweden have dropped by 31% between 2002 and 2006, two of the years that the Pirate Bay was operating. Then the defense attorneys cross examined him. Between 2002 and 2006, sales declined. However, he said he wouldn't comment on why 2008 was one of the biggest, box office years for Sweden. This occurred when the Pirate Bay reached its height, and also in a year that marked the beginning of a global recession.
Next, Per Sundin took the stand, representing IFPI and Universal Music. He testified that 2002 and 2003 were the worst years of music sales. It was not immediately pointed out then, but the Pirate Bay was not active during these years. Then he was asked how much of these lack in sales can be attributed to the Pirate Bay. For the years that it did not exist, Sundin alleged "50% of the loss in sales the music industry has suffered can be linked to The Pirate Bay." When pressed for evidence, again, like other witnesses, he said he had none. [*65]
Day 9 - February 26, 2009
Today, there were several witnesses for the defense. First to take the stand was Kristoffer Schollin, an Information Technology lecturer from Gothenburg University. He described the Website of the defendants as "a more sophisticated type of Internet link (such as an http hyperlink) and that The Pirate Bay is an 'open database' of .torrent files." When asked if it was illegal, he responded, "That's for the court to decide," but also added, "the technology behind the site is not illegal in any way."
When asked if the Pirate Bay was the biggest tracker of torrents, he said it might not be, "but it is the most famous one, largely thanks to the media and thanks to the trial." When asked about its use as a search engine, Schollin replied, "while searching for .torrents via Google (using Harry Potter as an example) more results could be found than with TPB's search alone." When asked if it could be proven that the Pirate Bay was the first place where these torrent files appeared, Schollin responded in the negative. The witness described the torrent creation process, where a user does not even need to have Internet connection. No matter where the torrent file is placed, whether on the Pirate Bay or another site, it will be indexed by Google.
The prosecution then took its turn with Schollin. Prosecutor Wadsted asked if 40% of the Internet's traffic was to the Pirate Bay. Schollin denied this, suggesting that Wadsted meant to say "BitTorrent traffic." Then, prosecutor Wadsted asked if 50% of the world's torrents sit on the Pirate Bay. This amount, too, was denied, though Schollin admitted it would be a significant number.
Roger Wallis, media professor and Chairman of the Swedish Composers of Popular Music, was called to the stand next by the defense. When asked if downloading caused a loss in sales, he responded that file sharing has significantly increased the ticket sales of live events. Then prosecutor Danowsky cross examined the witness, calling into question whether he was a proper professor or what year he graduated. "Have you no better questions to ask?" responded the witness.
After a break, Henrik Pontén, another lawyer for IFPI, continued again with the same questioning about whether Wallis was a real professor. The witness responded, "Can you use Google? Then you could easily find my CV [Curriculum Vitae]..." Pontén brought up some research studies showing that people who download music are less likely to buy it. Wallis confidently replied that these results do not correspond to his own studies, saying of Pontén's evidence "I believe that it has no relevance."
When Roger Wallis left the stand, he was asked by the court if he would like compensation for his appearance. He responded, "You are welcome to send some flowers to my wife." According to the publication TorrentFreak, "many Pirate Bay supporters took this suggestion to hand." By the end of the day, a handful of flower shops in Stockholm reported receiving over a hundred orders of flowers for Görel Wallis, the wife of the witness. [*66]
A brief film was shown by the defense showing the process of how one makes, uploads, and shares torrents with an online community. This concluded the day's inquiries into activities of the Pirate Bay. [*67]
There were still questions for the defendants, though they did not directly relate to the case at hand. The prosecutor asked Fredrik Neij about an incident when he was young and committed a drunken burglary at his high school, stealing two computers. The case was dismissed, though, as being too old. [*68]
There were also some uncomfortable, personal questions for Gottfrid Svartholm. The raid on the Pirate Bay included raids on the personal residences of the suspects, as well as their parents. At a residence belonging to the parents of Svartholm, police found "narcotic drugs" and "a spoon containing traces of amphetamine." In another incident in June of 2007, he was again found in possession of substances banned by the Swedish law "Prohibition of Certain Health-Impairing Goods Act." [*69] Then day nine came to a finish.
Day 10 - March 2, 2009
Today there were final arguments for the prosecution. The four prosecuting attorneys made their concluding statements to the court. Håkan Roswall went first, arguing that the court should not give the Pirate Bay "service-provider" status, because this would allow the defendants to appeal to the European Court. The guilt of Svartholm and Neij should be assured, he argued, because they worked on the Website. The claim that Peter Sunde was just a spokesman is dismissed, and Carl Lundström is also guilty for financing the whole operation.
Roswall then did some uncertain math to estimate how much money the Pirate Bay was making, concluding that the site had made at least ten million Kroner, or close to $1.3 million. Svartholm replied, "Where is my ten million, please. I want it. Where is it?" Roswall finished by demanding more equipment seizures from the defendants." He finished with "I believe that the correct punishment is a year in prison and that is what I ask from the judge in this case." Then Svartholm commented, "I'm surprised that the crazy old man didn't exaggerate more! I'd counted on him demanding two years in prison but it only was one!"
Peter Danowsky, prosecutor for IFPI, gave his final arguments. The comparison of Google to the Pirate Bay was unfair. Google is "working with the rights holders" while the Pirate Bay "constantly mocks rights holders;" this is ignoring the fact that Google provides more access to torrent downloading than the Pirate Bay. Also, Danowsky said he doesn't trust Roger Wallis, the music professional, in judging the damages to music companies; rather, he said he puts his faith in the executives of those companies. Of course, he was talking about his own employer. He finished by saying that Piratbyrån has only one purpose: "Not to respect copyright."
Henrik Pontén, another lawyer from an anti-piracy organization, provided his final arguments. He started with "the defendants clearly knew that what they were doing was illegal, and that they could have expected prison sentences." Like Roswall, Pontén said "imprisonment is needed in order to stop TPB from operating..." He also explained the reasoning in suing the Pirate Bay, even though it was the users who committed the violations. He suggested that after a ruling against the Pirate Bay, the defendants would be legally allowed to claim damages from their users for causing them be arrested, fined, or possibly imprisoned.
Monique Wadsted, representing a host of companies involved in the Media Defender scandal, gave the last closing argument. Unlike other prosecutors, she admitted that the defendants did "play different roles." Also, she further asserted "it is clear that he [Peter Sunde] knew about the copyrighted material..." She recommended a "very significant" prison sentence. As far as the Pirate Bay is concerned, "they spit on the rights holders and tell them to go to hell." She finished calmly by stating that the request for damages "is only fair." [*70]
Day 11 - March 3, 2009
Today is the final day of the trial. The defense is expected to provide their concluding statements. Jonas Nilsson, the court-appointed attorney for Fredrik Neij, was the first to speak with the judge. Several key points were covered. It was not proven that "the bulk of the material accessible via TPB is copyrighted." The case should be dismissed ultimately because "there are serious shortcomings in the investigation against the four." It is the site's users and not its administrators that are responsible for linking to copyrighted content; in this sense, it is like "every site in the world." Nilsson also responded to accusations that the defendants have an attitude problem, stating "everyone has a right to their own opinion."
Nilsson took apart the prosecution's technical evidence -- a few pages of printouts from a computer. Most plainly put, there is not proof that the defendants uploaded copyrighted works because a screenshot shows someone downloading it. Furthermore, the prosecution often grouped them together and described what the Pirate Bay did; and since his client is an individual, the court must accuse him as an individual of acts.
Ola Salomonsson was the court-appointed attorney for Gottfrid Svartholm. The first thing he pointed out was that the prosecution never attempted to collect data on how much copyrighted material is available through the Pirate Bay. Therefore, they can't disprove Sunde's claim that 80% of the material being downloaded is not copyrighted. While one of the prosecutors claimed that the site had 64 ads, it turned out to be only 4 ads. This was a reference to Svartholm's comment the previous day where he called the prosecutor a "crazy bastard." Furthermore, the testimony of Roger Wallis clearly put doubts on how much damages the music industry was suffering.
Next was Peter Althin, the court-appointed attorney for Peter Sunde. Very early he said, "when there are developments in technology, the establishment reacts against them." None of the evidence against the Pirate Bay was independently gathered, so it should be thrown out anyway. And since there is no link between downloading and decline in music sales, the damages should similarly be dismissed. He also pointed out that his client had no technical involvement in the site, providing only advice.
"If I call Saab and tell them to paint their cars green so they sell more, I have no responsibility for Saab," the court heard Althin. He also pointed out that the advertising agreement mentions Svartholm and Neij, but does not mention his client, Sunde. Althin finished with calling for the case against Peter Sunde to be dismissed.
After a short break, the court listened to final arguments from Per E. Samuelson, lawyer for Carl Lundström. All four defendants should be acquitted because "the Prosecution failed to issue individual charges as is required in a criminal case." Because of how BitTorrent is set up, "it can be open to misuse and any such activity is carried out by the site's users, not the defendants." Suing the people running the Pirate Bay, and not the people sharing files, is like "taking legal action against car manufacturers for the problems experienced on the roads."
Bringing up numerous court cases, he explained: "There can be no charge of aiding and abetting when the accused have had no contact and do not even know the person who committed an offense." The Pirate Bay is "an infrastructure that is used to share files, many of which are legal." Then, Samuelson focused more on his individual client. He argued to the court that Lundström did not own the site, did not operate the site, and did not do any of the technical or programming work for the site. To hold him accountable with assisting copyright violation "seems to be far fetched." This ended the final day of the trial. [*71]
The Verdict - April 17, 2009
The judge delivered four verdicts of guilty. Gottfrid Svartholm, Peter Sunde, Fredrik Neij, and Carl Lundström each received a sentence of one year imprisonment. All four of the accused have said that they plan to appeal the decision. Just before the verdict was issued, the defendants leaked the court's decision -- a trust-worthy source within the Swedish police department revealed that they were going to be found guilty. Peter Sunde told reporters, "It used to be only movies, now even verdicts are out before the official release." [*72]
Each defendant was ordered to pay $905,000 in damages. Peter Sunde said, "We can't pay and we wouldn't pay if we could." The others expressed their shock, as well. Peter did promise that the site will go on working regardless, since the charges were against individuals and no injunction has been issued against the Pirate Bay. Rasmus Fleischer, one of the founders of the Piratbyrån, said, "The sentence has no formal consequence and no juridical value. We chose to treat the trial as a theater play and as such it's been far better than we ever could have believed." Roger Wallis, who was a witness for the defense, told reporters...
Waiting for the Appeal
The trial lasted for a little over two weeks, but a community of millions spent years just waiting for the trial. And now, with the trial finished, people must now wait for the appeal to be heard in a higher court. Many would now consider the case to be closed, with the hope of an appeal to be unlikely. However, more unusual and questionable facts about this case started to come to light.
Not even a week after the verdict, the lawyers for the defendants demand a retrial. It was revealed by the press that Tomas Norström, the ruling judge and jury in the case, was employed by organizations controlled by IFPI and the MPAA. Namely, Norström belongs to the Swedish Association of Copyright, Swedish Association for the Protection of Industrial Property, and the Internet Infrastructure Foundation; all of these are pro-copyright groups. At least three out of the four prosecuting attorneys are also members of the same organization. [*74]
When it reached the court of appeal, the Pirate Bay could expect to deliver their arguments before Honorable Ulrika Ihrfelt. However, it was not long until it was discovered that the judge was involved with the same organizations as Norström. She was not removed from the case. [*75]
On June 25, 2009, the Swedish Appeal Court ruled that the judge, though commercially involved with the plaintiff, has "no bias." Its reasoning was "That a judge agrees with the principles that are fundamental to this [Swedish] law cannot in itself be a reason for bias..." However, the court did criticize Tomas Norström for concealing his engagement with the plaintiffs during the trial. Instead of a retrial, the verdict in the case against the Pirate Bay will be reviewed. [*76] After this hearing, Peter Sunde reported that their next step is to "file charges against Sweden for violation for Human Rights." [*77]
Ulrika Ihrfelt will be making judgment with two other judges. One of the others is Christina Boutz. There were some new developments in the choice of the judges, according to Per E. Samuelson, the lawyer for Carl Lundström. The appellate judge Boutz is a member of the Swedish Association for the Protection of Industrial Property -- and, according to other reports, one of the lay judges co-owns a music distribution company and has close ties with the plaintiff. Samuelson said, "It is profoundly inappropriate that even in the court of appeal we have judges who are or have been members of organizations closely related to the copyright industry." [*78]
Only a few days later on September 29, 2009, the lay judge Fredrik Niemelä was disqualified from the Pirate Bay appeal trial for bias. [*79] On October 10, the defense requested that the trial be moved to a different district so that unbiased judges could be located, since they had "a growing lack of confidence in Stockholm's Court of Appeal." Judge Ulrika Ihrfelt said there is "no reason to have the trial in any other place other than Stockholm." The trial was planned for a month, even though the defense said they needed more time. [*80]
The extension for the appeal trial was finally granted on October 19. The trial will be held in Summer of 2010. Per E. Samuelson has said he still plans to file a bias complain with the Swedish Supreme Court. [*81] On October 29, the defendants were ordered by the Stockholm District Court to stop running the site. If they refuse, they will be ordered to pay fines of $71,000. But Peter Sunde said, "It means nothing." He went on to explain...
This decision to ban the creators from working on the Pirate Bay was appealed, and the court accepted the appeal on December 4, 2009. There's another case for the Pirate Bay's founders to handle -- on top of the appealed case on whether they've done anything criminal. [*83]
Five days later, the Swedish Supreme Court handed down an awkward ruling. The appeal court, which is headed by judges employed by the MPAA and IFPI, was overruled. However, the first trial, led by Judge Tomas Norström, also employed by the MPAA and IFPI, will not be appealed. There will be no retrial for the Pirate Bay. The court admitted that judges in both trials had the same commercial interests, but that it could not appeal Tomas Norström's ruling. The Swedish Supreme Court even admitted that their decision "may seem a bit strange." [*84]
In February of 2010, the Swedish police department closed its investigation into the individual who leaked the ruling to the Pirate Bay. Police commissioner Per-Erik Bergner commented, "You can't go any further if you can't catch a person with his fingers in the cookie jar." [*85]
The police officer who investigated and conducted the raid against the Pirate Bay, the judge who ruled against them, and the judges who ruled on the appeal court, all were employed or members of anti-piracy groups. From the beginning to the ending, this has been a case based on a complaint by the MPAA. And, with every encounter the defendants had with the legal system, everyone they dealt with was an employee of the group filing a complaint against them. Now, the pirates are awaiting their trial of appeal, which is set to begin in late September of 2010. [*86] There's hope, there's will, and by then, maybe there will be more leaked information about the corruption of the Swedish and American governments.
*1. "Unreleased Madonna single slips onto Net," by John Borland, June 1, 2000, published by CNET, CNET page.