Pirate Bay's I-dunno defense

Pirate Bay's I-dunno defense

Summary: Pirate Bay founders say they don't read contracts or write speeches, that they don't control the enterprise. But will this ignorance defense work?

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TOPICS: Browser
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I wrote a comment on the Pirate Bay story to the effect that TPB can't be charged with conspiracy as someone suggested because:

The elements of conspiracy are this (again, US law): (1) there was an agreement to commit an illegal act; (2) the conspirators willingly entered the agreement; (3) one of the parties committed an overt act towards completion of the crime; (4) the overt act was taken contemporaneous with the allegation of the criminal act.

In other words, unless TPB had some agreement to send users over to this torrent site or that torrent site, there was no agreement. The link would be the overt act but there was simply no agreement between TPB and Torrent site. Thats why theres no conspiracy charge.

But reading coverage of the trial today Ars Technica, I'm beginning to wonder.

Fredrik Neij was questioned by lawyers who tried to paint him as the point man for The Pirate Bay operations. Peter Danowsky, who represents the music business, pointed out that Niej owned The Pirate Bay's domain and then showed him a contract he had signed saying that he would oversee operations for the site. Neij's response? "But I didn't read it." Neij was also asked about a speech he gave back in 2006 (watch it on YouTube) in which he said that the site had received many threatening letters over the years from copyright owners. Lawyers tried to use the speech to show that Pirate Bay admins were aware the site hosted links to copyrighted content. Neij's response? "I just read the text which someone at the Pirate Bureau had written.” (Neij says he's dyslexic and has difficult writing his own material.) When asked about his view of the law as it related to copyrights, Neij said that he doesn't worry much about the law, doesn't care about the ideology behind (some) file-swapping, and does what he does because it's fun to run a large site. He did indicate that he thought the site was legal.

This I-dunno defense doesn't hold much water, I think. The question is whether there was any communication, any agreement between illegal torrent sites. The evidence isn't quite there, but I wouldn't be surprised to see enough to show some intention, some money-making activities. That would be enough to convict on the

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  • The name says it all

    The "business" was created to "pirate" copyrighted material.

    Even their website bragged about how many movies and songs you could get with their services.

    wackoae
  • Not All Torrents Are Illegal

    Although you will be able to obtain many copyrighted
    materials on Pirate Bay, A large amount of torrents
    are completely legal. That and no actual files are
    hosted from Pirate Bay but rather from regular home
    users. All Pirate Bay does is host "Trackers" which
    connects you to other users all over the world. Even
    if their site were to go down, the torrent protocol is
    very legal and people will still be able to obtain copy written material one way or another.

    As long as technology can be made, it can be reverse
    engineered. Therefor piracy will never end.
    Common User
    • They only need to prove some are illegal.

      "A large amount of torrents are completely legal."

      And I'm sure that a thief buys 99% of the stuff he owns. It's the 1% that he stole that the law cares about.

      "That and no actual files are hosted from Pirate Bay but rather from regular home users."

      Although yes they should pursue the real pirates, it should be noted that supporting a crime is just as illegal as directly participating in it.

      "As long as technology can be made, it can be reverse engineered. Therefor piracy will never end."

      People will always try to rob banks. Crime in general will never end. Doesn't mean we throw our hands up and give up on law enforcement.
      CobraA1
      • "They only need to prove that some are illegal"

        (1.) Do you mean "illegal" in the U.S. under the stupid U.S. DMCA, or "illegal" in Sweden?

        Hate to break the news to you Americans, but, you see, the DMCA -- and in particular its ridiculous "making available is just as bad as personally transferring a copy of 'pirated' materal" clauses -- don't apply outside of the Great Old U.S. of A.

        (2.) Sure, we still continue to prosecute bank robbers, even though we know that banks will still get robbed, regardless. Unfortunately this is a disingenuously misleading parallel because there is no serious dispute that threatening violence with a gun, to steal money that clearly belongs to somebody else, in a way that will deprive that person of the same money, is and should be illegal.

        However, there very definitely IS a complete lack of consensus about the degree of "illegality" (if any) of 'pirating' multimedia content, let alone, of making available a BitTorrent pointer so that someone ELSE can theoretically access this content.

        Let me give you only one of the many possible examples. Suppose I'm an average computer user and I lack the technical knowledge -- to say nothing of the time element involved -- to crack (say) my legally purchased copy of the "Batman the Dark Knight" DVD, but I want to watch it on my iPod / iPhone. So I go to the Pirate Bay, find a .torrent tracker for it, and download a MPEG-4 version of this movie, THAT I ALREADY PAID THE MOVIE INDUSTRY FOR, then load this on my iPod.

        My bet is that over 80% of the people in countries around the world -- including in the U.S. -- would say that this use of content is clearly legal and reasonable. Yet preventing it is one of the openly stated aims of the recording industry in the Pirate Bay case.

        You must have known the above when you made the comparison with bank robberies. Therefore, why did you say that, if you're not just a shill for the U.S. recording industry?

        A Non-American
        AngerNotManaged
        • No they dont and your argument is irrelevant

          No .torrent files are illegal, it is a link and that is all it ever was and ever will be. Technicallly a .torrent link is about the same as a web link (an HTML link).

          No disrespect intended , however your argument is not relevant to the law they are charged under.

          They are charged as criminal and civil defendants with operating an illegal enterprise which violates Swedish law concerning copyrighted material.

          The Prosecution has to prove that a link to a copyrighted work (the file-Called a .torrent file) is illegal in Sweden, under the theory the prosecution is using.

          It (a .torrent link) merely serves as a director of sorts, that points out to the end user where the torrent file is located.

          The only think you get from TBP is an index of materials, gathered from a tracker application they use and .torrent link files that link to the actual file - which is always 100% of the time never ever ever ever on TBP servers.

          Point in fact is that TBP never sees, uses, interacts , uploads or downloads the copyrighted material they are being alleged to have infringed. You follow me ?

          They are in effect, a search engine specializing in .torrent files, and they are one of hundreds of places where you can get links to these files, including Google.

          As of this morning a search on Google turned up 605,000 torrent pages, containing millions of torrent links.

          You and I know that file sharing is not generally viewed as a legal activity. Just because you may not agree with the law or the facts doesn't mean you can change them or ignore them because you don't like them.

          True, there are many legal activities associated with file sharing in its various permutations , however I think any reasonable person would conclude that downloading a full length movie (for example) for free is probably not legal in any sense.

          Your example of the Batman DVD is also wrong, otherwise you should also have access to the Blu-Ray version for free , The PSP version, The DVD version and every other piece of content made from this movie because you paid for it one time?

          Under this theory once you have paid for a Hard backed book, you should get the paperback and the audiobook for free as well, including the e-book and kindle version because you bought the Hard backed copy?

          I think anyone who uses any of the popular P2P clients (like Lime wire for example) already know that truth and just decide to take their chances with the legality. No view on this, but I think this is true and is only my opinion.

          The question however is one strictly related to legal culpability. The question is really better framed as criminal facilitation of the illegal act.

          In a legal sense the Prosecution is asking, Is TPB legally culpable for the act of pointing someone towards the actual destination without ever hosting the actual content?

          If I can get the exact same content from Google and everybody else (and none of TBP torrent files are 100 % exclusive) then how is what they do illegal when it is clearly not assumed the same for google and everybody else?

          This theory is very similar to the US RICO statutes. Under RICO you don't have to actually commit the crime, you just have to be involved in the planning , execution or the on going criminal enterprise. Think Charles Manson. He originally got the death penalty for his involvement in the planning and execution of the crime , without participating physically in the crime.

          The distinction is that the prosecution in this case is focusing on the linking, which is not the underlying criminal act.

          The intent to commit the criminal act is the crime, not the linking. They would have one hell of a hard time proving intent though wouldn't they?
          answrtek
          • Evidence is Hard To Come By

            Just wanted to add that The Pirate Bay's
            servers are all ran purely from RAM. They have
            had their computers seized before. Although
            once their server was turned off, all the
            information on the RAM was GONE. So on top of
            needing the intent to commit a criminal act,
            they also have a very difficult time finding
            proof or any information from their computers.
            Common User
  • RE: Pirate Bay

    I think the real criminals are the ones who want us to pay for every little human action we take. We should be able to share what ever we want that belongs to us and modify it how-ever. Knowledge is power and corporate companies are struggling to keep it, but they forget who created the system they own. "POWER TO THE PEOPLE!"
    FOR_THE_PEOPLE
  • What conspiracy?

    My reading of the ARS article only turned up a relationship with an Israeli to set up ads. The prosecution thinks this is millions ... but TPB claim not. Let me Google to see if there is a 'conspiracy to make money through web site ads' ;-)

    What is it you guys say "Ignorantia juris non excusat."? Not a good move that one! Guess the prosecution could try giving him a confession to sign.

    Your post trailed off at the end as if unfinished or unfinalised ...
    jacksonjohn
  • If it was a click-through contract, they can use the kitty defense.

    http://www.ohesso.com/essays/essay006.htm

    As an aside, overseeing site operations doesn't necessarily mean that you actually monitor everything on the site. If someone else does all the work, and reports to you that everything is good, then you have 'overseen' operations.
    Letophoro
    • I doubt that would hold.

      LOL - cute, but I don't think a court would agree with that style of defense. He designed the whole setup to push the spacebar, and he knew what the spacebar does before he created it.
      CobraA1
      • He Gave directions

        To the "Information Highway"
        rodmanbrowning@...
  • RE: Pirate Bay

    Postulates:

    1: Sharing of Material still under copyright is wrong/unethical. It denies the artist compensation for their work.

    2: The intent of copyright is to reward the artist/creator for their work and encourage further creative efforts from the artist/creator.

    3: Corporate entities do not have the ability to create anything.

    4: Increasingly, copyrights are being sold/given to corporate entities.

    5: Length of copyright is increasingly being lengthened well past the author/creators lifespan, Ostensibly to provide income to the heirs of the estate, but as more copyrights are handed over to corporate entities this is a false assumption.

    Theory:

    In order to "fix" copyright law and bring it back in line with it's original purpose, that is to encourage and reward creative effort

    A: Length of copyright should be restricted to a length of time representing a maximal "Creative Cycle"; i.e. some length of time representing an average of time between finishing one creative work and finishing a second creative work. Let's say 5 years. This rewards an artist for their work, while encouraging the artist to continue producing. (The artists Estate would retain copyright for any remaining term upon the author/creator's death.)

    B: Copyright should be non-transferable, and automatic. The author/creator and his estate are the only entities allowed to retain copyright. This is the most important thing.
    medezark@...
  • It's pretty obvious

    [b]Pirate[/b] bay, and they have pirated content?

    Oh geez - it really couldn't be more obvious. I'm pretty sure he knows very well the site has pirated content, and he's just lying to try to get away with it.

    . . . and "I didn?t read it" is the poorest defense you can possibly give. I don't think any court has ever upheld that defense. Always read contracts, and always be aware of laws. Can't read? Have somebody else read it to you. The defense will likely point out that most lawyers are willing to read texts for clients that are unable to read for themselves.

    If the "I didn?t read it" defense held any water, I think everybody that went to court would claim ignorance and we'd never be able to uphold any law.

    If he ever gets to court - he's going to have to either settle or come up with a better defense.
    CobraA1
    • Contrat not negotiated

      The fact that he hasn't read the contract is simply not important. He signed, knowing it would bring about the existence of file sharing website. He couldn't have ignored that without willingly blinding himself to the truth.

      Can you say guilty?

      The sad fact is that I believe that IP industry as a whole is partly responsible for this. In particular for recording artists where the money mostly goes to the producers than the artists themselves. It does bother me greatly, and often limits my buying.
      zefficace
    • Beauty is in the eye of the beerholder !!

      Lets play a game.

      Lets say the name of the site is www.dogsdoit.com

      The content is exactly the same as TBP.

      Is the content illegal? Oh and BTW, there is no "content", its only a link to the user who has the content and you don't have a copy of and never had a copy of it.

      How can "He" know "it" was illegal content, when point in fact there is no content ?

      Has anyone ever read an entire EULA? Before you opened the software? It is a contract. This defense is a poor one, but as with cell phone plans and software updates and EULA's , almost no one reads them I would bet. I'd wager you haven't either.

      How can you be "always aware of laws?" In the US for example there are over 800,000 laws governing just one subject, Beef. Do you know any one of them? (If you eat beef I mean, sorry to offend you with a meat word if you don't). Sorry, poorest excuse to say I'm sorry I could think of.

      Your tome suggests you may have a headache. You'll find the tylenol in the bathroom, in the medicine cabinet on the bottom shelf, behind the zanax next to the prozac.
      answrtek
  • Last paragraph

    "That would be enough to convict on the" ...what?
    TaDaH
    • "The gold..."

      "is in the..."
      seanferd
  • Is Conspiracy part of the Charges?

    I was probably the poster on the other story that brought up conspiracy charges for TPB. I wasn't sure if the case in real life included those types of charges or not.

    As I said before I am not a lawyer or experienced with the law but just from the conspiracy legal definition I found, clauses 2-4 seem to already fit. All the prosecutor needs to find is if TPB willingly entered into the conspiracy. Pretty much the existence of the site seems to qualify that position.

    As far as ignorance of the law as a defence I actually support it in theory but I realise it would never be a real defence. In the USA we have so many laws and they cover so many overlapping issues and they are selectively enforced that it is impossible for a reasonable person to have intimate knowledge of the laws of the USA. As a recipient of the educational services in the USA I can attest to the fact that at the time I was in school there were no classes that attempted to educate citizens on the laws of the USA. Even in civics or social studies classes no attempt was made to educated citizens on law. So if the laws are legion, not worded in an understandable fashion, cover multiple overlapped items, and are selectively enforced, how could someone really understand the law?
    mr1972
    • Conspiracy

      *a secret agreement between two or more people to perform an unlawful act.

      *a plot to carry out some harmful or illegal act (especially a political plot).

      *a group of conspirators banded together to achieve some harmful or illegal purpose.

      In essence it boils down to this one central question.

      Is it a conspiracy to display a link on a web page, even if that link is just to a torrent file, which if clicked could allow the end user to obtain a copyrighted work without paying for it ?

      If this meets the defintion of conspiracy then Google is guilty first.

      The theory of the prosecution is that making a link to a file- any file (and the file is physically never stored on their server , never) makes anyone who would link to activity which could be considered illegal a prosecutable crime.

      Under this theory anyone who makes links to copiers available is potentially committing a crime because they are linking to activity which "could" be considered illegal, because someone might use a Xerox machine to copy a book for example, and that would be illegal under the copyright laws among others.

      You follow me? This is where the wheels falls off the case.
      answrtek
      • That only leaves you with...

        That only leaves you with the "I don't know what is going on" defence. Basically what you are saying is that TPB only provides links to other servers who have content on them or other links to content but TPB itself doesn't "know" what content or links are on the other server. Cause if they did know, then conspiracy would fit. For the prosecution all you need to do is find a log file that shows some sysadmin or owner of TPB using their own service. You might be able to make a case that if the owners and admins of TPB have ever made use of their own services then they can't use the "I didn't know" defence and they would have in fact knew that what they were linking to is illegal.

        In the case of Google, they have been attacked by copyright holders in the past. They probably will also end up in another lawsuit sometime in the future. Especially if TPB goes down in flames.

        This story is just another battle in the war for the future. Will the human race be shackled by 19th and 20th century distribution models or will we be allowed by our corporate/government masters to make use of the newer technology available to us?

        The one thing I will truly miss are big budget movies. I like to got to theatres and watch them but they will be very difficult to make with an internet based distribution model.
        mr1972