The Final Day of The Pirate Bay Trial
Posted: 02 Mar 2009 11:07 PM PST
As The Pirate Bay returns after being offline all night, the lawyers of defendants Fredrik Neij, Gottfrid Swartholm, Peter Sunde and Carl Lundström present their closing statements to the court.
Apparently, Fredrik (TiAMO) got the site back up from inside the courtroom. “I fixed the Pirate Bay from inside the courtroom just minutes ago. The site is back online,” he told blogger Oscar Swartz.
First to appear is Fredrik Neij’s lawyer, Jonas Nilsson. He said that the technology behind TPB is completely legal and Fredrik never had the intention to violate anyones copyrights - his main interest was the technology at the site and he was a technician there.
Nilsson went on to say that it has not been established that the bulk of the material accessible via TPB is copyrighted and it has not been shown that any of the material has been exploited commercially. Nilsson says there are grounds to dismiss the indictment. These are i) the operations of TPB are permissible under the law, ii) there is a certain amount of uncertainty as to the technical aspects of the case against TPB and iii) there are serious shortcomings in the investigation against the four.
Nilsson again argued that TPB operates legally in every sense. The site is open in nature and it is the the site’s users that decide what content TPB tracks and this is not a decision made by the operators. Every site in the world could link to copyright material, he argued. This is not a TPB problem, this is a worldwide Internet problem, he noted.
Neither has it been shown that Fredrik made any money from the site argued Nilsson. There was some advertising revenue generated by the site, he said, but this went to cover the site’s operating costs.
Turning to the accusations that the staff of TPB had an attitude problem, Nilsson says that everyone has a right to their own opinion and just because the site is named the way it is, it does not indicate anything in particular. The site, he said, offers only a passive search function.
Nilsson believes that the indictment against Fredrik Neij should be dismissed because he knew nothing about any of the torrent files referenced in the case against him. Furthermore, he says there is no evidence that Neij encouraged anyone to commit a crime.
Going on to attack the technical evidence against his client, Nilsson said that it doesn’t hold up. It is not clear that Fredrik made any of the works available, there is no evidence which indicates any time for the alleged offenses and there is no proof that TPB’s trackers were used for such - the screenshots just aren’t enough.
There is no evidence indicating who did any uploading and it has not been shown that the individuals doing so had even committed any offense in their own jurisdictions. Furthermore, the Prosecution has not shown how any of the individuals are connected to TPB, and he mostly talks about ‘The Pirate Bay’ as a whole - which isn’t sufficient in a criminal trial as individuals must be referenced.
Turning to the damages brought against his client, Nilsson said the recording industry has simply calculated itself what it believes the damages should be, and at no point has any independent or objective data been presented to the court. Furthermore, since they have not proven that Fredrik was connected to any of the copyright works, the damages claim against him should be dismissed.
The court then took a short break.
Next to make his arguments was Ola Salomonsson, representing Gottfrid Svartholm. He said that he has seen no proof that TPB indexes mostly copyright content and it seems that the only person who bothered to collect such data was Peter Sunde, and he reported 80% of indexed material as non-copyrighted. The Prosecution didn’t bother to collect any data on this issue, he said, and therefore cannot claim the opposite to be true.
Salomonsson said that the Prosecution never tried to contact any of the seeders on the site, who the Prosecution allege that the four must have had contact with. There is no proof that TPB’s tracker was used in any of the infringements highlighted in the case, he added.
Going on, Salomonsson spoke about Gottfrid’s comments yesterday when he called the Roswall “a crazy bastard” for the way he calculated the damages. This comment was because the Prosecutor has his sums wrong, he said, noting that while the Prosecutor claims there are 64 adverts on TPB, there are really just 4. Salomonsson said the revenue is closer 700,000 kroner rather than the millions claimed. Furthermore, he says that the advert deal shown to the court many times never actually came about, so therefore it should not be accepted as evidence.
Salomonsson said Gottfrid always believed that TPB operates legally. He said the site had never been issued with any injunctions ordering it to stop its activities.
Referring to the testimony of Roger Wallis, he said it had embarrassed the plaintiffs and put a big question mark over the massive damages they are claiming from the defendants and that common sense says that any claim must be drastically reduced. Speaking of a possible jail sentence, Salmonsson said that such a result does not feel right at all.
The court took a short break and returned with Peter Althin, Peter Sunde’s lawyer. He opened by saying that this has been a difficult trial for everyone involved and that when there are developments in technology, the establishment reacts against them.
Turning to the huge claimed damages, Althin said there is no proven link between material being downloaded from the Internet and any lost sales, so therefore calls for all the damages claims to be dismissed. Furthermore, he said that all of the ‘evidence’ produced by the Prosecution in respect of the damages claim was not collated independently and therefore wasn’t an objective assessment. He went on to say that since Peter had committed no crimes, there should be no claims for damages against his client.
As for the way the Prosecution dealt with witness Roger Wallis, Althin said it was at the least highly insulting. Instead of attacking Wallis’ arguments, he said the Prosecution chose to launch personal attacks against him. Calling the attacks against Wallis “pathetic”, Althin said he would do everything he could to restore Wallis’ reputation.
Althin told the court that Peter Sunde is just the spokesman of TPB and did not hold the position in the site that the Prosecution claim. Althin said that the Prosecution skipped quickly over talk about Peter at the summing up yesterday for this very reason, indicating a lack of confidence in their own claims.
Althin said that just because Peter knows the other defendants, it does not follow that he committed any crime and just because he gave some advice as to the running of the site, the same stands. “If I call Saab [motor company] and tell them to paint their cars green so they sell more, I have no responsibility for Saab,” he said.
Referring to the contested advertising agreement, Althin said that references were made to Founder 1 (Fredrik) and Founder 2 (Gottfrid). There is no reference to Peter. He added that Peter was not even originally a suspect in the case and his client has never made any money from being on the site. He called for the case against his client to be dismissed.
The court then took a short break and returned with Per E Samuelson, lawyer for Carl Lundström. Samuelson opened by saying that during the case the Prosecution missed the main key point - Is The Pirate Bay legal or not? He said that all four defendants should be acquitted since the Prosecution failed to issue individual charges as is required in a criminal case. Everything the Prosecution has described has been about the operations of TPB as a whole, not the individuals.
He went on to say that TPB was not unique and it has a lot in common with many other sites, which makes the judgment in this case very important, maybe of entire EU significance. Samuelson said the service provided by TPB is a legal one but due to the ‘blind’ nature of the site, it can be open to misuse and any such activity is carried out by the site’s users, not the defendants.
Echoing comments by Peter Althin, Samuelson said that when new technology appears it can be difficult to “see the wood for the trees”. He said that just because something may have been used by people for illicit purposes, should that mean that there should be an attack on the infrastructure as a result? It’s like taking legal action against car manufacturers for the problems experienced on the roads, he said.
While stressing that operations at TPB are entirely legal, Samuelson said that there had been a lot of politics involved in the trial and he urged everyone in the Court to try to ignore these aspects.
Turning to the allegations that his defendant assisted others in committing crimes, Samuelson said that there had to be a recorded major crime in the first instance. He said it seems that no-one is aware of when any alleged offenses were committed and furthermore, no-one knows who committed them. 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. Samuelson used some information from previous cases to prove his point.
The court then took a break for lunch.
After the lunch break it’s time for Karl Lundstom’s lawyer Samuelsson to present his closing statements. He started by pointing out that the prosecution missed the core elements of this case yesterday, as they didn’t say anything about the legality of the technology or hosting a BitTorrent site. There are thousands of other sites on the Internet that do exactly the same, he said.
“The district court must take a position on whether the activity is illegal,” Samuelsson said referring to the technology behind the site. He further said that the decision in this case will set an important precedent for other BitTorrent sites throughout Europe. He therefore urged the prosecution to get a ruling from the EU.
Samuelsson went on saying that he didn’t really understand all the technology that is involved when he first started on the case, but that it is essential to this case. It is a case against an infrastructure that is used to share files, many of which are legal, he argued. He hoped the judge would realize this.
Without mentioning King Kong Samuelsson told that the accused have to be aware of the main crimes in order to be convicted, referring to the 33 copyrighted files that the defendants allegedly helped to make available. However, the witnesses have stated that can’t possibly be aware of every download on the site.
Next, Samuelsson goes on to describe his client as a businessman who is only vaguely connected to TPB. One of his customers (PRQ) hosted the site, but his client didn’t own the site, nor was he involved in maintaining or coding it. That the prosecutor want to hold Lundstom accountable for the 33 downloads seems to be far fetched according to the lawyer.
After a short break all the lawyers and defendants went through their expense claims. Fredrik Neij claimed compensation for a plane ticket to Thailand which he couldn’t cancel and thus will cost more for him to book now. The others claimed their expenses as well.
The court further announced that the verdict is due on April 17 and ended the trial.
This is a developing story, please check back for updates
Post from: TorrentFreak
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