Swedish Appeals Court Denies Pirate Bay Retrial -- Says No Bias By Judge

from the no-bull,-no-bias dept

Thu, Jun 25th 2009 9:51am — Mike Masnick

The Swedish appeals court charged with looking into whether or not the judge in the original trial against The Pirate Bay was biased, has said they found no bias (for real, this time) with the judge, despite his belonging to two groups that have pushed for stronger copyright laws -- and the fact that the prosecutors' lawyers were involved in that organization as well. Apparently, the court says the judge should have brought this information to light sooner, but otherwise said it was no big deal.

According to Brokep, one of the four people convicted in the trial, the group plans to file charges against the court for human rights violations, and will claim that the appeals court judge was also biased. Not knowing much about Swedish law, I have no idea if that has any chance of succeeding, but it doesn't seem like the argument has worked all that well so far. Christian Engstrom, the Swedish Pirate Party member just elected to the EU Parliament seems to believe that the courts are blinded by the high profile of the case, such that they're applying the law incorrectly:

This is part of a pattern. It show that the Swedish legal system is no longer to be trusted when it comes to copyright cases. It's a travesty of justice quite simply. There are certainly problems with the laws too but this also shows that the courts are not capable of applying the laws in a correct manner. I've been a lay judge for seven years and I've never seen an indictment as bad as the Pirate Bay verdict. But that didn't stop the court from setting ridiculous sentences.

Now, of course defenders of the entertainment industry's position seem to have a blind spot as to how The Pirate Bay can possibly be considered legal, but Engstrom's right. The law in Sweden doesn't seem to have been applied properly, since The Pirate Bay itself does not host any infringing files directly. It seems like the court still doesn't quite understand that fact. Either way, Engstrom seems to recognize that chances for winning on appeal seem unlikely as well. Instead, he's hoping that citizens will recognize that the law itself needs to be fixed even more:

This makes it clear that the only way to win this battle is through politics. It's a political issue and it's going to be decided at the general election in 2010.

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Filed Under: bias, brokep, christian engstrom, copyright, lawsuits, sweden
Companies: the pirate bay

35 Comments

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Anonymous Coward, 25 Jun 2009 @ 9:56am

"This is part of a pattern. It show that the Swedish legal system is no longer to be trusted when it comes to copyright cases."

The sounds of the sourest of grapes.
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- Anonymous Coward, 25 Jun 2009 @ 11:33am
  
  Re:
  why aren't you using your name anymore Weird Harold?
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  - C.T., 25 Jun 2009 @ 11:41am
    
    Re: Re:
    If you are implying that I am Weird Harold, you are way off base. If you take a look through the archives, you will find that I have been as critical of Weird Harold as just about anyone. He is a fool...and a shill. I think you will find that my comments/criticisms are grounded in a historical understanding of copyright as well as an intricate knowledge of current copyright laws.
    [ link to this | view in chronology ]
  - C.T., 25 Jun 2009 @ 2:03pm
    
    Re: Re:
    ...and, if you take another real hard look through the archives, you'll find that I masturbate. A LOT!
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C.T., 25 Jun 2009 @ 10:00am

The Pirate Bay defenders were found guilty of "complicity in breaches of the Copyright Act," which is equivalent to our own common law principle of secondary liability. There are certainly passages in the opinion that leave one scratching their head, but the fact that liability can attach to a site that doesn't host infringing content itself is not one of them. Indeed, the possibility is statutorily prescribed by Chapter 23 Section 4 of the Swedish Criminal code.
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Anonymous Coward, 25 Jun 2009 @ 10:03am

Swedes...
Of course, they have no Bananas.

http://www.youtube.com/watch?v=lWohdwiLFbI
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- Anonymous Coward, 25 Jun 2009 @ 10:44pm
  
  Re: Swedes...
  Of course, they have no Bananas.
  http://www.youtube.com/watch?v=lWohdwiLFbI
  
  Good News! The Bananas have been found, and will be returned.
  See: http://www.trendhunter.com/photos/42338/9
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Anonymous Coward, 25 Jun 2009 @ 10:33am

The interesting thing about this judgement is that it certainly puts a ton of pressure on "torrent search" sites.

I would say that smart people would create a torrent system with only approved material on it, and make sure their tracker becomes popular, seperating themselves from the pirates that are about to go down.

It's the end, my friends, joining Oink and all the other cute but not entirely legal ideas that went before them.
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- :Lobo Santo (profile), 25 Jun 2009 @ 10:39am
  
  Re:
  Bah. Seriously, the only reason they can try is the whole "web site" thing.
  
  Seriously, the next step is decentralized torrent searches and indexes. Once there's not website to go after (or rather, any of 1000s of easily duplicable websites) who will they then go after?
  [ link to this | view in chronology ]
- Anonymous Coward, 25 Jun 2009 @ 11:42am
  
  Re:
  Uh huh and you know what is approved and illegal material? Are you going to put a couple week wait on every file uploaded while you attempt to track down and ask the copyright holder if it is allowed? Are you going to check out ever download? Or do you propose some AI system that just has a magic ability to know what is legal and what isn't? Perhaps a band WANTS to share their songs and THEY put it up, how do you know if that's legal or not? Do they have to send you documentation to say so?
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- chris (profile), 25 Jun 2009 @ 1:42pm
  
  Re:
  It's the end, my friends, joining Oink and all the other cute but not entirely legal ideas that went before them.
  
  yeah right, you mean like demonoid or EZTV that have been shutdown and resurrected?
  
  nope, it's just the beginning. if TPB acutally shuts down (which it won't) and doesn't come back up in short order (which it will) there will be 5 new websites to take it's place, meaning 5 new sets of torrents to snoop, assuming the community doesn't go to something like TOR.
  
  did you know you can run services on the TOR network? TOR is like a big secret anonymous darknet. it's awesome.
  
  TPB is what it is and does what it does to make a political statement. if they do get shut down, and less political and more underground groups step in to fill the void then the real skulduggery will start. i can't wait!
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  - Anonymous Coward, 25 Jun 2009 @ 2:47pm
    
    Re: Re:
    chris, this is the rare time when you are likely wrong.
    
    torrent sites are finding less and less friendly ground to work from. Sweden was one of the few non-communist block nations where they could operate. Most of the current torrent sites have fairly short lives, come and go quickly.
    
    "TPB is what it is and does what it does to make a political statement." There is a lie - they do what they do to be famous and to make a shitload of money, hidden in offshore accounts. Please be accurate in your statements.
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    - Anonymous 2, 25 Jun 2009 @ 4:45pm
      
      Re: Re: Re:
      Maybe you should check the facts yourself before calling someone wrong. The PB servers are not hosted in Sweden, they are dispersed across several countries. And to date, every time a site is shutdown, another takes its place.
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    - Anonymous Coward, 25 Jun 2009 @ 8:30pm
      
      Re: Re: Re:
      How do you know why they do it? Do you have the mystical ability to read their minds? Did they tell you in your dreams? And what's this about hidden offshore accounts? See, now you're just making shit up, and making yourself look like a fucking moron.
      [ link to this | view in chronology ]
    - chris (profile), 25 Jun 2009 @ 8:40pm
      
      Re: Re: Re:
      torrent sites are finding less and less friendly ground to work from. Sweden was one of the few non-communist block nations where they could operate. Most of the current torrent sites have fairly short lives, come and go quickly.
      
      yeah, oink went away, but what.cd took it's place, no doubt along with at least a couple of others that i am not aware of.
      
      if there is no place to run to then why did demonoid come back online after being shut down? the shutdown actually did me a favor cuz i was finally able to get an account.
      
      why did eztv.efnet.org go offline for a month and re-appear even stronger as eztv.it? it's public too.
      
      they do what they do to be famous and to make a shitload of money, hidden in offshore accounts. Please be accurate in your statements.
      
      sure they make a lot of money and they are famous. after all, they do run one of the most heavily visited websites in the world. you know what helps you spread your political views? being famous and making money. you know what is guaranteed to get you laid? being famous and making money. they are probably just as interested in impressing girls.
      
      being famous and making money doesn't change the fact that they use TPB as a sounding board for their political views about privacy, ip reform, and internet culture:
      http://thepiratebay.org/doodles
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Eric, 25 Jun 2009 @ 10:37am

Links Links Link
All the pirate bay does is Link...so if I link to them and was in Sweden could I be held accountable for whats on their site? Indirectly my link could be pointing to infringing links...and if someone links to me (remember I'm linking to the pirate bay) could they be held accountable for linking to infringing content...based on the fact that links are all interconnected I would have to say according to sweden the entire internet and any site out there and the owners of those sites should be locked away for life...
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- C.T., 25 Jun 2009 @ 10:41am
  
  Re: Links Links Link
  The Pirate Bay does far more than link to infringing material. You should read the opinion for a thorough account. It is available in English on the IFPI's website.
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  - chris (profile), 25 Jun 2009 @ 8:48pm
    
    Re: Re: Links Links Link
    The Pirate Bay does far more than link to infringing material. You should read the opinion for a thorough account. It is available in English on the IFPI's website.
    
    they also taunt the ifpi:
    http://static.thepiratebay.org/doodles/sinai08.jpg
    
    hollywood too:
    http://static.thepiratebay.org/doodles/hollywood.jpg
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Anonymous Coward, 25 Jun 2009 @ 10:53am

Link, please. I searched the IFPI, but there's too many hits.
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Joseph Young, 25 Jun 2009 @ 10:56am

Court of last instance
Mike Masnick wrote:

Not knowing much about Swedish law, I have no idea if that has any chance of succeeding, but it doesn't seem like the argument has worked all that well so far.

I would say that that’s not relevant, if it’s going to end up in the European Court of Human Rights. As a supra-national court, the ECtHR has an outsider’s perspective and is inherently independent. If the Swedish judicial system does have a serious internal problem, let’s call it institutional bias, there’s a good chance the ECtHR would rule in favour of the plantiff(s).
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Anonymous Coward, 25 Jun 2009 @ 11:23am

So...
Does swedish copyright law have a "making available" or "contributory copyright infringment" clause or statute? If not, they have no case. TBP, no matter what you think of them morally, hosts no actual content. They do nothing more than a phone book, TomTom, or a search engine like Google. You Apoligitards(TM) for big content need to get this through your thick heads.
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- C.T., 25 Jun 2009 @ 11:25am
  
  Re: So...
  "Does swedish copyright law have a "making available" or "contributory copyright infringment" clause or statute?"
  
  Yes
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TW Burger (profile), 25 Jun 2009 @ 11:43am

Guilt versus Fairness
Is Pirate bay guilty? Yes, I think they probably are but not being a Swedish law expert my opinion is worthless.

Was the judge biased? Being a member of those organizations associated with the copyright lobbyists the judge is definitely biased. Even if he is not the mere appearance of the possibility of being biased should have been enough to have a mistrial.

Sweden seems to like to remind you they had a solid and profitable trade relation with Nazi Germany during 1939 - 1945. The government mindset that allowed that seems to still exist.
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- Anonymous Coward, 25 Jun 2009 @ 11:47am
  
  Re: Guilt versus Fairness
  Cool, you played the nazi card. Impressive.
  
  Many other parts of the world don't have the warped US mentality about bias, where somehow every judge is suppose to have lived their lives in a bubble without ever doing any business, owning any shares, or even expressing any opinions.
  
  Get over it. TPB lost. Endit.
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  - Anonymous Coward, 25 Jun 2009 @ 12:07pm
    
    Re: Re: Guilt versus Fairness
    The judge was a BOARD MEMBER of an organization that pushes for STRONGER COPYRIGHT LAW.
    
    Explain to me how that isn't biased. Please.
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Osno (profile), 25 Jun 2009 @ 11:49am

That's Reductio ad Hitlerum (or more currently, Goldwin's Law). They are claiming a ridiculous circular thing (that since copyright is legal a judge in a copyright association can't be biased for copyright and so TPB has no case because they violated copyright, which is what's in discussion). Please don't reduce it to a nazi apology.
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- Me, 25 Jun 2009 @ 1:11pm
  
  Re:
  Incorrect. It's GODWIN's not Goldwin's.
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Anonymous Coward, 25 Jun 2009 @ 12:48pm

The reason that people BELIEVE there's no bias and it's not important, is that most of us assume that they are in fact guilty. Like, if a judge that belongs to an anti-rape committee would be assigned to a rape case, everyone would be fine and dandy, because the plaintiff is clearly guilty. The trouble is, what if they WEREN'T guilty? The judge would probably ignore all the evidence supporting their innocence, in their own crusade to rid all the world of evil evil rapists, would convict them no matter what. In the same way, sure, this judge would convict these Pirate guys anyway but that's what any other judge would do in his case, they say. Problem is, he would probably convict them whether their defense was rubbish or if it was delivered by Perry Mason itself and made the Music Industry shills break down in tears and confess of committing the infringement themselves.
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- Anonymous Coward, 25 Jun 2009 @ 8:40pm
  
  Re:
  I would hope the plaintiff weren't guilty, since it's the defendant that's usually on trial...
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Logo, 25 Jun 2009 @ 1:00pm

"Seriously, the next step is decentralized torrent searches and indexes. Once there's not website to go after (or rather, any of 1000s of easily duplicable websites) who will they then go after?"

I agree this is probably the future of torrents. Also improvements in using distributed seeding. So rather than (potentially) sharing the whole file you are only are available to share smaller portions of it to prevent you from ever actually sending a complete infringing work to someone else.

I also think we're going to see pirate methods that fringe on fair use pretty soon. Essentially encryption methods that rely on a creative component supplied by the user (say an image file or a music track) so when you distribute the file you are skirting the concept of fair use (and it's the users infringing when they decrypt it).
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Glenn, 25 Jun 2009 @ 4:29pm

Not my yob!
So, if I have a website, and I tell people they can find such-and-such a book at the library, and someone goes there and steals the book... that makes me culpable?

Wow... cool.
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- Anonymous Coward, 25 Jun 2009 @ 6:33pm
  
  Re: Not my yob!
  No, if you have a website, and you tell people where to get a stolen copy of a book (and profit from that information by filling your site with ads, upsells, and other sneaky ways to make money) then yeah, you are going to get it.
  
  Conspiracy to commit... it's a wonderful crime.
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CleverName, 25 Jun 2009 @ 6:44pm

Three Monkeys
What is readily apparent the rest of the world, eludes those in charge of making the decision ...

Film at eleven
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SunKing, 26 Jun 2009 @ 5:57am

Balance?
I can understand being a member of copyright groups in order to "keep up with current developments". Makes sense. I cannot understand being only a member of groups representing one side. That makes no sense.

So is he "keeping up with current developments", or not?
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Tor (profile), 27 Jun 2009 @ 8:23am

The law in Sweden doesn't seem to have been applied properly, since The Pirate Bay itself does not host any infringing files directly. It seems like the court still doesn't quite understand that fact.
The situation is not that clear-cut since there's a quite far-reaching secondary liability. Personally I think the court went too far when they said that linking (and also providing the tracker) was illegal in this case, but I'd rather call the court's interpretation unreasonable than wrong.
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