Swedish Appeals Court Says Web Designer Is Responsible For Copyright Infringement On StudentBay

from the scorched-earth-policy dept

Fri, Dec 21st 2012 8:51am — Mike Masnick

It's really amazing how fearful people who don't understand technology are of anyone who has any connection to file sharing, no matter how remote. Over in Sweden, an appeals court has overturned a lower court ruling absolving a web designer of any liability for designing the StudentBay -- a torrenting site for educational material -- and decided that because he designed the site, he must be liable for what users did on the site. This goes beyond secondary liability into some sort of weird tertiary liability. It already seems odd to blame the operators of the site for actions taken by its users, but now we're holding the graphic designers responsible too? It's a sort of scorched earth policy from people who don't seem to understand how the internet works, and who just seem to want to "destroy everything." Of course, the end result is that anyone with half a clue just thinks the judicial system is a complete joke. That doesn't seem useful for anyone.

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Filed Under: liability, scorched earth, sweden, web design

54 Comments

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el_segfaulto (profile), 21 Dec 2012 @ 8:57am

So...
Does that make everybody who's ever written a template for Wordpress, Joomla, or Drupal a dirty rotten thief?
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average_joe (profile), 21 Dec 2012 @ 8:57am

It's really amazing how fearful people who don't understand technology are of anyone who has any connection to file sharing, no matter how remote. Over in Sweden, an appeals court has overturned a lower court ruling absolving a web designer of any liability for designing the StudentBay -- a torrenting site for educational material -- and decided that because he designed the site, he must be liable for what users did on the site. This goes beyond secondary liability into some sort of weird tertiary liability. It already seems odd to blame the operators of the site for actions taken by its users, but now we're holding the graphic designers responsible too? It's a sort of scorched earth policy from people who don't seem to understand how the internet works, and who just seem to want to "destroy everything." Of course, the end result is that anyone with half a clue just thinks the judicial system is a complete joke. That doesn't seem useful for anyone.

Seems like plain old secondary liability to me. He's liable as a contributory infringer if (1) he materially contributed to the infringement, and (2) he had knowledge of it. Sounds like he knowingly designed a website that was used to infringe. I don't ever understand your "they don't understand the internet!" argument. Seems like completely empty rhetoric, and you use it way too much. Someone set up a site on purpose so that people would use that site to infringe. Just because you don't like the fact that the law rightfully holds such people liable for the intended results of their actions, don't pretend like the judges are a bunch of idiots who don't understand the internet. They understand it well enough to spot a party who should be held liable for the actions they willingly chose to take.
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Anonymous Coward, 21 Dec 2012 @ 9:03am

Re:
So by what you are saying all gun manufacturers are secondary liable for the murder of people by guns because they all know full well that guns are being used to kill people.
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orbitalinsertion (profile), 21 Dec 2012 @ 9:04am

I blame companies like Intel for making processors. Hold them accountable!
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orbitalinsertion (profile), 21 Dec 2012 @ 9:05am

Re:
Because every torrent search site is about infringement. Torrent=infringing materials, right?
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This comment has been flagged by the community. Click here to show it

out_of_the_blue, 21 Dec 2012 @ 9:06am

It's the old "I'm only the piano player" defense.
"convicted for assisting in copyright infringement and aiding attempted violations of copyright law. The Court ruled that despite only being a designer, he must�ve known that the true purpose of StudentBay was to infringe the copyrights of the book companies." -- WELL, I think a reasonable case COULD be made depending on how tailored the site was, BUT I wouldn't make it against this guy. -- What's become of the principals, Mike? Did they skate? You always leave out important bits.
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Tor (profile), 21 Dec 2012 @ 9:09am

Re: So...
Not if you lack knowledge of the way it will be used.
In order for secondary liability to be triggered you would have to assist someone doing something criminal either in deed or by giving him/her advice.

Btw. this seems to have some similarities with how Peter Sunde was convicted in the TPB case.
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Michael, 21 Dec 2012 @ 9:13am

Re:
The web designer was contracted to work on the site by it's operators, he denies operating the site and the original ruling agreed with him. Although the article is unclear on why the appeals court reversed that decision, it does not give any indication that further evidence indicates he was running the site.

You can speculate that he knew, but unless you have a source to cite, I don't see anything that indicates he knew the site would be used for any infringing uses at all.

Regardless, application secondary liability if he was in fact running the site still remains a pretty crazy idea. Criminal sanctions for someone who creates a perfectly legal website because someone uses it to infringe copyright seems very misguided and, if applied to everything else in the same way, would result in traffic engineers being convicted for helping bank robbers get away by providing roads.
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sehlat (profile), 21 Dec 2012 @ 9:14am

Hmmmmm....
Sounds like the Swedish justice system is totally borked.
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out_of_the_blue, 21 Dec 2012 @ 9:17am

Re: Re: @ AC: "saying all gun manufacturers are secondary liable"
NO, because a gun isn't specifically targeted, ha, ha. Now, if you ever watched "Day Of The Jackal", the fellow who built a special firearm was indeed liable for its use. But ignoring your loaded, ha, ha, but flawed analogy, this'd be more like an installer who rigs up a camera and mike to record movies in a theater: it's a specific installation that has SOLE purpose of infringing copyright.
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average_joe (profile), 21 Dec 2012 @ 9:18am

Re: Re:
So by what you are saying all gun manufacturers are secondary liable for the murder of people by guns because they all know full well that guns are being used to kill people.

No. I'm saying that a person who knowingly designs a website that exist for the primary purpose of facilitating mass infringement should be held accountable. This stuff isn't hard. You guys just pretend like it is.
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weneedhelp (profile), 21 Dec 2012 @ 9:21am

Re: Re: Re:
Joe got run over by a reindeer.
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DannyB (profile), 21 Dec 2012 @ 9:25am

Tertiary Liability
Hey, I already said that one here. So would your use of Tertiary liability be Copyright infringement, Trademark infringement, or maybe Patent infringement? After all, you can't build your articles on the backs of your user comments. Message board posters and trolls deserve to get paid! Stealing is Theft, or um, something. You wouldn't download a pattern of bits would you? Your use of the term Tertiary Liability made those words disappear right out of the last sentence of my previous posting.
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Keroberos (profile), 21 Dec 2012 @ 9:26am

Next on the list for them to go after--the World Wide Web Consortium & WHATWG, for developing HTML--which everyone knows was invented so those filthy pirates could create file stealing sites.
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DannyB (profile), 21 Dec 2012 @ 9:27am

Re: It's the old "I'm only the piano player" defense.
Why are you asking Mike? Your brain is missing the important bits.
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average_joe (profile), 21 Dec 2012 @ 9:30am

Re: Re:
You can speculate that he knew, but unless you have a source to cite, I don't see anything that indicates he knew the site would be used for any infringing uses at all.

Go here: http://www.idg.se/2.1085/1.484006/studentbay-doms-i-hovratten

Google Translate says "The Court of Appeal, however, that the man must have known that the purpose of studentbay.se were delinquent, and judge him because of probation and damages." The court must have noticed the "bay" name and the pirate ship emblem. Hmmm. This one's tough to crack.

So the court found that on the evidence he must have known that the site was for the purpose of causing infringement. It says he was profiting from it as well, charging "20 crowns" to join. So he doesn't seem at all innocent to me. Of course, Mike will defend this guy and pretend like what he did was OK and that it's really the world who just understand the internet. Hogwash. Pirate-apologism at its worst. Seriously.
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Anonymous Coward, 21 Dec 2012 @ 9:33am

Re:
Why would you say that? Are you fully trained in Swedish IP law?
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Rikuo (profile), 21 Dec 2012 @ 9:34am

Re: Re: Re:
So now you're admitting to holding two contradictory ideas in your mind.

Guy who designs a torrent website knows that that website is used for copyright infringement and is responsible for those who infringe.

Guy who designs a gun knows that that gun is used to kill people, but is somehow not responsible for the deaths caused by that gun.
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Rikuo (profile), 21 Dec 2012 @ 9:37am

Re: Re: Re:
Of course a bay in the name and a certain emblem are enough for you to be pronounced guilty. Seriously, you cannot be a student of law if this is what you are saying.
For this ruling to logically make sense, then the courts MUST, without exception, hold every person who has contributed to computers responsible for the actions of those who infringe copyright. Not just the graphic designers, but also the coders, the site operators, moderators, the ISPs, the electric company, the hardware manufacturers. Either they are ALL GUILTY or none of them are.
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DannyB (profile), 21 Dec 2012 @ 9:37am

Re: Re: Re:
So what you're saying is that the court assumed from a name and a graphic that a designer must have known the site was for infringement.
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Anonymous Coward, 21 Dec 2012 @ 9:38am

understanding the Internet is the last thing on their minds. what these morons in the Swedish court do understand is where the next big paycheck is coming from and dont want to deny the entertainment industries the chance of enhancing the bribes in the future. it just seems like a continuation of the complete bias that was shown towards TPB crew, under the explicit directions of the USA entertainment industries
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Rikuo (profile), 21 Dec 2012 @ 9:39am

Re: Re: Re: Re:
By the way, I only noticed just now, this comment is my 2,002nd! Can't believe it, over 2,000 comments...
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Rikuo (profile), 21 Dec 2012 @ 9:41am

Re: Re: So...
You mean the way he was found guilty of aiding a nebulous somebody of committing copyright infringement, but no-one was ever charged over the actual crime itself? Yeah, that makes sense...
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Anonymous Coward, 21 Dec 2012 @ 9:51am

Re: Re: Re: @ AC: "saying all gun manufacturers are secondary liable"
WOW! Finally my OOTB dose for the day came early. Hence, maybe the guy designed the site to torrent LEGAL materials. GM, FORD, and other car makers designed their car for transport and not by running over someone ala-VEGAS strip style. Yes, the argument is infinite and yours is squashed everytime the second you press a key on your keyboard. Seriously, dude?! I like your style though of stirring the pot.
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jameshogg (profile), 21 Dec 2012 @ 9:51am

Didn't you hear?
ANYTHING is justified in the name of preventing copyright infringement!
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Michael, 21 Dec 2012 @ 9:55am

Re: Re: Re: Re:
Michael Bay is screwed.
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MrWilson, 21 Dec 2012 @ 9:58am

Re: Re: Re:
Oh my god! It was so simple to determine infringement and we didn't even see it! All you have to do is is look for words and symbols that are associated with infringement. Let me get Robert Langdon to consult on this.

Let's see. Pirate is associated with infringement. Disney has a pirate themed franchise. Oh my god, it's so obvious. Disney is behind the Pirate Bay! They're pirating their own content for some nefarious purpose. It must be true. After all, I followed the strong legal evidence of word association to prove that Disney is guilty. Matlock couldn't have cracked this case any better.
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OldGeezer (profile), 21 Dec 2012 @ 10:00am

What is so crazy about this whole mess is that according to Torrentfreak the site had less than 100 hits total and 30 of those were from the government site investigating them.
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Anonymous Coward, 21 Dec 2012 @ 10:00am

Re: Didn't you hear?
Yup. And what's sad is all this effort and abuse will do absolutely nothing, nothing, to prevent copyright infringement.

Each time a new story like this comes to light, people respect copyright less not more.

These copyright maximalist parasites are digging their own grave.
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bob, 21 Dec 2012 @ 10:15am

get ebay too!
you can get stolen goods on ebay, ergo ebay and the people who run it, designed it, and host it are facilitating the fencing/movement of stolen goods..
right?
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Adam V, 21 Dec 2012 @ 10:19am

This goes beyond secondary liability into some sort of weird imaginary liability.

/FTFY
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Nigel (profile), 21 Dec 2012 @ 10:24am

Re:
Way to wrap the week up with unmitigated bullshit.

"Seems like plain old secondary liability to me"

Nigel
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Lowestofthekeys (profile), 21 Dec 2012 @ 10:26am

Re: get ebay too!
The apocalypse is NIGH...Bob just made a joke.
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Berenerd (profile), 21 Dec 2012 @ 10:26am

Re: Re: Re: @ AC: "saying all gun manufacturers are secondary liable"
Ok, lets use this one then...

The guy who built the H bomb....he knew the H bomb had one use, and that is to kill millions of people. Is he responsible for the deaths it caused? So that guy or group of people are mass murderers?

Compared to your theory where a guy who most likely got contracted to build a file sharing site (just an FYI, not all file sharing sites share infringing materials) he does so then gets called to court because the guy who contracted him now uses his code to run a site where "illegal" file sharing can possibly happen?
Ok, lets get the guy that created CDs, USB drives, hard drives, photo copiers, printing presses, etc.
OotB, you are just a moron, do us a favor for Christmas, shut up unless you have something to actually contribute, something that actually has some sort of solid ground to stand on. Seriously man, you are gonna get hurt.
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Berenerd (profile), 21 Dec 2012 @ 10:29am

Re: Re: Re: Re: Re:
So is Buzzards Bay here in the Bay State of Massachusetts
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Berenerd (profile), 21 Dec 2012 @ 10:31am

Re:
And porn...
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Tor (profile), 21 Dec 2012 @ 10:58am

Re: Re:
What he said about the requirement of having materially contributed to the infringement, and having had knowledge of it is not wrong as far as I know.

Judging whether this person's actions should qualify as such is another matter.
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slander (profile), 21 Dec 2012 @ 10:58am

Re: Re: Re: Re: @ AC: "saying all gun manufacturers are secondary liable"
That isn't the real OOTB. I know this because he didn't blame Google for providing links to StudentBay.
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Anonymous Coward, 21 Dec 2012 @ 11:06am

Re: Re: Re: @ AC: "saying all gun manufacturers are secondary liable"
you have contradicted yourself OOTB and by the way you write you clearly love contradicting yourself just to show to people that you think you are right when you are not right because you have contradicted yourself lol
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JEDIDIAH, 21 Dec 2012 @ 11:55am

A sterling example from Europe.
By this logic, you can't work for anyone named Corleone. You run the risk of some judge concluding that you knew that you were contributing to an illegal enterprise.

At some point, the "corporate veil" has to stop this nonsense. He was just a sub-contractor.

Criminalizing everyone that might have sold something to or provided some service to or been an employee of some criminal (who hasn't even been charged) is just fascist police state nonsense.

This is the logically absurd conclusion of stretching the law to criminalize as many people as possible.
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btr1701 (profile), 21 Dec 2012 @ 11:57am

Re:
> Sounds like he knowingly designed a website
> that was used to infringe.

Of course he knowingly designed a web site. How else does one design a web site? Web sites don't get designed by accident.

You might make more sense if you'd said he designed a web site knowing it would be used to infringe. That's still ridiculous as a matter of public policy and law, but at least it makes linguistic sense.
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btr1701 (profile), 21 Dec 2012 @ 12:00pm

Re: Re: Re: Re: @ AC: "saying all gun manufacturers are secondary liable"
> The guy who built the H bomb... is he
> responsible for the deaths it caused?

I don't think a hydrogen bomb has ever been used on anyone, so there are no deaths to be responsible for.
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Anonymous Coward, 21 Dec 2012 @ 12:23pm

Re:
@2

so when a gun is made, it isn't for the express purpose of shooting something then?
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daniel, 21 Dec 2012 @ 12:32pm

that whole DCMA protections of liability reminds me of a Police sting arresting the owner of a local hockey arena. Apparently, one of his maintenance staff was selling weed on the side, discreetly, and neither his co-workers nor his employers were aware. He gets caught selling drugs to an undercover and the owner of the Arena ends up in jail.

He was liable for the actions of whoever was on site, even though he had no way of knowing.

So if I go to a stadium and I steal, or vandalize, or sell drugs, or murder a protected species, while up in the stands during an event, based on how the law has been interpreted from an online liability standpoint, could we then argue that the stadium owners are liable for my actions because they didn't prevent it?
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PaulT (profile), 21 Dec 2012 @ 12:44pm

Re: Re: Re: @ AC: "saying all gun manufacturers are secondary liable"
"this'd be more like an installer who rigs up a camera and mike to record movies in a theater"

Never heard of promotional shoots, Q&As, etc., that might require a setup that needs to see the whole screen or theatre area but is not intended to record the movie itself, huh? Figures.

"it's a specific installation that has SOLE purpose of infringing copyright."

If you ignore all the possible legal uses, all the uses must be illegal! Genius!
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PaulT (profile), 21 Dec 2012 @ 12:55pm

Re: Re: Re:
"The court must have noticed the "bay" name and the pirate ship emblem."

Quick to the Pirates Of The Caribbean website! They must be pirates - it's in their name and promos!
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Anonymous Coward, 21 Dec 2012 @ 1:15pm

Re: Re: Re:
I sure as hell hope you're lying about being in law school. Because aside from the fact that you clearly suck at law, I sure as hell hope you never get a job as a lawyer. The poor slobs who get stuck with you will lose massively.
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average_joe (profile), 21 Dec 2012 @ 1:27pm

Re: Re:
I am saying that he designed the website knowing and intending that it would be used to infringe. He designed it because of infringement, not in spite of it.
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btr1701 (profile), 21 Dec 2012 @ 1:43pm

Re: Re: Re:
> I am saying that he designed the website
> knowing and intending that it would be used
> to infringe. He designed it because of
> infringement, not in spite of it.

You might be saying that now, but that's not what you originally said.
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Anonymous Coward, 21 Dec 2012 @ 1:57pm

Re: Re: Re: Re: Re: @ AC: "saying all gun manufacturers are secondary liable"
You are technically correct. The Hiroshima bomb, known as Little Boy, was a gun-type fission weapon made with uranium-235. The other, Fat Man, was an implosion-type nuclear weapon using plutonium-239. H-bomb is a colloquialism for all nuclear weapons.
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Anonymous Coward, 21 Dec 2012 @ 2:10pm

Re: Re: Re: Re:
Thought that was Grandma!
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Anonymous Coward, 21 Dec 2012 @ 3:50pm

Re: Re: Re:
The only 'evidence' of that seems to be the judge's own supposition, however. This is why we don't trust the courts, anymore.
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The Groove Tiger (profile), 21 Dec 2012 @ 6:07pm

Re: Re: Re: Re:
"Seriously, you cannot be a student of law if this is what you are saying."

I don't think Average Joe is an actual law student, I think he probably just played one on TV.

That would explain a lot, like, why does he shill so much in favor of Hollywood and the big Media Conglomerates.

Does this remind you of anything?
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PPB, 22 Dec 2012 @ 3:11am

Cash'n MAFIAA Pay Checks
The Swedish government and judiciary system is on the MAFIAA's payroll. Everybody knows this to be true.
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