Saturday, October 16, 2010

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TorrentFreak Email Update

The Final Day of The Pirate Bay Appeal

Posted: 15 Oct 2010 06:32 AM PDT

After nearly three weeks, The Pirate Bay appeal comes to an end today but not before the defendants' lawyers have their final say. All lawyers called for their clients to be acquitted on various grounds, citing a recent Spanish verdict, the UK based TV-links case and referring to the E-commerce directive.

pirate bayThe final day of The Pirate Bay appeal started this morning at 09:30 at the Swedish Appeal Court in Stockholm.

First to appear was Fredrik Neij's lawyer, Jonas Nilsson. He said that the Pirate Bay website was never intended to infringe copyright and further noted that the defendants haven’t committed copyright infringement themselves. The users may have, but it is unclear whether these crimes occurred in Sweden or if the defendants can be held responsible for the actions of the users of the site.

Nilsson further argued that The Pirate Bay should be seen as a service provider. Under the E-commerce directive that would mean that the defendants are not liable for the actions of their users. Backing up this argument, the lawyer referred to a recent file-sharing related ruling in Spain which concluded that users are responsible for their own actions, and that website operators could not be held accountable.

The lawyer further argued that Neij was not aware that any of the torrent files listed in the indictment ever existed. This means that he could not have removed them from the site even if he wanted to.

Nilsson then came back to the E-commerce directive, arguing why the Pirate Bay should be seen as a service provider. He also referred to the landmark ruling in the UK regarding the movie and TV show embedding site, TV-Links. In that case the court ruled that under section 17 of the E-commerce directive the site was deemed a mere conduit of information.

Next to make his arguments was Peter Althin, Peter Sunde's lawyer. He opened by saying that it is unclear who or what is on trial here. He wondered whether this was a trial against a technology that can possibly be used by people to infringe copyright. Neither The Pirate Bay itself or the defendants committed any criminal acts, he argued.

Althin went on to compare the trial to the opposition against other technologies such as the VCR, radio and even libraries.

“As soon as a new technology emerges there are worries. So the question is whether one can legislate against new technology. The outcome of this case is very important for Peter, but also for society as a whole,” he said.

Sunde’s lawyer then moved on to the damages being claimed by the entertainment industry. He said that there is no clear evidence that file-sharing leads to a decrease in sales. In addition, he said that the experts brought in by the prosecution to discuss the damages all have a stake in this case as they are industry insiders.

On the other hand, Althin found it strange that the testimony of professor Roger Wallis was not even mentioned once in the District Court ruling. Wallis had argued that piracy is not doing any harm to the music industry.

Althin told the court that Peter Sunde is just the spokesman of The Pirate Bay and did not hold the position on the site that the Prosecution claims. He further said that his client did not make any money from the operation.

The lawyer then questioned the objectivity of the District Court, with very strong words. “I get the impression when I read the District Court’s ruling that it has decided to draw a conclusion and then try to find direct and indirect ways to reach that conclusion,” he told the Appeal Court.

After Althin stepped down, E Samuelson, lawyer for Carl Lundström, appeared for his closing arguments. Samuelson said that a criminal case is one where the Court has to decide whether the defendants assisted in a criminal act. However, according to the lawyer, the prosecution has not made clear what crimes have occurred.

Samuelson then referred to a Supreme Court case where it was ruled that evidence has to show that each of the defendants is directly complicit in criminal acts. In the current case this has not been proven, and instead the indictment refers to indirect complicity, something that doesn’t exist under Swedish law.

Samuelson went on to explain the mistakes the District Court made in its verdict. Among other things he pointed out that the Court had violated the principle of legality, since the verdict stated that the defendants were indirectly aiding criminal acts.

Samuelsson further described his client as a businessman who is only vaguely connected to The Pirate Bay. 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 wants to hold Lundstom directly accountable for the downloads of Pirate Bay users seems to be far fetched according to the lawyer.

After the lunch break Samuelsson went on to distance his client from The Pirate Bay. After he was done the prosecution had the opportunity to respond to the final arguments of the defense team. Both sides argued about the applicability of the UK based TV-links case and the question whether E-commerce law applies to The Pirate Bay, but nothing new was brought up.

This concluded the appeal, and after the paperwork was dealt with the Court announced that the verdict will be made public on Friday the 26th of November.

Article from: TorrentFreak.
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