Defence disputes damage claims

As the Pirate Bay trial entered its third day on Wednesday, lawyers for the entertainment industry defended their compensation claims against the four defendants, whose lawyers in turn did their best to poke holes in the prosecution’s case.

• Supreme Court denies Pirate Bay right to appeal (1 Feb 12)
• 'Facebook' rapist jailed for teen sex attacks (26 Jan 12)
• Streaming services 'save' Swedish record industry (24 Jan 12)

Altogether, the recording industry wants the four men behind the popular file sharing site, Gottfrid Svartholm Warg, Fredrik Neij, Peter Sunde and Carl Lundström, to pay 117 million kronor ($13 million) in damages.

According to Peter Danowsky, attorney for the International Federation of the Phonographic Industry (IFPI), The Pirate Bay’s operations amount to a “comprehensive copyright violation” which has made it pointless to purchase music CDs or download music files legally.

The industry’s damage claims are based in part on the estimated amount of sales lost to file sharing over the Pirate Bay.

“But the damage is greater than that for the companies,” said Danowsky.

“The alternative of free downloading creates an impossible competitive situation for legal downloading.”

“This is about a purposeful crime on a grand scale with significant income as a result,” continued Danowsky, who doubts assertions by the four defendants don’t have the resources to pay the compensation claims.

“They probably have capacity to pay the resulting damages,” he said.

Monique Wadsted, whose MAQS law firm is representing the eight American film and gaming companies involved in the case, said The Pirate Bay deserves blame for not removing torrent files which link to copyright protected material.

“It’s not any harder than when we delete a Word file,” she said, according to Svenska Dagbladet (SvD).

She said the four defendants were “jointly responsible” and should pay the damages together.

Wadsted also detailed how much the companies wanted in compensation for each downloaded copy of various works, explaining that in some cases, the downloads involved early-release copies as well as versions lacking digital copying protections.

For every downloaded copy of Harry Potter, the companies are requesting 261.48 kronor, while they want 222.55 kronor per downloaded copy of Syriana, Walk The Line, and Pink Panther.

Downloaded copies of the Prison Break television series, meanwhile, are to be compensated to the tune of 415.81 kronor each.

The compensation claim is meant to cover not only “market damage”, according to Wadsted, but also “internal damages”.

But Jonas Nilsson, who represents Neij, refuted the entertainment industry figures, arguing it’s impossible to estimate how many times a given work is downloaded through The Pirate Bay.

He emphasized as well that it is the individual user, and not The Pirate Bay, which is in possession of a copyrighted work and that there is no copyrighted material on site’s servers.

“We don’t know who the uploaders are. We don’t know how the uploaders came to possess the material, that is to say, the protected material. We don’t know how Fredrik Neij may have influenced the uploader,” said Nilsson, according to SvD’s account.

“And perhaps more importantly, how did he promote this, other than that he, via The Pirate Bay, provided a legal function and technology.”

Nilsson added that bit torrent technology in and of itself isn’t illegal and that to carry out the file transfers, uploaders and downloaders need to have software on their computers to which The Pirate Bay has no connection.

“It’s not some sort of special software,” he said, arguing that The Pirate Bay is simply a specialized search engine.

“I submit that the torrent files one finds on The Pirate Bay can also be found by other search engines, like Google,” he said.

Next, Ola Salomonsson, who is defending Svartholm Warg, repeated his client's belief that he hasn't committed any crime, adding that The Pirate Bay does not encourage its users to upload copyrighted material.

He added that the payments his client received may not necessarily be tied to The Pirate Bay or the site's activities.

The lawyer for Sunde, Per Altin, followed by casting doubt on the significance of emails his client received from users of The Pirate Bay.

He invoked the metaphor of football fans who share their opinion with their favorite teams. Just because Sunde receives emails about The Pirate Bay, doesn’t necessarily mean he is responsible for the site, argued Altin.

Altin also questioned the industry's arguments for the high compensation claim.

"There is no causality between downloading and alleged lost sales," he said.

"It can, in certain situations, be just the opposite."

Next up, the lawyer for Lundström, Per E. Samuelson, pointed out that prosecutors had yet to even mention his client’s name.

“In order to convict someone of aiding a criminal, you have to connect the accused to the act of aiding. But the prosecutor hasn’t succeeded in doing so in his statements,” said Samuelson.

Samuelson continued by discussing a European Union directive about e-businesses which states that a service for transferring data shouldn’t be held responsible for the contents of the information.

According to Samuelson, it’s not the four people behind The Pirate Bay who are responsible for committing a crime, but rather the people who uploaded the files.

The directive, which is a part of Swedish law, also states that the operators of a data transfer service are not required to know that the data being transferred may contain.

“It’s similar to there being child pornography on Blocket,” said Samuelson, referring to a popular Swedish buy-and-sell website.

“Obviously, the owners of Blocket can’t be held responsible, but rather those who put the material out there,” he argued according to SvD.

Samuelson concluded his statements, which marked the end of the hearings for the third day, with an air of confidence.

“We are going to win this case on the basis of general criminal law,” he said.

“The alleged main crimes consist of making a copyrighted work available, and we’ve seen when the prosecutor has gone through the written evidence that on every point you can see who made the work accessible. If you want, you can trace email addresses and contact these people,” he continued, adding that more than 80 percent of the files on The Pirate Bay aren’t copyright protected.