The Pirate Bay trial was a joint criminal and civil prosecution in Sweden of four individuals charged for promoting the copyright infringement of others with the torrent tracking website The Pirate Bay. The criminal charges were supported by a consortium of intellectual rights holders led by the Motion Picture Association and the International Federation of the Phonographic Industry (IFPI), who filed individual civil compensation claims against the owners of The Pirate Bay.
Swedish prosecutors filed charges on 31 January 2008 against Fredrik Neij, Gottfrid Svartholm, and Peter Sunde, who ran the site; and Carl Lundström, a Swedish businessman who through his businesses sold services to the site. The prosecutor claimed the four worked together to administer, host, and develop the site and thereby facilitated other people's breach of copyright law. Some 34 cases of copyright infringements were originally listed, of which 21 were related to music files, nine to movies, and four to games. One case involving music files was later dropped by the copyright holder who made the file available again on the website of The Pirate Bay. In addition, claims for damages of 117 million kronor (US$13 million) were filed. The case was decided jointly by a professional judge and three appointed lay judges.
The trial started on 16 February 2009 in the Stockholm District Court, Sweden. The hearings ended on 3 March 2009 and the verdict was announced on Friday 17 April 2009: Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström were all found guilty and sentenced to one year imprisonment and pay a fine of 30 million SEK (about €2.7 million or US$3.5 million). All the defendants appealed the verdict, and in November 2010 the appeal court shortened the prison sentences, but increased damages.
On 1 February 2012, the Supreme Court of Sweden refused to hear an appeal in the case, prompting the site to change its official domain name from thepiratebay.org to thepiratebay.se.Pirate Bay shifts domains after appeal fails The New Zealand Herald, 2 February 2012. Retrieved 2 February 2012.
Background
The Pirate Bay is a Swedish website that indexes and tracks BitTorrent files. It bills itself as "the galaxy's largest BitTorrent tracker" and is ranked as the 73rd most popular website by Alexa Internet. The website is funded primarily with advertisements shown next to torrent listings. Initially established in September 2003 by the Swedish anti-copyright organization Piratbyrån ("The Piracy Bureau") it has been operating as a separate organization since October 2004. On 31 May 2006 the Swedish police organized a raid on The Pirate Bay in 12 different premises, confiscating 186 serversRedogörelse 2007/08:JO1 – Justitieombudsmännens ämbetsberättelse. Annual Report of the Parliamentary Ombudsman. Parliament of Sweden. and causing it to go offline for three days. Upon reopening, the site's number of visitors more than doubled, the increased popularity attributed to greater exposure through the media coverage. The raid, alleged by The Pirate Bay to be politically motivated and under pressure from the Motion Picture Association of America (MPAA), was reported as a success by the MPAA in the immediate aftermath but with the website being restored within days and file sharing firmly in focus in the Swedish media, with TorrentFreak calling the raid "highly unsuccessful".
The police, however, conducted a preliminary investigation on the confiscated material and by interrogating associated people. In late 2007, a four thousand page report was produced by the prosecutor in preparation for a trial, containing email and SMS messages, payment documents, police interrogation records, and screenshots of The Pirate Bay site.
Trial and courtroom charges
On 31 January 2008 Swedish prosecutors filed charges against four individuals they associated with The Pirate Bay for "promoting other people's infringements of copyright laws". One of the artists represented by IFPI, Max Peezay, withdrew from the case, decreasing his distributor's compensation demand by 120 000 SEK. Peezay hadn't been asked about participating in the case, and he in fact supports file sharing for private use. Peezay noted however that being unfamiliar with the site, his withdrawal shouldn't be interpreted as a sign of support for their case. The trial began in February 2009. The evidence used in the trial was based on the material acquired in the 2006 raid.
The Swedish national television broadcaster Sveriges Television considered the trial important and provided a live online feed of the entire trial, which had never been done in Sweden before. The live audio and archive sections done in cooperation with Dagens Eko were part of the 24 Direkt program, which became one of their most viewed online content during the trial, second only to Melodifestivalen. The trial was also broadcast live by Swedish public radio.
The defendants referred to the trial as a "Spectrial", which is a portmanteau of "trial" and "spectacle", and set up a blog to inform users on the event. The term has also caught on with some bloggers and supporters.
First day of the trial
On 16 February 2009 defence lawyer Per E. Samuelson stressed to the court that "file sharing services can be used both legally and illegally". Samuelson argued that "it is legal to offer a service that can be used in both a legal and illegal way according to Swedish law" and that The Pirate Bay's services "can be compared to making cars that can be driven faster than the speed limit". Defense attorney Jonas Nilsson insisted that "the individual Internet users who use Pirate Bay services... must answer for the material they have in their possession or the files they plan to share with others."Pirate Bay chiefs deny illegal downloading at trial, The Local, 16 February 2009.
Second day of the trial On 17 February 2009 (the second day of the trial) half of the charges against The Pirate Bay were dropped.Pirate Bay prosecutor amends charges The Local, 17 February 2009 According to defense lawyer Per Samuelson, "This is a sensation. It is very rare to win half the case in just one and a half days and it is clear the prosecutor took strong note of what we said yesterday". Peter Danowsky, legal counsel for the music companies, stated "It's a largely technical issue that changes nothing in terms of our compensation claims and has no bearing whatsoever on the main case against The Pirate Bay. In fact it simplifies the prosecutor's case by allowing him to focus on the main issue which is the making available of copyrighted works."Lawyers say it is a sensation, Trelleborgs Allehanda, 17 February 2009. The prosecutor was unable to prove that the .torrent files brought as evidence were actually using The Pirate Bay's tracker. Furthermore, prosecutor Håkan Roswall did not adequately explain the function of DHT which allows for so-called "trackerless" torrents. These shortcomings in the evidence resulted in prosecutor Håkan Roswall having to drop all charges relating to "assisting copyright infringement", leaving "assisting making available" as the remaining charge. Roswall stated that "everything related to reproduction will be removed from the claim". Sanna Wolk, a doctor in law and researcher at Stockholm University observed that "this is not surprising, at least for those who follow the matter. We knew that The Pirate Bay wasn't making any copies directly".
Third day of the trial On the third day of The Pirate Bay trial, prosecution witnesses claimed damages on the basis that it should have obtained worldwide licenses for the content it distributed. Where content wasn't officially available, a Beatles song, for example, it should be charged at 10 times the going rate. This calculation underlines the prosecution's demand for 117 million SEK (US$12.9 million, €10.2 million) in compensation and damages.Big Content wants $13 million from Pirate Bay as trial starts Ars Technica, 16 February 2009
"King Kong" defense On day three of the trial, defense attorney Per Samuelson presented an argument later dubbed the "King Kong defense":Day 3 — The Pirate Bay's 'King Kong' Defense TorrentFreak, 18 February 2009.
Samuelson was referring to a real Pirate Bay user who posts via the username "King Kong", who Samuelson hypothesizes could be in Cambodia. He used this scenario to illustrate that Lundström had no control over the actions undertaken by Pirate Bay users. His main objection was that although the prosecutor had said that the accused would be tried individually, he had not once referred to them individually, but always as "them", "they", or "Pirate Bay". Samuelson said the persons behind The Pirate Bay could not be held collectively responsible for a crime committed by other identifiable individuals, such as "King Kong".
The term "King Kong defense" was quickly popularized by blogs, file sharing news feeds, and media reports on the Pirate Bay trial. Amused online commentators compared it to the Chewbacca defense from the TV series South Park, citing a reference to the "jungles of Cambodia" as "the kind of extraneous detail that makes the Chewbacca defense hilarious".
In its April verdict, the court found that because the defendants indeed had collective responsibility for the site and knew some torrent files on it pointed to copyrighted material, the EU directive did not apply.
Fourth day of the trial On 19 February 2009, the fourth day of the trial, Fredrik was questioned several times. It came to the court's attention that Tobias Andersson, a future witness in the case, was in the court where he was later asked to leave the room. When it was movie industry lawyer Monique Wadsted's turn, she introduced new evidence without warning. Noting the breach of protocol, the presiding judge asked if it was acceptable for the court to be considering evidence that was not already presented pre-trial.
Fifth day of the trial Day five of the proceedings saw conflict as the prosecution again attempted to introduce evidence that had not been shared with both the court and the defense during pre-trial. The defense objected vehemently with defense lawyer Peter Althin equating the tactic to something out of the old Perry Mason TV show. "Suddenly, the door opens and in walks an entirely new witness." The presiding judge stopped the case to deliberate the matter and found in favor of the defense, instructing the prosecution to immediately hand over all material they planned to use.Pirate Bay Trial Day 5: Perry Mason Episode Delays Trial – MP3 Newswire, 20 February 2009
The prosecution and the defense spent the remainder of the day delivering conflicting portrayals of the Pirate Bay. The prosecution attempted to show the Pirate Bay as an immensely profitable business that made its money helping others violate copyright law. The defense attempted to show the Pirate Bay as nothing more than a search engine, no different from Google and thus subject to the same protections.
Seventh, eighth and ninth days of the trial On days seven to nine, the court heard expert witnesses called by the prosecution and the defense.Trial plan revised on 2 March 2009. They cited contradicting academic research on the effects of file sharing on sales in the music and film industry globallyDag 8 – Althin förhör Kennedy, IFPI . 24 Direkt, Sveriges Television.
Oberholzer-Gee, Felix & Strumpf, Koleman (March 2004). "The effect of file sharing on record sales: An empirical analysis." Working paper. Liebowitz, Stan (August 2007). "How Reliable is the Oberholzer-Gee and Strumpf paper on File-Sharing? " Working paper, University of Texas at Dallas.
and regionally in Sweden.Dag 9 – Ponten förhör Wallis . 24 Direkt, Sveriges Television Wallis et al. (2005–2006). "Broadband technologies transforming business models and challenging regulatory frameworks – lessons from the music industry." MusicLessons. Royal Institute of Technology.