Pirate Bay Day 5 — Prosecution Tries To Sneak In Evidence

Hodejo1 writes "On the old Perry Mason TV shows, it was a common sight to see someone burst into the crowded courtroom at a dire moment and confess aloud that they, not the defendant, killed so-and-so. In reality, courts do not allow evidence to enter trial without a chance for the opposing council to view it and for a judge to rule on their admissibility. Yet, in the fifth day of the Pirate Bay trial, lawyers for the prosecution again tried to sneak in surprise evidence while questioning defendants. The judge put his foot down this time, telling lawyers for the state, 'If you have documents which you eventually plan to use, you need to hand them over now.' The prosecution continues to struggle in court. In one humorous moment, prosecutor Håkan Roswall tried to show how 'hip' he was with technology when he questioned defendant Peter Sunde. 'When did you meet [Gottfrid] for the first time IRL?' asked the Prosecutor. 'We do not use the expression IRL,' said Peter, 'We use AFK.' The defendants are not out of the woods yet. Lawyer and technology writer Richard Koman wonders aloud if the Pirate Bay's 'I-dunno' defense is all that much better."

Comments

IRL, the prosecution is AFK.

[Rockoon]

Is the prosecution secretly against copyrights?

Isn't that more of a burden on the prosecutors?

[rolfwind]

On the old Perry Mason TV shows, it was a common sight to see someone burst into the crowded courtroom at a dire moment and confess aloud that they, not the defendant, killed so-and-so. In reality, courts do not allow evidence to enter trial without a chance for the opposing council to view it and for a judge to rule on their admissibility.

Correct me if I'm wrong, I was under the impression that this burden was placed far more on the prosecutors who had to share with the defense council their lot of evidence, than the other way around.

Although, as in this video by a law professor, what you say to a cop can be used against you, but never for you - as that would be ruled as hearsay:
http://www.youtube.com/watch?v=6wXkI4t7nuc

"I didn't read it"

[cliffski]

"Fredrik Neij was questioned by lawyers who tried to paint him as the point man for The Pirate Bay operations. Peter Danowsky, who represents the music business, pointed out that Niej owned The Pirate Bayâ(TM)s domain and then showed him a contract he had signed saying that he would oversee operations for the site. Neijâ(TM)s response? âoeBut I didnâ(TM)t read it.â"

If that's the extent of TPBs defence, then they are screwed. I don't think saying 'I didn't read it' really stands up with a judge, ANY judge.

Re:"I didn't read it"

[pipatron]

No, the defense is that what they are doing is not illegal in any way under Swedish law. Who is in charge of a legal website is not very interesting.

Re:"I didn't read it"

[Anonymous Coward]

"Fredrik Neij was questioned by lawyers who tried to paint him as the point man for The Pirate Bay operations. Peter Danowsky, who represents the music business, pointed out that Niej owned The Pirate Bayâ(TM)s domain and then showed him a contract he had signed saying that he would oversee operations for the site. Neijâ(TM)s response? âoeBut I didnâ(TM)t read it.â"

If that's the extent of TPBs defence, then they are screwed. I don't think saying 'I didn't read it' really stands up with a judge, ANY judge.

It does hold up if hes trying to avoid a conspiracy charge, he needs motive and intent, the lawyers are trying to use his contract to establish his intent. His response that he never read the thing quite neatly defeats using it as a written evidence of his intent.

It might backfire on him later for other reasons but if the question is "what are the operations of TBP" with the intent to stick you with a conspiracy charge "Who the fuck knows" is a great answer.

Re:"I didn't read it"

[GF678]

Accepting an EULA and signing a contract are two very different things.

Seems as though the law thinks otherwise these days. It's safer to consider the EULA a contract if you're worried.

Re:"I didn't read it"

[Anonymous Coward]

On the surface, they are similar. The issue is that the validity of a EULA has never been tested in court. The moment a judge (or jury) says "This EULA has the enforceability of any other contract" then the grandparent's argument can work. But until then, legal scholars disagree over whether clicking 'Accept' on a EULA has any legal weight.

Re:"I didn't read it"

[LingNoi]

The parent AC is absolutely correct. Since the prosecution is trying to show that the pirate bay owners intend to purposely violate copyright where as the defense is sticking with the story that the pirate bay is a sharing website which only removes material if it is against the law or has misleading description.

As someone else noted in a different article (or perhaps website) it's going to be extremely difficult for the prosecution. It would be a contradiction to say that the people responsible for posting the child porn on the pirate bay are responsible rather then the admins, then say that any copyrighted material posted on TPB the admins are responsible for.

Re:"I didn't read it"

[N1AK]

I don't see how that's a contradiction.

Because you didn't read it correctly. The point OP was making was that either TPB are guilty of all crimes committed by the makers of torrents shared on their site or they are guilty of none. Saying they aren't responsible for paedophilic material, but are responsible for copyrighted material, when the process by which the materials .torrent gets onto there system is the same is nonsensical.

Re:"I didn't read it"

[slash.duncan]

According to ArsTechnica coverage, one of the interesting things about Swedish law is that sometimes, as here, civil and criminal cases can be dealt with in parallel in the same court room. Thus, we have both the state prosecutors and their equivalent of the RIAA both making their case, and even if some particular doesn't apply to the criminal case, it can still be valid to the civil case taking place in parallel in the same court room.

Combined civil/criminal trials like that seems to violate all sorts of ideas of justice folks like me here in the US might have, but it's the way their system works, and TPB seems reasonably confident of the outcome, much more so than they'd be here in the US under comparable civil-only circumstances, so who are we to say?

Re:FAO Editors

[SupremoMan]

That's as the prosecutors would put it "epic fail."

We do not use the expression IRL, we use AFK.

[BlueParrot]

Do I sense a new meme in the making?

Re:We do not use the expression IRL, we use AFK.

[TechForensics]

An Feste Korper? In the Solid Body?

Re:We do not use the expression IRL, we use AFK.

[im_thatoneguy]

IRL makes more sense to me.

My definitions have always split:

IRL == Something that takes place in meatspace.
AFK == I'm grabbing lunch. I'll talk to you later.

AFK for me has always been synonymous with "away" and IRL refers to an event taking place while AFK.

"What happened to bob? He's AFK taking care of some chores IRL."

I'm with the prosecution on this one. (Hehe the only time I'll probably say that about this case.)

Caught red-handed, some unofficial translations

[castrox]

The prosecution was caught red-handed both 4th and 5th day and the defense once again protested this method of trying to throw the defendants off guard with new material, saying things such as "you've done this all week -- have you not learned anything at all?" and "this is starting to look like an American movie trial -- we request you hand over ALL material NOW".

The court took a break for discussions. After 10 minutes the court informs the prosecution that they must hand over any material they have not already handed over and which they wish to use in their case. The prosecution, specifically Danowski, acts like a 5-year-old and says "but.. the problem, your Honor, is that I don't know if it's necessary, so.. [I wish not to, is the meaning of this]", which the court immediately smacks down with "the meaning of the court's decision is that all material, any material, not presented to the defense, that you wish to use, must be handed over NOW".

The prosecution clearly was very disappointed that they weren't allowed to play cowboys in court.

The prosecution also tried to snare Peter Sunde with a lot of documents found on the web.. Danowski tried to make it look like Peter Sunde had said things he hadn't said with the help of [ square brackets! ] which Peter Sunde kindly informed is a way to insert 3rd party information, or reflection, on a quote. The prosecution is going about with rather dirty tactics.

Prosecution lawyer Monique Wadsted questions Carl Lundstrom, pleading not guilty and having nothing to do with TPB, calling TPB illegal, trying to have him label it as illegal as well. The defense protests, luckily. Got damn industry lawyers...

Re:Caught red-handed, some unofficial translations

[Xest]

I think this is the biggest mistake the prosecution is making to be honest.

They're trying the same tactics that are used by the music/movie industry in the US which rely on an clueless or biased judge. Sweden is a particularly technically literate country, I think even the worst judge there could see through this kind of idiocy and so they're acting as their own worst enemy.

I'm actually suprised because I figured they'd be more clever than this, I figured they'd realise if they played it straight and acted the victim they'd be able to push the case well and probably get at least some kind of result. The problem is they're not playing the victim, they're actually blatantly playing an aggressive agenda and I don't think a judge is going to look too kindly on a group of people who are acting in such an aggressive manner whilst the defence are the ones looking very strongly victimised. For all the FUD and stats they pull out in the media claiming they're the victim (from calling it theft through to massaging stats) and making people believe it they're outright failing to translate this propaganda success into the courts and are just making themselves look like complete and utter idiots.

Tactful, is apparently not a word these people understand.

Re:Caught red-handed, some unofficial translations

[Cederic]

And one look at the legal threats page is enough to prove that those guys treat the law as a joke they can ignore.

erm. American law is a joke, and they can ignore it.

Not a very funny joke admittedly.

Re:Caught red-handed, some unofficial translations

[BlueStrat]

"the prosecution acts like a five year old"

I suggest you read the various smarmy bullshit TPB frontmen have issued over the years before accusing the prosecutors of being immature. The attitude of "theres nothing the court can do even if they win" and "we dont have any money so its tough" just reeks of petulant children refusing to tidy their room.
And one look at the legal threats page is enough to prove that those guys treat the law as a joke they can ignore. Remind me how well that attitdue goes down with judges?

There's a huge difference here.

A private parties' opinions voiced outside a courtroom when there are no court proceedings occurring concerning another parties' actions has exactly squat to do with statements of parties *inside* the courtroom *during* court proceedings. You might as well bring up that they may have also acted childish having teased a classmate on the playground in primary school for all the relevance it has to what's happening *now* in a *courtroom* during a court proceeding.

It was perfectly reasonable to make a joke over the clueless legal threats TPB received from entities outside their country, many if not most based on laws that don't even exist in Sweden like the DMCA, when a reasonable interpretation by normal people in Sweden of the Swedish laws would make those legal threats seem like a bad joke at best.

If you had a webpage with pictures of your family on it and received a threatening letter from some Mullah in the middle-east threatening you with legal action for your moms' face not being covered by a veil, would you consider it ridiculous?

How about if you were a restaurant owner in a country that permitted smoking in public and inside restaurants and you kept receiving legal threats from NYC?

When it was repeated hundreds and hundreds of times, would you be "childish" for posting those silly threats with some snarky replies since they seemed to pay no attention to the ridiculous nature of their legal threats?

Personally, I find what little restraint they *did* show remarkable considering the circumstances.

Strat

Re:Caught red-handed, some unofficial translations

[mysticgoat]

I'm thinking that the Prosecution and Plaintiffs had prepared to fight a very different case, and were expecting a defense that was some variant of "sharing copyrighted material that has been legally purchased is not copyright infringement".

Instead TPB has raised the defense that whether or not any copyright infringement may have occurred, we are not culpable for it; you've got the wrong guys.

That defense actually looks pretty strong. And the Prosecution and Plaintiffs look at this point like they not only didn't do their homework, they didn't even have a clue as to what subjects they should have been studying.

ack!

[gEvil (beta)]

"We do not use the expression IRL. We use 'ACK! THBBBT!'"

What scares me most

[Per Wigren]

I'm Swedish and a member of Piratpartiet (The Pirate Party) since the first day it was announced. I have of course been following this sitcom with great interest, but I'm still not sure which outcome is better for the future in a bigger perspective.

The prosecutors play this case so utterly unprofessional that I'm starting to think that they WANT to lose, but make it look like they tried to win. The reason for this is simple. If they lose, they will use this as "evidence" that Sweden need a whole bunch of new draconian surveillence laws and increase the scope of liability for copyright infringements which will kill the internet as we know it.

In a way I want TPB to lose. That will shut up the law mongerers because it will show that current laws are good enough. It will also make them martyrs and will 100-up the public support for the ongoing pirate movement (which actually is very little about filesharing and mostly about the right to privacy, anonymity, freedom of speech and uncensored exchange of information).

They way I see it, the only realistic way to really make a change it steering society away from 1984, which is the direction it's heading in right now, is to vote the Pirate Party into the EU parliament, where they will be able to make a lot of noise where it counts. Only 3 months left to the election...

Re:What scares me most

[TheLink]

Uh, but why does Sweden need those laws? Because the USA says so?

Where is the proof that people copying stuff is hurting Sweden?

Maybe you should tell the relevant Swedish people thinking about those laws that Sweden is not a state of the USA.

Doesn't matter

[Svenne]

Whoever wins, the swedish lose.

If The Pirate Bay wins, the swedish laws will be changed to make sure what they've been doing would be an offence had they done it under the new law. If TPB loses, the current laws will be shown to be enough for prosecuting and convicting tracker admins.

And there's nothing we can do about it.

Re:Doesn't matter

[meist3r]

Whoever wins, the swedish lose.

If The Pirate Bay wins, the swedish laws will be changed to make sure what they've been doing would be an offence had they done it under the new law.

How do you know that? I mean from an industry standpoint I can see this would make sense to achieve but what I can tell from what is going on in the Swedish public and just the fact that the Pirate Bay is getting a relatively fair trial (the judge did defend their position on the surprise evidence and also made the prosecution cut back on guided questioning) symbolizes to me that there is some actual change in ideas about to be written into law. It will take ages again but it's apparently happening. The WTO outcry after the Raid in 2006 was more than enough proof that the Swedes in general don't accept that American mafia tactics.

If you're from Sweden you probably know better but the way it is communicated to the outside the Swedes like their freedom and refuse to have this kind of stuff be an offence. On top of that, if they changed the EU directive or swedish law so that service providers are then liable for the content, Google and basically any other internet company would be screwed. How would they control and sort out all illegal materials without censoring? How would Google be still top search engine if you couldn't find anything. Think about Youtube ... all music videos gone, all illegal movie clips, audio clips, TV shows etc gone. This will never happen. The media industry is big but the internet industry is even bigger and they've just started to grow. What we're seeing now is the "old" industry being forced (by law) to accept that the internet is now boss and that they will have to start kissing some ass to survive. At least that is what I take from all this.

Re:Doesn't matter

[Artuir]

There's always Sealand! :D

Oh, wait..

Well, at least they tried.

Re:Doesn't matter

[Ghost Hedgehog]

That depends in what way the Pirate Bay wins. If they win with the argument that they are not responsible for what their users do (the EU law that has been noted in their defense), then that law will not be changed very easily. Because if that law is being changed so that site admin are responsible, all internet forums in Europe can close down. However, if the Pirate Bay chooses this defense, the verdict might be that they have to remove torrents that break copyright on request of the copyright holder (a most likely outcome, IMHO).

Uhoh, it's cliffski

[castrox]

Gee, I wonder if

1) there's a difference between lawyers in court and citizens outside of court speaking their mind -- clearly they're equivalent!

2) there's a difference between laws of the United States of America and the Kingdom of Sweden -- clearly, these Swedish judges should not tolerate disrespectful attitudes towards American law!

OK. I'm laughing:

enough to prove that those guys treat the law as a joke they can ignore

Did you not understand that this trial is a Swedish trial? American law actually is a joke until it's applicable in Sweden.

Re:FAO Editors

[arwel]

The word you're looking for is "counsel", not "council".

It's council in UK English.

Err, no it's not. QC = Queen's Counsel.

Re:FAO Editors

[pjt33]

No, a council is an administrative body, such as the group of elected councillors who get to spend council tax. A counsel is, depending on context, a piece of advice or a lawyer.

Re:FAO Editors

[pjt33]

This is one example of a case where the English and American spellings are the same, and the only distinction is between those who know how to spell and those who don't. Also, FWIW, I'm British.

Not out of the woods....

[d0n0vAn]

I am inclined to believe that if TPB wins this round we are all still in jeopardy. Legislative bodies seem inclined to write and pass laws in favor of preserving their status quo through legal monopolies, and prosecutors willing to sacrifice the permanent at the altar of the immediate put us all in jeopardy. This is not about downloading music or videos - it never has been. The only reason governments of the world are interested in these corporation's complaints is they hear them scream about all the revenue they have lost and then they start running the tax implications in their head. Not out of the woods yet, indeed.

Re:FAO Editors

[Hognoxious]

You're missing the point. Part of the editors' job ought to be to fix errors in submissions before posting them.

New here?

Re:FAO Editors

[Anonymous Coward]

You are quite right, council is spelled council in the UK... just like it is here in the US of A. There are many other words we spell the same as well - like paper, law, sausage, and ... counsel.

Re:FAO Editors

[b4dc0d3r]

Figured. You sound British.

Re:FAO Editors

[Runaway1956]

If, as you say, you ARE aware of what life outside the US borders is like, then you MUST be aware that most Americans are truly UNAWARE. I'm an American veteran. I've traveled pretty extensively. I can tell my family and freinds what I saw of life in Djibouti, or any of dozens of other cities. They DO NOT COMPREHEND. Americans, in general, are ignorant, and prefer to stay that way. That, my freind, is a simple fact of life. Reality must not be allowed to impinge on their perceptions of the world.

Re:FAO Editors

[MightyYar]

You can't win on here - someone always comes after me if I say "England" when I mean "UK". Someone would probably have blasted him for excluding Northern Ireland if he said "British". :)

Re:FAO Editors

[MightyYar]

See? I still can't get it right! :)

Re:FAO Editors

[zmollusc]

To be blunt, yes!