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The Circus Widens In Aftermath of Pirate Bay Verdict
MaulerOfEmotards sends along an in-depth followup, from the Swedish press, of our discussion the other day about the biased trial judge in the Pirate Bay case. "The turmoil concerns Tomas Norström, the presiding judge of The Pirate Bay trial, who is suspected of bias after reports surfaced of affiliation with copyright protection organizations. For this he has been reported to the appeals court (in Swedish; translation here). The circus around the judge is currently focused on three points. First, his personal affiliation with at least four copyright protection organizations, a state the potential bias of which he himself fails to see and refuses to admit. Secondly, Swedish trials use a system of several lay assessors to supervise the presiding judge. One of these, a member of an artists' interest organization, was forced by Mr. Norström to resign from the trial for potential bias. The judge's failure to see the obvious contradiction in this (translation) casts doubts on his suitability and competence. Thirdly, according to professor of judicial sociology Håkan Hydén (translation), the judge has inappropriately 'duped and influenced the lay assessors' during the trial: 'a judge that has decided that "this is something we can't allow" has little problem
finding legal arguments that are difficult for assisting lay assessors to counter.'" Click the link below to read further on Professor Hydén's enumeration of "at least three strange things in a strange trial." On a related note, reader Siker adds the factoid that membership in the Pirate Party exploded 150% in the week following the verdict. The Pirate Party now surpasses in size four smaller parties in Sweden, and is closing in on a fifth. Political fallout could ensue as soon as June, when an election for EU parliament will be held.
Professor Hydén continues with enumerating "at least three strange things in a strange trial" (translation): First, that someone can be sentenced for being accessory to a crime for which there is no main culprit: "This assumes someone else having committed the crime, and no such individual exists here... the system cannot charge the real culprits or it would collapse in its entirety." It is unprecedented in Swedish judicial history to sentence only an accessory. Second, that the accessories should pay the fine for a crime committed by the main culprits, "which causes the law to contradict itself." And third, that accessories cannot be sentenced to harsher than the main culprit, which means that every downloader must be sentenced to a year's confinement. Prof. Hydén sums up by saying that to allow this kind of judgement the Swedish Parliament must first pass a bill making this kind of services illegal, which it has not done.
Professor Hydén continues with enumerating "at least three strange things in a strange trial" (translation): First, that someone can be sentenced for being accessory to a crime for which there is no main culprit: "This assumes someone else having committed the crime, and no such individual exists here... the system cannot charge the real culprits or it would collapse in its entirety." It is unprecedented in Swedish judicial history to sentence only an accessory. Second, that the accessories should pay the fine for a crime committed by the main culprits, "which causes the law to contradict itself." And third, that accessories cannot be sentenced to harsher than the main culprit, which means that every downloader must be sentenced to a year's confinement. Prof. Hydén sums up by saying that to allow this kind of judgement the Swedish Parliament must first pass a bill making this kind of services illegal, which it has not done.
Arghh!!!
Send your spendthrift head of state this
Cause political chaos by throwing sudden, and massive support behind a new political party. Wish Americans were capable of picking some other party aside from Republicans or Democrats.
I think this is somewhat of an exaggeration. Probably Mr. Norström discussed it with him and he hade his own decision to resign.
Had the judge been an active member of the Swedish Pirate Party, worked closely with the defendants in the past, not disclosed it and handed a not guilty verdict, you can be sure the *AAs would of been all over it like flies on a pile. Mistrial, end of story.
If the Pirate Party really has that many people, and every downloader must be sentenced to at least a year's confinement, then everybody should turn themselves in and overcrowd the jails.
In some countries, their right to inspect a customer's system may be on par with the "right" of the public to make copies of DVD (here it is explicitly allowed unless the disk is protected, which is of course in almost all cases. :-)).
Ezekiel 23:20
Time to make this judge walk the plank!
so like... slashdotting the jail eh? :)
with a little act of solidarity with the Pirate Bay (assisting in the dissemination of copyright infringing material) whilst simultaneously making a wry comment on the dastardly Copyright Cartels and all their nefarious shennanigans.
http://www.youtube.com/watch?v=fvP0uwl3Q6A
(perhaps their new theme tune?)
Corporation, n. An ingenious device for obtaining individual profit without individual responsibility. - Ambrose Bierce
RTFA. The judge is a member (actually a director in at least one case) of organisations that are lobbying to change the law, to make what Pirate Bay did illegal.
Pirate Bay's lawyer's argue that what they did was not illegal. Is the judge, who is committed to making sure it is illegal, the best person to apply the law impartially?
The specific issue is that (as I understand it) being an accessory to copyright infringement isn't, or wasn't, a crime in Sweden like it is in most other countries (I don't know if that's changed recently or not).
You may not agree with it, but judges can't (or shouldn't) go around making up laws.
I'm not 'pro-piracy', although to say I'm 'anti-big media' would probably be fair. That said, copyright is not a single ideal and there are plenty of opinions on it's implementation. The groups that the judge is a member of take a view that the law should be changed to make copyright stricter - surely that presents a conflict of interests when dealing with a case that tests the limits of copyright law in the opposite direction?
As mentioned in other stories this past week, the judge was a member of some groups that have agendas, and is in a leadership position for two of them I believe. I think at least one group is, like you say, simply a means of staying on top of current issues and being aware of the law, but that is not the case for all the groups he belongs to. I'm not pro-piracy, but I'd rather the pirates win than have these big companies keep extending control over our governments.
My webcomic
It is an obvious conflict of interest when you are presiding over a case and are a member of an organization that sides strongly with one of the parties in the case.
It is generally okay to be biased toward one side due to internal beliefs. Most people do tend toward one side in contentious issues, but to openly run around and say it or promote one side (via membership in pro- organizations) is inappropriate.
Civil disobedience isn't near as effective as political lobbying.
Keeping works from the public domain by means of effectively infinite copyright terms is more disgusting. It's also "stealing" in the literal sense of the word, without having to twist its meaning to jive with a political agenda like the pro-copyright lobby likes to do, and is a violation of the social contract that is the sole reason copyright exists in the first place.
Please stand clear of the doors, por favor mantenganse alejado de las puertas
Exactly. This judge is essentially speeding in order to change the speed limit. Instead of judging by the current laws and waiting for the legislature to change the laws which he can enforce, he is taking matters into his own hands and changing the law himself by stretching the law to cover the situation in the way he feels it should.
The question is: is this or isn't this simply what judges do they administer verdicts? Isn't just always inherently interpretive? Is judgment a referential or creative act?
Prof. Hydén sums up by saying that to allow this kind of judgement the Swedish Parliament must first pass a bill making this kind of services illegal, which it has not done.
But this is exactly what the verdict claims, and the verdict does back it up with references to law, which, when read by a layman like me, seems to support the judge. In particular, the law on electronic commerce states quite clearly that a service provider is responsible for illegal data (like torrent files) stored on their system.
I am awaiting for the appeal to present some arguments against the verdict itself, and not just "the judge is biased because we lost".
Everyone claiming that the judge is biased, that the verdict is wrong - can anyone please present some arguments against the verdict itself?
For example: Why is the court wrong in finding that torrent files are accessories of a crime (copyright infringement)? Why is the court wrong in finding that paragraph 18 (services that store information - like torrent files - on behalf of clients and serve it) of the law on e-commerce applies to TPB.
While the comments on the size of Pirate Party are correct, it can also be formulated slightly different: PP is, in the moment of writing, the fourth largest party in sweden (with respect to the number of party members). (source )
By the rate of new members, PP should pass 'Centern' in the coming week or something like that, and thus become the third largest party.
PP's youth organisation is (perhaps unsurprisingly) the largest by far (actually has more members than the second and third combined).
It should however be noted that party membership in Sweden is not widespread, thus the actual voting result in an election will not necessarily reflect the membership records.
If you would like to contribute to the cause (for nothing else than just to spite the big media companies), you can make a donation here.
While I'm not sure they deliver merchandise abroad, they have a small shop where you can buy the obligatory t-shirt. Yes, the revolution accepts Visa.
On the one side: Copyright infringers.
On the other side: Those who want to lock down personal computers and the internet, spy on same, lock down anything else which can reproduce sound or video, implement a pay-per-use system for everything, shut down DVD rental services, eliminate fair use, use lawyers to bully people (whether culpable or not), increase copyright terms to infinity less one day, etc.
Which side would you expect slashdotters to be on? You can argue there's a middle ground, but for various reasons I think there really isn't, and in any case is it really surprising getting binary thinking from a computer geek site?
Nobody cares about the "Pirate Party." It's just a bunch of morons who signed up online out of spite and probably will never be heard from again.
Uh, considering your whole post was as bad as this, I'm just surprised it didn't stay modded down.
Perhaps if you at least left out all the name-calling?
Yeah; the accusations of the prosecutor, not the Judge. From the way it sounds, the lay assessors merely help the Judge to interpret the law, regardless of which side of the argument they fall on. The substantive issue here is that the Judge might deliberately form all of his arguments to support the prosecutor, because he may be biased.
IANAL. Although I did do state-level Mock Trial competition in High School.
I believe someone from Sweden posted in a previous story that their jails were already full up, even without people turning themselves in. Apparently, there's a waiting line for when you do your time, with the exception that violent criminals skip to the front.
It was also hosting the torrent tracker server that tracks the file chunks users were trading with each other. They offer the torrents, and they offer the server connecting the users
Neither of which are illegal under Swedish law. Under Swedish law, the ONLY people breaking the law are those downloading and uploading the pirated content. Citizens of Sweden are free to index and publish sources of illegal items (in this case, illegally shared files). Law enforcement is just as free to prosecute the provider of the illegal items (or files), but absolutely not the messenger.
To reiterate: under current Swedish law, the way to enforce copyright law is to prosecute users who are downloading/uploading copyrighted content, and NOT the operator of the tracker, who has not trafficked in any copyrighted content at all. Unless you can copyright an SHA1 hash, now (Maybe you could consider it a derivative work? That would be a frightening world).
This may be different in your country; I know it is different in mine. However, the guilty verdict this judge gave represented a drastic change in the way the Swedish judiciary interprets the existing law, one which runs counter to all prior decisions.
As an aside, a technical correction to your statement. A bittorrent tracker does not track file chunks. It does not monitor or arrange file transfers in any meaningful way. All it does is provide a list of IP addresses and ports of bittorrent clients who are trading in a particular torrent. Arranging transfers and piece swaps is entirely between the clients. Often a bittorrent client only checks in with the tracker a few times an hour, to get an updated list of IPs.
Legalize recreational marijuana. Seriously.
> The piracy issue is finally coming to a head. You know it's illegal and wrong.
Typical 20th century brainwashing. Illegal != Immoral. Tomorrow (21st century) it will be legal, and there is not a dam thing you can do to stop the masses from trading music, video, etc.
> How would you like it if you were a software developer, and your boss didn't give you a paycheck one month because "information wants to be free," or "you can't 'steal' code," or some other stupid reason that pirates always give?
Doesn't stop me one bit from writing software in my free time.
> There's no other reason you do it but that you're selfish like all humans and want something for free without paying money to its creator.
So how did all that art get created BEFORE copyright even existed in the 17th century??
If you read past the headlines, Oobama didnt abolish torture, the US will still use it as much as before but they only changed WERE they were going to torture.
But many intelligent people are going around claiming that torture was ended with Obama.
Which is were his great power lies; he does something and people want to believe so much that they dont read the fine print.
The same holds in Sweden. The appearance of impropriety part exists in order to uphold the public belief in the court system.
The judge has just failed in that exercise.
"Civis Europaeus sum!"
It was also hosting the torrent tracker server that tracks the file chunks users were trading with each other. They offer the torrents, and they offer the server connecting the users
Neither of which are illegal under Swedish law. Under Swedish law, the ONLY people breaking the law are those downloading and uploading the pirated content.
...and those assisting them - "främjar en gärning med råd eller dåd" (for our English readers "furthers an act with advice or deed").
Which is what TPB got done for.
You never think about the people you're ripping off--the musicians, software developers, screenwriters, and so on.
Horse-carriages and automobiles my friend.
Musicians: If I can't copy their music, then neither can they. Do gigs and performances like real musicians do. There's no law that says you, as a musician, are entitled to income. It's an art, if your art sucks, if people don't like you enough to buy your cd's, you don't get paid, and you don't get to whine about it.
Software-developers: You produce tools that people use to create value. Tools that can be magically copied with no effort. If you want to make money on it, do it by implementing the tools you have created (being the creator gives you a fair head-start in this). Would you have a problem giving away hammers to people for free if you could replicate an original (which you made yourself) ad infinitum?
Screenwriters: Adjust your expectations. Just because your output-volume has risened does not mean the individuals demand will too. In every other field people know what they're buying before they buy it. Don't jump at people for wanting to know whether your work is quality or insipid trash before they decide to buy (or not buy) your product. A recent survey has shown that people who pirate movies are ten times more likely to buy movies than people who don't pirate. Don't whine if you fail.
If you quote this signature there'll be 72 copies of Windows ME waiting for you in Heaven.
In 100 years, things will have settled into a two-party system.
If copyright was anything like it was in the beginning of the U.S. (14 years, then it's public domain), I would whole heartedly support it and whole heartedly reject infringement.
However, in the current state of affairs where copyright apparently lasts for the life of Mickey Mouse + 20 years, the balance is tipped so far over that ignoring it en-masse actually brings things closer to justice than obeying it does.
That doesn't mean I condone "piracy", but I can't honestly condemn it either.
As for this particular trial, the level of bias on the judge's part is extreme and is an offense to justice. Enough so that even if I fully believed that the verdict and sentencing was correct, I would probably STILL oppose it as a matter of principle.
I know many people say the same thing, but just why should someone be "proud" of coming from a particular area?
Us versus them-ism?
If there were a sound legal theory behind their points
Well, since I doubt a single person here followed every day of TPB trial and is fully versed in Swedish law, of course we can't present a sound legal theory. All we can do is point to the person who WAS there every day, and who is supposed to be versed in the law, and say "We don't believe him capable of impartiality in this matter. We would like this redone, and with someone who will weigh everything equally, and apply the law as it should be."
I've seen people use the metaphor of a judge being in favour of harsher murder penalties in a capital trial, but that's faulty. There's precedent for the application of the death penalty in murder trials. A more accurate analogy would be the judge handing down a death penalty for grand theft auto. There's a crime committed, but the law was probably applied improperly to get that ruling. In this case, as people have pointed out, under Swedish laws, accessories cannot receive harsher penalties than the primary commissioner of a crime. However, there was no primary listed, charged, or sentenced as part of TPB trial, thus immediately making the sentencing suspect.
Also, remember, the mere *appearance* of impropriety is supposed to make a judge excuse himself from judging a case. Obviously, since it's a story in Sweden, there's the appearance, making him ethically suspect. If a separate judge finds the same in a retrial, I'll accept the verdict. But currently, this verdict doesn't even pass the laugh test of legitimacy.
Canada: The US's more awesome sibling.
A judge rendering judgement as a "creative act" as you put it, would in more common parlance be derided as "legislating from the bench," or more mildly as judicial activism. This is something frowned upon in most places where government has the concept of separation of powers, because it is not the place for the judiciary to be creating law: that is a job for the legislative branch. This is a touchy issue for Supreme Courts everywhere, because it's they that most often have to tread that fine line. Judges should be deciding cases based on what the law says, not what they would prefer it said.
Qu'on me donne six lignes écrites de la main du plus honnête homme, j'y trouverai de quoi le faire pendre.
God, if that isn't a literal prisoner's dilemma then nothing is.
If everyone cooperates (turns themselves in), then they all win by having successfully blockaded (DoS'd) the attempt to criminalize what TPB is doing.
If only a few do, they get screwed.
It's rare that you're presented with a knob whose only two positions are Make History and Flee Your Glorious Destiny.
Indeed.
The basic problem is that "copyright protection", as used today (DRM, asshat lawyer scum, etc) is destructive to the geek/nerd/intelligent human being's basic desire to exercise their right to tinker.
We don't want to just buy something, then use it till it dies. We want to take it apart. Put it back together. Improve it. Repair it if it breaks. UNDERSTAND IT.
DRM on a digital movie - for one example - makes it harder to exercise our right to tinker. We can't easily pull a segment from it, or multiple segments, practice remixing it and splicing it and editing it and tweaking it and making something new, different, unique out of it.
DRM or "access protection" on a video game console - basically, a glorified computer - stops us from learning how to code new programs for it. From tweaking it to act as we want it to. From improving it - by adding storage, for instance, that reduces the crappy load times of disc-based consoles to something more bearable or that reduces the drain on the battery of a portable console.
Nintendo even wanted to get the US to outlaw the famous Afterburner mod - you remember, the thing they blatantly ripped off when it came time to create the Game Boy Advance SP, and the DS line?
The problem is, "piracy", or copyright infringement, is no different from other fields. Car geeks get to the point where they don't have to waste money on taking their car to a dealership or car shop. The car companies have in recent years tried to make this impossible by using proprietary shaped bits on certain fasteners in the engine, or packing things in super-tightly (in one case even making it impossible to change your oil yourself). The VW Rabbit, for another example, requires the removal of an entire wiring harness just to change a fucking headlight. And of course there are the "diagnostic computers", and the 5-year lag time during which the output codes are a "proprietary trade secret" to prevent non-Dealership car shops from being able to service them...
It's not just the copyright field. Freedom to tinker is something we should all have a right to, in EVERY field.
Actually, wrong.
The current bittorrent algorithm is weird. There is actually no need for the torrent file to exist, it could be downloaded from the first peer you connect to. This would actually make things easier for the user but the original POC didn't need that. Still the torrent file exists, but actually it contains nothing that can identify the legal status of the file that it's used to transfer, there are only inferences from the, user supplied, description (ie unreliable lies, eg: "Britney Spears sex tape").
Likewise, right now any one tracker is unnecessary, TPB and others are open trackers, I tend to add them to every torrent file I upload or download and I'm not the only one because I get more peers that way. Even then the only thing a tracker does is index hashes, so it's basically impossible for a tracker to say if a file is illegal even for clear cut cases because all the tracker sees is a random number and a list of IP:port pairs.
With both of these observations it is technically quite possible for a reasonable torrent url to be http://74.125.45.100/search?q=2ff13ed6d87e905d76ae66bf3efd5fb13f49fa1b even now that one kinda works.
All that remains is to say that bittorrent is illegal because it's only used for illegal material. This is easy to disprove and AIUI the defendants did this. That leaves nothing in the technical realm at which point the judge ruled entirely on "intent" effectively saying the TPB intended to help someone break copyright law so we'll assume they did and sentence them as if they were successful and the people they helped had the book thrown at them (twice).
Of course, nobody has been even seriously charged with the actual copyright infringement ... oops.
Since you posted AC and I can't assess your linguistic skills via a profile, I'll just say we can agree to disagree on how to spell "there". Otherwise, you make a solid point.
But I think this guy goes one better. He's legislating from the bench, and not like the normal accusations, this is like putting innocent people in jail. If you are accused of being an idiot, you go to jail in my courtroom. Accused of wearing plaid, no warrant needed you're in Bubba's room.
Exactly. I think copyright was a good idea in its original form. The public domain is the first priority for the good of the nation as a whole, but hows about granting a monopoly on revenue from the work for a limited time to the original creator as an incentive and a reward? Great idea. But if it can't be made to work because greedy corporations like Disney keep pushing for extensions until the term is effectively unlimited, then it's screwed and we should return to the first priority, which is the public domain.
Hoist the jolly roger and set sail, me hearties. Copyright is dead, long live the public domain (or what we'll make pass for such)! YAarrr!
Loose lips lose spit.
Then the question: what is copy protection?
In case of DVDs, the original copy protection was CSS. But this has been broken so much that it is not much more than a protocol, just like encoding a video to mpeg or to wmv, this is just a little more data mangling that has to be done to get back the original image. After all copy protection (CSS, Bluray's system, whatever) is a mere protocol, an algorithm that has to be followed to be able to display the original image/movie/music.
Nowadays when popping a DVD in my computer, be it Linux or Windows, I expect it to play, not seeing anything about this "copy protection". I also kinda expect to be able to read the raw data, and with that to copy the DVD. Without noticing copy protection.
How do you (as consumer) know it's copy protected, thus illegal, or not copy protected, thus legal? Because it is written on the disk? Then just writing it on the disk would be enough to "copy protect" it?
Could be a nasty can of worms if the copy protection lobby would really want to bring this to court.