That extents EVEN to having no opinion on the law itself. He shouldn't be for or against a law, just rule on it.
Well, good luck finding a judge that has no opinion on anything whatsoever, no personal connections to anyone with any opinion and not a member of any organizations with people with opinions.
I know what you're trying to say, but it is not possible to implement in reality.
Copyright law says nothing about tracker-like pointers to the locations of copyrighted materials, and it's extremely clear that the torrent files themselves are not subject to the copyright that covers the things that they point to.
But the judge held that the torrent files are accessories to the main crime of copyright infringement, since a person committing the crime would in this case create a torrent file and upload it to TPB in order to further the crime. That makes them tainted and illegal. Since TPB hosted the file and served it, they became parties to the crime when they refused to block access to the file.
The issue of whether the a link to an infringing copy is in and of itself illegal was never part of the verdict. Only the fact that the torrent files were created to further a crime, TPB knew it, and TPB refused to block access to them.
Almost everyone pirates. Evaluate the truth of this yourself.
Punishing one pirate is unfair - they must all be punished equally or none at all.
They can't lock up the entire planet - everyone pirates.
(1) Yes. Hell, even Per Gessle, one of the Swedish artists that have made the most pro-copyright noise once filled eight iPods for his musical buddies so they could all get sync:ed up on what "sound" to go for. Of course, he just copied his own collection of music on those iPods. Piracy? Damn straight. Metallica? They used to tape records off each other all the time when they were kids. Piracy? Oh yeah. But if you think about it, were they (Metallica and Gessle) morally in the wrong? I don't think so. There's always been illegal copying - but none on the scale of TPB - and I think that's where the problem lies here. We are in a moral (not legal) gray zone with regards to TPB. While everyone does it, only TPB sets up a business and tries to make money off it.
(2) doesn't mean that they can't punish the pirates that are taken to court. For example, we can't punish all drug dealers (because there are so many of them), but we can punish those we catch. Punishing one pirate is only unfair if the courts find another innocent even though they have done the same thing. In regards to the Gessle case, that didn't go to court - and this I do find terribly unfair and immoral. But I can't find any legal fault with it.
(3) Yep. What we have here is a mix of new technology, a change in consumer patterns, a change in the entertainment market and laws written for another age and a different set of morals than what people have. That's why we have such a mess now. It's like doing four forklift upgrades all at once.
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.'"
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.
Would the purpose of the organizations (SFU and SFIR) factor in, or is it the fact that organizations with a vested interest in tough-on-copyright are members?
If I were the one investigating this, I would be more interested in the membership and the activities than in the expressed purposes
Certainly. But this is the thing - while there have been accusations of it, so far there hasn't been any evidence linking either organization to lobbying or being anything but what they claim.
I agree that should such information exist, that would and should disqualify the judge.
Would the purpose of the organizations (SFU and SFIR) factor in, or is it the fact that organizations with a vested interest in tough-on-copyright are members?
SFU is basically an organization for people who want to keep up to date with IP law.
SFU is a bit more than that when you look at the supporting members" where you find AB Svensk Filmindustri (Swedish Filmindustry inc.), IFPI, STIM" and several other organisations who have direct interest in a the case going against TPB
Yet, the SFU may not be biased. First of all, there are no organized anti-copyright organizations besides Piratpartiet, and they have so far not joined any professional interest groups. Second, participating in an organization vital to their business need not mean that they use that organization as a lobbying group. Third, there has not been any evidence of the judge having any personal connections to anyone with self-interest in seeing TPB fall.
So far, the defense has called it "delikatessjäv", or "delicate bias" - which is a "catch all" bias clause stating that even if no real connection can be proven, the trial should be re-done if there are circumstances that would make a suspicion of bias reasonable.
Of course, this needs to be understood in context - a judge having a bias against murder does not mean they're banned from judging murder trials because of delikatessjäv.
Of all cases of bias, the "delikatessjäv" is the weakest claim. You can't prove obvious bias, so you go for the catch-all.
We'll see. There's definitely something here that needs to be examined, but so far I haven't read anything that would cause me to scream "corruption!"
Of the two organizations, only one appears to be problematic.
SFU is basically an organization for people who want to keep up to date with IP law. Of course you'll find judges here, and RIAA/etc. will of course get their lawyers from here - after all, if you go into an IP-related trial, you want someone with knowledge in IP to represent you.
SFIR is more problematic, as they state as one of their purposes is to "contribute" to the evolution of IP rights in Sweden and world wide. What kind of evolution is unsaid - it need not be copyright extensions, and I think a lot of the final decision in regards to the bias will depend on just what SFIR does.
So much for the bias of the judge. What will happen with TPB, then? Well, they may (or may not) get a new trial. But so far there has been no argument as to that the verdict shows signs of bias in finding them guilty. That is, biased as the judge may be, the verdict is unlikely to change. Maybe the fine will be reduced, but I doubt that, given that Carl (the old guy) is a multimillionaire and can pay the 30 megaSEK. (As a side note, the younger TPB guys were probably right in saying that they wouldn't pay the fine: The old guy will.)
But we are not talking about "any" number - we're talking about a number drawn from a very small set. What is being duplicated is the numeric representation of a copyrighted work. This isn't "just a number" - if it were, then any number would do.
Logically, because A shares a property with B, it doesn't follow that A shares all properties with B. Because a copyrighted work can be found to have a numeric representation, it doesn't follow that the numeric representation should share any properties (copyrightability, uniqueness, monetary value, artistic merit) with other numeric representations.
First - just a note, since we seem to be arguing different points - what I am trying to do is not dig into TPB's brains and argue what their intents really were - that is for the court. What I am trying to explain is the method with which I believe the court reached its conclusion. You are free to disagree with the conclusion, but it isn't really what I'm arguing for.
They have also stated that the purpose of TPB is copyright infringement.
It's in the verdict on page 71.
Att The Pirate Bays webbplats lockat besökare på grund av möjlig-
heten att gratis tillgodogöra sig upphovsrättsligt skyddade alster har bekräftats av
Carl Lundström. I ett e-mail som han skrev till sitt juridiska ombud skrev han att
webbplatsen var till för piratkopiering och under huvudförhandlingen har han upp-
givit att hemsidan bl.a. var till för piratkopiering.
Since I don't know if you speak Swedish, here's my shot at a translation:
That The Pirate Bay's website has attracted visitors due to the possibility of getting access to copyrighted material for free has been confirmed by Carl Lundström. In an e-mail that he wrote to his legal representative he wrote that the site existed for piracy and during the main trial he has stated that the homepage existed for, among other things, piracy.
Of course, you can state that the purpose of a website is copyright infringement, and this will not automatically get you convicted of it. But taken as a whole, it was hard for TPB to defend themselves against the charges that they had intended copyright infringement all along.
My original point was that what the prosecution did was to load up on statements that taken together would show that TPB really intended copyright infringement, or at the very least, were criminally negligent.
As you say, they had several times stated that they believed that they were in the clear - but as you can see from the quotes from the trial, there is reason to believe that the belief was not sincerely held.
I believe most of the Swedish lawyers thought what they were doing was possibly pushing the boundaries of what was legal, but there was no real consensus. So when you say they "so obviously cherry-picked parts of the law and ignored so much", I find it hard to believe you.
I base my "obviously" on the statements made in court. Before this went to court, it was unclear how TPB would defend themselves, and unclear how the prosecution would charge them. So far, TPB had only said "we're legal" and the prosecution "no, you're illegal" - so while every lawyer in town had their own idea of how they would prosecute or defend the case, it could not be ruled out that either side had some ace up the sleeve. In particular, the outcome depended on evidence that wasn't public.
But when it came to trial, both sides had to really put on the table what their legal arguments were, and what evidence they had. And TPB had very, very little, while the prosecution had very, very much.
They claimed immunity under paragraph 18 of the e-commerce law, but without stating in what ways they fulfilled the requirements for immunity as stated in para 18. Actually, they didn't even state under what paragraph they claimed immunity.
They claimed that they had run TPB as a hobby and not commercially, but had registered three corporations, one of which owned all the server hardware. They had also had revenues of 1.2 million SEK (~1 million Euro). The tax agency has definitions of what "hobby" means, and TPB should've checked it out before claiming it in court.
And more...
So when I say "obviously cherry-picked" I mean that based on what was said in court.
It is as if I accused you of infringement, and you pleaded "fair use", but without fulfilling or even arguing any of the four tests. If you had claimed fair use, and backed it up by arguing that your infringement was small scale and non-commercial, that the work was unique and not available for purchase, and that the impact on me was negligible - fine, at least you know the law and make an argument. That goes a long way to prove that you were honestly believing you were in the right. But if you just claim "fair use", make no argument why it applies to you, and the court can't see why it would - well, that's something completely different. Then your belief wasn't based on anything substantial and you should have known that.
I am awaiting the appeal, and I really hope that there will be some real legal arguments from TPB this time. Because arguing back and forth over hashvalues and the intricacies of the BT protocol makes no sense in itself - there must be an argument that links these technical statements to points of law.
we would be better off as a society, because knowledge and art would be disseminated instead of hoarded.
That is exactly what wouldn't happen. Art would not be mass-duplicated and made available, because the artists would limit themselves to performances. That's the reasoning behind copyright - make it possible to release masses of easily-duplicated copies, without risking financial loss due to someone else out-copying you and undercutting your price.
The proof of that is in the relative absence of creators who do release their works without copyright. If there is, as you say, a substantial motivation to create and distribute, even though it makes no sense economically, we should see much more of it even today, as nothing is holding creators back.
What we see is instead that high-quality works are almost always chosen to be distributed under copyright.
[I]f I said I didn't have an incentive to to make beneficial or creative works without a copyright monopoly, then all of a sudden people just take it on faith, they don't even question it, they just assume that society would fall apart without them.
Well, if it is so easy to produce creative works without copyright, how come so many artists choose to use copyright? They are free to release their works under any terms and conditions, and if it is, indeed just as good to release it under a copyleft or public domain license, how come we are not seeing that happen on a much larger scale than we do now, and why hasn't that model "won" in the marketplace by displacing the old business model?
Even if they state that, it presupposes some kind of honestly held belief that they are in fact within the law. "Honestly held belief" isn't just "kidding yourself into believing" something - you have to make a reasonable legal argument that you are, in fact, on the right side of the law, and your actions must reflect this.
Therefore, just pleading not guilty doesn't cut it.
I agree that we should not make it a crime to hate copyright. I, for example, think the laws we have are wrong. But what we have in the case of TPB is that they state that they hate copyright, and perform an infringing act.
In that case, the words and actions, taken as a whole, indicate intent. Their defense, that they are service providers, isn't reasonable, as there are conditions that must be satisfied for someone to claim service provider immunity. These conditions are quite clearly spelled out in the law, and so their argument that they just had a different interpretation of the law doesn't hold. You'd have to purposefully misread the law and ignore large parts of it to reach such a conclusion. The belief can therefore not be said to be honestly held, since they had so obviously cherry-picked parts of the law and ignored so much.
If they plead guilty, then their intent was to help breech copyright.
If they plead not guilty, then their intent was not to help breech copyright.
Are you kidding me? So, if the accused pleads not guilty, then we should just accept that as proven truth, and not look at what the accused actually has done?
On the charge of "Assisting the breech of copyright" (which isn't against the law in Sweden)
I'd agree. In the trial itself the prosecutors asked the defendants their views on copyright. Their response? "I thought this wasn't a political trial?".
Those questions were asked in order to help establish intent.
That's not relevant. They registered a corporation to run the site. They attempted to monetize traffic by putting up ads. In emails they discussed share allocations, profit splits, etc.
If they didn't turn a profit, it was a failed business, but still a business.
But was this clear in the way the law was written?
The law doesn't specifically address torrents, or links, or anything. It only talks about "illegal information". TPB thought the torrent files weren't illegal, the court thought otherwise.
Legally, it appears solid.
Morally... well, is it fair? I'd say yes. What made TPB lose wasn't just the illegality of the torrent files (which they could reasonably have argued hadn't been settled by a Swedish court), but their stating that the purpose of TPB was copyright infringement, their building a business on that, and their continued refusal to work with the rights owners. They acted in bad faith, and that damned them.
They thought they'd found a loophole in the law that would let them get away with massive copyright infringement, but apparently forgot to cover all bases.
In the end, they had no leg to stand on, because when they should have been trying to promote TPB as a legal file sharing service, and doing their utmost to comply with the law, they did the opposite.
Thanks for the info - were "links" to copyrighted material "obviously illegal" under Swedish law, or did this only become apparent with this new ruling?
I think what became apparent is that linking to illegal material makes you an assistant to the crime. Just how much liability you have, however, is another matter. For example, Google links to tons of illegal material, but since they take down illegal stuff when they see it or when somebody informs them, they are not liable.
TPB did neither, and in addition went on record stating that their intent was copyright infringement.
Do you have a quote/link OOI?
It's in the verdict on page 71.
Att The Pirate Bays webbplats lockat besökare på grund av möjlig- heten att gratis tillgodogöra sig upphovsrättsligt skyddade alster har bekräftats av Carl Lundström. I ett e-mail som han skrev till sitt juridiska ombud skrev han att webbplatsen var till för piratkopiering och under huvudförhandlingen har han upp- givit att hemsidan bl.a. var till för piratkopiering.
Since I don't know if you speak Swedish, here's my shot at a translation:
That The Pirate Bay's website has attracted vistors due to the possibility of getting access to copyrighted material for free has been confirmed by Carl Lundström. In an e-mail that he wrote to his legal representative he wrote that the site existed for piracy and during the main trial he has stated that the homepage existed for, among other things, piracy.
As a personal note, re-reading it, I am a bit shocked that an email between Carl and his legal counsel was admitted as evidence. However, the word used is "juridiskt ombud" (legal representative) and not "försvarare" (defense attorney).
If it isn't obvious, I am not a lawyer, just an interested layman - so I can't really say more about the above.
Slashdot Mirror
That extents EVEN to having no opinion on the law itself. He shouldn't be for or against a law, just rule on it.
Well, good luck finding a judge that has no opinion on anything whatsoever, no personal connections to anyone with any opinion and not a member of any organizations with people with opinions.
I know what you're trying to say, but it is not possible to implement in reality.
But torrent files are *NOT* illegal (yet).
Copyright law says nothing about tracker-like pointers to the locations of copyrighted materials, and it's extremely clear that the torrent files themselves are not subject to the copyright that covers the things that they point to.
But the judge held that the torrent files are accessories to the main crime of copyright infringement, since a person committing the crime would in this case create a torrent file and upload it to TPB in order to further the crime. That makes them tainted and illegal. Since TPB hosted the file and served it, they became parties to the crime when they refused to block access to the file.
The issue of whether the a link to an infringing copy is in and of itself illegal was never part of the verdict. Only the fact that the torrent files were created to further a crime, TPB knew it, and TPB refused to block access to them.
(1) Yes. Hell, even Per Gessle, one of the Swedish artists that have made the most pro-copyright noise once filled eight iPods for his musical buddies so they could all get sync:ed up on what "sound" to go for. Of course, he just copied his own collection of music on those iPods. Piracy? Damn straight. Metallica? They used to tape records off each other all the time when they were kids. Piracy? Oh yeah. But if you think about it, were they (Metallica and Gessle) morally in the wrong? I don't think so. There's always been illegal copying - but none on the scale of TPB - and I think that's where the problem lies here. We are in a moral (not legal) gray zone with regards to TPB. While everyone does it, only TPB sets up a business and tries to make money off it.
(2) doesn't mean that they can't punish the pirates that are taken to court. For example, we can't punish all drug dealers (because there are so many of them), but we can punish those we catch. Punishing one pirate is only unfair if the courts find another innocent even though they have done the same thing. In regards to the Gessle case, that didn't go to court - and this I do find terribly unfair and immoral. But I can't find any legal fault with it.
(3) Yep. What we have here is a mix of new technology, a change in consumer patterns, a change in the entertainment market and laws written for another age and a different set of morals than what people have. That's why we have such a mess now. It's like doing four forklift upgrades all at once.
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.'"
I thought that's what defense attorneys were for.
You know, countering the accusations.
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.
And yes, IAAPA. In Finland, though.
No way. No Finn would write that many words.
Agree with the rest, though. We'll see what the courts decide.
Would the purpose of the organizations (SFU and SFIR) factor in, or is it the fact that organizations with a vested interest in tough-on-copyright are members?
If I were the one investigating this, I would be more interested in the membership and the activities than in the expressed purposes
Certainly. But this is the thing - while there have been accusations of it, so far there hasn't been any evidence linking either organization to lobbying or being anything but what they claim.
I agree that should such information exist, that would and should disqualify the judge.
Would the purpose of the organizations (SFU and SFIR) factor in, or is it the fact that organizations with a vested interest in tough-on-copyright are members?
SFU is basically an organization for people who want to keep up to date with IP law.
SFU is a bit more than that when you look at the supporting members" where you find AB Svensk Filmindustri (Swedish Filmindustry inc.), IFPI, STIM" and several other organisations who have direct interest in a the case going against TPB
Yet, the SFU may not be biased. First of all, there are no organized anti-copyright organizations besides Piratpartiet, and they have so far not joined any professional interest groups. Second, participating in an organization vital to their business need not mean that they use that organization as a lobbying group. Third, there has not been any evidence of the judge having any personal connections to anyone with self-interest in seeing TPB fall.
So far, the defense has called it "delikatessjäv", or "delicate bias" - which is a "catch all" bias clause stating that even if no real connection can be proven, the trial should be re-done if there are circumstances that would make a suspicion of bias reasonable.
Of course, this needs to be understood in context - a judge having a bias against murder does not mean they're banned from judging murder trials because of delikatessjäv.
Of all cases of bias, the "delikatessjäv" is the weakest claim. You can't prove obvious bias, so you go for the catch-all.
We'll see. There's definitely something here that needs to be examined, but so far I haven't read anything that would cause me to scream "corruption!"
Of the two organizations, only one appears to be problematic.
SFU is basically an organization for people who want to keep up to date with IP law. Of course you'll find judges here, and RIAA/etc. will of course get their lawyers from here - after all, if you go into an IP-related trial, you want someone with knowledge in IP to represent you.
SFIR is more problematic, as they state as one of their purposes is to "contribute" to the evolution of IP rights in Sweden and world wide. What kind of evolution is unsaid - it need not be copyright extensions, and I think a lot of the final decision in regards to the bias will depend on just what SFIR does.
So much for the bias of the judge. What will happen with TPB, then? Well, they may (or may not) get a new trial. But so far there has been no argument as to that the verdict shows signs of bias in finding them guilty. That is, biased as the judge may be, the verdict is unlikely to change. Maybe the fine will be reduced, but I doubt that, given that Carl (the old guy) is a multimillionaire and can pay the 30 megaSEK. (As a side note, the younger TPB guys were probably right in saying that they wouldn't pay the fine: The old guy will.)
Yes. Sorry, wishful thinking from a Swede, there...
But we are not talking about "any" number - we're talking about a number drawn from a very small set. What is being duplicated is the numeric representation of a copyrighted work. This isn't "just a number" - if it were, then any number would do.
Logically, because A shares a property with B, it doesn't follow that A shares all properties with B. Because a copyrighted work can be found to have a numeric representation, it doesn't follow that the numeric representation should share any properties (copyrightability, uniqueness, monetary value, artistic merit) with other numeric representations.
First - just a note, since we seem to be arguing different points - what I am trying to do is not dig into TPB's brains and argue what their intents really were - that is for the court. What I am trying to explain is the method with which I believe the court reached its conclusion. You are free to disagree with the conclusion, but it isn't really what I'm arguing for.
They have also stated that the purpose of TPB is copyright infringement.
It's in the verdict on page 71.
Att The Pirate Bays webbplats lockat besökare på grund av möjlig-
heten att gratis tillgodogöra sig upphovsrättsligt skyddade alster har bekräftats av
Carl Lundström. I ett e-mail som han skrev till sitt juridiska ombud skrev han att
webbplatsen var till för piratkopiering och under huvudförhandlingen har han upp-
givit att hemsidan bl.a. var till för piratkopiering.
Since I don't know if you speak Swedish, here's my shot at a translation:
That The Pirate Bay's website has attracted visitors due to the possibility of getting access to copyrighted material for free has been confirmed by Carl Lundström. In an e-mail that he wrote to his legal representative he wrote that the site existed for piracy and during the main trial he has stated that the homepage existed for, among other things, piracy.
Of course, you can state that the purpose of a website is copyright infringement, and this will not automatically get you convicted of it. But taken as a whole, it was hard for TPB to defend themselves against the charges that they had intended copyright infringement all along.
My original point was that what the prosecution did was to load up on statements that taken together would show that TPB really intended copyright infringement, or at the very least, were criminally negligent.
As you say, they had several times stated that they believed that they were in the clear - but as you can see from the quotes from the trial, there is reason to believe that the belief was not sincerely held.
Well, too bad about the other half.
I believe most of the Swedish lawyers thought what they were doing was possibly pushing the boundaries of what was legal, but there was no real consensus. So when you say they "so obviously cherry-picked parts of the law and ignored so much", I find it hard to believe you.
I base my "obviously" on the statements made in court. Before this went to court, it was unclear how TPB would defend themselves, and unclear how the prosecution would charge them. So far, TPB had only said "we're legal" and the prosecution "no, you're illegal" - so while every lawyer in town had their own idea of how they would prosecute or defend the case, it could not be ruled out that either side had some ace up the sleeve. In particular, the outcome depended on evidence that wasn't public.
But when it came to trial, both sides had to really put on the table what their legal arguments were, and what evidence they had. And TPB had very, very little, while the prosecution had very, very much.
They claimed immunity under paragraph 18 of the e-commerce law, but without stating in what ways they fulfilled the requirements for immunity as stated in para 18. Actually, they didn't even state under what paragraph they claimed immunity.
They claimed that they had run TPB as a hobby and not commercially, but had registered three corporations, one of which owned all the server hardware. They had also had revenues of 1.2 million SEK (~1 million Euro). The tax agency has definitions of what "hobby" means, and TPB should've checked it out before claiming it in court.
And more...
So when I say "obviously cherry-picked" I mean that based on what was said in court.
It is as if I accused you of infringement, and you pleaded "fair use", but without fulfilling or even arguing any of the four tests. If you had claimed fair use, and backed it up by arguing that your infringement was small scale and non-commercial, that the work was unique and not available for purchase, and that the impact on me was negligible - fine, at least you know the law and make an argument. That goes a long way to prove that you were honestly believing you were in the right. But if you just claim "fair use", make no argument why it applies to you, and the court can't see why it would - well, that's something completely different. Then your belief wasn't based on anything substantial and you should have known that.
I am awaiting the appeal, and I really hope that there will be some real legal arguments from TPB this time. Because arguing back and forth over hashvalues and the intricacies of the BT protocol makes no sense in itself - there must be an argument that links these technical statements to points of law.
it has no value - it's just a bunch of numbers.
The fact that you spend time watching movies, listening to music, and so on, proves that it has value for you.
As for the number analogy, it is flawed - by the same analogy, you and I are nothing but heaps of atoms, and nothing sets us apart from rocks.
You can certainly equate a human with a rock, but you'd have to be pretty nihilist for that and most people would disagree.
we would be better off as a society, because knowledge and art would be disseminated instead of hoarded.
That is exactly what wouldn't happen. Art would not be mass-duplicated and made available, because the artists would limit themselves to performances. That's the reasoning behind copyright - make it possible to release masses of easily-duplicated copies, without risking financial loss due to someone else out-copying you and undercutting your price.
The proof of that is in the relative absence of creators who do release their works without copyright. If there is, as you say, a substantial motivation to create and distribute, even though it makes no sense economically, we should see much more of it even today, as nothing is holding creators back.
What we see is instead that high-quality works are almost always chosen to be distributed under copyright.
[I]f I said I didn't have an incentive to to make beneficial or creative works without a copyright monopoly, then all of a sudden people just take it on faith, they don't even question it, they just assume that society would fall apart without them.
Well, if it is so easy to produce creative works without copyright, how come so many artists choose to use copyright? They are free to release their works under any terms and conditions, and if it is, indeed just as good to release it under a copyleft or public domain license, how come we are not seeing that happen on a much larger scale than we do now, and why hasn't that model "won" in the marketplace by displacing the old business model?
Even if they state that, it presupposes some kind of honestly held belief that they are in fact within the law. "Honestly held belief" isn't just "kidding yourself into believing" something - you have to make a reasonable legal argument that you are, in fact, on the right side of the law, and your actions must reflect this.
Therefore, just pleading not guilty doesn't cut it.
I agree that we should not make it a crime to hate copyright. I, for example, think the laws we have are wrong. But what we have in the case of TPB is that they state that they hate copyright, and perform an infringing act.
In that case, the words and actions, taken as a whole, indicate intent. Their defense, that they are service providers, isn't reasonable, as there are conditions that must be satisfied for someone to claim service provider immunity. These conditions are quite clearly spelled out in the law, and so their argument that they just had a different interpretation of the law doesn't hold. You'd have to purposefully misread the law and ignore large parts of it to reach such a conclusion. The belief can therefore not be said to be honestly held, since they had so obviously cherry-picked parts of the law and ignored so much.
If they plead guilty, then their intent was to help breech copyright.
If they plead not guilty, then their intent was not to help breech copyright.
Are you kidding me? So, if the accused pleads not guilty, then we should just accept that as proven truth, and not look at what the accused actually has done?
On the charge of "Assisting the breech of copyright" (which isn't against the law in Sweden)
It is. Willfully assisting any crime is illegal.
I'd agree. In the trial itself the prosecutors asked the defendants their views on copyright. Their response? "I thought this wasn't a political trial?".
Those questions were asked in order to help establish intent.
Lawyers are sworn to silence by law, and not required to testify.
That's not relevant. They registered a corporation to run the site. They attempted to monetize traffic by putting up ads. In emails they discussed share allocations, profit splits, etc.
If they didn't turn a profit, it was a failed business, but still a business.
But was this clear in the way the law was written?
The law doesn't specifically address torrents, or links, or anything. It only talks about "illegal information". TPB thought the torrent files weren't illegal, the court thought otherwise.
Legally, it appears solid.
Morally... well, is it fair? I'd say yes. What made TPB lose wasn't just the illegality of the torrent files (which they could reasonably have argued hadn't been settled by a Swedish court), but their stating that the purpose of TPB was copyright infringement, their building a business on that, and their continued refusal to work with the rights owners. They acted in bad faith, and that damned them.
They thought they'd found a loophole in the law that would let them get away with massive copyright infringement, but apparently forgot to cover all bases.
In the end, they had no leg to stand on, because when they should have been trying to promote TPB as a legal file sharing service, and doing their utmost to comply with the law, they did the opposite.
Thanks for the info - were "links" to copyrighted material "obviously illegal" under Swedish law, or did this only become apparent with this new ruling?
I think what became apparent is that linking to illegal material makes you an assistant to the crime. Just how much liability you have, however, is another matter. For example, Google links to tons of illegal material, but since they take down illegal stuff when they see it or when somebody informs them, they are not liable.
TPB did neither, and in addition went on record stating that their intent was copyright infringement.
Do you have a quote/link OOI?
It's in the verdict on page 71.
Since I don't know if you speak Swedish, here's my shot at a translation:
As a personal note, re-reading it, I am a bit shocked that an email between Carl and his legal counsel was admitted as evidence. However, the word used is "juridiskt ombud" (legal representative) and not "försvarare" (defense attorney).
If it isn't obvious, I am not a lawyer, just an interested layman - so I can't really say more about the above.