[T]he question is what is the difference between a legal search engine and an illegal one under Swedish law.
This is spelled out in the law on electronic commerce and other services: You must take down material that is obviously illegal - as in, when being notified by the rights holder of it being there and given enough information that a reasonable person would conclude that it is clearly illegal. Failing to do that, you must not have intent to distribute illegal material.
Search engines that comply with takedown notices are thus doubly covered - they take down the illegal material, and by doing so proves the absence of intent to serve illegal information.
TPB did neither, and in addition went on record stating that their intent was copyright infringement.
Okay, if I defame you on/. (an illegal use), Sourceforge or the admins of/. are not going to get in trouble, I will. The worst that can happen to/. is that they are legally forced to remove the comment, but the further and more real consequences happen to me, the individual who actually broke the law.
We agree on this?
Yes, provided that/. actually does comply and removes the comment.
Now, lets say I grab some of your IP, lets say some code from one of your projects, and then I post it fully on/. Now the worst (in the US) that will happen is/. will get a DMCA take-down notice, I am still culpable for my actions legally.
We agree on this as well, right?
Yes, again provided that/. does comply with the notice.
Now, lets tone this down. I provide a link on/. just pointing to a separate webpage with your code. Now, by this logic,/. is magically culpable for my actions.
No, only if they refuse to comply with the notice.
Thats what I don't get. We're judging things by VERY different standards based on very similar behavior. Either a webpage is responsible for ALL 3rd party use of dubious legality, or none.
The difference is between what you do with 3rd party content you know to be illegal versus 3rd party content you do not know to be illegal.
If I sell stolen goods on Craigslist, they are in the clear, if, though, I provide a mere link to bad content, then they are not. You see my issue?
If you sell stolen goods on Craigslist, they are in the clear only if they remove your listing upon notification. This is, of course, providing that it is reasonably clear that the complaint is valid.
Yes, TPB is guilty of not taking things down when asked, though I'm not certain of the extent of that, since being in a foreign country DMCA doesn't apply, and I don't know if there is an equally moronic equivalent in Sweden.
There is. And they ran afoul of it.
Even, then though, I can see their refusal as well since they don't actually HAVE or HOST any illegal content, just the directions for other people to find it.
Illegal content comes in many forms. The court held that the torrent file is illegal - not because it contains copyrighted material, but because it is a tool in a crime of copyright infringement. When someone intends to commit copyright infringement via TPB, they create the torrent file and upload it as part of the crime. This is what makes it an accessory of the crime, and illegal. And TPB did host it. And TPB refused to remove it.
So there could be an argument that this is in the clear, especially if, as I hear, linking to dubious content isn't illegal in Sweden.
It all comes down to whether you can reasonably be said to not know that the content was illegal.
So, bringing this into the real world, with a deeply flawed analogy; You own a store will a board for posting notices. I post the address of a house of prostitution, or drug dealer, or what not. Now your store is guilty of what?
Well, it depends. Does your post explicitly state that sex for money is offered at that house? Have I been told such a note is there? Do I profit from the note being there?
If the answers are yes, yes, and yes, then yes, I'd expect to be found guilty of assisting.
If they are no, no and no, then I doubt I'd be found guilty.
Yes, intent does come into play here
Intent is all of it. TPB have gone on record stating that the purpose of the site is copyright infringement. They have made money off the site. They have refused to remove material that a reasonable pers
In the language of the court, the torrent file is an accessory to the crime of copyright infringement.
That is, when a person decides to commit copyright infringement, they create a torrent file and upload it as part of the act of infringing the copyright.
That is why TPB storing the torrent files is such a big deal.
Google is a completely different case, since they comply with the paragraphs that absolves them of liability - despite hosting infringing material. TPB didn't.
In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.
Just because a different sequence of events can lead to the same the end result doesn't mean that all sequences are of equal legal status.
If what you describe is possible and found legal as far as Google's involvement is concerned, then that doesn't make TPB innocent, since they did host torrent files and did run a tracker.
Nobody is aware of everything on the site, obviously. But in my example I wasn't talking about the liability of the site. I was talking about your ability to claim ignorance if you linked to a torrent that way.
You link to a torrent of a hotly anticipated movie with the text "hey d00dz, get it before it's in the cinemas here!".
And you claim to not know that the content was infringing?
I'm not going to argue with that. I suggest you do the above, and get yourself to court. That's the only way to settle this, because you are obviously not going to listen to anything I say.
So pirate bay guys goes to jail for being juvenile little so and so's ?
Yeah, pretty much.
A bunch of kids who fooled themselves into thinking that the counter-intuitive conclusion they drew from their reading of the law was correct. Much like US tax protesters.
Common carriers are protected under paragraphs 16 and 17. Para 16 states that if you are just transferring the information, you're not liable, as long as you don't initiate or alter the information. (There's more but that's the gist of it.) That's the "common carrier" paragraph.
Para 17 says that if you just facilitate a transmission without altering the data, you're not liable. Specifically, your copies of the information must be deleted as soon as the transmission ends, and you may not store it in a permanent way. The information must be transient, in particular, it must be deleted as soon as the originator deletes their copy or makes their copy inaccessible. This is also "common carrier"-ish; more specifically, it is the "caching proxy" paragraph.
But TPB hosts the torrent files, meaning that they are not a "carrier", nor a "facilitator", as they do not merely transfer information, nor just facilitate the transfer in a transient way. This puts them under paragraph 18: a provider that accepts information from one user, stores it in a permanent way, and distributes it to others. For example, I can create a torrent file, upload it to TPB, and then delete my copy of the file without it disappearing automatically from TPB.
And under paragraph 18, you must remove material that is infringing as soon as you have an awareness of obviously infringing material. Which the torrent files were, and TPB didn't.
Then there's paragraph 19: You must have intent to commit infringement. TPB certainly did - they have gone on record saying that so many times that there's no point in protesting.
Google complies with takedown notices, which grants them freedom from liability according to Swedish law (18 para 2002:562).
TPB... oh wait.
Well, fair point that TPB don't comply with takedown notices, but most of the requests they get are appealing to US laws like the DMCA and hence deserve a heaping of scorn.
According to Swedish law, the notification need not have any special format, nor contain any references to Swedish law. The law only talks about "awareness of obvious copyright infringement". This can be abused, but the service provider has another line of defence: They must be found to purposefully aid in the infringement.
For TPB, since they knew what DMCA was about, they can't really claim to not understand that they are not aware of obvious copyright infringement. If the note had been in Hungarian or hieroglyphs they could have claimed that the note was incomprehensible. If the movies were not big blockbusters they could have claimed that the notices were for material that weren't obviously infringing. (And be safe according to 18 para).
Finally, they have gone on record to say that the purpose of TPB was to infringe copyright. This means they are not protected under paragraph 19 either.
There is also the fact that they don't host anything that's under copyright, so they have nothing to takedown except what is effectively a link to the infringing content... and I think I'm right in saying that linking is legal under Swedish law
The court found that since the torrent file, after having been uploaded and stored on TPB, is an accessory of the crime of illegal copying, TPB must take down the torrent file.
So to summarize, and I am not a Swedish lawyer, linking is cool. Linking to infringing material is ok, as long as you cooperate with rights holders. Linking to material that isn't "obviously" infringing is completely ok.
And by "obvious" we mean that you'd have to be pretty willfully thick-headed to not connect the dots.
If you link to a YouTube video of a shaky camcorder movie of a Balkan wedding, you can reasonably claim that you had no idea that this was the greatest summer hit of 1933 in Kazakhstan, and just wanted to show what a Balkan wedding looked like. But if you link to "X-Men Origins: Wolverine", with the text "hey d00dz, get it before it's in the cinemas here!" you can't claim that you had no idea what it was.
Yes, but in this case they were convicted for torrents that were infringing, they were told they were infringing, a reasonable person should have concluded were infringing, and they still didn't take them down. In addition, they have gone on record stating that the purpose of TPB is copyright infringement.
Your example is hypothetical and they were not convicted of anything like what you describe. If you want to claim that the court was wrong, then you have to argue based on the facts of the case - not the facts of a case you just made up.
Because TPB is in breach of the law? If they were going after the downloader you'd be arguing that they should be suing TPB. But fear not, with IPRED, they'll be going after the downloader, too!
Google provides a search mechanism for internet content, some of which infringes copyright.
TPB provides a search mechanism for downloadable content, some of which infringes copyright.
Google maintains an index of where to find things on the internet, which searchers make use of to get what they want.
TPB has a tracker, listing where to find downloads, that searchers make use of to find what they want
Google store a cache of large parts of their searchable content, keeping a copy on their servers to make searches faster.
TPB... oh wait.
Google complies with takedown notices, which grants them freedom from liability according to Swedish law (18 para 2002:562).
TPB... oh wait.
Get real. TPB was found guilty according to Swedish law and Swedish law only.
The fact that some things that are illegal in the US are also illegal in Sweden does not mean it's the big bad imperial USA stomping all over the independence of another country.
Since the information (blocks, hash) is used as a tool for the "main crime" of copyright infringement, the file is considered an accessory of the crime.
Storing it, refusing to take it down on request, and doing all that with the admitted intent to commit copyright infringement, is what killed TPB.
Also, even though the torrent files are illegal, TPB could have avoided liability by removing them on request.
They could also have avoided liability by not admitting to piracy being their business idea. Hosting infringing content is OK. Not removing infringing content is OK, as long as you can claim to not be purposefully aiding the infringement. For example, by contacting the uploader and then going back to the complainer saying "look guys, you say this is your stuff, but the uploader, Svenne Banan, says it is his stuff. Can you guys settle this, because we'll be in breach of our Service Level Agreement with Mr. Banan if we just delete the torrent."
They are an accessory to the main crime of copyright infringement, making them illegal.
The court states this in the sentence - when someone decides to commit the crime of copyright infringement, they create a torrent file and puts it on TPB for the purpose of spreading the copyrighted work. That makes the torrent file illegal.
One of the points that TPB was caught on was that there is a main crime, the unauthorized distribution of a copyrighted work, and that the torrent file is an accessory (a tool or aid) of that crime.
When someone intends to commit copyright infringement via BT, the person creates a torrent file. When that file is sent to TPB, it becomes an accessory to the crime, because the purpose of it is to facilitate the crime.
TPB stored that file in their own database. That made them part of the crime.
The above, it itself, is not enough for conviction, though. They may be part of a crime, but without responsibility. (If I sell a gun to you, and you kill people, I am not liable.)
What sealed TPB's fate is the fact that they were aware of the infringement, encouraged it, and refused to stop it. (If I sell a gun to you, and you kill people, and I know, when I sell it to you, that you're going to do all this, and that I will benefit economically from it, I am liable.)
No, that in itself didn't matter. What mattered was, in the end, the intent of the people behind it to make a business out of copyright infringement. See my other reply to your GP post.
You are right, but not quite for just the reasons you list.
Swedish law has a couple of ways that a service provider (and the court did find TPB to be a service provider) can avoid liability for infringing material, among them:
1. Just being a very transient store, like a caching server. TPB stores torrent files over a longer period of time.
2. By honoring takedown notices, or removing infringing material when it becomes obvious that it is infringing. TPB didn't do that.
3. By not having intent to aid in distribution of the infringing material. TPB ran the site as a business and in emails wrote that the purpose of the site was to distribute infringing works.
Any of these three would've gotten them free. Your argument is close to (3). So yes, you pretty much state what the court said.
Slashdot Mirror
[T]he question is what is the difference between a legal search engine and an illegal one under Swedish law.
This is spelled out in the law on electronic commerce and other services: You must take down material that is obviously illegal - as in, when being notified by the rights holder of it being there and given enough information that a reasonable person would conclude that it is clearly illegal. Failing to do that, you must not have intent to distribute illegal material.
Search engines that comply with takedown notices are thus doubly covered - they take down the illegal material, and by doing so proves the absence of intent to serve illegal information.
TPB did neither, and in addition went on record stating that their intent was copyright infringement.
If you can read Swedish, here is Lag (2002:562) om elektronisk handel och andra informationssamhällets tjänster. Check paragraphs 16-19, inclusive.
Okay, if I defame you on /. (an illegal use), Sourceforge or the admins of /. are not going to get in trouble, I will. The worst that can happen to /. is that they are legally forced to remove the comment, but the further and more real consequences happen to me, the individual who actually broke the law.
We agree on this?
Yes, provided that /. actually does comply and removes the comment.
Now, lets say I grab some of your IP, lets say some code from one of your projects, and then I post it fully on /. Now the worst (in the US) that will happen is /. will get a DMCA take-down notice, I am still culpable for my actions legally.
We agree on this as well, right?
Yes, again provided that /. does comply with the notice.
Now, lets tone this down. I provide a link on /. just pointing to a separate webpage with your code. Now, by this logic, /. is magically culpable for my actions.
No, only if they refuse to comply with the notice.
Thats what I don't get. We're judging things by VERY different standards based on very similar behavior. Either a webpage is responsible for ALL 3rd party use of dubious legality, or none.
The difference is between what you do with 3rd party content you know to be illegal versus 3rd party content you do not know to be illegal.
If I sell stolen goods on Craigslist, they are in the clear, if, though, I provide a mere link to bad content, then they are not. You see my issue?
If you sell stolen goods on Craigslist, they are in the clear only if they remove your listing upon notification. This is, of course, providing that it is reasonably clear that the complaint is valid.
Yes, TPB is guilty of not taking things down when asked, though I'm not certain of the extent of that, since being in a foreign country DMCA doesn't apply, and I don't know if there is an equally moronic equivalent in Sweden.
There is. And they ran afoul of it.
Even, then though, I can see their refusal as well since they don't actually HAVE or HOST any illegal content, just the directions for other people to find it.
Illegal content comes in many forms. The court held that the torrent file is illegal - not because it contains copyrighted material, but because it is a tool in a crime of copyright infringement. When someone intends to commit copyright infringement via TPB, they create the torrent file and upload it as part of the crime. This is what makes it an accessory of the crime, and illegal. And TPB did host it. And TPB refused to remove it.
So there could be an argument that this is in the clear, especially if, as I hear, linking to dubious content isn't illegal in Sweden.
It all comes down to whether you can reasonably be said to not know that the content was illegal.
So, bringing this into the real world, with a deeply flawed analogy; You own a store will a board for posting notices. I post the address of a house of prostitution, or drug dealer, or what not. Now your store is guilty of what?
Well, it depends. Does your post explicitly state that sex for money is offered at that house? Have I been told such a note is there? Do I profit from the note being there?
If the answers are yes, yes, and yes, then yes, I'd expect to be found guilty of assisting.
If they are no, no and no, then I doubt I'd be found guilty.
Yes, intent does come into play here
Intent is all of it. TPB have gone on record stating that the purpose of the site is copyright infringement. They have made money off the site. They have refused to remove material that a reasonable pers
In the language of the court, the torrent file is an accessory to the crime of copyright infringement.
That is, when a person decides to commit copyright infringement, they create a torrent file and upload it as part of the act of infringing the copyright.
That is why TPB storing the torrent files is such a big deal.
Google is a completely different case, since they comply with the paragraphs that absolves them of liability - despite hosting infringing material. TPB didn't.
In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.
It could be the actual movie, or it could be the trailer,
No, because in my example I specifically stated that the situation was that you linked to the movie. No fakes, no trailers - the real movie.
That was the example scenario I drew up.
1. TPB exists primarily to facilitate copyright violation. Google is a common carrier.
That you think TPB exists primarily to facilitate copyright violation is your interpretation of what TPB exists for.
No, the guys behind TPB were on record saying that. Really. It's in the court documents.
That's a completely different court case.
Just because a different sequence of events can lead to the same the end result doesn't mean that all sequences are of equal legal status.
If what you describe is possible and found legal as far as Google's involvement is concerned, then that doesn't make TPB innocent, since they did host torrent files and did run a tracker.
Now you're talking about content that Google stores. The correct equivalent would be Google removing links from search results.
Which they do. Try searching for x-men wolverine origins torrent on Google.
Nobody is aware of everything on the site, obviously. But in my example I wasn't talking about the liability of the site. I was talking about your ability to claim ignorance if you linked to a torrent that way.
Really?
You link to a torrent of a hotly anticipated movie with the text "hey d00dz, get it before it's in the cinemas here!".
And you claim to not know that the content was infringing?
I'm not going to argue with that. I suggest you do the above, and get yourself to court. That's the only way to settle this, because you are obviously not going to listen to anything I say.
So pirate bay guys goes to jail for being juvenile little so and so's ?
Yeah, pretty much.
A bunch of kids who fooled themselves into thinking that the counter-intuitive conclusion they drew from their reading of the law was correct. Much like US tax protesters.
Yes - try searching for x-men wolverine origins torrent.
Common carriers are protected under paragraphs 16 and 17. Para 16 states that if you are just transferring the information, you're not liable, as long as you don't initiate or alter the information. (There's more but that's the gist of it.) That's the "common carrier" paragraph.
Para 17 says that if you just facilitate a transmission without altering the data, you're not liable. Specifically, your copies of the information must be deleted as soon as the transmission ends, and you may not store it in a permanent way. The information must be transient, in particular, it must be deleted as soon as the originator deletes their copy or makes their copy inaccessible. This is also "common carrier"-ish; more specifically, it is the "caching proxy" paragraph.
But TPB hosts the torrent files, meaning that they are not a "carrier", nor a "facilitator", as they do not merely transfer information, nor just facilitate the transfer in a transient way. This puts them under paragraph 18: a provider that accepts information from one user, stores it in a permanent way, and distributes it to others. For example, I can create a torrent file, upload it to TPB, and then delete my copy of the file without it disappearing automatically from TPB.
And under paragraph 18, you must remove material that is infringing as soon as you have an awareness of obviously infringing material. Which the torrent files were, and TPB didn't.
Then there's paragraph 19: You must have intent to commit infringement. TPB certainly did - they have gone on record saying that so many times that there's no point in protesting.
If by "manners" you mean "compliance with the laws", then yeah - manners it is.
Google complies with takedown notices, which grants them freedom from liability according to Swedish law (18 para 2002:562). TPB... oh wait.
Well, fair point that TPB don't comply with takedown notices, but most of the requests they get are appealing to US laws like the DMCA and hence deserve a heaping of scorn.
According to Swedish law, the notification need not have any special format, nor contain any references to Swedish law. The law only talks about "awareness of obvious copyright infringement". This can be abused, but the service provider has another line of defence: They must be found to purposefully aid in the infringement.
For TPB, since they knew what DMCA was about, they can't really claim to not understand that they are not aware of obvious copyright infringement. If the note had been in Hungarian or hieroglyphs they could have claimed that the note was incomprehensible. If the movies were not big blockbusters they could have claimed that the notices were for material that weren't obviously infringing. (And be safe according to 18 para).
Finally, they have gone on record to say that the purpose of TPB was to infringe copyright. This means they are not protected under paragraph 19 either.
There is also the fact that they don't host anything that's under copyright, so they have nothing to takedown except what is effectively a link to the infringing content... and I think I'm right in saying that linking is legal under Swedish law
The court found that since the torrent file, after having been uploaded and stored on TPB, is an accessory of the crime of illegal copying, TPB must take down the torrent file.
So to summarize, and I am not a Swedish lawyer, linking is cool. Linking to infringing material is ok, as long as you cooperate with rights holders. Linking to material that isn't "obviously" infringing is completely ok.
And by "obvious" we mean that you'd have to be pretty willfully thick-headed to not connect the dots.
If you link to a YouTube video of a shaky camcorder movie of a Balkan wedding, you can reasonably claim that you had no idea that this was the greatest summer hit of 1933 in Kazakhstan, and just wanted to show what a Balkan wedding looked like. But if you link to "X-Men Origins: Wolverine", with the text "hey d00dz, get it before it's in the cinemas here!" you can't claim that you had no idea what it was.
Yes, but in this case they were convicted for torrents that were infringing, they were told they were infringing, a reasonable person should have concluded were infringing, and they still didn't take them down. In addition, they have gone on record stating that the purpose of TPB is copyright infringement.
Your example is hypothetical and they were not convicted of anything like what you describe. If you want to claim that the court was wrong, then you have to argue based on the facts of the case - not the facts of a case you just made up.
Why sue TPB and not the downloader?
Because TPB is in breach of the law? If they were going after the downloader you'd be arguing that they should be suing TPB. But fear not, with IPRED, they'll be going after the downloader, too!
Google provides a search mechanism for internet content, some of which infringes copyright. TPB provides a search mechanism for downloadable content, some of which infringes copyright.
Google maintains an index of where to find things on the internet, which searchers make use of to get what they want. TPB has a tracker, listing where to find downloads, that searchers make use of to find what they want
Google store a cache of large parts of their searchable content, keeping a copy on their servers to make searches faster. TPB... oh wait.
Google complies with takedown notices, which grants them freedom from liability according to Swedish law (18 para 2002:562). TPB... oh wait.
Get real. TPB was found guilty according to Swedish law and Swedish law only.
The fact that some things that are illegal in the US are also illegal in Sweden does not mean it's the big bad imperial USA stomping all over the independence of another country.
Storing it, refusing to take it down on request, and doing all that with the admitted intent to commit copyright infringement, is what killed TPB.
4. Google complies with legal takedown notices. TPB does not.
Also, even though the torrent files are illegal, TPB could have avoided liability by removing them on request.
They could also have avoided liability by not admitting to piracy being their business idea. Hosting infringing content is OK. Not removing infringing content is OK, as long as you can claim to not be purposefully aiding the infringement. For example, by contacting the uploader and then going back to the complainer saying "look guys, you say this is your stuff, but the uploader, Svenne Banan, says it is his stuff. Can you guys settle this, because we'll be in breach of our Service Level Agreement with Mr. Banan if we just delete the torrent."
TPB refused to remove the files and stated that their goal was piracy. This made them liable according to paragraph 18 and 19 of the Law of Electronic Commerce, based on directive 2000/31/EG. (In Swedish: Lag (2002:562) om elektronisk handel och andra informationssamhällets tjänster.)
The torrent files are illegal.
They are an accessory to the main crime of copyright infringement, making them illegal.
The court states this in the sentence - when someone decides to commit the crime of copyright infringement, they create a torrent file and puts it on TPB for the purpose of spreading the copyrighted work. That makes the torrent file illegal.
There is more to it, but you get the point.
torrent files are not illegal anywhere
Wrong.
One of the points that TPB was caught on was that there is a main crime, the unauthorized distribution of a copyrighted work, and that the torrent file is an accessory (a tool or aid) of that crime.
When someone intends to commit copyright infringement via BT, the person creates a torrent file. When that file is sent to TPB, it becomes an accessory to the crime, because the purpose of it is to facilitate the crime.
TPB stored that file in their own database. That made them part of the crime.
The above, it itself, is not enough for conviction, though. They may be part of a crime, but without responsibility. (If I sell a gun to you, and you kill people, I am not liable.)
What sealed TPB's fate is the fact that they were aware of the infringement, encouraged it, and refused to stop it. (If I sell a gun to you, and you kill people, and I know, when I sell it to you, that you're going to do all this, and that I will benefit economically from it, I am liable.)
TPB is also a bittorrent tracker.
No, that in itself didn't matter. What mattered was, in the end, the intent of the people behind it to make a business out of copyright infringement. See my other reply to your GP post.
Swedish law has a couple of ways that a service provider (and the court did find TPB to be a service provider) can avoid liability for infringing material, among them:
1. Just being a very transient store, like a caching server. TPB stores torrent files over a longer period of time.
2. By honoring takedown notices, or removing infringing material when it becomes obvious that it is infringing. TPB didn't do that.
3. By not having intent to aid in distribution of the infringing material. TPB ran the site as a business and in emails wrote that the purpose of the site was to distribute infringing works.
Any of these three would've gotten them free. Your argument is close to (3). So yes, you pretty much state what the court said.