Pirates sunk in Sweden

After a spectacular showing in the European elections in 2009, the Pirate Party has done woefully in national elections in Sweden taking just 0.7% of the vote, a 90% slump in a year, according to exit polls. They will not be awarded any seats having failed to reach the 4% threshold needed for seats. In the European elections they gained 2 MEPs. The chief Pirate, Rick Falkvinge, told Torrentfreak "The Swedish Pirate Party did its best election campaign ever. We had more media, more articles, more debates, more ... flyers than ever. Unfortunately, the wind was not in our sails this time, as it was with the European elections," adding "The other parties had put a collective blanket over the privacy, culture and knowledge issues, as they had absolutely nothing to gain by even mentioning the issues" and concluding with "If the wind is not in your sails, the sweat on your brow will still not steer the ship. I guess the most obvious example is how the appellate trial of The Pirate Bay will begin just nine days after the election."

http://torrentfreak.com/swedish-pirate-party-fails-to-enter-parliament-100919/

The Pirates launch a ghost ship

Well, in yet another twist in the ongoing saga of The Pirtate Bay, it seems the political 'wing' of the 'movement' has a new wheeze. Having had a number of court judgments ordering ISPs to block access to the rogue bit-torrent tracker site and/or give up details of users who infringe, now we have an all new gleaming pipe that allows anyone to connect with anything - courtesy of - ahem (and drum roll pelase) THE PIRATE BAY!

The Inquirer describe the new service thus "The Pirate Party has created an ISP, dubbed PirateISP, based in the Southern [Swedish] city of Lund, a place well known for its 42,000 academic community, and will provide high speed internet connections to the anonymity seeking masses". The new service appears to undercut local rivals by about 50%.

PSFK says this "the Pirate Party looks to refashion Internet privacy regulations by starting an anonymity-based ISP. By cloaking online activities, the progressive group aims to advance their political mission to ensure that citizens’ rights to privacy are respected. Henrik Pontén, the Swedish Anti-Piracy Bureau agent who led the raid against The Pirate Bay, indicated that police requests for Internet activities from ISPs must be lawfully fulfilled. However, Pirate Party’s ISP intends to keep no logs of online activities to give out" adding "By [the] summer’s end the world will be closely monitoring Sweden’s privacy debacle.

http://www.theinquirer.net/

Limewire bites the dust .....

The international music industry has responded with delight at a court ruling that has found against Limewire, one of the oldest file-sharing networks on the Internet. In a 59-page decision issued Tuesday (May 12th) in New York, U.S. District Judge Kimba Wood has ruled in a summary judgment that the peer-to-peer company is guilty of inducing copyright infringement, committed copyright infringement and practiced unfair competition. Reuters report that the judge leaned heavily on one of the plaintiff's expert witnesses, Dr. Richard Waterman of the Wharton School, who testified that a random sample of 1800 files turned up copyright infringement in 93% of them, including 43.6 percent of copyrighted files owned by the plaintiff record labels. Based on the results, Dr. Waterman concluded that "98.8 percent of the files requested for download through LimeWire are copyright protected or highly likely copyright protected, and thus not authorized for free distribution."

The judgment itself is perhaps unsurprising given the Supreme Court's stance in MGM v Grokster where the Court unanimously held that defendant P2P file sharing companies Grokster and Streamcast (maker of Morpheus) could be sued for inducing copyright infringement for acts taken in the course of marketing file sharing software

Here it is interesting that the judge was willing to take a long hard look at the evidence available and the fact that the site promoted filesharing - Judge Wood dismissed LimeWire's contention that the statistics weren't reliable and accepted evidence that the service was not only aware of the copyright abuse but actively tried to attract infringing users. Wood also noted that the only step LimeWire took to curtail abuse was to make users agree not to infringe copyrights in its terms of service. The notice does "not constitute meaningful efforts to mitigate infringement," she wrote. The Court found that from 2004 to 2006 Limewire's annual revenue grew from nearly US$ 6 million to an estimated US$20 million. The judge found this growth depended greatly on Limewire users’ ability to commit infringement through Limewire.

Record label trade bodies were naturally delighted with Mitch Bainwol, CEO of Recording Industry Association of America saying "This definitive ruling is an extraordinary victory for the entire creative community" adding "Unlike other P2P (peer to peer) services that negotiated licenses, imposed filters or otherwise chose to discontinue their illegal conduct following the Supreme Court's decision in the Grokster case, LimeWire instead thumbed its nose at the law and creators. The court's decision is an important milestone in the creative community's fight to reclaim the Internet as a platform for legitimate commerce." IFPI chairman and CEO John Kennedy said: “Limewire has been a major hurdle in the music industry's efforts to make the transition to a new, legitimate online music business. This ruling will be hugely valuable both as an educational message and as a legal precedent internationally. It shows the stark reality of a site which made a fortune by violating the rights of artists and creators. The judgment also ends years of uncertainty among consumers, many of whom have felt free to use Limewire in the incorrect belief that it was a legitimate music site. Now it has been made clear to them that Limewire is not legal, does not respect artists and creators, has profited handsomely from its illegality and is not OK to use.”

In related news, a German court has granted a preliminary injunction against the current Germany-based Web hosts of file-sharing hub The Pirate Bay, TorrentFreak has reported. The Motion Picture Association petitioned a court in Hamburg for an injunction against CB3ROB Ltd, operators of the CyberBunker Web hosting service. The court said that CyberBunker must specifically remove links to torrents purporting to facilitate downloads of "The Bounty Hunter," "Alice in Wonderland," "Our Family Wedding," "Green Zone," "Repo Men" and "Cop Out." CyberBunker now must either disconnect The Pirate Bay entirely, or else The Pirate Bay must remove those specific torrents to comply with terms of the court's order. Sanctions include fines of up to E250,000 for each instance of infringement and potential custodial sentences for CB3ROB directors.

http://abcnews.go.com/Entertainment/wireStory?id=10632737

MGM v Grokster 545 U.S. 913 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-480

UPDATE

See http://news.cnet.com/8301-31001_3-20004982-261.html

Legal experts: LimeWire likely doomed: "It is obviously a fairly fatal decision for them," said Michael Page, the San Francisco lawyer who represented file sharing service Grokster in the landmark case, MGM Studios, vs. Grokster and also represented Lime Wire's former CTO in the company's most recent copyright case. "If they don't shut down, the other side will likely make a request for an injunction and there's nothing left but to go on to calculating damages."

With an injunction, the RIAA can force LimeWire to cease file-sharing operations. Music industry sources who spoke to CNET on condition of anonymity said the RIAA, the trade group representing the four largest music labels, is considering whether to seek an injunction prior to a status conference Wood scheduled for June 1. If that happens, LimeWire may have little room to maneuver and the company could be forced to shutter operations within weeks. Representatives for the Lime Group did not respond to interview requests. An RIAA spokesman declined to comment. "

Ruling could have chilling effect on P2P Services
http://www.reuters.com/article/idUSTRE64E09C20100515

Telenor: Two battles won, but what about the war?

Readers of this weblog may recall the refusal of a Norway District Court last November to order ISP Telenor to block its customers' access to The Pirate Bay's file-share website (see earlier post on the 1709 Blog here). Well, here's the sequel, supplied by Telenor's legal representatives, the illustrious law firm of Wiersholm, Mellbye & Bech. Read on:

"Background

During the spring of 2009 the music and film industry submitted a preliminary injunction suit before the Norwegian courts, demanding the ISP and telecom provider Telenor would to shut down access to The Pirate Bay website for its customers. The Pirate Bay will be familiar to many readers, it being the Swedish website which allows users to upload, search for, and download torrent files. The BitTorrent-technology allows torrent files to be used for peer to peer file sharing, meaning that the file sharing takes place directly between the downloaders. The Pirate Bay does not store any of the content downloaded by the users of the website.

The Swedish court held that the persons behind The Pirate Bay were guilty of copyright infringement. The Pirate Bay provides a website to the file sharers with “well-developed search features, simple upload and storage” features, and “by arranging contacts” between individual “pirates” through the “site linked tracker”, the Swedish court held that the defendants facilitated and promoted copyright infringements.

The Norwegian injunction case was based on a different fact to that in the Swedish case. In short, the music and film industry claimed that Telenor contributed to illegal copyright infringements by allowing its customers to access The Pirate Bay.

Telenor stated that even though it does not support and has no sympathy whatsoever with copyright infringers in general, and with The Pirate Bay in particular, the mere act of providing the infrastructure of the Internet does not render it liable for copyright infringements such as illegal file sharing. Telenor explained that if it, as an ISP, were to be obliged to block access to The Pirate Bay, it would in principle be obliged to block any other website which is deemed to store infringed content. Telenor further held that the current case is a not another “The Pirate Bay case”, but a case which deals with the fundamental question of Internet censorship.

The findings of the court

In order to obtain a preliminary injunction under Norwegian law, the claimant must substantiate both the merits of the claim (in this case that an infringement takes place), and the grounds for injunction (postponing a regular ruling will cause the claimant substantial inconvenience or financial loss).

The District Court ruled in favour of Telenor and threw out the music and film industry’s application for an injunction in its decision of 6 November 2009. The music and film industry appealed the decision to the Borgarting Court of Appeal. On 10 February 2010 The Borgarting Court of Appeal upheld the decision by the District Court and dismissed the appeal.

The Borgarting Court of Appeal considered the merits of the claim in light of both regulations and case law from the EC and the Nordic countries in addition to the Norwegian legislation. It pointed out that Telenor neither provides internet access to The Pirate Bay, nor does it host The Pirate Bay website. Telenor is therefore a mere provider of technical infrastructure and does not illegally contribute to the illegal file sharing performed by users of The Pirate Bay. The court further stated that the substantive test is not whether or not there is a causal relationship between the service and the infringement, but whether or not Telenor commits an unlawful act by allowing its customers to access The Pirate Bay. The court found that neither article 8.3 of Directive 2001/29/EC nor any Norwegian legislation establish a basis for such a claim. Neither did the court find case law relating to liability for persons deliberately linking to infringed content to be applicable through the use of analogy in cases relating to ISP liability.

Two battles won – but is the war over?

The decision is not yet in force. There is therefore a possibility that the case will be appealed to the Norwegian Supreme Court. Further, since the decision from The Borgarting Court of Appeal is a decision in a case regarding a preliminary injunction, the claimants have the possibility of filing a regular law suit against Telenor.

In Wiersholms’ opinion there is every reason to disapprove of the parasitism of websites like The Pirate Bay, which obviously are designed to facilitate illegal downloading of copyright material. However, we do agree with the courts that there is currently no legal basis for claims such as the one brought on by the music and film industry. Further, Wiersholm disagrees with the music and film industry’s strategy of aggressively pursuing the technical service providers in order to battle illegal file sharing. Such a strategy raises a whole number of principled matters, in particular the then situation of the technical service providers filling the roles as police, judge, and jury. In addition there is the unavoidable fact that if access to The Pirate Bay is blocked, another alternative for illegal downloading will surely exist the morning after.

While this case has served its purpose of being the Nordic test case, the final word in the matter is yet to be said".

Telenor was represented by Wiersholm’s IP litigation team, lead by John S Gulbrandsen and Rune Opdahl. A full-text English translation of the decision is available here and at Wiersholm’s IP and IT law website.