Pirate Bay on Trial

Torrent clearing-house Pirate Bay is on trial in Sweden for copyright theft.  If convicted its owners could be imprisoned for up to two years and fined $145k. The plaintiffs, producers of movies, music, and video games, are also seeking over 10 million Euros in damages.  Pirate Bay’s defense is that it does not host any copyright-protected content on its servers and thus cannot have committed copyright theft.  Echoing the U.S. Supreme Court’s holding in the Sony decision Pirate Bay’s counsel said “It is legal to offer a service that can be used in both a legal and illegal way.”

Pirate Bay has gotten the best of the case so far.  On the second day of trial prosecutors dropped “all charges relating to ‘assisting copyright infringement,'” which were the most serious charges in the case.  Remaining are charges of “assisting making available copyrighted content.”  The infringement charges were dropped, according to the linked article in The Guardian, because prosecutors were “unable to prove in court that illegally distributed files had used The Pirate Bay site.”  Huh?  In other words, the prosecution brought its copyright infringement case without evidence of copyright infringement?

That’s embarrassing.  A co-defendant said the prosecutor didn’t understand the Pirate Bay technology.  Not a good day at the office.

Dealing with the evisceration of their case the copyright owners are putting on a brave face.  The article reports that the prosecution claimed “that dropping the charges . . . would simplify the case against The Pirate Bay.”  That doesn’t even pass the straight-face test.  Music company legal counsel said “[i]t’s a largely technical issue. It changes nothing in terms of our compensation claims and has no bearing whatsoever on the main case against The Pirate Bay. In fact it simplifies the prosecutor’s case by allowing him to focus on the main issue, which is the making available of copyrighted works.”

I know nothing about Swedish copyright law.  Under U.S. law the “making available” theory is weak without proof of actual distribution of a copyright work, as posts here have noted in connection with the RIAA’s case against Jammie Thomas and others decided in the past year. We’ll see how it fares in Sweden.

Judge Admits Error in RIAA Case

Last October a Minnesota jury found Jammie Thomas liable for copyright infringement for KaZaa downloads of 24 copyrighted songs and awarded damages of $9,250 per infringement, a total of $222,000. Last week Michael Davis, the federal judge who presided over Thomas’s trial, said that he erred when instructing the jury that ““the act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.” In other words, the judge told the jury that it could find Thomas liable for copyright infringement merely by placing copyrighted songs in a KaZaa-shared folder, even if no one copied one of the songs from the folder. That instruction was counter to the 8th Circuit’s 1993 decision in National Car Rental System, Inc. v Computer Associates International, which held, quoting Nimmer on Copyright, that “[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”

The judge’s mea culpa is the latest in a series of judicial pronouncements as to whether “making available” a copyrighted work constitutes infringement of the copyright holder’s distribution right. Two other recent cases include London-Sire Records v Doe, a 31-Mar-08 decision from the federal district court in Boston in which Judge Nancy Gertner examined the issue at length and concluded that “to constitute a violation of the distribution right under § 106(3), the defendants’ actions must do more than ‘authorize; a distribution; they must actually ‘do’ it.” Four weeks later in Atlantic Recording Corporation v Howell the Arizona federal district court cited National Car Rental System, London-Sire Records, and other cases and sources to support its statement that “[t]he general rule, supported by the great weight of authority, is that ‘infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.’

The issue should be familiar to this semester’s students in Internet law. I used the facts of the Howell case as the basis for their final exam.