|Home » Industry Watch (» The Technological » Hall of Monkeys » Heroes Banquet)
TPB: Dirty Verdict Details
Taken from the original document.
STOCKHOLM (Rixstep) -- The following is a lay person's look at the final ruling in the trial of The Pirate Bay from 17 April. It is by no means an 'expert' opinion although there need not be any reason to suspect the observations are in any way incorrect. The information is presented as 'prima facie' as often as possible. Draw your own conclusions.
Monique Speed Reader
Monique Wadsted (often spelled 'Wasted') is the representative in Stockholm of several US corporations. She first got involved in copyright issues several years ago as a representative of Microsoft Corporation.
Monique demonstrated during the trial an uncanny reliance on what she calls 'common sense' as a convincing replacement for statistical fact and became infamous for her 'fried sparrows' analogy of file sharing.
But what people at the time didn't appreciate were Monique's superhuman abilities regarding the study and assessment of nontrivial (and rather lengthy) court decisions.
2009-04-17 11:00 AM:
The press conference called wherein Stockholm district court (Tingsrätten) magistrate Tomas Norström releases up to (purportedly) 250 hard copies of the 107 page final ruling printed in good old Times New Roman on A4 paper. Two typos have so far been detected. And of course one wonders why these people are so eager to cut down more Swedish trees and couldn't copy the ruling 'digital to digital' - to CDs. It would have taken a lot less work and time and would have helped save some of Sweden's precious (and oftentimes irreplaceable) natural resources. But for some people things aren't real in the digital world: they have to be printed on paper to be real. Whatever.
2009-04-17 11:16 AM:
Monique Wasted declares the final ruling in the case of The Pirate Bay is well written and will stand up in the higher courts: Svea Hovrätt, Högsta Domstolen, Regeringsrätten, and finally the European Court.
Assuming Monique could get her hands on her copy of the ruling within seconds after 11:00 AM and considering it took her no time at all to reach a reporter to give her opinion of the quality of the ruling she would still have to have read the entire 107 page document in those sixteen minutes. Presumably in that busy loud courtroom and corridor as well.
Even assuming the impossible - namely that Monique could speed read and at the same time assimilate her considerable knowledge and experience with both Swedish and European law almost instantaneously as she read - Monique would still have to have read 6.6875 pages per minute. This in turn means she had to consistently read - and digest - 1.11459 pages every ten seconds.
Pages in the final ruling have - rough estimate - between 250 and 300 words. Page 29 has 291 words. The total number of characters per page is approximately 1800 - 2000.
This means Monique Wasted read - and analysed - the 107 page final ruling at a speed of approximately 30 words per second, kept up that pace for sixteen minutes, was amongst the first to grab a copy of the document at 11:00:001, and still made it to a reporter a quarter of an hour later with an expert opinion on the subject.
Then too the verdict was leaked. This is not something that happens very often with any court in Sweden. But it definitely happened this time. Peter Sunde was contacted the day before (16 April) by a journalist who reported the leak and immediately commented online.
Peter Sunde at first suggested the leak had something to do with Monique Wasted, then retracted the remark on camera, suggesting the remark might be construed as slander. Fine for him.
But the facts are these: either Monique Wasted can read a 107 page document at the staggeringly bewildering speed of 1.11459 pages every ten seconds and then arrive at an expert opinion right on the spot or else it's very likely that someone from her office thought it a good thing to tell the media what was going on.
For the media to believe the caller and to contact Peter Sunde the caller would have had to provide a plausible identity. This identity has not been revealed. It's unlikely anyone from the Swedish court system would have perpetrated such as leak - it's likely these people are bonded by an act of secrecy and can be prosecuted if anything should be divulged by their doing.
The same may not hold true of an independent law firm where for example Monique and her colleagues are hard at work putting the final touches on Tomas Norström's final ruling in the case. It's also likely that Monique's law office does not have the same security and secrecy routines as a Swedish court. It's also likely that staff at Monique's office are not bonded in the same strict way as those working for the Swedish courts.
But this of course is only a theory. It's perfectly possible Monique Wasted could read the final ruling at the rate of 1.11459 pages every ten seconds just as it's perfectly possible she was once again talking out of her hat as she did when she told the court the fairy tale of the 'fried sparrows'.
But although it's possible she was just spouting nonsense again it's not really probable. And it's even less probable Monique could read even candy wrappers at the rate of 3 words per second for 96 seconds in a row.
Better than Ingemar Stenmark
For those who don't know: Ingemar Stenmark is one of the greatest alpine skiers of all time. Ingemar won so many World Cup titles they had to change the rules to give others a chance. He also picked up a few Olympic golds along the way.
Ingemar never raced the downhill. He said it was too dangerous and not worth the risk. Instead he concentrated on the two slalom competitions. Where he won most every time.
Ingemar had no tricks or advance techniques to his skiing and his success above the occasional look at his so called 'biorhythms'. His description of his simple technique in his native Norrland dialect became a part of Swedish culture.
'De e bar' å åk.'
('You just ski.')
He also said his incredible luck was about training.
'Jag vet ingenting om tur, bara att ju mer jag tränar desto mer tur har jag.'
(I don't know anything about luck, only that the more I practice the more luck I have.')
Ingemar Stenmark won an unbelievable 86 [eighty six] World Cup victories in alpine skiing. He won one alpine world championship silver medal, three alpine world championship gold medals, one Olympic bronze medal, and two Olympic gold medals. He's considered one of the best sports persons of all time and perhaps the greatest slalom skier ever.
And yet Ingemar Stenmark has nothing on Tomas Norström when it comes to weaving between obstacles on a course - in this case where the banner across the finish line says 'You've Done it Tommy - Welcome to Hollywood!'
Of course this can appear to be an oversimplification. And legalese is difficult for everyone (and it's often impossible for solicitors) but the basic gist of the final ruling in the trial of The Pirate Bay was to arrive at a guilty verdict despite all kinds of out of bounds markers along the way. How did he (and Monique) do it?
Step by step.
- Swedish copyright law from 1960 states unequivocally that the authors of works of art or whoever they've turned over their rights to have an exclusive right to copy and distribute their works as they please.
- File sharing implies copying and distributing works of art for which the acknowledged copyright holders have not had any control or given their permission.
- On a single occasion a representative of the Swedish Antipiracy Bureau did a spot check of TPB's 'top 100' list and concluded that 96 of the 100 titles were for copyright protected materials (and the copyright on the remaining four could not be ascertained). This 'testimony' was taken at face value and not questioned. Nor had the court asked for further similar evidence.
- The fact Peter Sunde conducted a similar survey that arrived at completely different conclusions was dismissed by the court on the grounds this survey was carried out in October and November 2008 - and the time period for the charges against TPB ended with the raid on 31 May 2006.
- The petition of Per Samuelsson that the court first obtain a preliminary judgement from the European Court was summarily dismissed. Samuelsson had suggested this to be a good move as it would ensure a greater probability the ruling would stand up in higher courts. Samuelsson suggested all concerned parties - both prosecutor, plaintiffs, and defendants - be able to contribute to a list of legal questions to ask of the European Court.
This suggestion was dismissed by Norström.
Samuelsson had suggested this preliminary judgement was very important with respect to the EU directive on e-commerce but Norström ruled otherwise for the following reason.
The EU directive in question exonerates online providers who merely transfer (or temporarily cache) data from a source to a destination as long as they in no way interfere with the transfer, single out a destination, or exert any influence on the source.
Norström claimed however that torrent files are not a matter of data transfer or data caching but are actually stored on the servers of TPB. And so Samuelsson's petition was denied.
- The concept of copyright differs greatly from country to country, between Hollywood on the one side and the EU and Sweden on the other. In fact this is one of the reasons Håkan Roswall initially said he wasn't interested in pursuing TPB. But it would seem the Hollywood companies represented at the trial obtained proper documents to prove a transfer of copyright after the fact - in time for the trial but not for the time the alleged crime was to have taken place. This minor detail is ignored in the ruling.
- Norström has at this point made it through most of the slalom gates. There are a few treacherous turns left before he reaches the finish line but up to this point he's done a remarkable job. What Norström must now do is establish TPB are guilty of being accessories to the crime cited by the Antipiracy Bureau and which he's accepted at face value.
- 'Carelessness': the Swedish word for 'carelessness' appears many times after this point in the ruling. What Norström's trying to establish is rather clear. He and Håkan Roswall, the plaintiff counsel, and the Antipiracy Bureau can in no way claim (or worse prove) that the defendants were aware of any of the alleged 33 infringements of copyright.
And of course the trial may only consider these 33 alleged infringements.
Normally one would presume that in preparing a case against defendants accused of being accessories to a crime that the case must in some way demonstrate intent - thereby knowledge of the 'main' crime committed.
This of course could not be accomplished in the trial of TPB.
Norström therefore cites a number of excerpts from Swedish legal code suggesting that knowledge of the alleged 'principal crime' is not necessary for the accused to be found guilty of being accessories to a crime no one can prove they were even aware of.
Norström couches his language by stating that it could have been perpetrated intentionally or could have simply been perpetrated through 'carelessness'. This in itself might prove to be quite the mouthful as the case trickles its way up to the European Court. It's essentially saying that anyone can unwittingly be an accessory to a crime they had absolutely no knowledge of - but dammit they're still guilty!
- Finally Norström had to demonstrate that TPB actually made money from their 'illegal' service. Correspondence with Oded Daniel et al (Random Media) was used for this purpose.
At this point it matters not that Norström later tries to assess punishment based on paragraph 54 of the penal code which deals with accessory with 'intent' - he's made it to the finish line and no one's noticed he smashed up a few gates.
'In order to convict someone of being accessory to a specific crime a condition is that a punishable crime has been perpetrated (the main crime). That the perpetrator cannot be convicted for example on the basis of lack of intent does not exclude culpability as an accessory. It is sufficient that the specified crime, the main crime itself, has from an objective standpoint been committed.'
In other words: you need to establish that a 'main crime' has been committed even if you can't convict anyone of the crime. And no matter the individual allegedly committing the main crime is declared innocent those accused of being accessories to the crime (for which no one can be convicted) can still be convicted.
This gets almost comical. You can't convict someone of the main crime if you can't prove intent but you can convict someone of accessory to the main crime not only without intent but also without awareness! Oh really!
'The defendants have not questioned the fact that the plaintiff corporations have the rights and works that allegedly were made available. This holds even for the copyrights of the US film companies to the US film works. Regardless of the position of the defendants the evidence as provided by the packaging of the DVDs presented by the US film corporations is in the opinion of this court sufficient to prove they have corroborated their rights as copyright holders. The US film corporations have in addition presented data in the form of copies of agreements between the corporations and the authors who have contributed with their creative efforts for the films and turned over their copyrights to the film corporations.'
This is a very important paragraph as it directly addresses the reasons Håkan Roswall initially refused to pursue TPB.
EU and Swedish copyright don't work the same way as Hollywood copyright: the Hollywood monsters can claim copyright on their films and DVD packaging but it's not valid in the EU or Sweden as is and was not considered valid at the time of Håkan Roswall's first investigation. And in fact the Hollywood companies would never worry about such a thing otherwise as Hollywood copyright for Hollywood (and the US) works fine in Hollywood (and the US).
The conclusion - as stated before - is that the Hollywood corporations came with these additional documents after the fact - and this means that at the time of the alleged crime they weren't the legal copyright holders according to EU and Swedish law.
Oops! Naturally this had to be ignored by alpine skiing enthusiast Tomas Norström.
'It follows by what the court initially presented that the defendants are guilty of a crime perpetrated with malice aforethought and that they also have acted out of carelessness and that their actions imply an indemnity to pay compensation.'
Wow. This is rich - it says the defendants acted both out of unawareness (carelessness) and blatant intent. This is known internationally as 'having your cake and eating it too'. But as demonstrated earlier it was absolutely necessary for Norström to include the 'possibility' of 'carelessness' as the defendants could never have been proven to be aware of the existence of the 33 files cited by the Antipiracy Bureau. 'Unaware' has to be accepted; calling it 'carelessness' is a subjective judgement the court cannot prove. But who cares? 'Carelessness' sounds a lot better in a made to order guilty verdict, doesn't it?
'The defendants cannot avoid indemnity because of the rules for freedom of responsibility for service providers in certain cases according to the [EU] law of e-commerce.'
But what's rich here is that Norström didn't dare ask the European Court for their opinion - he simply preempted them instead and claimed he could speak for them and knew what their judgement would be.
Per Samuelsson wanted everyone to be able to pose questions to the European Court as the issues are so crucial and so the district court ruling would be more fair and stand up better. That's where the case is headed anyway and everybody knows it. But Norström who had the opportunity to get support for his own ruling from the European Court (as well as obtain rulings on a broad range of related issues) stopped this from happening.
There's only one feasible explanation.
'Tidsspillan', 'Consultation Fees'
Even though the golden rule in modern court systems is that one is innocent until proven guilty it's often the case that defendants have to work very hard to disprove accusations that are presented weakly at best. The same doesn't hold for the accusers however. And when it comes to their legal counsel anything goes. A typical legal invoice is more like a fairy tale than a true and honest account of work done at a reasonable rate. One of the more egregious concepts flung in the face of all that should be sacred and holy is the concept known as 'tidsspillan'. This concept may apply in other countries as well but it's still begging for it.
'Tidspillan' doesn't seem to have any adequate translation online as it's a kind of 'made up word' meant to sound a lot more officious than it is. Roughly translated it means 'waste of time' or 'loss of time'. If a legal counsel has to take a taxi to deliver a legal document (the taxi fare of course is itemised later) then the time spent gathering up one's papers, getting out to the curb and into the taxi, as well as the time 'lost' or 'wasted' on the taxi ride itself is accounted as 'tidsspillan'. And this too becomes a post in the invoice the solicitor presents to the court.
According to Domstolsverkets författningssamling from 19 December 2008 this is how you cook the books with tidsspillan.
'Tidsspillan avser tid då produktivt arbete med något uppdrag inte kan utföras, trots att den ersättningsberättigades arbetstid tas i anspråk.'
(Tidsspillan covers the time when productive work with an assignment cannot be performed despite the fact that the work time of individual with the right to compensation is being used.)
'Normal pauses to eat meals are not legitimate tidsspillan.'
There you have it.
'Tidsspillan is compensated for time between 07:00 and 22:00. If one spends the night at a location other than where the individual with the right to compensation normally works then tidsspillan is compensated between 18:00 and 22:00 only if this is a question of travel time.'
'Compensation is SEK 1,015 per hour weekdays between 08:00 and 18:00 and SEK 640 per hour for other times. These amounts regard compensation before the addition of value added tax.'
There you have it again. The plaintiff counsel and the public defenders can pick up over $100 per hour doing nothing at all. The question of course is how closely their claims are studied. And the answer is invariably 'not at all'.
Fredrik Neij's public defender Jonas Nilsson has therefore debited the court SEK 35,525 (~$4,500) in tidsspillan. Gottfrid's public defender Ola Salomonsson was kinder: he invoiced only SEK 12,180. [Presumably his taxi rides were shorter?] And Peter Sunde's public defender Peter Althin debited the court SEK 21,315.
Getting experts to help and/or testify isn't as cheap as one would assume from the case of Roger Wallis and his wife's flower storm. Jonas Nilsson asked the court for SEK 36,000 (~$4,500) because he had to consult with one Kristoffer Schollin who was supposedly a legal expert.
The court accepted these items without question. And also: as they were all public defenders the costs stayed with the court - that is with the Swedish taxpayers.
The Scandinavian film companies asked for SEK 538,000 whereof SEK 489,600 for legal representation and the rest for consultation fees.
The US film and games corporations asked for SEK 1,630,000 whereof SEK 1,280,000 for legal representation and SEK 350,000 for consultation fees.
Gottfrid's Breast Milk
Gottfrid Svartholm Varg was simultaneously tried on other charges. After several unsuccessful attempts to bust him the police finally got the goods: a spoon with an amphetamine residue, some unnamed dangerous substances, some unnamed controlled substances, and three Clomiphene tablets.
Based on the evidence of Stockholm's finest poor Gottfrid's either lactating or having irregular menstrual periods.
The defendants wanted compensation for the confiscation of their computer equipment. Note this confiscated equipment includes a great number of computer servers that had nothing to do with TPB. Their rightful owners have protested for years that they want their equipment returned. Håkan Roswall has systematically ignored them. And there is no mention in the ruling their equipment will ever be returned. Sorry, guys.
- Confiscated TPB computers shall be returned when the ruling passes into law.
- Confiscated written documents shall be returned when the ruling passes into law.
- Confiscated dangerous substances shall not be returned.
- The three confiscated Clomiphene tablets shall not be returned.
- Other confiscated controlled substances shall not be returned.
- The confiscated spoon with amphetamine residue shall not be returned.
- Other confiscated dangerous substances shall not be returned.
All amounts in the final ruling are denoted in either euros (€) or SEK. At time of writing (according to XE's currency converter) the following exchange rates apply.
€1.00 == US$1.29509
SEK1.00 == US$0.11711
US$1.00 == €0.77214
US$1.00 == SEK8.53889
Crime Victims Fund
Each of the defendants are ordered to pay SEK 500 to the Crime Victims Fund according to the law from 1994 (1994:419).
The four defendants share indemnity.
|Plaintiff||Compensation (SEK)||Whereof Legal Fees (SEK)|
|Sony Music Entertainment Sweden AB||468,000||468,000|
|Universal Music AB (Sweden)||156,000||156,000|
|Playground Music Scandinavia AB||156,000||156,000|
|Bonnier Amigo Music Group AB||102,000||102,000|
|EMI Music Sweden AB||264,000||264,000|
|Warner Music Sweden AB||54,000||54,000|
|Yellow Bird Films AB||484,920||440,640|
|Nordisk Film Valby A/S||53,880||48,960|
|Warner Bros Entertainment Inc||592,000||504,500|
|Columbia Pictures Industries Inc||333,500||246,000|
|Twentieth Century Fox Film Corporation||333,500||246,000|
|Mars Media Meteiligungs GmbH & Co Film Productions||333,500||246,000|
|Blizzard Entertainment Inc||25,000||25,000|
|Activision Publishing Inc||12,500||12,500|
This means that the legal fees exacted by plaintiff counsel Monique Wasted, Peter Danowsky, and Henrik Pontén total a staggering SEK 2,969,600 which is roughly (using XE's currency converter) $347,373.65. Who said it didn't pay to harass pirates?
And there's interest on that too. And that's not counting how much of the 'damages' stay with those three and how much they've already been paid up front.
It should be also pointed out that in no similar case yet has any money from compensation or damages ever accrued to the artists and copyright holders who were supposedly 'infringed'. It always gets eaten up and wasted away by items on the legal firms' invoices.
The four defendants share indemnity.
|Sony Music Entertainment Sweden AB||41,467|
|Universal Music AB (Sweden)||73,782|
|Playground Music Scandinavia AB||28,159|
|Bonnier Amigo Music Group AB||4,290|
|EMI Music Sweden AB||162,988|
|Warner Music Sweden AB||146,484|
|Yellow Bird Films AB||3,150,000|
|Nordisk Film Valby A/S||225,000|
|Warner Bros Entertainment Inc||2,484,225|
|Columbia Pictures Industries Inc||5,579,325|
|Twentieth Century Fox Film Corporation||10,822,500|
|Mars Media Meteiligungs GmbH & Co Film Productions||4,495,950|
Columbia Pictures Industries Inc divide their SEK 5,579,325 with Metro-Goldwyn-Mayer Pictures Inc who get 25%. Mars Media Beteiligungs GmbH & Co Film Productions divide their SEK 4,495,950 with Twentieth Century Fox Film Corporation who get 1%.
The Public Defenders
Brokep, Anakata, and TiAMO all had public defenders as they ostensibly could not afford to pay for their own legal counsel.
- Peter Althin gets SEK 708,054 from the court. This was for SEK 540,960 actual work, SEK 21,315 in 'tidsspillan', SEK 4,168 in unspecified costs, and SEK 141,611 in VAT.
- Jonas Nilsson gets SEK 949,025 from the court. This was for SEK 656,880 actual work, SEK 35,525 in 'tidsspillan', SEK 66,815 in unspecified costs, and SEK 189,805 in VAT.
- Ola Salomonsson got SEK 801,825 from the court. This was for SEK 629,280 actual work, SEK 12,180 in 'tidsspillan', and SEK 160,365 in VAT.
Obviously Althin's the way to go if you want to save money. It should also be pointed out that a single Swede can live comfortably for a full year on a fifth of what any of these people picked up.
Carl Lundström is a bit different case: he has money. He asked the court for compensation for court costs but was denied. Instead he has to pay his first public defender Stefan Jevinger (who was taken off the case) SEK 175,663 even though the latter never represented him. [Per Samuelsson did.]
Nice work if you can get it.
Appeals have to be submitted to Svea hovrätt by 8 May 2009. [All appeals have already been submitted.]
The ruling is signed by Tomas Norström and Per Claréus.