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Can't prove the crime, can't find the copyright protection.
Following is the (in)famous memo written by Swedish prosecutor Håkan Roswall (today leading the prosecution of The Pirate Bay) explaining why such a case is both extraordinarily difficult and perhaps legally impossible. Six months later representatives of the Swedish cabinet were summoned to the White House and told they had to prosecute The Pirate Bay anyway.
Gaffes, technical errors, and grammatical bloopers are left intact.
Prosecutor Håkan Roswall Date: 2005-11-30 Journal Number: C09-17-819-05
08-762 16 44
200 11 Malmö
Memo re: the website www.thepiratebay.org
The Internet site www.thepiratebay.org has for a long time been a thorn in the side of copyright holders and their lobby organisations. The site, run by Swedes, has become known by file sharers all over the world. What's especially irritating for copyright holders is that the individuals running the site openly propagate file sharing. The copyright holders who contact the site are often met with ridicule. Recently the founders of The Pirate Bay have founded an association called The Pirate Bureau which proselytises the idea that copyright should be abolished. All information should be freely accessible for everyone.
The people running the site aren't idiots. Despite the fact that industry leaders often claim the opposite, it's my opinion they've obviously studied Swedish legislation and exploit possibilities to make actions against them difficult. They even evaluate deliberations about the judicial system to attack the site. They claim for example that the crime that the representatives of the site can be charged with is aiding and abetting the criminality of others and that the police don't have the resources to investigate all 'main crimes'.
The website is run by a computer installed at the corporation RixTelecom, an Internet provider. The computer is found physically in Gothenburg.
The site provides functionality for file sharing with a technology known as BitTorrent. This technology was developed to sidestep the major issues with ordinary file sharing, namely limitations of bandwidth.
The advantage with BitTorrent is that the information to be shared is broken up into small segments and that everyone who downloads one of these segments immediately shares the segment with everyone else in the file sharing network. One avoids in other words the situation where a single computer is burdened with a great number of downloads from many others.
I have previously been the leader of a preliminary investigation for a complaint filed by Microsoft through their representatives at the legal bureau Delphi. The complaint claimed that the individuals running The Pirate Bay were guilty of their own independent criminality by making the computer program Halo 2 publicly available on their site (this was the legislation in its form before 1 July 2005 which was applicable).
The preliminary investigation began with this hypothesis as its starting point. The national police IT department helped me with investigative resources. For safety's sake I however let the State Criminal Technological Laboratory (SKL) study the technology of BitTorrent in order to learn what technically happened (the suspects were obviously certain they could only be charged with aiding and abetting).
The SKL concluded the following. The website did have links but this wasn't a question of ordinary hyperlinks as in the decision of NJA I 2000 page 292. People who clicked on the links at the website of The Pirate Bay downloaded a file list containing information about how many segments the work had been broken up into and the names of the segments as well as information about the IP address to a Tracker. The Tracker is a computer that maintains the IP addresses of all computers which at a given time are downloading/uploading the work sought by clicking on the link. The Tracker is an entirely different computer from the one running the website. If a user wants to download a file, the Tracker is invoked and it supplies the user's computer with IP addresses to the other computers in this temporary network. The segments are then downloaded from the other participants. The file sharing works even if the Tracker is taken offline, but new users can't be added.
Anyone can set up a Tracker. There is no direct connection between the website and the Tracker used by users at The Pirate Bay.
So that file sharing doesn't take too long, it's important that users who've downloaded all segments stay on the network and share the complete work. The user is then called a seeder as opposed to someone who only shares a few segments who is called a leacher. Downloading an entire film can take up to 30 days if there are too few seeders.
The functionality offered by BitTorrent means that links at the website cannot be regarded as implying that copyrighted works are made publicly available (the old wording). Neither can it be claimed that files are shared through the website (the new wording). The website only helps share information which makes it possible for the user to obtain the work in question from somewhere else. The representatives of the website are thus guilty of aiding and abetting the publication (the old wording) or illicit copying by others and sharing with the public at large of the works in question (the current wording).
Culpability for aiding and abetting implies a main crime has been committed. It is my opinion that we can't get a court to convict on aiding and abetting if we have to presume (guess) that a main crime has been committed by someone.
Copyright protection is granted to parts of a work if the part in question meets the requirement at the level of the work itself. As regards computer files, it's difficult to know if this is the case, especially if the work is broken up into so many small segments. To avoid such difficulties in providing evidence, I tasked the national police with finding a seeder that shares a work in its entirety. Such a seeder was found in Linköping.
At this point the national police informed us they had no further resources to offer me. Considering the main crime took place in Linköping and the aiding and abetting in Gothenburg, I contacted the prosecution authority in Linköping which took over the case. I don't know what's happened after this.
When the industry found out I'd begun a preliminary investigation of The Pirate Bay, a number of complaints were filed by movie producers in the US, amongst others for the movie Schrek 2. I have decided to not expand my investigation to cover the cited movies, the reasons for which are the following:
Swedish protection for movie producers is limited to the copyright holders who are part of the EES. US producers are not covered by 46 § in the copyright code, vis 61 § in the copyright code as well as 1 § in the international copyright directive. Representatives for the US corporations claimed that the companies had copyright protection as holders of the actual copyright. In US copyright legislation there is something known as work for hire. As I understand it, this means that the copyright to a work created by employees or by hired workers falls to the client, ie normally the production company. In Swedish legislation this only holds for computer programs.
My opinion is that we in Sweden should apply the Swedish legislation. The copyright to a movie belongs to the people who actually did the work in creating the movie, eg the director, the screenplay writer, the cameraman, the sound recorder, and the scenographer - or as regards animated movies, the technical artists and animators. For a producer to have the actual copyright, there must be a transfer from the above mentioned group. Such a transfer has not taken place to the US movie producers. Therefore they cannot in Sweden claim to have the actual copyright.
1a. The operation of the website The Pirate Bay is covered by culpability for aiding and abetting the criminality of others. This means that the investigative process becomes significantly more difficult than it would be with an independent crime.
1b. The file sharing takes place without a profit motive. It looks as if a consequence other than fines for contravention of copyright law could only be applied if there was an ambition to profit by the operation. It is not possible for us in such a situation to trace IP addresses to the seeders inasmuch as the security regulations in LEK prevent Internet and service providers from revealing this information to us.
Today I recommend everyone to wait for the outcome of my case in the appeals court before requesting subscriber information for file sharers.
2. Swedish legislation offers very weak protection for movie producers outside the EES area.
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Swedish Television: Pirate Bay Prosecutor Memo 2005-11-30