Sunday, May 31, 2009
Saturday, May 30, 2009
Harper's a Tims man, but Ignatieff inspires thats good!
The Globe and Mail-CTV News survey shows opportunities abound for both sides to take advantage of the other's weaknesses among regions, gender and income groups.
Thursday, May 28, 2009
Prop. 8,California Supreme Court, case text.
NEWS RELEASE
Release Number: 29
Release Date: May 26, 2009
JUDICIAL COUNCIL OF
CALIFORNIA
ADMINISTRATIVE OFFICE
Supreme Court Rejects Challenges to
OF THE COURTS
Public Information Office
Prop. 8, But Finds Existing Marriages of
455 Golden Gate Avenue
San Francisco, CA 94102-3688
Same-Sex Couples Valid
www.courtinfo.ca.gov
415-865-7740
San Francisco — The California Supreme Court, by a 6-1 vote, today rejected a
Lynn Holton
constitutional challenge to Proposition 8, an initiative measure adopted by the
Public Information Officer
voters at the November 4, 2008 election that added a section to the California
Constitution providing “Only marriage between a man and a woman is valid or
recognized in California.” The court’s opinion resolves the petitions in Strauss
v. Horton, S168047, Tyler v. State of California, S168066, and City and County
of San Francisco v. Horton, S168078. The opinion is available online at
www.courtinfo.ca.gov/courts/supreme/ .
The court further unanimously held that the scope of Proposition 8 is narrow,
limited solely to restricting the use of the term “marriage” to opposite-sex
couples, while not otherwise affecting the fundamental constitutional rights of
same-sex couples described in its earlier opinion in In re Marriage Cases
(2008) 43 Cal.4th 757.
The court also unanimously held that the new constitutional provision applies
only prospectively, and does not affect the continued validity of the estimated
18,000 marriages of same-sex couples that occurred prior to November 5, 2008,
when the new constitutional provision took effect. The challenges to
Proposition 8 before the court were filed by numerous same-sex couples and
public entities and were based solely on the provisions of the California
Constitution and did not raise any federal constitutional claim.
The majority opinion was authored by Chief Justice Ronald M. George, and
was joined by Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, and
Carol A. Corrigan. In addition to signing the majority opinion, Justice Kennard
filed a separate concurring opinion.
Justice Kathryn Mickle Werdegar filed a concurring opinion, agreeing with the
result reached by the majority opinion but disagreeing in part with its analysis. Justice Carlos R.
Moreno filed a concurring and dissenting opinion, agreeing with the majority’s conclusion that
Proposition 8 applies only prospectively but concluding that Proposition 8 is invalid because it is
not a lawful amendment of the California Constitution.
MAJORITY OPINION
The 136-page majority opinion notes at the outset that the court’s role is not to determine whether
Proposition 8 “is wise or sound as a matter of policy or whether we, as individuals believe it should
be a part of the California Constitution,” but rather “is limited to interpreting and applying the
principles and rules embodied in the California Constitution, setting aside our own personal beliefs
and values.”
The opinion further emphasizes that the principal legal issue in this case is entirely distinct from the
issue that was presented in the court’s decision last year in In re Marriage Cases (2008) 43 Cal.4th
757. There, the court was called upon to determine “the validity (or invalidity) of a statutory
provision limiting marriage to a union between a man and a woman under state constitutional
provisions that do not expressly permit or prescribe such a limitation.” In the present case, by
contrast, the principal issue “concerns the scope of the right of the people, under the provisions of
the California Constitution, to change or alter the state Constitution itself through the initiative
process so as to incorporate such a limitation as an explicit section of the state Constitution.”
Amendment or Revision
Under the California Constitution the initiative process may be used to propose and adopt
constitutional amendments but may not be used to revise the state Constitution. Petitioners
primarily contend that Proposition 8 is a constitutional revision rather than a constitutional
amendment and therefore could not lawfully be adopted through the initiative process.
In addressing the question whether Proposition 8 constitutes a constitutional amendment or, instead,
a constitutional revision, the majority observes that “we by no means write on a clean slate.” The
opinion explains that the amendment/revision dichotomy dates back to the original 1849 California
Constitution, long before the adoption of the initiative process in 1911; the origin and history of the
distinction “indicates that the category of constitutional revision referred to the kind of wholesale or
fundamental alteration of the constitutional structure that appropriately could be undertaken only by
a constitutional convention, in contrast to the category of constitutional amendments which included
any and all of the more discrete changes to the Constitution that thereafter might be proposed.”
Furthermore, the opinion points out that over the past three decades numerous California Supreme
Court decisions have established that in determining whether a constitutional change constitutes a
revision rather than an amendment, a court must assess “(1) the meaning and scope of the
constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the
2
constitutional change will have on the basic governmental plan or framework embodied in the
preexisting provisions of the California Constitution.”
Analyzing the scope of Proposition 8, the majority opinion explains that, contrary to petitioners’
assertions, the initiative measure does not “entirely repeal” or “abrogate” the aspect of a same-sex
couple’s state constitutional right of privacy and due process discussed in the majority opinion in
the Marriage Cases — namely, the constitutional right to “choose one’s life partner and enter with
that person into a committed, officially recognized, and protected family relationship that enjoys all
of the constitutionally based incidents of marriage” — nor does it “fundamentally alter” the
substance of state constitutional equal protection principles recognized in that opinion.
Instead, it carves out a limited exception to these constitutional rights by reserving the official
designation of the term “marriage” for the union of opposite-sex couples, but leaves undisturbed all
of the other aspects of a same-sex couple’s constitutional right to establish an officially recognized
and protected family relationship and to the equal protection of the laws.
The opinion emphasizes that it is not minimizing the significance that the official designation of
“marriage” holds for both the proponents and opponents of Proposition 8, and explains that an
accurate assessment of the actual effect of Proposition 8 on the constitutional rights of same-sex
couples is necessary to evaluate the constitutional challenges that are advanced in this case.
The majority opinion then analyzes the quantitative and qualitative effect of Proposition 8 on the
preexisting provisions of the state Constitution. Petitioners concede that the measure does not
amount to a quantitative revision, but maintain that it constitutes a qualitative revision. Addressing
this contention, the opinion explains that the distinction between an amendment and a revision does
not depend upon the relative importance of the measure in question, pointing out that “(1) the right
of women to vote in California, (2) the initiative, referendum, and recall powers, (3) the
reinstatement of the death penalty, (4) an explicit right of privacy, (5) a substantial modification of
the statewide real property tax system, and (6) legislative term limits — to list only a very few
examples — all became part of the California Constitution by constitutional amendment, not by
constitutional revision.”
Instead, the governing decisions establish that whether a change amounts to a qualitative revision
depends upon the nature and scope of the proposed alteration. Reiterating the standard that has
been applied in all of the numerous California cases decided in recent decades, the opinion states
that to constitute a qualitative revision “a constitutional measure must make a far reaching change in
the fundamental governmental structure or the foundational power of its branches as set forth in the
Constitution.”
Applying this standard to Proposition 8, the opinion concludes that a measure limiting access to the
designation of marriage to opposite-sex couples does not meet this test. Although petitioners claim
that the proposition transforms the judicial function, the opinion explains that the measure does not
3
interfere with the courts’ ability or traditional responsibility to faithfully enforce all of the
provisions of the California Constitution, which now include the new section added through the
voters’ approval of Proposition 8.
Petitioners also contend that Proposition 8 should be considered a constitutional revision because it
conflicts with a fundamental constitutional principle that protects a minority group from having its
constitutional rights diminished in any respect by majority vote. The majority opinion explains
there is no authority to support the claim that in California a majority of voters may not adopt
through the initiative process a measure that diminishes a state constitutional right, even if that right
has been interpreted and applied in a judicial decision. The opinion cites many amendments to the
California Constitution, adopted through the initiative process by majority vote in response to court
decisions, that have had just such an effect.
Although a number of other state constitutions contain provisions that preclude using the initiative
power to amend specified provisions of those constitutions, the majority opinion emphasizes that
the California Constitution contains no comparable limitation. Because there is no express
restriction on the initiative power, and consistent with past California holdings, the majority opinion
concludes that the California Constitution does not restrict the people’s right to use the initiative to
modify preexisting constitutional rights through the approval of Proposition 8.
Separation of Powers
The majority opinion next addresses petitioners’ claim that Proposition 8 violates the state
constitutional separation of powers doctrine. The majority opinion rejects this contention, pointing
out that, contrary to petitioners’ assertion, Proposition 8 does not “readjudicate” the issue that was
resolved by this court in the Marriage Cases. Proposition 8 does not purport to revisit the question
of the state of the law at the time of the Marriage Cases, but instead establishes a new substantive
constitutional rule that took effect upon the voters’ approval of the initiative measure.
Further, because the state Constitution explicitly recognizes the right of the people to amend the
Constitution through the initiative process, the people, in exercising that authority, have not usurped
a power allocated by the Constitution exclusively to the judiciary or another branch of government.
Inalienable Rights
The majority opinion next addresses and rejects the Attorney General’s claim that because article I,
section 1 of the California Constitution characterizes certain rights including the right of privacy as
“inalienable,” Proposition 8 is invalid because it abrogates such rights without a compelling interest.
The opinion explains that not only does Proposition 8 not “abrogate” the aspect of the right of
privacy discussed in the majority opinion in the Marriage Cases, but that the identification of a
4
right as “inalienable” has never been understood to mean that such right is exempt from any
limitation or to preclude the adoption of a constitutional amendment that restricts the scope of such
a right. The opinion emphasizes that there is no authority to support the Attorney General’s theory.
Validity of Existing Marriages of Same-Sex Couples
Finally, the majority opinion addresses the question of the effect of Proposition 8 on the marriages
of same-sex couples performed prior to the adoption of Proposition 8. Applying the well-
established legal principles that govern whether a constitutional provision should be interpreted to
apply prospectively or retroactively, the opinion concludes that Proposition 8 cannot be interpreted
to apply retroactively and that the marriages of same-sex couples performed before the effective
date of Proposition 8 remain valid and must continue to be recognized in California. This holding
of the majority opinion was concurred in by all of the justices.
JUSTICE KENNARD’S CONCURRING OPINION
In her separate concurring opinion, Justice Kennard explains that “[a]lthough the people through the
initiative power may not change the court’s interpretation of language in the state Constitution, they
may change the constitutional language itself, and thereby enlarge or reduce the personal rights that
the state Constitution as so amended will thereafter guarantee and protect.
“The difference between interpretation and alteration is the difference between the judicial and
legislative powers. Interpretation of existing statutory and constitutional provisions is a
fundamental power of the judicial branch, while alteration of existing statutory and constitutional
provisions — by addition, deletion, or modification — is a fundamental legislative power that the
people may exercise through the initiative process.
“Although this court’s decision in the Marriage Cases remains the final word on the meaning of the
state Constitution as it then read, the people have now used their initiative power to refashion the
wording of the California Constitution and by this means have altered its substance, and thus its
meaning, as of the effective date of the initiative measure.”
JUSTICE WERDEGAR’S CONCURRING OPINION
In her concurring opinion, Justice Werdegar states that although she agrees with the majority
opinion that Proposition 8 “is a valid amendment to the California Constitution rather than a
procedurally defective revision,” she rejects “much of the majority’s analysis.”
Disagreeing with the majority that prior California decisions define a constitutional revision as
limited to a constitutional change that is “focused on governmental structure and organization,” the
concurring opinion declares that “[t]he drafters of our Constitution never imagined, nor would they
have approved, a rule that gives the foundational principles of social organization in free societies,
5
such as equal protection, less protection from hasty, unconsidered change than principles of
governmental organization.”
Justice Werdegar explains that “just as an amendment of sufficient scope to a single principle as
important as judicial power can be a revision . . . so too, in my view, can be an amendment of
sufficient scope to a foundational principle of individual liberty in our free society, such as equal
protection.”
The critical question, as she would pose it, “is whether Proposition 8 accomplishes a change of
sufficient scope in a foundational principle of individual liberty as to amount to a constitutional
revision.”
Justice Werdegar concludes that although Proposition 8 impinges upon the right of same-sex
couples to have their family relationship accorded respect and dignity equal to that accorded the
family relationship of opposite-sex couples, the measure “has not brought about such a broad
change in the principle of equal protection as to amount to a constitutional revision.” She
emphasizes that “all three branches of state government continue to have the duty, within their
respective spheres of operation, today as before the passage of Proposition 8, to eliminate the
remaining important differences between marriage and domestic partnership, both in substance and
perception.”
JUSTICE MORENO’S CONCURRING AND DISSENTING OPINION
In his concurring and dissenting opinion, Justice Moreno concludes that Proposition 8 is not a
lawful amendment to the California Constitution because it alters the equal protection clause to
deny same-sex couples equal treatment, explaining that “requiring discrimination against a minority
group on the basis of a suspect classification strikes at the core of the promise of equality that
underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in
the nature and operation of our governmental structure that it must be considered a “revision” of the
state Constitution rather than a mere “amendment” thereof.’ ” Justice Moreno points out that the
equal protection clause is “inherently countermajoritarian” and observes that “there is no
‘underlying’ principle more basic to our Constitution than that the equal protection clause protects
the fundamental rights of minorities from the will of the majority.”
In Justice Moreno’s view, “[d]enying the designation of marriage to same-sex couples cannot fairly
be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection,” but adds
that “even a narrow and limited exception to the promise of full equality strikes at the core of, and
thus fundamentally alters, the guarantee of equal treatment . . . . Promising equal treatment to some
is fundamentally different from promising equal treatment for all. Promising treatment that is
almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored
minority only some of the rights enjoyed by the majority is fundamentally different from
recognizing, as a constitutional imperative, that they must be granted all of those rights.”
6
Justice Moreno declares that “Proposition 8 represents an unprecedented instance of a majority of
voters altering the meaning of the equal protection clause by modifying the California Constitution
to require deprivation of a fundamental right on the basis of a suspect classification.” He states that
“[t]he rule the majority crafts today not only allows same-sex couples to be stripped of the right to
marry that this court recognized in the Marriage Cases, it places at risk the state constitutional
rights of all disfavored minorities” and “weakens the status of our state Constitution as a bulwark of
fundamental rights for minorities protected from the will of the majority.”
-#-
7
Release Number: 29
Release Date: May 26, 2009
JUDICIAL COUNCIL OF
CALIFORNIA
ADMINISTRATIVE OFFICE
Supreme Court Rejects Challenges to
OF THE COURTS
Public Information Office
Prop. 8, But Finds Existing Marriages of
455 Golden Gate Avenue
San Francisco, CA 94102-3688
Same-Sex Couples Valid
www.courtinfo.ca.gov
415-865-7740
San Francisco — The California Supreme Court, by a 6-1 vote, today rejected a
Lynn Holton
constitutional challenge to Proposition 8, an initiative measure adopted by the
Public Information Officer
voters at the November 4, 2008 election that added a section to the California
Constitution providing “Only marriage between a man and a woman is valid or
recognized in California.” The court’s opinion resolves the petitions in Strauss
v. Horton, S168047, Tyler v. State of California, S168066, and City and County
of San Francisco v. Horton, S168078. The opinion is available online at
www.courtinfo.ca.gov/courts/supreme/ .
The court further unanimously held that the scope of Proposition 8 is narrow,
limited solely to restricting the use of the term “marriage” to opposite-sex
couples, while not otherwise affecting the fundamental constitutional rights of
same-sex couples described in its earlier opinion in In re Marriage Cases
(2008) 43 Cal.4th 757.
The court also unanimously held that the new constitutional provision applies
only prospectively, and does not affect the continued validity of the estimated
18,000 marriages of same-sex couples that occurred prior to November 5, 2008,
when the new constitutional provision took effect. The challenges to
Proposition 8 before the court were filed by numerous same-sex couples and
public entities and were based solely on the provisions of the California
Constitution and did not raise any federal constitutional claim.
The majority opinion was authored by Chief Justice Ronald M. George, and
was joined by Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, and
Carol A. Corrigan. In addition to signing the majority opinion, Justice Kennard
filed a separate concurring opinion.
Justice Kathryn Mickle Werdegar filed a concurring opinion, agreeing with the
result reached by the majority opinion but disagreeing in part with its analysis. Justice Carlos R.
Moreno filed a concurring and dissenting opinion, agreeing with the majority’s conclusion that
Proposition 8 applies only prospectively but concluding that Proposition 8 is invalid because it is
not a lawful amendment of the California Constitution.
MAJORITY OPINION
The 136-page majority opinion notes at the outset that the court’s role is not to determine whether
Proposition 8 “is wise or sound as a matter of policy or whether we, as individuals believe it should
be a part of the California Constitution,” but rather “is limited to interpreting and applying the
principles and rules embodied in the California Constitution, setting aside our own personal beliefs
and values.”
The opinion further emphasizes that the principal legal issue in this case is entirely distinct from the
issue that was presented in the court’s decision last year in In re Marriage Cases (2008) 43 Cal.4th
757. There, the court was called upon to determine “the validity (or invalidity) of a statutory
provision limiting marriage to a union between a man and a woman under state constitutional
provisions that do not expressly permit or prescribe such a limitation.” In the present case, by
contrast, the principal issue “concerns the scope of the right of the people, under the provisions of
the California Constitution, to change or alter the state Constitution itself through the initiative
process so as to incorporate such a limitation as an explicit section of the state Constitution.”
Amendment or Revision
Under the California Constitution the initiative process may be used to propose and adopt
constitutional amendments but may not be used to revise the state Constitution. Petitioners
primarily contend that Proposition 8 is a constitutional revision rather than a constitutional
amendment and therefore could not lawfully be adopted through the initiative process.
In addressing the question whether Proposition 8 constitutes a constitutional amendment or, instead,
a constitutional revision, the majority observes that “we by no means write on a clean slate.” The
opinion explains that the amendment/revision dichotomy dates back to the original 1849 California
Constitution, long before the adoption of the initiative process in 1911; the origin and history of the
distinction “indicates that the category of constitutional revision referred to the kind of wholesale or
fundamental alteration of the constitutional structure that appropriately could be undertaken only by
a constitutional convention, in contrast to the category of constitutional amendments which included
any and all of the more discrete changes to the Constitution that thereafter might be proposed.”
Furthermore, the opinion points out that over the past three decades numerous California Supreme
Court decisions have established that in determining whether a constitutional change constitutes a
revision rather than an amendment, a court must assess “(1) the meaning and scope of the
constitutional change at issue, and (2) the effect — both quantitative and qualitative — that the
2
constitutional change will have on the basic governmental plan or framework embodied in the
preexisting provisions of the California Constitution.”
Analyzing the scope of Proposition 8, the majority opinion explains that, contrary to petitioners’
assertions, the initiative measure does not “entirely repeal” or “abrogate” the aspect of a same-sex
couple’s state constitutional right of privacy and due process discussed in the majority opinion in
the Marriage Cases — namely, the constitutional right to “choose one’s life partner and enter with
that person into a committed, officially recognized, and protected family relationship that enjoys all
of the constitutionally based incidents of marriage” — nor does it “fundamentally alter” the
substance of state constitutional equal protection principles recognized in that opinion.
Instead, it carves out a limited exception to these constitutional rights by reserving the official
designation of the term “marriage” for the union of opposite-sex couples, but leaves undisturbed all
of the other aspects of a same-sex couple’s constitutional right to establish an officially recognized
and protected family relationship and to the equal protection of the laws.
The opinion emphasizes that it is not minimizing the significance that the official designation of
“marriage” holds for both the proponents and opponents of Proposition 8, and explains that an
accurate assessment of the actual effect of Proposition 8 on the constitutional rights of same-sex
couples is necessary to evaluate the constitutional challenges that are advanced in this case.
The majority opinion then analyzes the quantitative and qualitative effect of Proposition 8 on the
preexisting provisions of the state Constitution. Petitioners concede that the measure does not
amount to a quantitative revision, but maintain that it constitutes a qualitative revision. Addressing
this contention, the opinion explains that the distinction between an amendment and a revision does
not depend upon the relative importance of the measure in question, pointing out that “(1) the right
of women to vote in California, (2) the initiative, referendum, and recall powers, (3) the
reinstatement of the death penalty, (4) an explicit right of privacy, (5) a substantial modification of
the statewide real property tax system, and (6) legislative term limits — to list only a very few
examples — all became part of the California Constitution by constitutional amendment, not by
constitutional revision.”
Instead, the governing decisions establish that whether a change amounts to a qualitative revision
depends upon the nature and scope of the proposed alteration. Reiterating the standard that has
been applied in all of the numerous California cases decided in recent decades, the opinion states
that to constitute a qualitative revision “a constitutional measure must make a far reaching change in
the fundamental governmental structure or the foundational power of its branches as set forth in the
Constitution.”
Applying this standard to Proposition 8, the opinion concludes that a measure limiting access to the
designation of marriage to opposite-sex couples does not meet this test. Although petitioners claim
that the proposition transforms the judicial function, the opinion explains that the measure does not
3
interfere with the courts’ ability or traditional responsibility to faithfully enforce all of the
provisions of the California Constitution, which now include the new section added through the
voters’ approval of Proposition 8.
Petitioners also contend that Proposition 8 should be considered a constitutional revision because it
conflicts with a fundamental constitutional principle that protects a minority group from having its
constitutional rights diminished in any respect by majority vote. The majority opinion explains
there is no authority to support the claim that in California a majority of voters may not adopt
through the initiative process a measure that diminishes a state constitutional right, even if that right
has been interpreted and applied in a judicial decision. The opinion cites many amendments to the
California Constitution, adopted through the initiative process by majority vote in response to court
decisions, that have had just such an effect.
Although a number of other state constitutions contain provisions that preclude using the initiative
power to amend specified provisions of those constitutions, the majority opinion emphasizes that
the California Constitution contains no comparable limitation. Because there is no express
restriction on the initiative power, and consistent with past California holdings, the majority opinion
concludes that the California Constitution does not restrict the people’s right to use the initiative to
modify preexisting constitutional rights through the approval of Proposition 8.
Separation of Powers
The majority opinion next addresses petitioners’ claim that Proposition 8 violates the state
constitutional separation of powers doctrine. The majority opinion rejects this contention, pointing
out that, contrary to petitioners’ assertion, Proposition 8 does not “readjudicate” the issue that was
resolved by this court in the Marriage Cases. Proposition 8 does not purport to revisit the question
of the state of the law at the time of the Marriage Cases, but instead establishes a new substantive
constitutional rule that took effect upon the voters’ approval of the initiative measure.
Further, because the state Constitution explicitly recognizes the right of the people to amend the
Constitution through the initiative process, the people, in exercising that authority, have not usurped
a power allocated by the Constitution exclusively to the judiciary or another branch of government.
Inalienable Rights
The majority opinion next addresses and rejects the Attorney General’s claim that because article I,
section 1 of the California Constitution characterizes certain rights including the right of privacy as
“inalienable,” Proposition 8 is invalid because it abrogates such rights without a compelling interest.
The opinion explains that not only does Proposition 8 not “abrogate” the aspect of the right of
privacy discussed in the majority opinion in the Marriage Cases, but that the identification of a
4
right as “inalienable” has never been understood to mean that such right is exempt from any
limitation or to preclude the adoption of a constitutional amendment that restricts the scope of such
a right. The opinion emphasizes that there is no authority to support the Attorney General’s theory.
Validity of Existing Marriages of Same-Sex Couples
Finally, the majority opinion addresses the question of the effect of Proposition 8 on the marriages
of same-sex couples performed prior to the adoption of Proposition 8. Applying the well-
established legal principles that govern whether a constitutional provision should be interpreted to
apply prospectively or retroactively, the opinion concludes that Proposition 8 cannot be interpreted
to apply retroactively and that the marriages of same-sex couples performed before the effective
date of Proposition 8 remain valid and must continue to be recognized in California. This holding
of the majority opinion was concurred in by all of the justices.
JUSTICE KENNARD’S CONCURRING OPINION
In her separate concurring opinion, Justice Kennard explains that “[a]lthough the people through the
initiative power may not change the court’s interpretation of language in the state Constitution, they
may change the constitutional language itself, and thereby enlarge or reduce the personal rights that
the state Constitution as so amended will thereafter guarantee and protect.
“The difference between interpretation and alteration is the difference between the judicial and
legislative powers. Interpretation of existing statutory and constitutional provisions is a
fundamental power of the judicial branch, while alteration of existing statutory and constitutional
provisions — by addition, deletion, or modification — is a fundamental legislative power that the
people may exercise through the initiative process.
“Although this court’s decision in the Marriage Cases remains the final word on the meaning of the
state Constitution as it then read, the people have now used their initiative power to refashion the
wording of the California Constitution and by this means have altered its substance, and thus its
meaning, as of the effective date of the initiative measure.”
JUSTICE WERDEGAR’S CONCURRING OPINION
In her concurring opinion, Justice Werdegar states that although she agrees with the majority
opinion that Proposition 8 “is a valid amendment to the California Constitution rather than a
procedurally defective revision,” she rejects “much of the majority’s analysis.”
Disagreeing with the majority that prior California decisions define a constitutional revision as
limited to a constitutional change that is “focused on governmental structure and organization,” the
concurring opinion declares that “[t]he drafters of our Constitution never imagined, nor would they
have approved, a rule that gives the foundational principles of social organization in free societies,
5
such as equal protection, less protection from hasty, unconsidered change than principles of
governmental organization.”
Justice Werdegar explains that “just as an amendment of sufficient scope to a single principle as
important as judicial power can be a revision . . . so too, in my view, can be an amendment of
sufficient scope to a foundational principle of individual liberty in our free society, such as equal
protection.”
The critical question, as she would pose it, “is whether Proposition 8 accomplishes a change of
sufficient scope in a foundational principle of individual liberty as to amount to a constitutional
revision.”
Justice Werdegar concludes that although Proposition 8 impinges upon the right of same-sex
couples to have their family relationship accorded respect and dignity equal to that accorded the
family relationship of opposite-sex couples, the measure “has not brought about such a broad
change in the principle of equal protection as to amount to a constitutional revision.” She
emphasizes that “all three branches of state government continue to have the duty, within their
respective spheres of operation, today as before the passage of Proposition 8, to eliminate the
remaining important differences between marriage and domestic partnership, both in substance and
perception.”
JUSTICE MORENO’S CONCURRING AND DISSENTING OPINION
In his concurring and dissenting opinion, Justice Moreno concludes that Proposition 8 is not a
lawful amendment to the California Constitution because it alters the equal protection clause to
deny same-sex couples equal treatment, explaining that “requiring discrimination against a minority
group on the basis of a suspect classification strikes at the core of the promise of equality that
underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in
the nature and operation of our governmental structure that it must be considered a “revision” of the
state Constitution rather than a mere “amendment” thereof.’ ” Justice Moreno points out that the
equal protection clause is “inherently countermajoritarian” and observes that “there is no
‘underlying’ principle more basic to our Constitution than that the equal protection clause protects
the fundamental rights of minorities from the will of the majority.”
In Justice Moreno’s view, “[d]enying the designation of marriage to same-sex couples cannot fairly
be described as a ‘narrow’ or ‘limited’ exception to the requirement of equal protection,” but adds
that “even a narrow and limited exception to the promise of full equality strikes at the core of, and
thus fundamentally alters, the guarantee of equal treatment . . . . Promising equal treatment to some
is fundamentally different from promising equal treatment for all. Promising treatment that is
almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored
minority only some of the rights enjoyed by the majority is fundamentally different from
recognizing, as a constitutional imperative, that they must be granted all of those rights.”
6
Justice Moreno declares that “Proposition 8 represents an unprecedented instance of a majority of
voters altering the meaning of the equal protection clause by modifying the California Constitution
to require deprivation of a fundamental right on the basis of a suspect classification.” He states that
“[t]he rule the majority crafts today not only allows same-sex couples to be stripped of the right to
marry that this court recognized in the Marriage Cases, it places at risk the state constitutional
rights of all disfavored minorities” and “weakens the status of our state Constitution as a bulwark of
fundamental rights for minorities protected from the will of the majority.”
-#-
7
Wednesday, May 27, 2009
BAD CBC this is NOT funny at all!
Canadian TV rapped for Obama assassination joke
OTTAWA (Reuters) - Canada's public broadcaster was wrong to show a skit that joked about the possible assassination of U.S. President Barack Obama and suggested he could be a thief, an industry panel ruled on Monday.
The New Year's Eve "Bye Bye" comedy program -- shown by the French-language Radio Canada network -- generated more than 200 complaints. In one segment, two hosts discussed Obama's election in November 2008. Obama, who took office in January, is the first black U.S. president.
"We're not racists. It will be good to have a Negro in the White House. It will be practical. Black on white, it will be easier to shoot him," one of the show's hosts remarked.
The Canadian Broadcasting Standards Council said it found "nothing redeeming in the allegedly comedic notion that an American president should be shot, still less that this would be easier to achieve because of the color of the president's skin. It was a disturbing, wounding, abusive racial comment."
The show also featured an interview with an actor pretending to be Obama. The host said, "The blacks, you all look alike," and then warned viewers to hide their purses.
The council said the comments and sketches breached regulations, adding they went "too far in terms of Canadian broadcast standards."
The producers of the show denied the skits had been racist, saying they had meant to mock the characters making the offensive remarks.
Complaints about Radio Canada are usually handled by the Canadian Radio-television and Telecommunications Commission (CRTC). In this case the CRTC asked the council -- which deals with commercial channels and has more experience in handling such complaints -- for advice.
The CRTC, which is due to conduct its own probe into the show, does not have the power to fine Radio-Canada but can issue a public reprimand.
A spokeswoman for the commission said such reprimands could cause problems for networks when it came time for them to seek renewal of their broadcasting license. Radio-Canada is due to apply for a license renewal in 2011.
Polls regularly show that Canadians like Obama far more than they do their own leaders. Tens of thousands turned up to cheer him when he made a brief visit to Ottawa in February. A spokeswoman for the U.S. embassy said she did not know whether the White House had complained about the show.
(Reporting by David Ljunggren; editing by Peter Galloway and Frances Kerry)
Sunday, May 24, 2009
email to findlaw.com about a bad reference
Is Gender Based Abortion Legal? Swedish Court Says Women Can Get As you can see in the article the headline stated that a Swedish Court The word court should not have been used. If you look at the original Thank you |
Saturday, May 23, 2009
Good news for Globe and Mail, a division of CTVglobemedia Publishing Inc.
Référence : Prochains jugements sur demandes d'autorisation Date : 19 mai 2009
|
Source: http://scc.lexum.umontreal.ca/fr/news_release/2009/09-05-19.2a/09-05-19.2a.html
SUPREME COURT OF CANADA ‑‑ JUDGMENTS TO BE RENDERED IN LEAVE APPLICATIONS
OTTAWA, 2009-05-19. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT JUDGMENT IN THE FOLLOWING APPLICATIONS FOR LEAVE TO APPEAL WILL BE DELIVERED AT 9:45 A.M. EDT ON THURSDAY, MAY 21, 2009. THIS LIST IS SUBJECT TO CHANGE.
FROM: SUPREME COURT OF CANADA (613) 995‑4330
COUR SUPRÊME DU CANADA ‑‑ PROCHAINS JUGEMENTS SUR DEMANDES D’AUTORISATION
OTTAWA, 2009-05-19. LA COUR SUPRÊME DU CANADA ANNONCE QUE JUGEMENT SERA RENDU DANS LES DEMANDES D’AUTORISATION D’APPEL SUIVANTES LE JEUDI 21 MAI 2009, À 9 H 45 HAE. CETTE LISTE EST SUJETTE À MODIFICATIONS.
SOURCE: COUR SUPRÊME DU CANADA (613) 995‑4330
COMMENTS/COMMENTAIRES: comments@scc-csc.gc.ca
Note for subscribers:
The summaries of the cases are available at http://www.scc-csc.gc.ca:
Click on Cases and on SCC Case Information, type in the Case Number and press Search. Click on the Case Number on the Search Result screen, and when the docket screen appears, click on “Summary” which will appear in the left column.
Alternatively, click on
http://scc.lexum.umontreal.ca/en/news_release/2009/09-05-19.2a/09-05-19.2a.html
Note pour les abonnés :
Les sommaires des causes sont affichés à l’adresse http://www.scc-csc.gc.ca :
Cliquez sur « Dossiers », puis sur « Renseignements sur les dossiers ». Tapez le no de dossier et appuyez sur « Recherche ». Cliquez sur le no du dossier dans les Résultats de la recherche pour accéder au Registre. Cliquez enfin sur le lien menant au « Sommaire » qui figure dans la colonne de gauche.
Autre façon de procéder : Cliquer sur
http://scc.lexum.umontreal.ca/fr/news_release/2009/09-05-19.2a/09-05-19.2a.html
1. Globe and Mail, a division of CTVglobemedia Publishing Inc. v. Attorney General of Canada et al. (Que.) (Civil) (By Leave) (32975)
2. Globe and Mail, a division of CTVglobemedia Publishing Inc. v. Attorney General of Canada et al. (Que.) (Civil) (By Leave) (33114)
32975 Globe and Mail, a division of CTVglobemedia Publishing Inc. v. Attorney General of Canada and Groupe Polygone Éditeurs Inc.
(Que.) (Civil) (By Leave)
Charter of Rights - Freedom of expression - Civil procedure - Appeals - Discontinuance of proceedings - Interlocutory judgments - Whether a judgment refusing a discontinuance is a final judgment giving rise to an appeal as of right to the Court of Appeal - Whether a party’s right to discontinue legal proceedings is as fundamental as its right to institute them - Whether s. 2 of the Canadian Charter of Rights and Freedoms includes protection of the media’s confidential sources - Whether media outlet may be forced to disclose confidential sources by a court, given that an appeal as of right may not exist.
The Commission of Inquiry into the Sponsorship Program and Advertising Activities serves as the backdrop to this application.
In 2005, the Attorney General of Canada instituted claims in the amount of 63 million dollars against various defendants, including the Respondent Le Groupe Polygone Éditeurs (“Polygone”), seeking the resolution of certain contracts as well as the reimbursement of sums paid pursuant to those contracts. In its defence, the Respondent Polygone sought to prove that the federal government had knowledge of the affair prior to 2002, and that as a result, the government’s claims were prescribed.
At Polygone’s request, the Superior Court ordered that 22 individuals, mostly current and former government employees, state in writing and under oath, whether they had given any information to the Applicant Globe and Mail’s reporter on the issue. The Globe and Mail filed a motion in revocation of judgment to have that order set aside.
At the hearing before the Superior Court on the motion in revocation, the Globe and Mail objected to certain questions directed at its journalist. The Superior Court dismissed the objections. The Court of Appeal refused to grant leave to appeal on the issue. Rather than have its journalist answer the questions posed by Polygone in the motion in revocation proceedings, the Globe and Mail opted to discontinue those proceedings. The Superior Court refused to allow the discontinuance. The Court of Appeal dismissed the appeal.
| November 5, 2008 Superior Court of Quebec (de Grandpré J.) |
| Discontinuance of proceedings denied |
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| December 15, 2008 Court of Appeal of Quebec (Montréal) (Otis, Forget and Côté JJ.A.) Neutral citation: 2008 QCCA 2464 |
| Appeal dismissed |
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| January 21, 2009 Supreme Court of Canada |
| Application for leave to appeal filed |
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32975 Globe and Mail, une division de CTVglobemedia Publishing Inc. c. Procureur général du Canada et Groupe Polygone Éditeurs Inc.
(Qué.) (Civile) (Sur autorisation)
Charte des droits - Liberté d’expression - Procédure civile - Appels - Désistement d’instance - Jugements interlocutoires - Un jugement qui refuse un désistement est-il un jugement final donnant naissance à un appel de plein droit à la Cour d’appel? - Le droit d’une partie de se désister d’une instance judiciaire est-il aussi fondamental que son droit de l’introduire? - L’article 2 de la Charte canadienne des droits et libertés comprend-il la protection des sources confidentielles des médias? - Un média peut-il être contraint par un tribunal de divulguer des sources confidentielles, vu qu’il n’existe peut-être pas d’appel de plein droit?
La Commission d’enquête sur le programme de commandites et les activités publicitaires sert de toile de fond de la présente demande.
En 2005, le procureur général du Canada a introduit des demandes de 63 millions de dollars contre divers défendeurs, y compris l’intimée Le Groupe Polygone Éditeurs (« Polygone »), sollicitant la résolution de certains contrats et le remboursement de sommes payées en vertu de ces contrats. Dans sa défense, l’intimée Polygone a cherché à prouver que le gouvernement fédéral avait connaissance de l’affaire avant 2002, de sorte que les demandes du gouvernement étaient prescrites.
À la demande de Polygone, la Cour supérieure a ordonné à 22 personnes, surtout des employés et des ex-employés du gouvernement, de déclarer par écrit et sous serment, s’ils avaient communiqué au journaliste du demandeur Globe and Mail des renseignements sur la question. Le Globe and Mail a présenté une requête en révocation de jugement pour faire annuler cette ordonnance.
À l’audience en Cour supérieure sur la requête en révocation, le Globe and Mail s’est opposé à certaines questions posées à son journaliste. La Cour supérieure a rejeté ces objections. La Cour d’appel a refusé d’accorder l’autorisation d’appel sur la question. Plutôt que de faire en sorte que son journaliste réponde aux questions posées par Polygone dans la requête en révocation, le Globe and Mail a choisi de se désister de cette instance. La Cour supérieure a refusé d’autoriser le désistement. La Cour d’appel a rejeté l’appel.
| 5 novembre 2008 Cour supérieure du Québec (juge de Grandpré) |
| Désistement d’instance rejeté |
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| 15 décembre 2008 Cour d’appel du Québec (Montréal) (juges Otis, Forget et Côté) Référence neutre : 2008 QCCA 2464 |
| Appel rejeté |
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| 21 janvier 2009 Cour suprême du Canada |
| Demande d’autorisation d’appel déposée |
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33114 Globe and Mail, a division of CTVglobemedia Publishing Inc. v. Attorney General of Canada and Groupe Polygone Éditeurs Inc.
(Que.) (Civil) (By Leave)
Quebec Charter - Freedom of expression - Freedom of the press - Confidentiality of media sources - Civil procedure - Admissibility of evidence - Exclusion of evidence disclosing identity of confidential source - Does s. 3 of the Quebec Charter protect the media’s right to the confidentiality of its sources? - Does art. 2858 of the Civil Code, in conjunction with s. 3 of the Quebec Charter, require a judge to exclude or reject evidence disclosing the identity of a confidential source, the admission of which would tend to bring the administration of justice in to disrepute? - Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 3 - Civil Code of Quebec, S.Q. 1991, c. 64, art. 2858.
The Commission of Inquiry into the Sponsorship Program and Advertising Activities serves as the backdrop to this application. In 2005, the Attorney General of Canada instituted claims in the amount of 63 million dollars against various defendants, including the Respondent Polygone, seeking the resolution of certain contracts as well as the reimbursement of sums paid pursuant to those contracts. The trial in this civil recovery action is scheduled to begin in October 2009 before the Superior Court of Quebec. In its defence, Polygone seeks to prove that the federal government had knowledge of the affair prior to 2002, and that as a result, the government’s claims are prescribed. Specifically, Polygone seeks to prove that a government employee had leaked information to a journalist employed by the Applicant, Globe and Mail, prior to the year 2002. At Polygone’s request, the Superior Court ordered that certain individuals, mostly current and former government employees, state in writing and under oath, whether they had given any information to the Globe and Mail’s reporter on the issue. The Globe and Mail filed a motion in revocation of judgment to have that order set aside. It argued, among other things, that the order violated its right to freedom of expression, particularly its right to protect its confidential sources. At the hearing before the Superior Court on the motion in revocation, the Globe and Mail objected to certain questions directed at its journalist on the basis that his sources were confidential. The Superior Court dismissed the objections. It is from this decision that the Globe and Mail now seeks leave to appeal to this Court.
| August 26, 2008 Superior Court of Quebec (de Grandpré J.) |
| Objections formulated during cross‑examination dismissed |
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| April 6, 2009 Supreme Court of Canada |
| Application for leave to appeal and motion for extension of time filed |
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| April 30, 2009 Supreme Court of Canada |
| Motion to expedite application for leave to appeal granted |
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33114 Globe and Mail, une division de CTVglobemedia Publishing Inc. c. Procureur général du Canada et Groupe Polygone Éditeurs Inc.
(Qc) (Civile) (Sur autorisation)
Charte québécoise - Liberté d’expression - Liberté de presse - Confidentialité des sources médiatiques - Procédure civile - Admissibilité de la preuve - Exclusion de la preuve révélant l’identité d’une source confidentielle - L’article 3 de la Charte québécoise protège-t-il le droit d’un média à la confidentialité de ses sources? - L’article 2858 du Code civil, en corrélation avec l’art. 3 de la Charte québécoise, oblige-t-il le juge à exclure ou rejeter une preuve qui révèle l’identité d’une source confidentielle, dont l’admission tendrait à déconsidérer l’administration de la justice? - Charte des droits et libertés de la personne, L.R.Q., ch. C-12, art. 3 - Code civil du Québec, L.Q. 1991, ch. 64, art. 2858.
La Commission d’enquête sur le programme de commandites et les activités publicitaires sert de toile de fond de la présente demande. En 2005, le procureur général du Canada a introduit des demandes de 63 millions de dollars contre divers défendeurs, y compris l’intimée Le Groupe Polygone Éditeurs (« Polygone »), sollicitant la résolution de certains contrats et le remboursement de sommes payées en vertu de ces contrats. Le procès dans cette affaire en recouvrement au civil doit commencer en octobre 2009 en Cour supérieure du Québec. Dans sa défense, Polygone cherche à prouver que le gouvernement fédéral avait connaissance de l’affaire avant 2002, de sorte que les demandes du gouvernement sont prescrites. Plus particulièrement, Polygone cherche à prouver qu’un employé du gouvernement a divulgué des renseignements à un journaliste au service du demandeur, le Globe and Mail, avant l’année 2002. À la demande de Polygone, la Cour supérieure a ordonné à certaines personnes, surtout des employés et des ex-employés du gouvernement, de déclarer par écrit et sous serment, s’ils avaient communiqué au journaliste du Globe and Mail des renseignements sur la question. Le Globe and Mail a présenté une requête en révocation de jugement pour faire annuler cette ordonnance. Il a plaidé, entre autres, que l’ordonnance violait son droit à la liberté d’expression, particulièrement son droit de protéger ses sources confidentielles. À l’audience en Cour supérieure sur la requête en révocation, le Globe and Mail s’est opposé à certaines questions posées à son journaliste, plaidant que ses sources étaient confidentielles. La Cour supérieure a rejeté ces objections. C’est de cette décision que le Globe and Mail sollicite maintenant l’autorisation d’appel à cette Cour.
| 26 août 2008 Cour supérieure du Québec (juge de Grandpré) |
| Objections formulées pendant le contre-interrogatoire rejetées |
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| 6 avril 2009 Cour suprême du Canada |
| Demande d’autorisation d’appel et requête en prorogation de délai déposées |
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| 30 avril 2009 Cour suprême du Canada |
| Requête visant à accélérer la procédure de demande d’autorisation d’appel accueillie |
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Thursday, May 21, 2009
Ok i am Mad at The Supreme Court of Canada!
This will come up again &
again!
Supreme Court of Canada won't hear Afghan detainee case
Last Updated: Thursday, May 21, 2009 | 11:14 AM ET Comments122Recommend45
CBC News
The Supreme Court of Canada said Thursday it will not hear arguments that captives handed over to Afghan authorities by Canadian troops should be protected by the Charter of Rights.
As is its custom, the court did not give reasons for its decision.
The issue sparked controversy two years ago when published reports detailed claims from Afghan prisoners who said they were tortured at the hands of local authorities after being handed over by Canadian soldiers.
Lawyer Amir Attaran, a University of Ottawa professor, has acted as co-counsel for Amnesty International Canada and the British Columbia Civil Liberties Association, which brought the case.
"We've seen absolutely zero evidence that Afghanistan has stopped torturing detainees," Attaran said Wednesday.
Alex Neve, the secretary general of Amnesty International, said a soldier standing on Canadian soil is clearly prohibited from handing over a captive to someone who may torture that prisoner.
"Why should that be any different simply because the soldier has left the country? They're still a Canadian soldier operating according to Canadian law, deployed in Afghanistan pursuant to a decision of the Canadian Parliament."
The Federal Court of Canada, in a decision upheld on appeal, ruled the charter does not automatically follow soldiers overseas and that foreign prisoners must rely on international law.
More than 2,800 Canadian soldiers are serving in Afghanistan as part of the NATO mission.
Tuesday, May 19, 2009
Friday, May 15, 2009
this is what a Stick pusher is.
Stick pusher
From Wikipedia, the free encyclopedia
A stick pusher is a device installed in some fixed-wing aircraft to prevent the aircraft from entering an aerodynamic stall. Some large fixed-wing aircraft display poor post-stall handling characteristics or are vulnerable to deep stall. To prevent such an aircraft approaching the stall the aircraft designer may install a hydraulic or electro-mechanical device that pushes forward on the elevator control system whenever the aircraft’s angle of attack reaches the pre-determined value, and then ceases to push when the angle of attack falls sufficiently. A system for this purpose is known as a stick pusher.
The safety requirements applicable to fixed-wing aircraft in the transport category, and also to many military aircraft, are very demanding in the area of pre-stall handling qualities and stall recovery. Some of these aircraft are unable to comply with these safety requirements relying solely on the natural aerodynamic qualities of the aircraft. In order to comply with the requirements aircraft designers may install a system that will constantly monitor the critical parameters and will automatically activate to reduce the angle of attack when necessary to avoid a stall. The critical parameters include the angle of attack, airspeed, wing flap setting and load factor. Action by the pilot is not required to recognise the problem or react to it.
Aircraft designers who install stick pushers recognise that there is the risk that a stick pusher may activate erroneously when not required to do so. The designer must make provision for the flight crew to deal with unwanted activation of a stick pusher. In some aircraft equipped with stick pushers, the stick pusher can be overpowered by the pilot. In other aircraft, the stick pusher system can be manually disabled by the pilot.
Stick pushers should not be confused with stick shakers. A stick shaker is a stall warning device whereas a stick pusher is a stall avoidance device.
See also
Monday, May 11, 2009
Not a good day for the FAA!!
Captain's Training Faulted In Air Crash That Killed 50
By ANDY PASZTOR
The captain of a commuter plane that crashed Feb. 12 near Buffalo, N.Y., had flunked numerous flight tests during his career and was never adequately taught how to respond to the emergency that led to the airplane's fatal descent, according to people close to the investigation.
All 49 people aboard were killed, as well as one person in a house below, when the plane crashed just a few miles short of the Buffalo airport en route from Newark, N.J. The Bombardier Q400 turboprop in the crash, which will be the subject of a National Transportation Safety Board hearing Tuesday, was operated by commuter carrier Colgan Air Inc., a division of Pinnacle Airlines Corp.
Capt. Marvin Renslow had never been properly trained by the company to respond to a warning system designed to prevent the plane from going into a stall, according to people familiar with the investigation. As the speed slowed to a dangerous level, setting off the stall-prevention system, he did the opposite of the proper procedure, which led to the crash, these people said.
Additionally, his 24-year-old co-pilot, Rebecca Shaw, had complained before takeoff about being congested and said she probably should have called in sick, according to people who have listened to the cockpit voice recording.
To get more info see this!
By ANDY PASZTOR
The captain of a commuter plane that crashed Feb. 12 near Buffalo, N.Y., had flunked numerous flight tests during his career and was never adequately taught how to respond to the emergency that led to the airplane's fatal descent, according to people close to the investigation.
All 49 people aboard were killed, as well as one person in a house below, when the plane crashed just a few miles short of the Buffalo airport en route from Newark, N.J. The Bombardier Q400 turboprop in the crash, which will be the subject of a National Transportation Safety Board hearing Tuesday, was operated by commuter carrier Colgan Air Inc., a division of Pinnacle Airlines Corp.
Capt. Marvin Renslow had never been properly trained by the company to respond to a warning system designed to prevent the plane from going into a stall, according to people familiar with the investigation. As the speed slowed to a dangerous level, setting off the stall-prevention system, he did the opposite of the proper procedure, which led to the crash, these people said.
Additionally, his 24-year-old co-pilot, Rebecca Shaw, had complained before takeoff about being congested and said she probably should have called in sick, according to people who have listened to the cockpit voice recording.
To get more info see this!
Friday, May 8, 2009
Government appeals Khadr court ruling now the fun starts
Government appeals Khadr court ruling
Last Updated: Friday, May 8, 2009 | 9:36 PM ET Comments148Recommend28
CBC News
The government is appealing a Federal Court judge's ruling that Canada must press the United States for the return of Omar Khadr from the Guantanamo Bay detention centre, officials confirmed Friday.
Federal officials have filed an appeal of Justice James O'Reilly's ruling that Canada must "present a request to the United States for Mr. Khadr's repatriation as soon as practicable."
Khadr is accused of killing a U.S. soldier with a hand grenade during a gunfight in Afghanistan in 2002. Khadr, now 22, was 15 at the time he was detained in Afghanistan.
In the Federal Court decision issued last month, the judge pointed out that Khadr is the last citizen of any Western country held at the Guantanamo Bay detention centre. Other countries have repatriated their citizens.
The U.S. and Canadian governments are signatories to a United Nations protocol that states fighters under age 18 are to be considered child soldiers and must be released and helped to reintegrate into society.
Like all Guantanamo prosecutions, Khadr's case is on hold pending a review by U.S. President Barack Obama's administration.
With files from The Canadian Press----------------------------------------------------------------------------------------------------
OK so this is going to be going to the supreme Court of Canada
not good for the government but it will make the Conservative Party of Canada, look like a morons!! but that's OK with me!!!!!
Tuesday, May 5, 2009
Pirate-Bay-verdict-English-translation.pdf/ text.
Please note this translation was commissioned by IFPI and it has not been endorsed by the Stockholm
District Court.
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Hans FREDRIK Lennart Neij, 780427-2636
Östgötagatan 72 A, Lgh 1022
116 64 Stockholm
Defence counsel appointed by the court:
Jonas Nilsson, Attorney-at-Law
Hamilton Advokatbyrå Göteborg AB
Stora Nygatan 33
411 08 Göteborg
VERDICT
Crimes commited
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
2
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
1
Damages
Fredrik Neij will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782,
- Playground Music Scandinavia AB of EUR 28,159,
- Bonnier Amigo Music Group AB of EUR 4,290,
- EMI Music Sweden Aktiebolag of EUR 162,988,
- Warner Music Sweden Aktiebolag of EUR 146,484,
- Yellow Bird Films AB of SEK 3,150,000,
- Nordisk Film Valby A/S of SEK 225,000,
- Warner Bros Entertainment Inc of SEK 2,484,225,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of SEK 5,579,325
in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions of SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and 99 percent of which is payable to Mars Media
Beteiligungs GmbH
& Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made.
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
2. The confiscated computer and communications equipment is declared forfeit. The
confiscation shall remain in place (BLG 0240-06-587 paragraphs 17, 18, 22, 24, 26,
28-34).
3. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
4. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Fredrik Neij will, jointly with the other defendants, pay compensation for legal costs to
3
- Sony Music Entertainment (Sweden) AB of SEK 468,000,
- Universal Music Aktiebolag of SEK 156,000,
- Playground Music Scandinavia AB of SEK 156,000,
- Bonnier Amigo Music Group AB of SEK 102,000,
- EMI Music Sweden Aktiebolag of SEK 264,000,
- Warner Music Sweden Aktiebolag of SEK 54,000, all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920, of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880, of which SEK 48,960 refers to counsel fees,
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246.000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,500, of which
246 000 refers to counsel feels,
,
- Blizzard Entertainment Inc of SEK 25,000 in counsel feels,
and
- Activision Publishing Inc of SEK 12,500 in counsel feels,
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. Fredrik Neij’s claim for compensation for appearance in accordance with Chapter 31 § 2
second paragraph of the Code of Judicial Procedure is dismissed.
3. The District Court awards Jonas Nilsson payment from public funds of SEK 949,025 for
his work as counsel appointed by the Court. Of this sum, SEK 656,880 refers to work, SEK
35,525 to time wasted, SEK 66,815 to expenses and SEK 189,805 to VAT.
The cost of the defence will remain with the state.
4
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Gottfrid Svartholm Warg, 841017-0537
Box 1206
114 79 Stockholm
Defence counsel appointed by the court:
Ola Salomonsson, Attorney-at-Law
Advokatfirman Salomonsson & Liljekvist HB
Kornhamnstorg 55
111 27 Stockholm
VERDICT
Crimes committed
1. Complicity in breach of the Copyright Act
2. Breach of the Prohibition of Certain Hazardous Goods Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
§ 3 paragraph 6 and § 4 of the Prohibition of Certain Health-Impairing Goods Act
Sanctions etc.
1 year’s imprisonment
The following indictments are dismissed
1. Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
5
2. Breach of the Prohibition of Certain Health-Impairing Goods Act in accordance with
the summons of 14 February 2008, indictment item 1.
3. Breach of the Prohibition of Certain Doping agents Act in accordance with the
summons of 14 February 2008, indictment item 2
4. Drug offences in accordance with the summons of 14 February 2008, indictment item
3.
Damages
Gottfrid Svartholm Warg will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782 ,
- Playground Music Scandinavia AB of EUR 28,159 ,
- Bonnier Amigo Music Group AB of EUR 4,290 ,
- EMI Music Sweden Aktiebolag of EUR 162,988 ,
- Warner Music Sweden Aktiebolag of EUR 146,484 ,
- Yellow Bird Films AB of SEK 3,150,000 ,
- Nordisk Film Valby A/S of SEK 225,000 ,
- Warner Bros Entertainment Inc of SEK 2,484,225 ,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of
SEK 5,579,325 in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500 ,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions of SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and of 99 percent of which is payable to Mars Media
Beteiligungs GmbH & Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
2. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
3. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
4. The confiscated computers will remain confiscated until the sentence has become
legally binding (BLG
0240-06-595 paragraphs 3, 8, 9 and 10).
5. The confiscated health-impairing goods are declared forfeit. The confiscation will
remain in force (BLG 0240-06-609 paragraphs 1, 2, 3, 4 and BLG 0240-06-610
paragraphs 2, 4, 7, 8, 10, 11, 15-20, 23-26, 30).
6. The 3 confiscated tablets of Klomifen are declared forfeit. The confiscation will
remain in force (BLG 0240-06-610 paragraph 6).
7. The confiscated narcotic drugs are declared forfeit. The confiscation will remain in
force (BLG 0240-06-610 paragraphs 3, 13, 14, 21).
6
8. The confiscated spoon containing traces of amphetamine is declared forfeit. The
confiscation will remain in force (BLG 0240-06-610 paragraph 5).
9. The confiscated health-impairing goods are declared forfeit. The confiscation will
remain in force (BLG 2007-0201-BG1034 paragraphs 6-8, 14, 17, 18, 20-25).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Gottfrid Svartholm Warg will, jointly with the other defendants, pay compensation for
legal costs to
- Sony Music Entertainment (Sweden) AB of SEK 468,000 ,
- Universal Music Aktiebolag of SEK 156,000 ,
- Playground Music Scandinavia AB of SEK 156,000 ,
- Bonnier Amigo Music Group AB of SEK 102,000 ,
- EMI Music Sweden Aktiebolag of SEK 264,000 ,
- Warner Music Sweden Aktiebolag of SEK 54,000 , all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920 , of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880 , of which SEK 48,960 refers to counsel fees,
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246,000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,50, of which
SEK 246 000 refers to counsel fees,
- Blizzard Entertainment Inc of SEK 25,000 for counsel fees and
- Activision Publishing Inc of SEK 12,500 for counsel fees
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. The District Court awards Ola Salomonsson payment from public funds of SEK
801,825 for his work as counsel appointed by the Court. Of this sum, SEK 629,280
refers to work, SEK 2,180 to time wasted and SEK 160,365 to VAT.
The cost of the defence will remain with the state.
7
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Peter Sunde Kolmisoppi, 780913-4815
Älggatan 29
216 15 Limhamn
Defence counsel appointed by the court:
Peter Althin, Attorney-at-Law
Advokatfirman Althin
Skeppsbron 28, 3 tr
111 30 Stockholm
VERDICT
Crimes committed
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
Damages
Peter Sunde Kolmisoppi will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
Please note this translation was commissioned by IFPI and it has not been endorsed by the Stockholm
District Court.
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Hans FREDRIK Lennart Neij, 780427-2636
Östgötagatan 72 A, Lgh 1022
116 64 Stockholm
Defence counsel appointed by the court:
Jonas Nilsson, Attorney-at-Law
Hamilton Advokatbyrå Göteborg AB
Stora Nygatan 33
411 08 Göteborg
VERDICT
Crimes commited
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
2
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
1
Damages
Fredrik Neij will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782,
- Playground Music Scandinavia AB of EUR 28,159,
- Bonnier Amigo Music Group AB of EUR 4,290,
- EMI Music Sweden Aktiebolag of EUR 162,988,
- Warner Music Sweden Aktiebolag of EUR 146,484,
- Yellow Bird Films AB of SEK 3,150,000,
- Nordisk Film Valby A/S of SEK 225,000,
- Warner Bros Entertainment Inc of SEK 2,484,225,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of SEK 5,579,325
in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions of SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and 99 percent of which is payable to Mars Media
Beteiligungs GmbH
& Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made.
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
2. The confiscated computer and communications equipment is declared forfeit. The
confiscation shall remain in place (BLG 0240-06-587 paragraphs 17, 18, 22, 24, 26,
28-34).
3. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
4. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Fredrik Neij will, jointly with the other defendants, pay compensation for legal costs to
3
- Sony Music Entertainment (Sweden) AB of SEK 468,000,
- Universal Music Aktiebolag of SEK 156,000,
- Playground Music Scandinavia AB of SEK 156,000,
- Bonnier Amigo Music Group AB of SEK 102,000,
- EMI Music Sweden Aktiebolag of SEK 264,000,
- Warner Music Sweden Aktiebolag of SEK 54,000, all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920, of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880, of which SEK 48,960 refers to counsel fees,
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246.000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,500, of which
246 000 refers to counsel feels,
,
- Blizzard Entertainment Inc of SEK 25,000 in counsel feels,
and
- Activision Publishing Inc of SEK 12,500 in counsel feels,
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. Fredrik Neij’s claim for compensation for appearance in accordance with Chapter 31 § 2
second paragraph of the Code of Judicial Procedure is dismissed.
3. The District Court awards Jonas Nilsson payment from public funds of SEK 949,025 for
his work as counsel appointed by the Court. Of this sum, SEK 656,880 refers to work, SEK
35,525 to time wasted, SEK 66,815 to expenses and SEK 189,805 to VAT.
The cost of the defence will remain with the state.
4
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Gottfrid Svartholm Warg, 841017-0537
Box 1206
114 79 Stockholm
Defence counsel appointed by the court:
Ola Salomonsson, Attorney-at-Law
Advokatfirman Salomonsson & Liljekvist HB
Kornhamnstorg 55
111 27 Stockholm
VERDICT
Crimes committed
1. Complicity in breach of the Copyright Act
2. Breach of the Prohibition of Certain Hazardous Goods Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
§ 3 paragraph 6 and § 4 of the Prohibition of Certain Health-Impairing Goods Act
Sanctions etc.
1 year’s imprisonment
The following indictments are dismissed
1. Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
5
2. Breach of the Prohibition of Certain Health-Impairing Goods Act in accordance with
the summons of 14 February 2008, indictment item 1.
3. Breach of the Prohibition of Certain Doping agents Act in accordance with the
summons of 14 February 2008, indictment item 2
4. Drug offences in accordance with the summons of 14 February 2008, indictment item
3.
Damages
Gottfrid Svartholm Warg will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782 ,
- Playground Music Scandinavia AB of EUR 28,159 ,
- Bonnier Amigo Music Group AB of EUR 4,290 ,
- EMI Music Sweden Aktiebolag of EUR 162,988 ,
- Warner Music Sweden Aktiebolag of EUR 146,484 ,
- Yellow Bird Films AB of SEK 3,150,000 ,
- Nordisk Film Valby A/S of SEK 225,000 ,
- Warner Bros Entertainment Inc of SEK 2,484,225 ,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of
SEK 5,579,325 in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500 ,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions of SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and of 99 percent of which is payable to Mars Media
Beteiligungs GmbH & Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
2. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
3. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
4. The confiscated computers will remain confiscated until the sentence has become
legally binding (BLG
0240-06-595 paragraphs 3, 8, 9 and 10).
5. The confiscated health-impairing goods are declared forfeit. The confiscation will
remain in force (BLG 0240-06-609 paragraphs 1, 2, 3, 4 and BLG 0240-06-610
paragraphs 2, 4, 7, 8, 10, 11, 15-20, 23-26, 30).
6. The 3 confiscated tablets of Klomifen are declared forfeit. The confiscation will
remain in force (BLG 0240-06-610 paragraph 6).
7. The confiscated narcotic drugs are declared forfeit. The confiscation will remain in
force (BLG 0240-06-610 paragraphs 3, 13, 14, 21).
6
8. The confiscated spoon containing traces of amphetamine is declared forfeit. The
confiscation will remain in force (BLG 0240-06-610 paragraph 5).
9. The confiscated health-impairing goods are declared forfeit. The confiscation will
remain in force (BLG 2007-0201-BG1034 paragraphs 6-8, 14, 17, 18, 20-25).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Gottfrid Svartholm Warg will, jointly with the other defendants, pay compensation for
legal costs to
- Sony Music Entertainment (Sweden) AB of SEK 468,000 ,
- Universal Music Aktiebolag of SEK 156,000 ,
- Playground Music Scandinavia AB of SEK 156,000 ,
- Bonnier Amigo Music Group AB of SEK 102,000 ,
- EMI Music Sweden Aktiebolag of SEK 264,000 ,
- Warner Music Sweden Aktiebolag of SEK 54,000 , all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920 , of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880 , of which SEK 48,960 refers to counsel fees,
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246,000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,50, of which
SEK 246 000 refers to counsel fees,
- Blizzard Entertainment Inc of SEK 25,000 for counsel fees and
- Activision Publishing Inc of SEK 12,500 for counsel fees
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. The District Court awards Ola Salomonsson payment from public funds of SEK
801,825 for his work as counsel appointed by the Court. Of this sum, SEK 629,280
refers to work, SEK 2,180 to time wasted and SEK 160,365 to VAT.
The cost of the defence will remain with the state.
7
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Peter Sunde Kolmisoppi, 780913-4815
Älggatan 29
216 15 Limhamn
Defence counsel appointed by the court:
Peter Althin, Attorney-at-Law
Advokatfirman Althin
Skeppsbron 28, 3 tr
111 30 Stockholm
VERDICT
Crimes committed
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
Damages
Peter Sunde Kolmisoppi will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246,000 refers to counsel
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,500 , of which
SEK 246,000 refers to counsel fees,
- Blizzard Entertainment Inc of SEK 25,000 in counsel fees and
- Activision Publishing Inc of SEK 12,500 in counsel fees
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. The District Court awards Peter Althin payment from public funds of SEK 708,054
for his work as counsel appointed by the Court. Of this sum, SEK 540,960 refers to
work, SEK 21,315 to time wasted and SEK 4,168 to expenses and SEK 141,611 to
VAT.
The cost of the defence will remain with the state.
10
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Carl Ulf Sture Lundström, 600413-6377
Vorderfuchsloch 1
CH 8496 Steg
Switzerland
Defence counsel:
Stefan Jevinger, Attorney-at-Law
Rosengrens Advokatbyrå i Göteborg AB
Box 2523
403 178 Göteborg
VERDICT
Crimes committed
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
Damages
Carl Lundström will, jointly with the other defendants, pay compensation to
11
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782,
- Playground Music Scandinavia AB of EUR 28,159,
- Bonnier Amigo Music Group AB of EUR 4,290,
- EMI Music Sweden Aktiebolag of EUR 162,988,
- Warner Music Sweden Aktiebolag of EUR 146,484,
- Yellow Bird Films AB of SEK 3,150,000,
- Nordisk Film Valby A/S of SEK 225,000,
- Warner Bros Entertainment Inc of SEK 2,484,225,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of SEK 5,579,325
in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and 99 percent of which is payable to Mars Media
Beteiligungs GmbH
& Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made.
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
The confiscated computer is declared forfeit. It will remain confiscated (BLG 0240-06-
587 paragraph 7).
2. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
3. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Carl Lundström will, jointly with the other defendants, pay compensation for legal costs to
- Sony Music Entertainment (Sweden) AB of SEK 468,000 ,
- Universal Music Aktiebolag of SEK 156,000 ,
- Playground Music Scandinavia AB of SEK 156,000 ,
- Bonnier Amigo Music Group AB of SEK 102,000 ,
- EMI Music Sweden Aktiebolag of SEK 264,000 ,
- Warner Music Sweden Aktiebolag of SEK 54,000 , all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920 , of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880 , of which SEK 48,960 refers to counsel fees,
12
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246,000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,500, of which
SEK 246,000 refers to counsel fees,
- Blizzard Entertainment Inc of SEK 25,000 in counsel fees and
- Activision Publishing Inc of SEK 12,500 in counsel fees
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. Carl Lundström’s claims for compensation for legal costs and cost of appearance are
dismissed.
3. Carl Lundström will refund the state the sum of SEK 175,663 which, in accordance
with the court’s decision, was paid from public funds to Stefan Jevinger on 2
September 2008 in his previous role as defence appointed by the court. 1.
Other
Carl Lundström’s request that the District Court obtain a preliminary ruling from the
European Court of Justice.
13
CONTENTS
THE CASE
14
CLAIMS AND POSITIONS
16
The indictments
16
The individual claims
19
ARGUMENTS BY THE PARTIES ETC
22
The indictments
22
The individual claims
31
EXAMINATION ETC. OF THE DEFENDANTS
31
FINDINGS OF THE COURT
35
Indictments for breach of the Copyright Act
35
Comments on liability for breach of the Copyright Act
35
Comments on the questions of the issues in the case
36
Findings of the Court, continued
37
The filesharing service The Pirate Bay
38
The principal offences in accordance with the indictment for complicity
39
Acts of complicity
47
Other allegations in the indictment of complicity to breach of the Copyright Act
52
Preparation of breach of the Copyright Act
53
Freedom from liability under the Electronic Trading Act?
54
Sanctions etc
57
Indictment for breach of the Prohibition of Certain Health-Impairing Goods Act
61
The individual claims
62
Initial starting point
62
The plaintiffs’ claims
63
Summary of the plaintiffs’ arguments
63
The verdict of the District Court
68
Legal costs etc
75
Claims for costs by the plaintiff companies
75
Other compensation
76
14
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT
17 April 2009
B13301-06
THE CASE
A file is a collection of data which may contain music, films or other types of data, such as
computer games. The file can be stored on the computer hard disk, but also on CDs or DVDs
for example.
The term filesharing means that a person makes the files on a computer available to other
computer users (other computers) who/which form part of a computer network, such as the
Internet.
A number of different filesharing programs and technologies have been developed over the
years. There have been or are two main types of filesharing systems.
The client-server structure can be described as an older system, which involves a network
with a central computer (host computer) which serves users by allowing them to store
(upload) or collect (download) files. The drawbacks of this system are reputed to be its
capacity (bandwidth) and vulnerability. Napster was one example of this type of system.
Later on, filesharing software based on peer-to-peer technology was developed. This
technology means that files can be transferred between communicating computers which are
on an equal footing with each other, i.e. neither has the role of client or host computer. There
is no central computer in a network based on this technology. Filesharing software which
uses this technology includes Direct Connect, which acts as an intermediary for contacts
between individual computers connected to hubs. Another peer-to-peer technology used for
filesharing, is the software and file transfer protocol called BitTorrent. BitTorrent software is
used to divide a digital file into different segments and give them a mathematical number
(known as a hash total), and to create a torrent file. A torrent file is a file which, in principle,
contains only data which identifies the components the digital file has been divided into. To
facilitate distribution of the digital file, an address for one or more trackers is, as a rule,
specified in a torrent file.
The purpose of a tracker is to inform users of a specific torrent files which other users share
precisely that digital file. The torrent file can be uploaded to a web server which stores the
torrent file for downloading by users.
15
Between 1 July 2005 and 31 May 2006 – the period this case refers to - The Pirate Bay
website provided a filesharing service which used the BitTorrent protocol.
In January 2008, the District Prosecutor indicted Fredrik Neij, Gottfrid Swartholm Warg,
Peter Sunde Kolmisoppi and Carl Lundström for complicity in breach of the Copyright Act
(1960:729), since, jointly and in collusion with each other and another person, they had been
responsible for the operation of the filesharing service The Pirate Bay and, through this, aided
and abetted other individuals who, through transfer via the Internet of files containing certain
named copyright-protected recordings of sound and moving pictures, as well as computer
software (computer games), had made the recordings and software available to the general
public on certain specified dates and, on a certain date, also aided and abetted others in the
production of copies of the recordings and computer software. According to the District
Prosecutor, the aiding and abetting referred to the fact that the defendants, through the
filesharing service, provided others with the opportunity to upload torrent files to the service,
provided others with a database linked to a catalogue of torrent files, provided the
opportunity for others to search for and download torrent files and also provided the
functionality with the assistance of which individuals wishing to share files with each other
could contact each other through the filesharing service’s tracker function.
The District Prosecutor also alleged that the defendants were guilty of preparation for breach
of the Copyright Act, during the period 1 July 2005 to 31 May 2006, in that, in connection
with the operation and through the functionality of the filesharing service, in a specially
prepared database with associated catalogue, they received and stored the torrent files which
related to the copyright-protected rights and works. The torrent files were specifically
intended to be used as an aid in breach of the Copyright Act.
The District Prosecutor subsequently also indicted Gottfrid Svartholm Warg for breach of the
Prohibition of Certain Health-Impairing Goods Act.
The District Prosecutor later withdrew the indictment as far as it concerned the use of a file
containing Max Peezay’s record ”Discokommittén”.
Of the plaintiff companies listed in Appendix 1, 14 – six Swedish record companies, two
Nordic film companies and six American film companies – brought individual claims against
the defendants, on grounds of breach of the Copyright Act, for the joint and several payment
of damages for utilisation of rights and works, as well as damages for losses other than
utilisation. The claims totalled significant amounts. The District Court decided that the claims
would be heard in connection with the indictment. On a number of occasions during the pre-
trial conference, the Court dismissed requests from the defendants that the claims should be
heard as a separate case, under civil law.
During the main hearing in the case, the District Prosecutor initially changed the indictment
for complicity by dropping from the indictment the charge that the defendants, on certain
given dates, also aided and abetted other individuals in producing copies of the recordings
and computer games. The defendants objected that the change by the District Prosecutor was
16
not a permitted adjustment of the indictment, but that the indictment had, in fact, been
revoked on the issue of aiding and abetting the production of copies. They therefore moved
that a verdict of not guilty in that part of the indictment which referred to aiding and abetting
the production of copies be returned. The District Court found, in a decision during the trial,
that the District Prosecutor’s change to the indictment represented the kind of change to an
indictment covered by chapter 45 § 5 third paragraph of the Criminal Code and was,
therefore, a permitted change to the indictment.
During the main hearing, the District Prosecutor subsequently adjusted the indictment in the
following respects as well.
On the issue of the offences of complicity he no longer alleged that the components an index
portal in the form of a website with search function, a database with catalogues containing
torrent files and a tracker function were essential to allow users of the filesharing service to
share files with each other. The District Prosecutor also alleged that the aiding and abetting
consisted not only of the provision of an opportunity for others to upload, but also to store
torrent files to the service.
On the issue of the offence of preparation, the District Prosecutor alleged that it had been
committed only on 31 May 2006 and only in Stockholm and, consequently, not during the
period of time previously stated.
Consequently, this case concerns the issue of criminal complicity in the infringement of
copyright by individuals who are alleged to have provided a filesharing service within a
computer network, and of the liability of those involved to pay damages under the terms of
the Copyright Act.
CLAIMS AND POSITIONS
The indictments
The District Prosecutor demanded the conviction of the defendants for complicity in breach
of the Copyright Act and for preparation for breach of the Act, and set out the special motions
listed in Appendix 2.
All plaintiffs have supported the indictment for breach of the Copyright Act. With reference
to the indictment for preparation, the plaintiffs have, secondly, supported the indictment
covering the period 1 July 2005 to 31 May 2006.
Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström have all
denied liability for complicity in and preparation for breach of the Copyright Act
respectively.
The defendants have disputed the special motions aimed at them collectively or individually,
apart from the motion under e) which none of the defendants has had any objection to.
The defendants have cited the following circumstances in support for their positions.
17
Fredrik Neij:
The filesharing service The Pirate Bay was not illegal, so no criminal complicity can be
asserted simply on the basis that the service has been supplied with and provided information
on torrent files. Nor is there any evidence that a principal offence has taken place.
The Pirate Bay has only used information on torrent files from Internet users without The
Pirate Bay or any of its representatives having acquainted themselves with any copyright-
protected material or actively referred to such material. The production of copies has taken
place on the users’ computers without the recordings and computer programs covered by the
indictment having passed through The Pirate Bay’s computers.
He has not intentionally been complicit in the infringement of copyright in accordance with
indictment count 1, since he has not been aware of the existence of the files specified in the
count. It is the users of The Pirate Bay who have been responsible for the files they have
supplied and shared with others.
Fredrik Neij has agreed with the District Prosecutor’s allegation that The Pirate Bay is an
Internet filesharing service which uses the BitTorrent protocol and that the service consists of
three sub-components (indictment count 1, description of the act, first paragraph, first to third
sentences). He has agreed that the operation of the service has, to some extent, been financed
by advertising revenue. He has also agreed that, in accordance with the allegations, he has
been involved in the operation of the filesharing service on the dates and from the locations
specified in the description of the act (third paragraph). He has confirmed the District
Prosecutor’s allegation that the filesharing service provided the opportunity for others to
upload and store torrent files, for others to search for and download torrent files, and that the
service had a tracker function which made it possible for individuals who wanted to share
files to contact each other (description of the act, second-last paragraph), but has argued that
this is a widely-used, conventional filesharing technology and should, therefore, not been
regarded as aiding and abetting an infringement.
Preparation for breach of the Copyright Act has not taken place for the same reasons cited in
support of the fact that no complicity took place, and the torrent files have not been
specifically dedicated to be used as an aid in the offences.
Gottfrid Svartholm Warg:
He has cited the same circumstances as Fredrik Neij in support for his denials.
He has agreed that the tracker function – which he created – has resulted in a peer-to-peer
network. He has also agreed that the filesharing service has, to some extent, been financed by
advertising revenue, and that he has handled most of the operational aspects of the service
(indictment count 1, description of the act, third paragraph). He has emphasised that he,
jointly and in collusion with Fredrik Neij only – not the other defendants – has been
responsible for the measures involved in the operation of the filesharing service.
18
Peter Sunde Kolmisoppi:
He has not jointly and in collusion with the other defendants been responsible for the
measures involved in the operation of the filesharing service and, therefore, not provided the
opportunities which facilitated filesharing from The Pirate Bay.
He has, in addition, cited the same circumstances as Fredrik Neij in support of his denials.
Carl Lundström:
It is not an offence per se to provide a filesharing service which can be used for both legal
and illegal purposes.
The indictment refers to responsibility for collective complicity, which is not an offence
covered by Swedish law. Carl Lundström – who has not been involved with the website The
Pirate Bay – can only answer for his own actions.
He has owned the companies Rix Telecom AB and Rix Port 80 AB. The companies have
hired out computers and provided broadband space on market terms for the company PRQ
Internet Kommanditbolag, which was the owner of the domain names associated with The
Pirate Bay’s website. The companies were paid by PRQ Internet for services provided, just as
it is by the company’s other 50 – 100 customers.
He has had no intention of committing an infringement of copyright. The purpose of the
company’s contacts with the customer, PRQ Internet, was to earn money.
The indictment for preparation for breach of the Copyright Act is not fully framed. In
addition, previous circumstances are cited in support for the denial of the indictment for
preparation.
He has also cited the same circumstances put forward by Fredrik Neij in support of his
denials.
-----------
The District Prosecutor has also charged Gottfrid Svartholm Warg with breach of the
Prohibition of Certain Health-Impairing Goods Act (1999:42), of the Prohibition of Certain
Doping Agents Act (1991:1969) and for narcotics offences and put forward special motions
in connection with these indictments in the manner described in Appendix 3.
Gottfrid Svartholm Warg has denied the acts. He has admitted the special motions.
Gottfrid Svartholm Warg , as a result of being suspected of an offence on 23 June 2007, was
arrested and held in custody during the period 23 – 25 June 2007.
19
The arguments put forward by the parties with reference to the indictment will be examined
later by the District Court in a separate section of the verdict.
The individual claims
The plaintiff companies – apart from Blizzard Entertainment Inc, Warner Bros Entertainment
Inc for that part which refers to the computer game F.E.A.R., which the company is the
rights-owner for (count 3 C of the indictment for complicity) and Activision Publishing Inc –
have moved that the defendants jointly and severally pay damages to each of the plaintiffs
both for the utilisation of their rights or works, and for losses other than those stemming from
the utilisation.
The six Swedish record companies have claimed damages of a total of EUR 2,118,071, in
accordance with the following:
- Sony Music Entertainment of EUR 165,964 (55,321 + 110,643) for utilisation of sound
recordings specified in indictment counts 1 A, C, H, I, L and U,
- Universal Music of EUR 384,365 (98,393 + 285,972) for utilisation of sound recordings
specified in indictment counts 1 B, D and N,
- Playground Music Scandinavia of EUR 115,572 (37,556 + 78,016) for unlawful utilisation
of sound recordings specified in indictment counts 1 E, M and R,
- Bonnier Amigo Music Group of EUR 23,849 (5,733 + 18,116) for unlawful utilisation of
sound recordings specified in indictment counts 1 F and O,
- EMI Music Sweden of EUR 912,366 (217,334 + 695,032) for unlawful utilisation of sound
recordings specified in indictment counts 1 G, K, P, Q and T, and
- Warner Music Sweden of EUR 585,956 (195,319 + 390,637) for unlawful utilisation of
sound recordings specified in indictment count 1 S
as well as interest in accordance with § 6 of the Interest Act (1975:635) on the amounts from
31 May 2006 until payment is made.
The Nordic film companies have claimed damages of, firstly, a total of SEK
6,750,000:
- Yellow Bird Films, firstly, of SEK 6,300,000 (2,100,000 + 4,200,000) or alternatively of
SEK 6,233,616 (2,033,616 + 4,200,000) for utilisation of picture recordings specified in
indictment counts 2 A, B and D, as well as
20
- Nordisk Film Valby, firstly, of SEK 450,000 (150,000 + 300,000) or alternatively of SEK
327,080 (27,080 + 300,000) for utilisation of picture recordings specified in indictment
count 2 C
as well as interest in accordance with § 6 of the Interest Act (1975:635) on the amounts from
31 May 2006 until payment is made.
The American film companies have claimed damages of a total of SEK 93,050,080 in
accordance with the following:
- Warner Bros of SEK 11,547,638 (5,773,819 + 5,773,819) for utilisation of picture
recordings specified in indictment count 2 E,
- Metro-Goldwyn-Mayer and Columbia Pictures of SEK 22,073,458 (11,036,729 +
11,036,729) for utilisation of a picture recording specified in indictment count 2 F, 25 percent
of which is to be paid to Metro-Goldwyn-Mayer and 75 percent of which is to be paid to
Columbia Pictures,
- Twentieth Century Fox of SEK 40,003,824 (20,001,912 + 20,001,912) for utilisation of a
picture recording specified in indictment count 2 G,
- Warner Bros of SEK 1,637,494 (818,747 + 818,747) for utilisation of picture recording
specified in indictment count 2 H, and
- Twentieth Century Fox and Mars Media Beteiligungs of SEK 17,787,666 (8,893,833 +
8,893,833) for picture recording specified in indictment count. 2 I, 1 percent of which is to be
paid to Twentieth Century Fox and 99 percent of which is to be paid to Mars Media, as well
as interest in accordance with § 6 of the Interest Act (1975:635) on the amounts from 31 May
2006 until payment is made.
The plaintiff companies have, as a basis for their claims, cited that the criminal acts under
indictment counts 1 and 2 mean that the defendants intentionally were complicit in and
prepared infringements of copyright which have involved making available to the general
public copyright-protected sound and picture recording and works, or that they have,
alternatively, been negligent in their obligations concerning copyright infringement. The
making available of the recordings, which has occurred to a significant extent, involves
liability to pay damages for the utilisation of the recordings. The making available has, in
addition, resulted in losses for the rights-owners.
Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström have
disputed the individual claims. They do not in any part agree that the damages are reasonable.
They have agreed to the calculation of interest.
As grounds for their objections, the defendants have cited the same objections they have cited
in their denial of the indictments. They have, in addition, cited that they have not acted
21
negligently (carelessly) and have, in addition, cited the following grounds for disputing the
claims for damages.
The plaintiff companies have not suffered any injury since their sales of sound and picture
recordings have not fallen as a result of the alleged infringements. The making available of
the recordings has not led to those who have downloaded the recordings (produced copies)
having, consequently, failed to purchase the equivalent copies from the rights-owners. Nor is
there any other adequate causality between the specified injuries and the actions of the
defendants.
The number of downloaded torrent files has not corresponded to the number of downloaded
works. Nor is there any evidence that the downloads only involve unlawful originals.
Damages can only be paid for infringements committed in Sweden. Despite this, the plaintiffs
have presented their claims for damages in a way which does not show where the
infringement was committed.
Accomplices in breaches of the Copyright Act cannot be held liable to pay damages, since the
Act prescribes liability to pay compensation for “the person” who unlawfully utilises a right,
i.e. the perpetrator himself. Accomplices to offences cannot, in any case, be held liable for the
whole injury.
A case like that of the filesharing service The Pirate Bay, which involves a service provider
under the terms of the Electronic Commerce and Other Information Society Services Act
(2002:562), does not provide grounds for a liability to pay damages since The Pirate Bay did
not initiate the transfer of the information provided by a person using the filesharing service,
did not select the recipient of the information and did not select or alter the information.
Any liability to pay compensation shall, in any case, be adjusted with respect to the
defendants’ financial circumstances and the plaintiff companies’ need for compensation. Nor
shall joint and several liability be imposed.
------------
Carl Lundström has claimed that the design of the filesharing service The Pirate Bay,
including its sub-components, and the fact that the tracker function has created a peer-to-peer
network means that the Electronic Commerce Act is applicable to the operation. He has
argued that the wording of the Act in comparison with the EU directive on which the Act is
based is unclear and that the District Court has reason – for hearing the parts relating to
liability and damages – to obtain a preliminary ruling by the European Court of Justice, and
that the parties should be given the opportunity to comment in greater detail on which issues
should be put to the Court.
----------
The plaintiff companies have claimed compensation for legal costs.
22
Fredrik Neij has, in the event of an acquittal, claimed additional compensation for appearing
before the Court.
Carl Lundström has, in the event of an acquittal, claimed compensation for the fees of his
legal representative and for appearing before the Court.
ARGUMENTS BY THE PARTIES ETC.
The indictments
The District Prosecutor:
The filesharing service The Pirate Bay used BitTorrent technology in its operation.
The method for sharing a file containing, for example, a music recording, with others using
the filesharing service was, therefore, as follows.
The computer user who wanted to make a file available (the seeder) owned or produce a copy
of the recording on his or her computer.
The production of a torrent file which referred to the recording required a BitTorrent client,
such as Maketorrent or Azareus, i.e. a program which could divide the file into various
sections and then allocate it a hash total. To facilitate the making available of the work which
the torrent file related to, it was, in addition, necessary to add the Internet address of a
tracker. One option was to refer to several different trackers, not only the tracker provided by
the filesharing service The Pirate Bay. When the torrent file was created, the user would also
specify the designation (name/title) of the file.
The torrent file could then be uploaded to The Pirate Bay’s website and stored there by the
user, who had previously registered with the website, logging on to the website. The torrent
file could also be distributed in other ways, e.g. through the user’s own e-mail service, via
various chat programs or by uploading it to the user’s own website.
If another computer user subsequently wanted access to, for example, the music recording to
which the torrent file related, this user would visit The Pirate Bay’s website, search for the
torrent file in a catalogue of such files available on the website, and download the torrent file
to his or her computer. To access the actual music recording, the user who wanted access to
the recording (a leecher) would then have to open his or her BitTorrent program, which
would read the information on the torrent file regarding the tracker(s) specified. On
contacting the tracker, the tracker transferred information to the user’s computer about which
other users were connected and involved in sharing the relevant recording. The software
would also transfer various segments of the recording from each of these other users, until the
recording was downloaded to the user who wanted access to the recording.
23
One prerequisite for the execution of the filesharing was that the BitTorrent clients of both
the seeder and the user who wanted access were open (active).
The Pirate Bay’s website contained several web pages. The first contained a logo, search box
and links to other pages on The Pirate Bay.
By navigating to the page Bläddra bland torrenter [Browse torrents], a user would arrive at
specific categories – e.g. music, films, TV and games – from which they could obtain a
search result for torrent files named after, for example, films.
Clicking on a torrent file revealed information on, for example, when it had been uploaded,
by what user name (the uploader) and how many times it had been downloaded. The
information also included details of the content of the file the torrent file referred to, as well
as details of the size of the file and certain comments about it.
By navigating to the Nya torrenter [New torrents] page, a user could obtain information on
when different torrent files had been uploaded, listed by date and time.
By clicking on the page Topp 100 [Top 100] on the first page, the user could access popular
torrent files.
From the first page, a user could also go to a paged entitled Hur gör jag för att ladda ner
[How do I download?]. This page provided details of how to download the BitTorrent
software required for filesharing using the technology.
By clicking on Logga in [Log on] on the first page, a user could enter a user name and a
password, which was a prerequisite for downloading a torrent file.
The page entitled Registrera [Register] was used to register new users of the filesharing
service. They were asked to state, inter alia, a user name, e-mail address and password.
The page entitled Om [About] contained a presentation of the filesharing service The Pirate
Bay and the technology used by the service. In addition, the page carried the following
information on copyright-protected material:
“The members of The Pirate Bay represent a broad filesharing audience. Offensive material
may, therefore, be available. Do not e-mail us if you find something unpleasant, but instead
focus on the material you find enjoyable. The only time The Pirate Bay will remove torrents
is if the name does not reflect the content. Users should be aware of what they are
downloading.
The server contains only torrent files. This means that no copyright-protected and/or illegal
material is stored by us. The persons behind The Pirate Bay cannot, therefore, be held
responsible for the material distributed via the tracker. Any complaints from copyright
individuals and/or lobby organisations will be ridiculed and displayed on the website.”
24
The page entitled Juridisk korrespondens [Legal correspondence] shows the correspondence
“The Pirate Bay” has engaged in with various organisations or representatives of rights-
owners.
Once a torrent file had been created and addressed to The Pirate Bay’s tracker, users could,
on The Pirate Bay’s website, go to the page entitled Ladda upp torrent [Upload torrent] and
there upload the created torrent file to the filesharing service. This was done by browsing for
the created torrent file, changing its name, if necessary, categorising it and writing a
description of the torrent file. Finally, a code would be used to upload the file to the
filesharing service.
-------
The website The Pirate Bay started operating in the middle of 2004 when Fredrik Neij and
Gottfrid Svartholm Warg, who took over the operation from another person, allowed the
company, PRQ Internet Kommanditbolag, to register the name of the website in the top
domains .org, .com and .net. They were partners in the limited partnership company.
Initially, the operation was of relatively limited scope and primarily aimed at Swedish users.
In October 2004, Fredrik Neij established contacts with Carl Lundström who, at the time,
represented Rix Telecom AB. Carl Lundström offered the opportunity to obtain increased
computing power at Rix Telecom’s premises in Gothenburg, through the provision of two
servers (computers). These two servers, which were later seized, do not appear in the
accounts of Rix Telecom.
In early January 2005, Carl Lundström discussed an international launch of the website with
Fredrik Neij and Gottfrid Svartholm Warg. The opinion was that this would require other
languages to be used on the website, as well as an increase in computing power. Carl
Lundström, Fredrik Neij and Gottfrid Svartholm Warg agreed to establish a collaboration on
a company basis. The agreement was for Carl Lundström to supply additional computers and
operating capital, and to continue to provide Internet access. The intention was for Carl
Lundström to own 40 percent of the company, with the other two shareholders owning 30
percent each.
The international launch required, inter alia, the rewriting of the tracker function. This was
done by Gottfrid Svartholm Warg, who created a program for the tracker which would allow
an increase in the number of users. In addition, the website was changed to suit a more
international audience. It was also altered in a commercial sense, to allow it to accept larger
quantities of advertising.
At this point, Gottfrid Svartholm Warg established contacts with Oded Daniel in Israel, who
turned out to be a keen seller of advertisements and who also commented on the graphical
design of the website.
During this period, Peter Sunde Kolmisoppi entered the picture for the purpose of designing
the new website. He – who owned his own company, HAIQ Sweden AB – was also asked to
25
design the search function. For this purpose, the programming was carried out by certain
other individuals, but under the general supervision of Peter Sunde Kolmisoppi.
In spring 2005, additional computers were purchased for the operation. The purchases were
made by Rix Telecom, but one of the computers was posted on a clearing account which Carl
Lundström had set up with the company, i.e. this is his computer. The other computers
purchased were entered in the accounts of the company.
The Pirate Bay’s new website was ready in June 2005.
In March 2005, Carl Lundström had expressed concern about changes to the Copyright Act
due on 1 July 2005, which could mean that The Pirate Bay’s operations could be rendered
unlawful. Carl Lundström contacted a lawyer. Following discussions with his legal
representative, he e-mailed Gottfrid Svartholm Warg and mentioned that as of 1 July 2005,
the operation would be unlawful and that they should, therefore, consider relocating the
operation to another country.
E-mails were exchanged between Carl Lundström and Gottfrid Svartholm Warg, discussing
the possibility of moving to Russia or Argentina. A request by Carl Lundström to the
Swedish Embassy in Argentina for assistance in relocating the operation there, since the
situation vis a vis copyright in Argentina could be assumed to be more user-friendly than in
Europe was turned down by the Embassy. Carl Lundström then contacted an Argentinean
lawyer with the aim of ascertaining the cost of establishing the operation as a company in
Argentina. The reply, which was received in July 2005, was forwarded to Gottfrid Svartholm
Warg, with a query about whether to proceed.
In August 2005, Oded Daniel increased his efforts to sell advertising space. Peter Sunde
Kolmisoppi was involved in the advertising sales operation.
Oded Daniel then came up with the idea the company Transworld Advertising Corporation,
which he represented, as well as himself, Fredrik Neij, Gottfrid Svartholm Warg and Peter
Sunde Kolmisoppi should form a company called Random Media to run the operations of
The Pirate Bay. Transworld Advertising would invest USD 40,000 in the new company,
while Fredrik Neij and Gottfrid Svartholm Warg would contribute the websites they owned.
The articles of partnership – which were signed in September 2005 – show that in addition to
the company promoters, an external party – also designated the hoster – would be given 920
shares corresponding to 8.25 percent of the shares. The external party was Carl Lundström
who, at the time, was unaware of this fact but later became aware of it and acted accordingly.
Later, in autumn 2005 and early 2006, the filesharing operation was moved to Stockholm. In
September 2005, an agreement was signed by PRQ Internet and Rix Port 80 AB on space for
the computers (servers) and Internet access. The agreement meant that PRQ Internet, from
January up to and including May 2006, would pay SEK 17,000 per month for services
provided by Rix Port 80.
26
In early 2006, Fredrik Neij reminded the other partners to the Transworld Advertising
agreement (Random Media) that Carl Lundström was to be paid. In the reminder, Fredrik
Neij wrote that Carl Lundström’s share was “8.5 %”. In April 2006, Transworld Advertising
transferred USD 2,500 (just over SEK 18,000) to the company Morca AG, a company
wholly-owned by Carl Lundström. Documentation relating to the transfer states that it was
for “Purchase of Media”.
In autumn 2005 and in 2006, Gottfrid Svartholm Warg also received payments from
Transworld Advertising for advertising space (purchase of media) on The Pirate Bay’s
website. Fredrik Neij received three such payments in 2006. The payments, which related to
purchase of advertising space (purchase of media) amounted to SEK 1,200,000 in total.
In spring 2006, Carl Lundström also acquainted himself with the accounts from Oded Daniel
to the partners to the Transworld Advertising agreement on the advertising space sold, which
must be regarded as evidence that Carl Lundström was involved in the financing of the
operations carried on by The Pirate Bay. In April 2006, Carl Lundström sent an e-mail to
Oded Daniel with proposals for new services in the form of a pooling of The Pirate Bay’s
website and a digital television receiver, i.e. a strategic expansion of the filesharing service.
In May 2006, Peter Sunde Kolmisoppi travelled to Israel to meet Oded Daniel, and to discuss
agreements with advertisers on the website.
Oded Daniel mainly involved himself in the selling of advertising space for advertisers
outside the Nordic region. The right to sell advertising to advertisers within the Nordic region
had been granted to the companies Crystone AB and Eastpoint Media AB. The contact
person for these was Peter Sunde Kolmisoppi. He sent – via his own company, HAIQ
Sweden AB – invoices to these advertising brokers for the concession of advertising space on
The Pirate Bay. Payment was made to HAIQ Sweden.
---------
The making available – in the form of transfer to the general public – of the sound and picture
recordings and computer games included in the indictment for complicity occurred on the
dates specified in each indictment count.
The filesharing service’s website Detaljer för denna torrent [Details of this torrent], shows,
for every individual sound or picture recording or computer game, when the torrent file was
uploaded to The Pirate Bay.
Some time before The Pirate Bay’s server and other equipment was seized on 31 May 2006,
the plaintiff companies, through the staff of the International Federation of the Phonographic
Industry, IFPI, (Sweden) and the Anti-piracy Agency, had, at certain times, downloaded
(produced copies) of recordings by downloading torrent files relating to the recordings from
The Pirate Bay. The plaintiff companies could then, by using the torrent files and a
BitTorrent client, download a file containing the recordings from seeders and from others
who had not downloaded the whole file but who shared the file at the same time as, within
27
the framework for a file-share taking place at the time, they downloaded the file. The
downloads produced fully-functional copies. It was also possible, on this occasion, to see
how many times the file had been downloaded, according to information shown on the page
entitled Detaljer för denna torrent [Details of this torrent].
When the servers were seized on 31 May 2006, it became clear that in all but three cases, the
number of downloads had increased in relation to the number at the time of the downloads
made by the plaintiff companies.
Sony Music Entertainment et al (the six Swedish record companies):
In January 2006, the record companies reported certain individuals associated with The Pirate
Bay as suspected of having committed offences. At this time, The Pirate Bay had over
700,000 registered users, and the website was, in addition to Swedish, available in 20 other
languages. The Pirate Bay’s operations meant that the individuals responsible for the
operations were in any case guilty of complicity in an infringement through the actions
described by the District Prosecutor.
Certain web pages on The Pirate Bay’s website also made clear the views on the use of other
people’s copyright-protected rights or works of the representatives of the filesharing service.
The page entitled Juridisk korrespondens [Legal correspondence] showed that significant
amounts of information had been provided regarding the fact that uploading and downloading
of torrent files which referred to copyright-protected rights or works were taking place on
The Pirate Bay without the consent of the rights-owners. The presentation of the filesharing
service on the website (on the page entitled Om [About]) also showed that the attitude of the
representatives of The Pirate Bay was to ignore warnings of the use of copyright-protected
material via the operation of the filesharing service.
Warner Bros et al (the American film and computer games companies):
In addition to the allegations by the District Prosecutor on the issue of complicity, it should
be stressed that the representatives of The Pirate Bay have stated that they had the facilities
for removing torrent files from the filesharing service, e.g. if the name did not correspond to
the content of the file to which the torrent file referred.
Fredrik Neij:
In the presentation of The Pirate Bay on the website (the page entitled Om [About]), it was
also stated that The Pirate Bay had an open tracker, where anyone could upload or download
torrent files and write comments, as long as that individual was registered, and that no charge
was made for this. The website was, therefore, based on the users’ material – a user-generated
site. It was made clear to every user that the filesharing service did not contain any copyright-
protected material. A number of individuals were involved in The Pirate Bay’s operations,
and it is impossible to specify who wrote the presentation of the filesharing service.
28
The making available of a sound or picture recording or a work did not start automatically as
a torrent file was uploaded. This required the uploader to keep his/her Internet access
switched on and the BitTorrent software open.
There is some uncertainty about the information relating to the number of downloads
displayed for the torrent files, since the counter, which noted the number of downloads of the
material described by the torrent file, was not completely reliable.
The link between the making available copyright-protected recordings or works and the
alleged complicit actions is unclear on several points. It is not known who the uploader was,
where he was based, or how he had obtained the original of the file he was sharing. Nor has
there been any concrete indication of how the uploader and downloader were influenced by
the operations of The Pirate Bay or by Fredrik Neij, other than that the filesharing service
provided a filesharing model which is, in fact, legal.
Fredrik Neij was not involved in the initial operation of The Pirate Bay. In 2004, he was
asked to assist with the technical aspects of the operation. The grounds for his involvement in
the operation were neither financial nor ideological, and the work was carried out free of
charge.
The Pirate Bay was not run as a commercial project for the purpose of generating an income
for the individuals behind the operation. To finance the operation, which was relatively
expensive, the website did, however, accept advertising.
The Pirate Bay did not contain any copyright-protected material, and the individuals in the
operation were not aware that such material was included in that which was file-shared, since
this was outside The Pirate Bay’s control.
The Pirate Bay was – as stated previously – an open search service. Fredrik Neij could not,
therefore, n be responsible for the material referred to by the users via the torrent files and
even less so if the material was protected by copyright. He has, therefore, had no knowledge
of the principal offence.
In the hearing of the case, it is also important that the fundamental idea behind the Internet is
to refer to various documents, which would also suggest a right to refer to torrent files. The
BitTorrent technology is also one of the most commonly-used filesharing technologies.
The Pirate Bay must be regarded as a service provider in accordance with the Electronic
Commerce Act, i.e. a “person” who provides one of the services of the information society.
Such services are those which are provided at a distance, electronically and at the individual
request of the service recipient. A service provider who supplies information cannot, under
the provisions of the Act, be held liable for an offence which relates to the content of the
information. The purpose of the Act is, instead, to place the burden of responsibility on the
person who provides the information, and not on the person who simply supplies a route by
which the information can be transferred.
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Gottfrid Svartholm Warg:
He set up The Pirate Bay’s operation in 2003 with a small single computer. The operation
was, eventually, named, but the name was in no way symbolic. He had the decision-making
power in the operation and made the necessary decisions. After Fredrik Neij entered the
operation, all decisions were made in consultation with him.
He created the tracker software. In doing so, he did not provide the copyright-protected
performances, nor did he urge the users to infringe copyright. Nor did the majority of files
shared contain copyright-protected material.
The agreement entered into with, inter alia, Transworld Advertising, was certainly signed, but
never resulted in any operation within the framework of the planned company, Random
Media.
It is correct that he received payments from abroad, but these did not always relate to
payment for advertising space on The Pirate Bay’s website.
Peter Sunde Kolmisoppi:
He was not responsible for the actions relating to the running of the operation, as alleged by
the District Prosecutor. The payments which have allegedly involved him have been made to
his company. In the agreement signed with, inter alia, Transworld Advertising, he was not
listed as a promoter. He did not, consequently, hold any position in The Pirate Bay’s
operation which could lead to him being regarded as responsible for it.
Most of the files made available for filesharing via The Pirate Bay did not contain copyright-
protected material. Only a very small proportion of the files related to copyright-protected
performances.
Carl Lundström:
The indictment for breach of the Copyright Act is aimed at intermediaries. The Pirate Bay’s
filesharing service is based on information transferred between computer users. According to
the Electronic Commerce Act – and EU directive 2003/31/EC on which the Act is based – a
service provider who supplies information but who has not initiated the transfer, which The
Pirate Bay has not done, cannot be held responsible for an offence, nor found liable to pay
damages.
Carl Lundström has not been involved with The Pirate Bay website. He could certainly, like
others, log on to the website and browse through it, but this does not mean that he played an
active part in the operation.
He was – and still is – a businessman involved in the financing of the operations of inventors.
He set up the company Rix Telecom in the late 1990s. This was a traditional broadband
company with several employees. He was not involved in its day-to-day operations, but dealt
with general issues.
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In 2004, he met Fredrik Neij at an exhibition and invited him to come and work for Rix
Telecom. Through the auspices of Fredrik Neij, a meeting with Gottfrid Svartholm Warg was
arranged at the end of 2004, when The Pirate Bay had already started to operate a filesharing
service. At this meeting, he was shown how the filesharing service worked. Rix Telecom –
and its subsidiary in Stockholm, Stockholm Rix Port 80 – had, at this time, expanded their
operations to include co-location, i.e. to let offices/premises for installing computers. As early
as October 2004, Rix Port 80 signed an agreement with PRQ Internet – the legal entity which
owned the website The Pirate Bay – on the installation of PRQ’s computers in the premises
of the joint stock company. This agreement was drawn up before Rix Telecom had acquired
Rix Port 80.
Rix Telecom had, as part of its operations, bought and sold computers to its customers. The
computers would be purchased by one of the company’s employees, and it is impossible to
know why some of them were found in the computer cabinet where the servers (computers)
involved in The Pirate Bay’s operations were later seized. In early 2005, two computers
purchased on behalf of Carl Lundström were delivered to Rix Telecom. He purchased these
computers for further forwarding to PRQ Internet.
Carl Lundström became interested in PRQ Internet for two reasons. He saw PRQ as a future
customer for Rix Telecom’s co-location operations. In early 2005, he also took an interest in
The Pirate Bay’s operations and suggested becoming a shareholder in PRQ.
Later in the spring of 2005, he found out that the Copyright Act was about to be changed on 1
July 2005, and that this change could lead to The Pirate Bay’s filesharing operation being
regarded as infringing copyright. He therefore sought legal advice. He also investigated – at
the request of Fredrik Neij and Gottfrid Svartholm Warg – the opportunities for the operation
on foreign soil, including Russia or Argentina. The responses were, however, wholly
negative. In August/September 2005, he therefore backed out of the planned business
relationship with PRQ Internet or with representatives of The Pirate Bay.
Rix Telecom – and the subsidiary Rix Port 80 – still maintained business relations with PRQ
Internet for co-location services, as is shown, inter alia, by agreements from April, July and
September 2005.
The agreement from September involved Rix Port 80 letting a computer cabinet (rack
cabinet) at the company’s premises and providing broadband space (traffic and connection) to
PRQ Internet. Another agreement was signed between Rix Port 80 and PRQ Internet in
February 2006, relating to co-location (hosting of server) in a computer cabinet which Carl
Lundström, in capacity of manager of the company, was unaware. In spring 2006, Rix
Telecom purchased additional computers which were, subsequently, sold on to PRQ Internet.
Since Rix Telecom was able to obtain a better price for the purchases for later sale to PRQ,
this made the company money.
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In April 2006, Rix Port 80 sent an invoice to PRQ Internet not only for co-location but also
for other telecoms-related services provided on commercial terms. Carl Lundström was not
involved in the invoicing process.
He was not aware of the agreement with, inter alia, Transworld Advertising, signed in
September 2005, until it was shown to him as part of the preliminary investigation. The
payment from Transworld Advertising received by him in April 2006 appears to have been
executed by Oded Daniel, whom Carl Lundström has never previously met. They only met at
a later date in April. In late May 2006, Oded Daniel contacted Carl Lundström, since they
had got to know each other after a meeting in the USA in April 2006, outside the framework
of The Pirate Bay’s operations.
The individual claims
The individual claims cited by the parties will be considered by the District Court in a later
section of this verdict.
EXAMINATION ETC. OF THE DEFENDANTS
Fredrik Neij has primarily stated the following. He has a long-standing interest in computers
and technology, and this was why he became involved with The Pirate Bay. The name had
already been established when he joined the operation. He did not join The Pirate Bay on any
political or ideological grounds. To him, The Pirate Bay simply represented a technical
challenge. He would be involved in the operation of a major website and a tracker. He would
get access to computers which he would not otherwise be able to use. He came into contact
with Gottfrid Svartholm Warg at some point in 2004. At this point, he purchased four
computers on behalf of The Pirate Bay. After he started working for Carl Lundström, they
agreed that he could store the computers at the premises which belonged to Carl Lundström’s
company, and that he would also be provided with bandwidth free of charge. He would pay
for this by working at a reduced salary. He handled the registration of the domain names and,
this is why he is specified as the contact person on the registration documents.
The Pirate Bay grew by itself. He and Gottfrid Svartholm Warg did not market the website.
He is aware that Piratbyrån had a link to the website. The Pirate Bay was, initially, in
Swedish. They then discovered that around 50 percent of visitors were foreign users. For this
reason, the website was “translated” into other languages as well. A group of graphic
designers, coders and moderators were involved in the work on the website. No-one had any
specific decision-making powers. Everyone did whatever they, individually, felt was
necessary.
He is aware that the website contained torrent files linked to films, music and games. He is
also aware that a tab on The Pirate Bay contained letters and complaints from rights-owners.
He did not, however, think that the operation was illegal, since he had checked this with
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various legal experts. One of these was a law student who, in turn, checked this with his
teachers and professors.
The Pirate Bay’s tracker is an open tracker, which means that anyone can refer to it. The
Pirate Bay contained around 700,000 torrent files. A manual examination of every one of
these files would have been impossible. For this reason, the users were themselves held
responsible for what was on the site. Torrent files were sometimes removed from the website.
The Pirate Bay moderator would do this if someone complained that the description of a
torrent file did not accurately reflect the content.
He knows Oded Daniel. They got to know each other sometime in 2004, when The Pirate
Bay started carrying advertising in the form of banners on its website. It was Oded Daniel
who got in touch with them. Not all of his contacts with Oded Daniel have involved The
Pirate Bay. He has worked with Oded Daniel on around ten different websites. The money he
was paid by Oded Daniel’s company, Transworld Advertising, was probably remuneration
for the work he had carried out on behalf of Oded Daniel.
He gave a speech at Mynttorget after the seizure of equipment etc. from The Pirate Bay.
Piratbyrån had asked him to give the speech since he was one of the representatives of The
Pirate Bay. He did not write the speech.
Gottfrid Svartholm Warg has, primarily, stated the following. Some individuals at Piratbyrån
wanted to set up a BitTorrent tracker. This was at some point in the middle of 2003. He does
not remember who came up with the name The Pirate Bay. He purchased additional memory
for the computer and started experimenting since he was interested in the technology. At that
time, he was working in Mexico. He did, however, need more server space and this was
when he came into contact with Fredrik Neij. It was also then that the operation was relocated
to Sweden. They regarded this as a fun project. The website started to grow immediately.
New hardware was purchased continuously. They financed the operation with their own
money and through donations. They started selling advertising space on the website when it
became necessary for the running of the operation. They signed an agreement with Oded
Daniel in October 2004. An improved version of The Pirate Bay was launched in spring
2005. The new version involved the site being made available in several languages, with a
new design and much better technology.
He was not aware that the operation carried on by The Pirate Bay was illegal. He received
complaints from various rights-owners. He also responded to some of them. The Pirate Bay’s
policy was – and still is – that it is the users who utilise the torrent files on the website. This
is not something which the representatives of The Pirate Bay involve themselves with. The
only things removed from The Pirate Bay have been torrent files which users have
complained contain material which does not correspond to the description. This was done by
the moderators of The Pirate Bay. Material featuring child pornography was also removed
from the website. They would always report the matter to the police first, and, if the police
later ordered them to remove the material, they would do so. There was also an automatic
process for removing torrent files which were not downloaded.
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The partnership agreement for Random Media was drawn up by Oded Daniel, since it was he
who had a financial stake in The Pirate Bay. This was only one of several proposed
agreements. No company was ever registered and no shares were allocated to the partners.
The agreement came to nothing.
Carl Lundström has not been involved in The Pirate Bay’s operations. Carl Lundström has no
association with The Pirate Bay other than through the provision of Internet connection and
the purchase of computers on behalf of The Pirate Bay by Rix Telecom AB.
Peter Sunde Kolmisoppi became involved when they needed a media spokesman.
Peter Sunde Kolmisoppi has, primarily, stated the following. He got to know Fredrik Neij and
Gottfrid Svartholm Warg via the Internet. He became the media spokesman for The Pirate
Bay since no-one else wanted to do the job. He does not remember when he became involved
with The Pirate Bay. He was not involved in the operations carried on. He did not develop the
layout or the categories on The Pirate Bay. He did not work on The Pirate Bay’s database.
He did, however, suggest that The Pirate Bay should extract statistics from the website and
that The Pirate Bay should introduce a support hotline. He did not purchase any computers on
behalf of The Pirate Bay. He did purchase a computer on behalf of Piratbyrån, and this was
the reason that this computer was located among The Pirate Bay computers.
The e-mail he received from Oded Daniel with proposals for measures which could be
adopted by the website The Pirate Bay was forwarded by him to another person, who was to
carry out the work. Oded Daniel often turned to him when Fredrik Neij and Gottfrid
Svartholm Warg were not getting things done. He would then help out by “pulling some
strings” with Fredrik Neij and Gottfrid Svartholm Warg, and otherwise “push” people into
getting things done. He does not know why he has received revenue reports from Oded
Daniel. Oded Daniel is a strange person, and he often received unsolicited e-mails from Oded
Daniel. He was in contact with Eastpoint, one of The Pirate Bay’s advertisers. He helped
Oded Daniel with some invoicing issues by issuing invoices through his own company.
He later started to act as an intermediary in contacts between Eastpoint and Oded Daniel,
since Eastpoint refused to speak to Oded Daniel. He met with Oded Daniel on many
occasions. He was also involved in several other business deals with him.
He was aware of the e-mails and responses published on the web page entitled Juridisk
korrespondens [Legal correspondence].
He signed the partnership agreement on the formation of Random Media. The purpose of the
agreement was not to expand The Pirate Bay. Random Media was to earn money from
advertising sales on The Pirate Bay. Another idea behind Random Media was to develop new
services, e.g. Video Bay which was to be a competitor to YouTube. He only “skimmed”
through the agreement. He did not understand everything contained therein. Random Media
did not, however, start to operate.
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Carl Lundström has, primarily, stated the following. He was the CEO of Rix Telecom AB
during the period covered by the case. He met Fredrik Neij for the first time at an exhibition
in Jönköping in autumn 2004. During this meeting, Fredrik Neij told him that he and another
person had developed a filesharing service. The files shared could, according to Fredrik Neij,
contain copyright-protected material, but the filesharing service itself was legal. Gottfrid
Svartholm Warg demonstrated The Pirate Bay to him. At this point, Carl Lundström noticed
that it contained torrent files which referred to protected works.
Fredrik Neij suggested that he would take a job with Rix Telecom at a reduced salary. In
return, The Pirate Bay would be provided with free bandwidth and they would be allowed to
store their computers at the company’s premises. Part of the agreement was also that the
computers would remain there even after The Pirate Bay started to “generate” money. He
also purchased two new computers on behalf of The Pirate Bay.
He asked several legal experts whether or not the operation was legal. His statement to one of
the legal experts, in an e-mails dated March 2005, that the purpose of The Pirate Bay was
“pirate copying” was intended as a slight exaggeration. He wanted a reply to precisely this
question, since he did not want to take any risks in this context.
He received a negative response which he forwarded to Fredrik Neij and Gottfrid Svartholm
Warg. After receiving this message, he was no longer interested in becoming a shareholder in
“The Pirate Bay”. He did, however, later contact various people in Argentina and Russia to
ascertain whether it would be possible to set up the operation there. He tried to help out after
being asked for assistance either by Fredrik Neij or Gottfrid Svartholm Warg. He used the
personal pronoun “we” in the email, since he represented The Pirate Bay, as one of his
customers, when he made the enquiries. He met Oded Daniel at a conference in San
Francisco at some point in April 2006. He does not know why Oded Daniel had set aside
money on his behalf. Oded Daniel probably did not understand how matters stood. It cannot
have been a question of a dividend. He was interested in The Pirate Bay, which is probably
why he also received statistics on The Pirate Bay from Oded Daniel.
-----------
The parties have adduced written evidence.
At the request of the District Prosecutor, Magnus Mårtensson of IFPI Sweden and Anders
Nilsson of the Antipiracy Agency have been examined as witnesses.
At the request of the plaintiff companies, John Kennedy, IFPI, Ludvig Werner, IFPI Sweden,
Per Sundin, Universal Music, Bertil Sandgren and Per Ekengren, and
Grant Thornton, who have all submitted opinions, have been examined as witnesses.
Tobias Andersson and Kristoffer Schollin, LLD, who have also submitted opinions, have
been examined at the request of Fredrik Neij and, with reference to Kristoffer Schollin, also
at the request of Carl Lundström.
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At the request of Peter Sunde Kolmisoppi, Professor Roger Wallis has been examined as a
witness.
FINDINGS OF THE COURT
Indictments for breach of the Copyright Act
Comments on liability for breach of the Copyright Act
The Copyright Act distinguishes between copyright and certain rights associated with
copyright. Copyright belongs to the person who has created a literary or artistic work, such as
a film or a computer program. A right associated with copyright belongs to a producer of a
sound recording or a recording of moving pictures, e.g. a record company (phonogram
producer) which records an artist’s music on a certain medium, and a film producer who
records a film. The indictments for breach of the Copyright Act are based on an allegation of
infringement of both associated rights and actual copyright, which belong to certain US film
and computer game companies.
Under the provisions of §§ 2 and 46 of the Copyright Act, copyright protection is the
exclusive (sole) right of the rightsholder to dispose of the work or produce copies and so
make the work or right available to the general public. The indictment for complicity in
breaches of the Copyright Act, as it is finally worded, is based only on allegations of
infringement of the right to make a work or a right available to the general public.
Under the Copyright Act, a work or a right is made available to the general public when, inter
alia, it is broadcast to the general public. All the charges brought by the District Prosecutor
are to the effect that files containing copyright-protected performances have been made
available to the general public through Internet transfers. Such a making available occurs
when a work or a right, either by way of a wired or wireless connection, is made available to
the general public from a place other than where the public can enjoy the work. In addition,
broadcasting to the general public includes a transfer which takes place in such a way that
individuals can gain access to the work or right from a place and at a time of their own
choosing
If such performances are made available through widely available filesharing services which
use peer-to-peer technology, it is, typically, a matter of a broadcast to the general public (c.f.
Bill 2004/05:110 s. 70).
The Copyright Act includes a number of restrictions to the sole right which belongs to the
owner of the copyright to a specific work or a right. With reference to certain works and
rights, and under the provisions of § 12 of the Copyright Act, it is, inter alia, permitted to
produce copies for private use. Such a copy may not be used for any purpose other than
private use, i.e. it may not be made available to the general public. An important exception to
the right to produce copies for private use is when the original itself has been produced or
made available in contravention of § 2 of the Copyright Act.
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§ 53 of the Copyright Act regulates the sanctions applicable to infringement of copyright.
This statute shall, according to § 57 of the Act, also apply in cases of infringement of the
rights associated with copyright. Infringement of copyright also covers, inter alia,
infringement of associated rights, unless otherwise stated.
Under § 53 of the Copyright Act, anyone who takes actions which involves infringement of
the copyright associated with the work can be sentenced to a fine or imprisonment for a
maximum of two years, provided that the infringement was intentional or the result of gross
negligence.
The indictments cover both allegations of complicity in breaches of the Copyright Act, and
allegations of preparation of breaches of the Copyright Act. § 53 paragraph 5 of the
Copyright Act states that an attempted breach or preparation of breach of the Copyright Act
is punishable pursuant to Chapter 23 of the Criminal Code. Provisions for sentencing a
person for complicity in breach of copyright are included in Chapter 23 § 4 of the Criminal
Code, which states not only the person who committed the act can be found liable, but so too
can a person who aided and abetted the act in word or deed. The Code also prescribes that
this shall apply to any action for which a prison sentence can be imposed under other laws or
statutes.
Comments on the questions at issue in the case
Count 1 of the indictment refers to complicity in breaches of the Copyright Act. For the
defendants to be convicted in accordance with the indictment, the District Prosecutor must
prove that others, via Internet transfer of a file containing, for example, a sound recording,
have unlawfully made a copyright-protected phonogram available to the general public (i.e.
that a “principal offence” has been committed), and prove that the defendants have
encouraged the principal offence in such a way that they can be held criminally responsible
for their complicity.
In the opinion of the District Court, the natural course of action would be to examine the
principal offence first, and then move on to examining any complicity on the part of the
defendants.
The issue of whether the District Prosecutor has proved that the alleged principal offence has
been committed raises a number of different questions, including whether copyright
protection exists in the sense alleged, whether the District Prosecutor has demonstrated that
the making available has occurred during all or part of the time periods the District
Prosecutor alleges, whether it is a matter of unlawful making available and whether the
principal offence can be regarded as having been committed.
The issue of whether the District Prosecutor has succeeded in proving that the defendants
have aided the principal offence in such a way that they can be held legally responsible for
their complicity also raises a number of questions. The first question is whether the District
Prosecutor has demonstrated that all the defendants can be regarded as having acted together
37
and in collusion, as has been alleged. In addition, there is the issue of how the offence of
complicity relates to the principal offence, with reference to the extent to which or in what
way the offence of complicity may have encouraged the principal offence. In this context, the
time of the complicity in relation to the time of the principal offence should be analysed more
closely. The latter issues are significant when it comes to determine whether the actions of
which the defendants are accused objectively can be regarded as of sufficient to reach a
verdict on criminal complicity. To this can be added the question of intent and negligence.
The issues mentioned largely cover all the allegations found in count 1 of the indictment. The
indictment for complicity also includes other allegations which the District Court must
examine: whether the majority of the films made available for filesharing through The Pirate
Bay contain works and performances protected by copyright, and whether, and to what
extent, it is a question of commercial use of the said works and performances.
Count 2 of the indictment – preparation of breach of the Copyright Act – raises the question
of whether the defendants, if they convicted of complicity in breaches of the Copyright Act,
can also be convicted of preparation in accordance with the criminal allegations.
The indictment brings the Electronic Commerce and Other Information Society Services Act
to the fore. If the District Court should conclude that any of the defendants should be
convicted in accordance with the indictment – and, as a result of this, pay damages and
compensation to the plaintiff companies – the question arises if any of the grounds for
freedom from liability which can be found in the Electronic Commerce Act are applicable. A
particular issue in this context is whether the District Court should – as claimed by Carl
Lundström – obtain a preliminary ruling from the EU court.
Findings of the Court, continued
From here on, the findings of the Court will, by way of introduction, include a review of the
design and function of the filesharing service The Pirate Bay, which is material to the
judgement.
The District Court will then examine the issue of liability. The indictment for complicity in
breach of the Copyright Act will be examined under two main headings. The first will cover
the alleged principal offences, and the second the acts of complicity.
The District Court will then examine the issue of liability for preparation of breach of the
Copyright Act (count 2 of the indictment).
Following the issues of liability, the District Court will continue to examine whether there
may be freedom from liability in accordance with the Electronic Commerce Act. In this part
of its findings, the District Court will explain its decision on whether a preliminary ruling
should be obtained from the EU court.
The District Court will then consider sanctions and the separate motions by the District
Prosecutor.
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Finally, the individual claims will be examined.
The filesharing service The Pirate Bay
The investigation into the case makes it clear that the file sharing service – which used
BitTorrent technology – had a website to which a computer user could upload and store
torrent files, that the website had a database which enabled another computer user to search
for torrent files with the aim of downloading these to his or her own computer, and that there
was a tracker which enabled computer users who wanted to share files to contact each other
for filesharing.
The tracker function was used to create a peer-to-peer network which, in turn, meant that an
indeterminate number of individuals – not a completely closed circle – could be provided
with the recording or the work a torrent file referred to.
To upload and store a torrent file, the computer user who wanted to make a file available (the
original seeder) had, or made, a copy of the file (the principal file) on his or her hard disc. A
torrent file, which referred to the principal file, was produced through the use of special
software intended for the creation of torrent files.
A number of different programs were available for this purpose. Many of them were
available on the Internet free of charge. The torrent file created contained information on the
principal file, including the number of logic segments the principal file had been divided into,
as well as the file’s hash total. The hash total was a mathematical figure, the purpose of
which was to check that every principal file was put together correctly. The seeder frequently
included certain additional information in the torrent file, including a reference to the Internet
address(es) of one or more trackers.
The purpose of the tracker was to provide the computer user with information on which other
users were, at any given time, involved in sharing the principal file the torrent file referred to.
Since the user had created the torrent file, he could – according to what has emerged during
the trial – use it in a variety of ways for the purpose of sharing the principal file to which the
torrent file referred.
One way was to upload it to The Pirate Bay’s website, where it was stored and could be
searched for by other users.
According to what has been shown by the investigation, the process of downloading a
principal file via The Pirate Bay involved a computer user searching for the torrent file he
was interested in. Normally, the name of the torrent file would correspond to the name of the
principal file. The torrent file selected by the user could be opened using BitTorrent software.
The tracker would then be contacted and would inform the user of which other users were, at
that moment, involved in filesharing the principal file the torrent referred to. A “handshake”
would be performed, and the user would be accepted into the swarm of users involved in
filesharing. Once the “handshake” had been performed, filesharing with the other users in the
swarm would commence. A swarm could include a user designated a “seeder”, i.e. the user in
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possession of the whole principal file the swarm was sharing. The designation “leecher” was
applied to users who were in process of downloading a file to their computers. The segments
of a principal file a user downloaded were made available to other individuals in the swarm.
This speeded up the filesharing process.
The filesharing service did, consequently, mean that actual making available to the general
public of principal files containing, for example, copyright-protected sound or picture
recordings, films or computer software, was carried out by the computer users to an
indeterminate number of individuals and not, therefore, a closed circle.
The principal offences according to the indictment for complicity
For someone to be convicted of complicity in a specific offence requires the execution of a
punishable offence (the principal offence). The fact that the perpetrator cannot be punished
due to lack of intent, for example, does not preclude complicity.
The fact that the offence described, the actual principal offence, has objectively taken place is
sufficient ground for conviction.
According to § 2 of the Copyright Act, copyright to a work includes the exclusive right to
dispose of the work in such a way that it is made available to the general public. The same
applies to rights associated with copyright. According to what has been argued above, the
indictment refers to the type of making available which is involved in transferring the work to
the general public. To prove a breach of the Copyright Act first requires the sound and
picture recording and the works to be protected in accordance with the Copyright Act, and
that the alleged infringement has been unlawful in the sense that the rightsholders have not
given their consent. The District Prosecutor must then prove that it is a matter of making
available in the sense of the Copyright Act, that the making available has taken place during
the periods claimed, and that the making available is punishable under Swedish law.
- Are the rights and works protected under the terms of the Copyright Act?
For a product to enjoy copyright protection, it must be a work. The work concept means that
the product must be the result of labour and that it must contain a certain amount of
independence and originality. The term usually used is a requirement for distinctiveness. § 46
of the Copyright Act does, however, make it clear that the requirement for distinctiveness
does not apply to sound and picture recordings. For these works, it is sufficient that they are,
in fact, recordings of sound and moving pictures respectively. The District Prosecutor has
divided the indictment for complicity in an offence into a number of sub-paragraphs.
Each sub-paragraph contains a claim of unlawful making available with reference to a right
or a work specified in greater detail. Paragraphs 1 A – 1 I and 1 K – 1 U refer to records
containing music, i.e. the type of production of sound recordings which enjoy rights
associated with copyright and which are protected under § 46 of the Copyright Act, as
compared with § 61 of the Act and § 1, second paragraph, of the International Copyright
Statute (1994:193).
The producers of the films listed in paragraphs 2 A – 2 D enjoy rights associated with
copyright with respect to recordings of moving pictures, the copyright of which is protected
under § 46 of the Copyright Act. Paragraphs 2 E and 2 I refer to films which enjoy both
copyright protection and protection as associated rights, since they involve recordings of
moving pictures.
Paragraphs 2 F, 2 G and 2 H refer to films which enjoy actual copyright protection. The
reason that the works listed under 2 E – 2 I are claimed to be covered by actual copyright is
that these are American films.
Film recordings are – as is generally recognised – multifaceted, resource-demanding and
complicated projects, which typically result in films and, therefore, enjoy copyright
protection. Considering this, and since the defendants have not objected to this, it is,
therefore, regarded as established that these are films in the sense of the Copyright Act.
Paragraphs 3 A – 3 D refer to computer games (computer software). The defendants, who
have been given the opportunity to examine the computer games, have confirmed that they
possess distinctiveness. In addition, the witness Anders Nilsson, who downloaded the
computer games in question via The Pirate Bay’s website, has confirmed that the process
involves relatively advanced computer software.
In the opinion of the District Court, it has, therefore, been established that the computer
games meet the requirements for distinctiveness and are, therefore, copyright-protected.
- Who owns the rights and the works?
For the making available of a copyright-protected work or a right to be regarded as unlawful,
the making available must have occurred without the consent of the rightsholder. In the event
of an alleged copyright infringement, it may, therefore, be necessary to investigate who the
rightsholder is and obtain the rightsholder’s views on the making available.
The defendants have not questioned the plaintiff companies’ ownership of the rights and
works which have allegedly been made available unlawfully. This applies to the copyright of
the American film companies with respect to the American films. Irrespective of the
defendants’ views, the evidence in the form of DVD covers submitted by the American film
companies is, in the District Court’s view, sufficient proof of the companies’ rights as
rightsholders. The American companies have, however, also produced investigative material
in the form of copies of agreements between the companies and the originators, who have
contributed their creative efforts to the films, on the transfer of copyright to the companies.
It is, in the opinion of the District Court, clear that the plaintiff companies own the rights and
works, and that the rightsholders have not consented to these being used in the way cited in
the indictment.
- Is this a matter of making available in accordance with the Copyright Act?
All counts of the indictment relating to complicity in an offence cover descriptions which are,
by and large, the same with reference to the alleged actual making available. According to the
definition in the Copyright Act of what making something available to the general public
entails, the indictment relates to the type of making available which takes place when the
work is transferred to the general public.
The issue examined by the District Court in this context is whether the way in which the
specified files were processed may be regarded as involving broadcasting to the general
public.
In accordance with § 2 of the Copyright Act, a broadcast to the general public takes place
when the work, by wired or wireless methods, is made available to the public in a location
other than that in which the general public can enjoy the work. Broadcasting to the general
public was introduced as a new category in the concept of making available on 1 July 2005.
Examples of cases of making available to the general public quoted in the preamble include a
work transmitted on radio or television, either by traditional methods or via the Internet, or a
work being posted on an Internet website (Bill 2004/05:110, p. 378). § 2 also states that
broadcasting to the general public includes transfer which takes place in such a way that
individuals gain access to the work in a location and at a time of their own choosing.
Examples of this type of use, i.e. on-demand availability, is when a musical work or a film is
featured on a network such as the Internet, where individuals can enjoy the work at a time of
their own choosing (Bill 2004/05:110, p. 379).
Those of the District Prosecutor’s claims about the act which are of relevance here include
both the original seeder’s and the subsequent filesharer’s making available of the files
covered by the indictment.
A common factor for the named users is that they have all or parts of the relevant file stored
on their computer (hard drive). By connecting to the Internet and activating their BitTorrent
software – which is a necessary condition – they are making it possible for other Internet
users to acquaint themselves of the content of and, therefore, produce copies of the relevant
file themselves. As far as accessibility for other Internet users is concerned, the procedure is,
in principle, the same as when a work is made available by downloading it to an open Internet
website. Provided that a seeder is connected to the Internet, another Internet user, a leecher,
can gain access to the work form a place and at a time of his or her own choosing. The way in
which the specified files are processed by an original seeder and the users who, through
filesharing, have obtained all or segments of the current files does, in District Court’s view,
constitute the type of making available which, according to the Copyright Act, would be
regarded as making available to the general public.
- During what time periods has the making available occurred?
All counts of the indictment contain a time period during which the defendants are alleged to
have aided other individuals to make the files containing the copyright-protected
performances available via Internet transfers.
For the indictment to succeed with reference to the actual time periods, the District
Prosecutor must demonstrate that the rights and the works were actually available during
these periods.
The start of all time periods is the date on which the torrent file associated with the right or
the work the time-period in question refers to was uploaded to The Pirate Bay’s website. The
end date refers to the date on which the torrent file was removed from the website. For most
of the counts of the indictment, the latter date is 31 May 2006, i.e. the date on which The
Pirate Bay’s servers, within the framework of the preliminary investigation which resulted in
the current indictment, were seized.
Witnesses Magnus Mårtensson and Anders Nilsson have, with reference to each work and
during the respective time periods the claim refers to, downloaded these by going on to The
Pirate Bay’s website, searching for the torrent files associated with the works and finally
downloading the latter. The purpose of these actions was to collect evidence in preparation
for reporting the site to the police, as the plaintiffs intended to do. The District Prosecutor has
adduced written evidence relating to the downloads Magnus Mårtensson and Anders Nilsson
performed. The said evidence shows, inter alia, the date on which the downloads took place,
how many downloads had been made of each work up to the date on which the witnesses
carried out their downloads, as well as, for most works, subsequent downloads up to and
including 31 May 2006. These details are shown in the following table:
Count in the
Work
Date on which
Number of
Number of
indictment
evidence was
downloads at
downloads 31
secured
the date on
May 2006
which evidence
was secured
1A
Backyard Babies,
2006-02-28
780
1 123
“Stockholm
Syndrome”
1B
Joakim Thåström,
2006-02-28
13 721
-
“Skebok-varnsv
209”
1C
Sophi Zelmani, “A
2006-02-28
2 665
3 126
Decade of Dreams”
1D
Emilia De Porets,
2006-02-28
1 198
1 217
“A Lifetime In A
moment”
1E
Advance Patrol,
2006-02-28
1 349
1 816
“Aposteln”
1F
Amy Diamond,
2006-02-28
341
-
“This Is Me Now”
1G
Håkan Hellström,
2006-02-28
5 213
6 158
“Nåt gammalt, nåt
nytt, nåt lånat, nåt
blått”
1H
Kent, “The Hjärta
2006-02-27
2 111
3 748
& Smärta EP”
Lena Philipsson,
2006-02-27
1 128
1 382
“Han jobbar i
affär”
1K
Per Gessle, “Son
2006-02-28
3 821
5 559
Of A Plummer”
1L
Petter, “Mitt sjätte
2006-02-28
443
-
sinne”,“Ronin”,
“Bananrepubliken”
och “Petter”
1M
Snook, “Snook,
2006-02-27
1 283
4 149
Svett och Tårar”
1N
Cardigans, “Don’t
2006-02-27
380
617
Blame Your
Daughter”
1O
Cornelis
2006-03-02
1
545
Wreewijks, “Till
Sist”
1P
Robbie Williams,
2006-03-01
3 416
5 660
“Intensive Care”
1Q
Beatles, “Let It Be”
2006-03-01
4 838
5 007
1R
Rasmus, “Hide
2006-03-01
2 895
3 515
From The Sun”
1S
James Blunt, “Back
2006-03-01
15 152
30 049
To Bedlam”
1T
Coldplay, “X&Y”
2006-03-01
3 828
11 052
1U
David Bowie,
2006-03-02
8
323
“Reality”
2A
“Den svaga
2006-04-04
15 689
16 482
punkten”
2B
“Afrikanen”
2006-04-04
12 267
12 484
2C
“Pusher 3”
2006-03-29
406
894
2D
“Mastermind”
2006-03-30
2 533
4 137
2E
“Harry Potter &
2006-03-28
21 426
22 082
The Goblet of Fire”
2F
“The Pink Panther”
2006-03-29
48 596
49 593
2G
“Prison Break,
2006-04-06
46 356
48 104
Season 1”
2H
“Syriana”
2006-04-03
3 311
3 679
“Walk The Line”
2006-03-28
39 964
-
3A
“Diablo 2”
2006-04-10
16 559
16 568
3B
“World of Warcraft
2006-04-06
26 773
26 915
-Invasion”
3C
“F.E.A.R”
2006-04-10
47 931
49 641
3D
“Call of Duty 2”
2006-04-10
75 276
76 518
Examination of Magnus Mårtensson and Anders Nilsson has, firstly, ascertained that the
torrent files have indicated precisely the rights and works specified in the summons
application. It has already been concluded that the works enjoy protection under the
Copyright Act.
The downloads carried out by the witnesses were successful in that they obtained their own
copy of the work. The examination of Magnus Mårtensson and Anders Nilsson has, therefore,
established that the current rights and works were, in each case, available for transfer via the
Internet at the time they carried out the downloads (see dates listed in the table).
The question is then whether the district attorney has succeeded in proving that, as alleged,
the works have been available on other dates.
The District Prosecutor’s indictment, as far as it refers to time periods, cannot be understood
as stating that the work must have been made available at every precise minute or second
within the stated period, i.e. on a continuous basis.
In the opinion of the District Court, for the allegations to remain as a basis for the verdict, it
must be sufficient that the District Prosecutor has been able to prove that the works have, in
each case, been available to a significant degree during the relevant time period.
The Pirate Bay’s website contained information on the number of downloads for each torrent
file, i.e. a type of counter which showed how many users had downloaded the principal file in
question. A statement from Statens Kriminaltekniska Laboratorium (the Swedish Forensics
Laboratory) states that a user who downloads the full content from a torrent file sends a
signal to The Pirate Bay’s tracker that the download is completed. The tracker notes this and
increases the number of downloads for that torrent file in the database which, subsequently, is
also shown on the website. The figure specified is based on the number of complete
downloads of the material the torrent file refers to, in this case the actual music albums,
songs, films or computer games.
The statement does, however, indicate that there is a certain discrepancy in the counter,
which led to an overestimate of the number of downloads. The information given should,
therefore, be regarded with some caution, and cannot, by itself, be regarded as of decisive
significance to the question of whether the District Prosecutor can be regarded as having
proved his allegations.
The counter was linked to The Pirate Bay’s tracker. The investigation into the case has shown
that torrent files uploaded to sites other than The Pirate Bay’s website sometimes referred to
The Pirate Bay’s tracker. It is, consequently, possible that a certain number of the downloads
specified for each individual work referred to downloads which have come about after a user
has downloaded a torrent file from a website other than The Pirate Bay. In the view of the
District Court, the making available carried out by these users can also be considered within
the framework of the principal offence which this case refers to, since it is The Pirate Bay’s
tracker which has been used. Another issue of relevance to the act of complicity is the
defendants’ insight/intention regarding precisely this making available.
The number of downloads registered by the counter is shown in the table. The table shows
that certain works, e.g. 2A “Den svaga punkten” and 3A “Diablo 2”, were downloaded a
considerable number of times in the time period during which the making available is alleged
to have taken place. The equivalent figure for other works, e.g. 1 D Emilia De Porets ”A
Lifetime In A moment”, is lower.
A large number of downloads during a shorter period of time do, obviously, indicate that the
right or work in question has been available for most of the time period stated in the
indictment. The large number of downloads registered for the less popular works, as well,
indicate that the making available has taken place to the extent claimed for all the works.
Further evidence of this is the fact that the number of registered downloads increased
between the date on which the evidence was secured and the date on which the equipment
was seized, by what Gottfrid Svartholm Warg has said about unused torrent files being
removed through an automatic process, shows that it is exclusively a question of known
works and, not least, the large number of users who visited The Pirate Bay’s website.
Based on the successful downloads undertaken by the witnesses and with reference to the
reasons stated above, it is, in the view of the District Court, proven that the making available
of each individual work has taken place during the time period alleged by the District
Prosecutor.
- Is the making available an offence under Swedish law?
The investigation into the case has revealed that some of The Pirate Bay’s users, whose
making available is the subject of the action, have been located outside Sweden when they
made the works available to the general public.
Under Chapter 2, § 1 of the Criminal Code, Swedish law applies when an offence has been
committed in Sweden. The same applies if it is uncertain where the offence was committed
but there is reason to assume that it was committed in Sweden. Under § 4, an offence is
regarded as having been committed where the criminal act was committed, as well as where
the infringement took place. One issue in the case is where the principal offence should be
regarded as having taken place.
According to the District Court, there is strong reason to regard an offence which involves the
making available of something on the Internet as having been committed in a country where
the Internet user can obtain the information which has been made available, provided that the
making available has legal implications in the country (c.f. Schønning, Ophavsretsloven with
commentary, 3rd edition, p. 686). This applies not least when the information – as in this case
– is published in a language spoken in that country. This suggests that all principal offences,
even those committed by persons located outside Sweden, should be regarded as having been
committed in Sweden. This conclusion is further reinforced by the fact that the servers
(computers) hosting The Pirate Bay’s website and the tracker were located in Sweden.
In conclusion, in consequence of what has been said above, all the principal offences alleged
by the District Prosecutor must be regarded as having been committed in Sweden and being
offences in Sweden.
Acts of complicity
- Complicity – objectively
In accordance with what has been stated earlier, and under the terms of Chapter 23, § 4 of the
Criminal Code, not only the person who has committed the act (principal offence), but also
other persons who have aided and abetted this person in word and deed (act of complicity),
will be held liable for a specific act. This rule is applicable to all individual criminal offences
for which a sentence of imprisonment may be imposed. Criminal liability rests also with
anyone who has aided and abetted the act in a physical or psychological sense. The
accomplice must have facilitated the execution of the principal offence. There is no
requirement for the accomplice’s actions having been a precondition for the accomplishment
of the principal offence. Liability for complicity can apply even to someone who has
contributed only insignificantly to the principal offence.
The District Court has already concluded that punishable offences have been committed in
accordance with the District Prosecutor’s indictment. The issue which the District Court now
must decide on is whether Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi
and Carl Lundström have aided and abetted the principal offence by enabling users to upload
and store torrent files for the filesharing service The Pirate Bay, by providing a database
linked to a catalogue of torrent files, by enabling users to search for and download torrent
files and by providing the functionality with which users who wished to share files could
contact each other through the filesharing service’s tracker function.
The defendants have, inter alia, argued that liability for complicity is out of the question since
the principal offences, and how the defendants have influenced these offences, are not
sufficiently precise, bearing in mind that the perpetrators are not known. The District Court
has concluded that the District Prosecutor has succeeded in proving that the alleged principal
offence has taken place in the way claimed. There is no requirement for the perpetrators to be
known for liability for complicity to be considered. The District Court has already stated that
it is sufficient for the District Prosecutor to prove that the objective requisites for the
principal offences have been fulfilled. If a certain action is regarded as having aided and
abetted the principal offence, liability for complicity comes into play.
The investigation into the case has shown that, during the time period specified in the
indictment, The Pirate Bay was a popular website with a large number of users around the
world. The purpose of The Pirate Bay was to create a meeting place for filesharers.
The website was, according to details which have emerged during the examination of Fredrik
Neij and Gottfrid Svartholm Warg, under constant development. New hardware was
purchased continuously, and improvements made to the search functions and tracker, all with
the aim of providing efficient access to, and transfer of, uploaded material. Some users of the
website used it and the functions mentioned in such a way that the users committed a breach
of the Copyright Act in the manner alleged in the indictment (the principal offences). In
accordance with what will be further demonstrated below, all the defendants were aware that
a large number of the website’s users were engaged in the unlawful disposal of copyright-
protected material. By providing a website with advanced search functions and easy
uploading and downloading facilities, and by putting individual filesharers in touch with one
other through the tracker linked to the site, the operation run via The Pirate Bay has, in the
opinion of the District Court, facilitated and, consequently, aided and abetted these offences
(c.f. Ds 2007:29, p. 323 and Rosén in NIR 2008 p. 101).
Liability for complicity does not require The Pirate Bay’s operation to be essential to the
making available to the public of rights or works. The fact that the copyright-protected works
may possibly have been made available to the general public on other websites before they
were made available on The Pirate Bay, or that they may possibly have been made available
on other websites at the same time as they were made available on The Pirate Bay, is, in the
opinion of the District Court, irrelevant to any liability for complicity which may fall on the
defendants as a result of their actions.
The defendants have argued that any complicity on their part has not taken place before the
completion of the principal offence. Some offences, continuous offences, are regarded as
taking place throughout the duration of a certain circumstance. One example of a continuous
offence is unlawful deprivation of liberty. The offence comes to an end only when the
circumstance which occasioned the commission of the offence ceases. The making available
which constitutes the principal offence in the indictment is, as far as the original seeder is
concerned, completed once he/she uploads the torrent file to The Pirate Bay’s website and
then starts making the work available to others. Other seeders have completed their individual
offences when, after downloading segments of the protected work, they have made it
available to others. Nor does anyone have to make available a whole work to be in breach of
the Copyright Act. The making available of a segment of a work is sufficient for the offence
to be completed (c.f., for example Ds 2007:29, p. 338). The offence continues for the full
duration of the making available. The criminal action – aiding and abetting a crime – for
which the defendants have been indicted refers, in each case, to the time before the principal
offences were completed.
In summary, the operation carried on by The Pirate Bay does, objectively, constitute
complicity in breach of the Copyright Act. The question is then whether the defendants can
be held responsible for this complicity. This would, firstly, require them to be in a position
where they can be held responsible for what took place within the framework of The Pirate
Bay’s operations. Secondly, their intent must cover all the objective circumstances on which
the offences are based.
- Collective liability
The District Prosecutor has claimed that the defendants, jointly and in collusion, have been
responsible for the organisation, administration, programming, financing and operation of
The Pirate Bay, and that they should, consequently, be held responsible for aiding and
abetting the infringements of the Copyright Act which have taken place. When several
individuals are involved in the execution of a criminal offence, it can be difficult to ascertain
whose action has caused the criminal effect. Sometime, a single person has not, by himself,
met all the res gestae, but the offence has been completed by several individuals acting
together. In this event, each and every one of the participants can, under certain
circumstances, be punished as a perpetrator. The individuals involved are then said to have
acted jointly and in, silent or expressed, collusion. Complicity is not excluded by the fact that
some participants have played a more central role and have been more active than others. One
condition is, however, that it can be proven that each individual has been involved in the
execution of the offence and that he has been aware of the others’ actions.
A starting point for several individuals to be sentenced for complicity must, however, be that
it requires such individual evidence that it can be clearly established that each and every one
of those involved is to be regarded as a co-defendant (NJA 2006 p. 535). In this case, a more
accurate description would be accessory rather than co-defendant, since the indictment
concerns complicity in a breach of the Copyright Act. The principles which apply to
perpetrators are, however, in the current context, the same for accomplices.
Fredrik Neij and Gottfrid Svartholm Warg were, according to their own information,
involved in the initial operations of The Pirate Bay. They were also, according to their own
information, principally responsible for technical operations and for the technical and
functional development of the website.
The information provided by Fredrik Neij and Gottfrid Svartholm Warg is supported by the
written facts of the case and by the information provided by Peter Sunde Kolmisoppi and
Carl Lundström.
Peter Sunde Kolmisoppi and Carl Lundström have, on the other hand, stated that they have
not been involved in The Pirate Bay’s operations in such a way that they can be held
responsible for this, as alleged by the District Prosecutor.
Peter Sunde has, according to his own information, which has been confirmed by Fredrik
Neij and Gottfrid Svartholm Warg, acted as media spokesman for The Pirate Bay. Peter
Sunde has, in addition, stated that he had no other function at The Pirate Bay. However, the
written evidence presented by the District Prosecutor, consisting of, inter alia, extensive e-
mail correspondence between the defendants and Oded Daniel, as well as various payment
streams to and from Peter Sunde Kolmisoppi’s company, HAIQ Sweden AB, shows that he
was in relatively regular contact with Oded Daniel regarding both The Pirate Bay’s
advertising operations and the technical development of the website. The claim that Peter
Sunde Kolmisoppi has carried out some invoicing in the name of HAIQ Sweden AB but on
behalf of The Pirate Bay solely for the purpose of providing help to Oded Daniel appears, in
the opinion of the District Court, to be a reconstruction after the event.
The action is, rather, proof that Peter Sunde Kolmisoppi was involved in The Pirate Bay’s
advertising sales. Peter Sunde Kolmisoppi has, according to his own information, also
suggested measures which, in his opinion, ought to be taken to make The Pirate Bay website
even more popular and profitable. He also signed the agreement aimed at setting up the
company, Random Media, the principal task of which would have been to operate and
develop The Pirate Bay’s operations.
Carl Lundström was a representative of, inter alia, Rix Telecom AB. He has, according to his
own information, which is confirmed by Fredrik Neij and Gottfrid Svartholm Warg, only
provided broadband and a ”filing cabinet” for The Pirate Bay on business terms. The written
evidence quoted in the case shows that Rix Telecom AB purchased, and still owns, a number
of the computers used by The Pirate Bay in its operations.
Carl Lundström has confirmed that he, initially, was interested in becoming a shareholder in
companies associated with The Pirate Bay and that he, on his own account, offered a couple
of computers, valued at approximately SEK 40,000, free of charge to The Pirate Bay with
the intention of recovering some revenue at a later stage.
These transactions, and the fact that Rix Telecom AB owned the computers used in The
Pirate Bay’s operations, suggest that Carl Lundström had a significant stake in The Pirate
Bay and was working in collaboration with Fredrik Neij and Gottfrid Svartholm Warg.
According to Carl Lundström, he decided to pull out of the plans for a shareholding in The
Pirate Bay when, after discussions with legal representatives, he became aware that the
operation was illegal.
Since then, he has, however, been in contact with the authorities and lawyers in Russia and
Argentina, among others, to investigate whether it would be possible to relocate the operation
there. During these contacts, he has, according to the e-mail correspondence presented by the
District Prosecutor, claimed to represent The Pirate Bay. Carl Lundström has explained the
contacts specified above by saying that he was assisting a client of Rix Telecom AB, which is
something he does regularly. In the opinion of the District Court, his actions do, however,
suggest that he had a more significant interest in The Pirate Bay than he has been willing to
admit. As a consequence of the e-mail correspondence mentioned, Carl Lundström was in
contact with Gottfrid Svartholm Warg and Fredrik Neij, and this correspondence indicates
that Carl Lundström was in a position of influence with respect to the future of the filesharing
service.
The written evidence also shows that Carl Lundström was in direct contact with med Oded
Daniel who, inter alia, sent e-mails to Carl Lundström and the other three defendants
regarding advertising sales on The Pirate Bay. In the opinion of the District Court, an image
of the team behind The Pirate Bay is emerging; the four defendants and Oded Daniel. This
image is further reinforced by the agreement signed by all but Carl Lundström. Under the
agreement, a host owner/external partner would obtain the equivalent of 8.25 percent of the
shares in the newly-formed company. Additional e-mail correspondence cited by the District
Prosecutor shows that Fredrik Neij notified Oded Daniel, Peter Sunde Kolmisoppi and
Gottfrid Svartholm Warg that “Kalle” ought to be given his share, and that they had discussed
8.5 percent. This cannot, in the opinion of the District Court, be interpreted in any way other
than that Carl Lundström is the host owner/external partner who would own a certain
proportion of the newly-formed company.
The payments made to Carl Lundström also show that the person who effected these
payments specified “Purchase of Media” as a message to the payment recipient. It is difficult
to interpret the message in any way other than that the payments were for revenue generated
by advertising sales rather than payment for the computers purchased by Carl Lundström on
behalf of The Pirate Bay. Another e-mail sent by Carl Lundström to Oded Daniel shows that
he involved himself in the actual operation by making proposals for the development of new
services within the framework of The Pirate Bay.
It is, in the opinion of the District Court, clear that Fredrik Neij and Gottfrid Svartholm Warg
have played leading roles in the technical operation of The Pirate Bay. It has, however, also
been shown that Peter Sunde Kolmisoppi and Carl Lundström have had a sufficiently direct
or indirect influence over the technical development and functionality of the website that they
can be regarded as also having been responsible for it. As stated above, the written evidence
in the case has also demonstrated that the defendants have been in direct and relatively
regular contact with Oded Daniel and, consequently, have been jointly responsible for
advertising on and, therefore, also the financing of, The Pirate Bay’s operations. Carl
Lundström has, in addition, made a financial contribution through the provision of server
space and free broadband. The fact that this constituted an investment in The Pirate Bay is
already clear from the fact that he expected to earn money from the website in the future. The
actions of the defendants are characterised by a collaboration in which every person was
aware of the involvement and roles of the others. They have acted and, in other respects,
worked as a team, with the common purpose of expanding further both the technical and
business aspects of The Pirate Bay. Taking account of all the facts, the District Courts finds
that Peter Sunde Kolmisoppi and Carl Lundström have also participated in The Pirate Bay’s
operations to such an extent that they, alongside Fredrik Neij and Gottfrid Svartholm Warg,
must be regarded as responsible for the organisation, administration, programming, financing
and operation of the filesharing service in the manner alleged by the District Prosecutor.
- Participation – subjective
A requirement for the conviction of the defendants is that they have deliberately infringed the
copyright protection enjoyed by the rights and works. The subjective prerequisite must be
fulfilled, not only with respect to the aiding and abetting itself, i.e. co-perpetration, but also
with respect to the act which constitutes the principal offence. Complete agreement between
an accomplice’s view of the course of events and the actual course of events is not, however,
a requirement. In assessing the level of intent which must be present, each individual
principal offence should be considered (c.f. NJA 2007 p. 929).
The fact that the defendants intentionally brought about the actual circumstances which
constituted aiding and abetting must be regarded as established. The defendants have,
however, argued that they should not be held liable since they have had no knowledge of the
existence of the rights or works specified in the indictment and, therefore, have not
intentionally committed the principal offences. It has not been demonstrated that the
defendants knew that the specific works listed in the indictment had been made available via
The Pirate Bay. The defendants intent does not, however, have to cover the specific works
which it is alleged have been made available. It is, rather, sufficient for them to have had the
intent to bring about the existence of copyright-protected material on the website (c.f. NJA
2007 p. 929). The examination of the defendants, the letters from rightsholders published on
the website, The Pirate Bay, and the e-mail correspondence indicating that the operation
involved pirate copying make it clear that the defendants have been aware that copyright-
protected works were available via the website, and were shared via the tracker embedded
within the framework of The Pirate Bay’s operation. Despite this knowledge, they have
elected to take no action to prevent the infringement of copyright. Based on their positions in
relation to the filesharing service, The Pirate Bay, they have, in the opinion of the District
Court, together and in collusion knowingly aided and abetted infringements of the Copyright
Act by the individual users.
Other allegations in the indictment of complicity in breach of the Copyright Act
According to the indictment, the majority of the files made available for filesharing via The
Pirate Bay contained copyright-protected performances or works. The District Prosecutor has
also alleged that the operation of The Pirate Bay was financed by advertising revenue, and
that this constitutes a commercial use of copyright-protected performances and works.
- The majority of the files made available were protected by copyright
The indictment concerns The Pirate Bay’s operations and the use of certain copyrights, in the
form of the making available to the general public, during the latter part of 2005 up to and
including 31 May 2006. It is, consequently, for this time period that the District Court must
judge whether the majority of the files made available for filesharing via The Pirate Bay
contained copyright-protected performances and works.
In support of his allegations, the District Prosecutor called as a witness Anders Nilsson, who
had the following to say. In his capacity as investigator for the Anti-piracy Agency, he
became interested in The Pirate Bay as early as 2004. In 2005, The Pirate Bay’s operation
grew and there was a rise in the number of users. The Anti-piracy Agency started to check the
torrent files uploaded to The Pirate Bay, and concluded that most of these related to pirated
material. On one occasion in 2006, he checked the list of the 100 most popular/downloaded
films published on The Pirate Bay. This showed that 96 of the films on the list were protected
by copyright. There was no way to check any copyright-protection for the remaining four
films, since the originators of these films were unknown. The Anti-piracy Agency carried out
similar checks on other occasions, and always obtained the same result. He has never,
however, checked all the torrent files uploaded to the website. Since the Anti-piracy Agency
became aware of The Pirate Bay, he visited the website every week and, during these visits,
noticed that a very large number of copyright-protected works were made available via the
website.
Peter Sunde Kolmisoppi has, during examination, reported on an investigation undertaken
with the aim of establishing how large a proportion of the material made available for
filesharing via The Pirate Bay contained copyright-protected works. The fact that this
investigation was undertaken in October and November 2008 does, however, mean that it is
of no relevance in this context.
According to what has emerged during the investigation into the case, there were a very large
number of torrent files uploaded to The Pirate Bay’s website during the time period of
interest to this case. Confirmation of the allegation that the majority of these torrent files
related to copyright-protected rights and works requires a reliable investigation of all, or at
least a large number, of these. The District Prosecutor has not, however, referred to any such
investigation, so the allegation cannot, consequently, be regarded as confirmed. The
examination of Anders Nilsson has, however, shown that the most popular torrent files, at
least with reference to films, in principle related exclusively to copyright-protected works.
Carl Lundström has confirmed that The Pirate Bay’s website attracts visitors because it offers
the opportunity to utilize copyright-protected works free of charge. In an e-mail sent by him
to his legal representative, he wrote that the purpose of the website was pirate copying, and
he stated, during the main hearing, that the purpose of the website was, inter alia, pirate
copying. The 33 works which are the subject of the indictment, and the extent to which these
have been downloaded, indicate that the torrent files which relate to copyright-protected
works were extremely popular and generated numerous visits and a great deal of activity on
The Pirate Bay’s website. Although the District Prosecutor has not been able to prove his
general allegation that “most of the files which are made available for filesharing via The
Pirate Bay contain copyright-protected works and performances”, it has, for the reasons
specified above, been established that the torrent files on the website related to a significant
extent to copyright-protected material.
- Financing
The fact that the operation of The Pirate Bay has, at least to some extent, been financed
through advertisings revenue has been confirmed by the defendants. The written evidence, in
the form of invoices and information on payment transfers, submitted by the District
Prosecutor, shows that a total of at least SEK 1,200,000 has been paid to the defendants for
advertising space on The Pirate Bay’s website. The utilization of the copyright-protected
performances and works must therefore, in the opinion of the District Court, be regarded has
having taken place within the framework of a commercial purpose.
Preparation of breach of the Copyright Act
The indictment for preparation of breach of the Copyright Act is based on the defendants,
through their involvement with The Pirate Bay’s operation, having supplied a functionality in
a database prepared specifically for the purpose, with which it has been possible to receive
(upload) and store the torrent files which related to the copyright-protected performances and
works covered by the indictment for complicity in breach of the Copyright Act. According to
the District Prosecutor, the torrent files were specifically intended to be used as aids in the
infringement of the Copyright Act.
Chapter 23 § 2 of the Criminal Code states that anyone who, with the deliberate intent, inter
alia, to aid and abet an offence, has received or stored something which is specifically
intended to be used as an aid in the execution of an offence shall, in the cases specifically
mentioned, be sentenced for preparation of an offence, provided that he has not been found
guilty of completing the offence.
From what has been stated by the District Court on the issue of indictment for complicity in
breach of the Copyright Act, follows that the court has found that the torrent files which
relate to protected rights and works which are the subject of the indictment, have been used
for unlawful making available to the general public of the works during the times alleged by
the District Prosecutor. As such, the torrent files can be regarded as intended for use as aids
in the offence. The offences mentioned, i.e. making available, have, however, taken place
(been completed). The defendants have, through their involvement with The Pirate Bay’s
operations, aided and abetted the unlawful making available which has occurred.
In the opinion of the District Court, the torrent files received and stored between 1 July 2005
and 31 May 2006, have, consequently, been used to complete the offence which – in
accordance with the hierarchical relationship between preparation of, attempt to commit and
the completion of an offence – has resulted in liability for the preparations for breach of the
Copyright Act being consummated by the commission of the offence of complicity.
Any liability for preparation of an offence during the period 1 July 2005 and 31 May 2006 –
in the sense claimed by the plaintiff companies – does not, in accordance with what has been
said above, exist.
The District Prosecutor’s indictment for this offence does, however, mean – after adjustment
of the indictment – that the dealings with torrent files which occurred on 31 May 2006 only
constituted preparation of an offence. For reasons just specified, no liability for preparation is
regarding as existing.
On 31 May 2006, the computers (servers) containing the website The Pirate Bay during the
time covered by the indictment were seized. The filesharing operations from these servers
ceased in connection with this, or at least no information to the contrary has been presented in
the case. The risk that the preparation offence claimed by the District Prosecutor would be
completed must, therefore, in each case be regarded as negligible.
The indictment for preparation– as it has been drawn up by the District Prosecutor and the
plaintiff companies – is, therefore, dismissed.
Freedom from liability under the Electronic Commerce Act?
The District Court’s assessment of the indictment for complicity in breach of the Copyright
Act means that the defendants are liable for the offence. The question is then whether the
freedom from liability provisions relating to punishment – but also to the liability to pay
damages – of a “service provider” contained in the Electronic Commerce Act are applicable.
The Electronic Commerce and Other Information Society Services Act contains, for example,
provisions relating to freedom from liability for a service provider, with reference to issues of
both a legal and compensatory nature. The Act was adopted in response to the
implementation of the European Parliament and Council’s directive 2000/31/EC on certain
legal aspects of information society services, specifically electronic commerce, on the
internal market (the e-commerce directive).
The initial issue on this point is whether The Pirate Bay is a service provider which provides
any of the services of an information society? A service provider, under the terms of the
Electronic Commerce Act, is a physical or legal entity which provides any of the services
found in an information society. The defendants’ involvement in the operation of the
filesharing service must be regarded as such that they can be considered service providers. In
§ 2 of the Services Act, information society services are specified as services which are
normally provided against payment, and which are supplied at a distance, electronically and
at the individual request of a service receiver (the user of the services). The service offered by
the filesharing service The Pirate Bay includes enabling users to upload or download torrent
files on The Pirate Bay’s website and, via The Pirate Bay’s tracker, establish contacts with
other users who have/would like the file the torrent file relates to. In the opinion of the
District Court, it is, therefore, clear that the services from The Pirate Bay website have been
supplied at a distance, electronically and at the individual requests of the users. Even if the
users have not paid for the services, the requirement for compensation has still been met since
the operation of The Pirate Bay has, at least to some extent, been financed by advertising
revenue (Bill 2001/02:150, p. 56 f.). The Electronic Commerce Act is, consequently,
applicable to the filesharing services supplied from The Pirate Bay website.
The grounds for freedom from liability for service providers are found in §§ 16-19 of the
Electronic Commerce Act. The provisions correspond to articles 12-14 of the e-commerce
directive.
While articles 12-14 of the e-commerce directive refer to all types of liability in all legal
areas, §§ 16-18 of the Electronic Commerce Act focuses specifically on, inter alia, liability
for compensation and § 19 on legal liability (Bill 2001/02:150, p. 87). The content of §§ 16 –
19 §§ of the Act does, however, correspond to articles 12-14 of the e-commerce directive.
The grounds for freedom from liability in § 16 of the Electronic Commerce Act covers solely
service providers who only transfer information provided by a service receiver in a
communications network, or provides access to such a net, and where the storage of
information is carried out purely for the purpose of the transfer and does not continue longer
than required by the transfer. The provisions of § 17 cover the type of transfer where
information is stored for the specific purpose of making the transfer of information more
efficient. The provisions of § 18 cover a service provider who stores information provided by
a service receiver. § 19 cover both types – transfer and storage – by the service provider.
The purpose of the Pirate Bay’s services was, inter alia, to provide server space so that users
could upload and store torrent files on the website. This storage means that § 16 – which
covers only services where some form of automatic and temporary intermediate storage takes
place as a result of a particular transfer – and § 17 – which covers only storage carried out for
the explicit purpose of improving the efficiency of the transfer of certain information
(cacheing) – do not apply. The fact that The Pirate Bay offered a service where the user could
upload and store torrent files on the website means, instead, that it is a matter of the type of
storage service covered by the provisions of § 18 of the Electronic Commerce Act (Bill
2001/02:150, p. 21).
According to § 18, a service provider who stores information provided by a service receiver
is not, as a result of the content of the information, liable to pay compensation for injury,
provided that the supplier was not aware of the existence of the illegal information or
operation, and was not aware of facts or circumstances which made it obvious that the illegal
information or operation existed or who, as soon as he received knowledge about or became
aware of this, prevented the spread of the information without delay.
The case has demonstrated that the filesharing service The Pirate Bay was, inter alia, used to
provide the opportunity to make available copyright-protected works. It must have been
obvious to the defendants that the website contained torrent files which related to protected
works. None of them did, however, take any action to remove the torrent files in question,
despite being urged to do so. The prerequisites for freedom from liability under § 18 have,
consequently, not been fulfilled.
§ 19 of the Electronic Commerce Act is also applicable to service providers who store
information. Under § 19, a service provider who stores information on behalf of others can
only be held liable for an offence relating to the content of the information if the offence was
a deliberate act. The District Court has previously concluded that all the defendants were
aware that copyright-protected works were being made available through torrent files
uploaded to The Pirate Bay, and that they deliberately chose to ignore this fact. Even if the
defendants were not aware of precisely those works covered by the indictment, they have,
according to the previous findings of the District Court, at least been indifferent to the fact
that it was copyright-protected works which were the subject of filesharing activities via The
Pirate Bay. Considering that it is a matter of deliberate offences, the actions of the defendants
do not enjoy immunity from prosecution under § 19 of the Electronic Commerce Act.
- Should a preliminary ruling be obtained from the European Court of Justice?
Carl Lundström has requested that the District Court, in the event that the court should arrive
at the conclusion that the defendants are guilty of offences in accordance with the indictment,
should obtain a preliminary ruling from the European Court of Justice. He has not stated any
views on what issues the District Court should raise with the court, but has, instead, requested
that the District Court, if the request is granted, provide the parties with the opportunity to
comment on any questions.
In its judgement above, the District Court has concluded that the Electronic Commerce Act
does, in fact, apply to the filesharing operations carried out via The Pirate Bay, the provisions
of the Act on freedom from liability do, as a result of this, become an issue.
The provisions on freedom from liability in §§ 16 and 17, which correspond to the provisions
in the EU directives on solely the transfer of information and cacheing respectively have, for
reasons stated above, not been regarded as applicable to The Pirate Bay’s operations.
The District Court has, however, found that The Pirate Bay’s filesharing operations involved
the type of storage of information covered by the provisions the EU directive under article 14
on hosting services, but that the provision – through the introduction of the corresponding
legal provision – does not, in this case, offer grounds for freedom from liability.
In the opinion of the District Court, the provisions of the e-commerce directive correspond to
the provisions in the Electronic Commerce Act, both with reference to the categorisation of
various types of services and the scope of freedom from liability. The scope of freedom from
liability in accordance with article 14 is, with consideration of the ingress to the directive, at
least no greater than the corresponding area in §§ 18 and 19 of the Electronic Commerce Act.
Considering that there is no ambiguity regarding how the text of the law or directive itself
should be interpreted, the District Court does not find it necessary to obtain a preliminary
ruling from the European Court of Justice. Carl Lundström’s request for a preliminary ruling
is, therefore, dismissed.
Sanctions etc.
The defendants are now convicted of aiding and abetting breaches of the Copyright Act. The
verdict on Gottfrid Svartholm Warg on other charges offences is given in a later section of
the verdict.
Gottfrid Svartholm Warg has, according to the extracts from the register, no previous
convictions. The previous convictions of Fredrik Neij and Carl Lundström are of no
relevance in the determination of the sentence imposed by the District Court. On 10 February
2009, the Court of Appeal of Skåne and Blekinge convicted Peter Sunder Kolmisoppi of
accounting offences. He was given a suspended sentence combined with a fine determined on
the basis of his daily income.
No special considerations regarding the defendants personal circumstances have been
presented.
- Sanctions
The District Court will, initially, determine the appropriate penalty for the offences
committed by the defendants. The District Court has already concluded that the defendants
acted as a team in the operation of The Pirate Bay. They have, in a variety of ways,
contributed to the operation of the service and have, at the same time, been aware of the roles
played by the others. There has been a common purpose to run and develop the service.
Considering these circumstances, the appropriate penalty for the offence of complicity for
which the defendants have been convicted should be the same for all the defendants.
Under § 53 of the Copyright Act, the range of penalties is a fine or imprisonment for a
maximum of two years. Under chapter 29, § 1, second paragraph of the Criminal Code, the
damage, infringement or hazard involved in an action, what the defendant has realised or
should have realised regarding this, as well as his intention or motive, must be given special
consideration when establishing the appropriate penalty.
When the maximum sanction for infringement of rights under the Copyright Act were
increased in the early 1980s, from six months to two years, the preamble (Bill 1981/82:152 p.
18) stated that conduct involving infringement of copyright and associated rights should be
considered serious, and that there should be the opportunity, in particularly serious cases, to
impose a substantial term of imprisonment. It was also stated that it is, primarily, in cases
involving extensive commercial unlawful use of protected works and performances that the
ability to impose the more serious sentences provided by the new provisions should be used,
and that the purpose of the amendment to the Act was not to increase the sentences for minor
infringements of copyright legislation (a. Bill p. 19).
There have been few cases in this area. Case no. RH 2002:69 does, however, show that the
District Court regarded the appropriate penalty as up to one year’s imprisonment for a person
who, over a period of one year and eight months, had supplied copies of computer software
and computer games which were copyright-protected, unlawfully produced and sold a large
number of copies of the works throughout Sweden and, without the permission of the
originator, made phonograms available to the general public by offering them for sale,
reproducing and selling them and, through these actions, earned at least SEK 1,600,000.
The making available of copyright-protected works and rights which the defendants have
aided and abetted is extensive. It involves a total of 33 protected works which, in the majority
of cases, have been made available for a number of months. The damage caused by the
making available is, of course, linked to the fact that the making available took place on a
popular website with many users. Although a certain degree of caution should be exercised
with respect to the statistics produced by the counter linked to each right or work, it is clear
that the making available which has taken place has also resulted in extensive production of
copies of the rights and works. The substantial extent scope of the making available, and the
corresponding losses caused, indicate, in the opinion of the District Court, that the penalty
should be more severe.
It has been confirmed that the operation of The Pirate Bay has generated advertising revenue
which, during the period indicated in the indictment, has amounted to at least SEK 1,200,000.
On this basis alone, the District Court can conclude that the operation was carried on as a
commercial project. This conclusion is confirmed by the correspondence between the
defendants and the fact that the defendants have investigated and discussed various corporate
forms which may have been applicable to the continued operation of The Pirate Bay. It has,
consequently, been a question of an operation carried on in organised form. The
circumstances mentioned here also indicate that an increase in the penalty may be
appropriate.
In many cases, the appropriate penalty for aiding and abetting is lower than the penalty for
the principal offence itself. In practice, there are, however, examples of complicity in breach
of the Copyright Act being regarded as equally culpable as the principal offence itself (Svea
Court of Appeal, verdict no. DB 191 on 13 December 1985 in case no. B 1858/84). In the
current case, the defendants have not themselves used the rights or works. The defendants
have, however, in a commercial manner, provided others with the opportunity to make
available and use copyright-protected material. This separates the defendants from the users
of The Pirate Bay who make available copyright-protected works and, therefore, are to be
regarded as perpetrators. The perpetrators do not, in fact, enjoy any financial benefits from
their making available via The Pirate Bay. Given this and the fact that the website constituted
a prerequisite for the principal offence having such a widespread effect, there is no reason to
take a more lenient view of the actions of the defendants on the basis that it is an issue of
liability for complicity.
Considering the circumstances reported above, the District Court is of the opinion that the
appropriate penalty for complicity in breach of the Copyright Act for which each of the
defendants has now been convicted is one year’s imprisonment.
Under chapter 30, § 4 of the Criminal Code, the Court must, when setting a penalty, pay
particular attention to any mitigating circumstances which would suggest a more lenient
sentence than imprisonment. As a reason for imprisonment, the court can, in addition to the
appropriate penalty and nature of the offence, take into account whether the defendant has
any previous convictions. The statements in the preliminary work, as well as the practice
explained above, can be interpreted as stating that breach of copyright can, in certain cases,
be regarded as the type of offence where imprisonment would constitute the standard
sentence. With respect to the breach of the Copyright Act which the defendants have now
been convicted of, the high appropriate sentence itself excludes any sentence other than
imprisonment.
The offences of which Gottfrid Svartholm Warg, in accordance with what is stated in a later
section of this verdict, has been found guilty in addition to the offence dealt with here does
not affect his term of imprisonment.
Peter Sunde Kolmisoppi, who has, in the past, been found guilty of an offence, the sentence
for which has not yet been executed, should now be sentenced separately for his complicity in
breach of the Copyright Act.
The sanction for each of the defendants is, therefore, set at one year’s imprisonment.
- The separate motions
The proceeds, which also includes gains, of crime must, under § 53 a of the Copyright Act,
be declared forfeit, unless this is obviously unreasonable. Instead of what has actually been
received, its value may be declared forfeit. When assessing whether it is obviously
unreasonable to declare the proceeds of crime forfeit, circumstances such as whether there is
reason to assume that an obligation to pay damages as a result of the crime may be imposed
must be taken into account. With respect to breach of the Copyright Act, in contrast to a case
of forfeiture in the event of a crime which involves the transfer of wealth, the circumstance
that the person convicted of infringement of copyright will also be liable to pay compensation
does not automatically mean that forfeiture will be not be imposed or will be modified. Any
liability to pay compensation, including the reasonable compensation (reasonable damages)
which the person who has infringed a copyright must pay to the rightsholder, should,
however, be taken into consideration when determining whether forfeiture would be
obviously unreasonable (for information on what has been said here, see Bill 2004/05:135,
pp. 168 f, 171 f. and 118).
As stated initially, the plaintiff companies have lodged compensation claims against the
defendants for the criminal act for which they have now been convicted. Later sections of the
verdict will show that District Court has found that the defendants are liable to compensate
the plaintiff companies for the unlawful making available to the general public of rights and
works at an amount which exceeds the profit from the crime by a considerable margin. It
does, therefore, appear unreasonable in this case to declare forfeit the proceeds of the crime
stated by the District Prosecutor, SEK 1,200,000.
The District Prosecutor’s special motion for joint forfeiture of value (special motion a) is,
therefore, dismissed.
As part of the preliminary investigation into the case, a computer (server) used in the
operation of The Pirate Bay was seized from Carl Lundström on 31 May 2006. The District
Prosecutor has moved (motion b) that the computer be forfeited. The computer has, in the
opinion of the District Court, been used as an aid in the crime Carl Lundström has now been
convicted of. The property should, therefore, be declared forfeit.
On 31 May 2006, certain computer and communications equipment was also seized from
Fredrik Neij. The equipment was found in a computer cabinet at Rix Port 80, which housed
servers for The Pirate Bay’s operations, but the seized equipment was not part of the network
which constituted the filesharing service. The District Prosecutor has moved (motion c) that
the equipment be declared forfeit.
Considering what has emerged about the equipment, particularly the location in which it was
found, it must be considered that, due to the nature of the equipment and the circumstances in
general, there is reason to believe that the equipment may be used for criminal purposes. This
property should, therefore, also be declared forfeit.
Within the framework of the investigation, further computers and written documentation
were seized on 31 May 2006, since they could be assumed to be significant to the
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investigation into the case. The District Prosecutor has moved (motions d – f) that these items
should remain held until the verdict in the case has gained legal force.
The defendants have argued that the seizures should be annulled, since the District Prosecutor
has had reasonable time to secure evidence through examination of the property.
The District Court shares the view of the District Prosecutor that it is important that the
seizure remains in force, since there may be reason to carry out further examination of the
property at a later stage, to establish circumstances of significance to the investigation. The
District Prosecutor’s special motion that the property should remain confiscated is therefore
upheld.
Indictment for breach of the Prohibition of Certain Health-Impairing Goods Act.
(Gottfrid Svartholm Warg)
The District Prosecutor’s motions are shown in Appendix 3.
Gottfrid Svartholm Warg has, as already mentioned in previous sections, denied the actions,
but has admitted the special motions.
Indictment counts 1-3
The investigation into the case reveals the following. In connection with the start of the
preliminary investigation into complicity in breach of the Copyright Act on 31 May 2006, the
police carried out a house search at an apartment at Framnäsbacken in Solna. The
preparations specified under indictment counts 1-3 were found in the apartment. The
preparations were kept in a drawer unit and in a cupboard at the desk. Some of the
preparations were included in a postal item addressed to Gottfrid Svartholm Warg’s
company, PRQ Internet.
Gottfrid Svartholm Warg has stated that the apartment belongs to his parents and that, on the
date stated in the indictment, it had been let to other individuals. He did not know that the
preparations in question were kept at the apartment.
In the opinion of the District Court, the case has not proven that the apartment was used by
Gottfrid Svartholm Warg on the date specified in the indictment. Nor has any other evidence
been presented which shows that the preparations belonged to Gottfrid Svartholm Warg. The
circumstances that some of the preparations have been found in a postal item addressed to
PRQ is not sufficient for Gottfrid Svartholm Warg to be found guilty of the offences. The
indictment is, therefore, dismissed with respect to indictment counts 1-3.
Indictment count 4
The investigation into the case reveals the following. A police patrol was called to Essinge
Brogata on 23 June 2007. In an adjacent apartment, a backpack was found in which the
preparations listed in the indictment count were kept. The backpack also contained a
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registration certificate for Gottfrid Svartholm Warg’s company, PRQ. Gottfrid Svartholm
Warg, among others, was found at the apartment. He was heavily intoxicated.
Gottfrid Svartholm Warg has stated that, despite being intoxicated, he can remember the
event. He has also stated that the backpack was his, but that he, at some point during the
evening, had lent it to some individuals at the party. He knows “approximately” who he lent
the backpack to, but he does not want to reveal the names of these individuals.
The information provided by Gottfrid Svartholm Warg himself shows that the backpack in
which the preparations were found belonged to Gottfrid Svartholm Warg. What Gottfrid
Svartholm Warg has claimed, i.e. that he, in the course of the evening, lent the backpack to
other individuals who he does not wish to name, is regarded by the District Court as a
reconstruction of events. It has, therefore, been proven beyond reasonable doubt that Gottfrid
Svartholm Warg has been in possession of the preparations in question, and that he should,
therefore, be sentenced for breach of the Prohibition of Certain Health-Impairing Goods Act.
The special motions are based in law and admitted, and will, therefore, be upheld.
The individual claims
Initial starting point
The District Court has, in the section giving its verdict, found that the defendants were
intentionally complicit in breach of the Copyright Act, i.e. acted as accomplices in the
infringement of copyright-protected rights and works in the form of the unlawful making
available of the rights. Anyone who has caused solely a loss of wealth – a financial injury
which arises without associated injury to person or property – through the perpetration of a
crime must pay compensation for the loss. Under the general principles governing the law of
torts, there is no obstacle to ordering each and every one complicit in the infringement of a
copyright to pay compensation for this under the provisions of the Copyright Act regarding
liability to pay compensation (c.f. the dissenting opinion in the Supreme Court verdict on 20
November 2008 in case no. T 4998-06).
§ 54, first paragraph of the Copyright Act (c.f. § 57) states that anyone who, in contravention
of the Act, utilises an associated right or a work, i.e. uses the right or work contrary to § 2 of
the Act, shall pay damages, constituting reasonable compensation for the use, to the
rightsholder. The second paragraph of § 54 states that if this has been done intentionally,
damages shall also be paid, inter alia, for losses other than loss of royalties. The Act states,
therefore, that the provisions relating to damages for infringement in the Copyright Act mean
that anyone who intentionally infringes a copyright shall pay not only damages for the use of
the sole right, but also compensation for other financial loss caused thereby. The preamble
(SOU 1956:25 p. 429) to the provisions for damages also states this means that anyone who
intentionally infringes a copyright must pay compensation for all financial losses caused
thereby, and that one element of the provision for damages means that, when a copyright
performance has been used in contravention of the Act, the guilty party must always pay
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reasonable compensation even if the rightsholder has not suffered any injury as a result of the
unlawful use.
The plaintiffs’ claims
The compensation claims of the plaintiff companies have been reported in the section Claims
and Positions. This report shows that the claims involve considerable amounts of money, and
that the companies have demanded that the defendants be held jointly and severally liable to
pay compensation.
The six Swedish record companies – Sony Music Entertainment, Universal Music,
Playground Music Scandinavia, Bonnier Amigo Music Group, EMI Music Sweden and
Warner Music Sweden – have demanded compensation for a total of EUR 2,188,071 excl.
interest.
The Nordic film companies – Yellow Bird Films and Nordisk Film Valby – claims are, in the
first instance, a total of SEK 6,750,000 excl. interest.
The American film companies – Warner Bros, Metro Goldwyn-Mayer, Columbia
Pictures, Twentieth Century Fox and Mars Media Beteiligungs – have demanded
compensation of a total of SEK 93,050,080 excl. interest.
All the plaintiff companies have claimed that the defendants, intentionally or through
negligence, have been complicit in a breach of the Copyright Act which means that
copyright-protected rights and works have unlawfully been made available to the general
public.
The making available means, in addition to a liability to pay damages for the use of the rights
or works, also a liability to pay compensation for other losses which have arisen as a result of
the unlawful making available.
Summary of the plaintiff’s arguments
- The six Swedish record companies
The defendant’s involvement with the filesharing service The Pirate Bay during the period
specified in the indictment resulted in the sound recording (copyright-protected phonograms)
specified in indictment counts 1 A – I and K – U being made available to the general public
which, in turn, meant that they could be downloaded by others, i.e. copies of the sound
recordings could be produced.
There is no licensing market or any other calculation method in the record company sector
which can be used to calculate the cost involved in lawfully making available sound
recordings. One way to calculate reasonable compensation for the use of recordings is,
instead, to calculate what the rightsholder would have been paid for a legal downloading
64
from an Internet service which supplies music files. The payment for individual downloads is
then multiplied by the number of unlawful downloads of a sound recording.
The approximate cost of lawfully downloading a copyright-protected sound recording from
an Internet service was, according to information produced by the companies, EUR 10. Of
this amount, EUR 6.50 went to the record companies (the rightsholder for the sound
recording). The cost of downloading individual songs, not whole albums, was EUR 0.70.
Information obtained from The Pirate Bay’s websites shows that it was possible, for each
sound recording, to see when the torrent file which related to the sound recording was
uploaded to the website and the right was, consequently, made available to the general public.
This is the starting point of the making available, and is shown for each recording in
indictment counts 1 A –I and K –U.
The website also contained numerical information – based on a counter – which showed how
many times a sound recording had been utilised for downloading. This numerical information
– which has been reported previously by the public prosecutor and included in the table
shown in the section “During what time periods has the making available occurred?” –
shows the number of downloads of the sound recordings up to 31 May 2006. In three cases –
indictment counts 1 B, F and L – the information refers to the number of downloads up to the
day when representatives of the record companies made a download.
The record companies have used the information on the number of downloads for each sound
recording and multiplied these by EUR 6.50 to calculate the reasonable compensation. For
sound recordings with the artists Lena Philipson (indictment count 1 I) which refers to one
song, The Cardigans (indictment count 1 N), which refers to three songs, and Snook
(indictment point I M), which refers to one song, the respective companies have multiplied
the number of downloads by EUR 0.70.
In addition, the illegal making available of sound recordings has also led to other injuries,
since the alternative of downloading sound recordings free of charge via The Pirate Bay
created an insurmountable competitive situation. One such injury is the loss of CD sales. But
other losses, including a reduced interest in records and reduced opportunities to create and
sell via on-line services, have also been suffered. Injuries related to making available are
extensive.
To estimate the compensation for such other injuries, the record companies have used a
model which is dependent on whether the sound recording unlawfully made available was
available for legal downloading at the time the recordings were made available via the
website The Pirate Bay.
For those sound recordings which were available for legal downloading – which included
most of the record companies’ sound recordings – the companies have calculated the
compensation for other losses at an amount equivalent to twice the reasonable compensation
for utilisation.
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Certain sound recordings were, however, made available via The Pirate Bay before they were
available for legal downloading which – in addition to affecting future CD sales – also had a
detrimental effect on the online sales which had been expected through the future
downloading service. Depending on how far in advance the unlawful making available via
The Pirate Bay occurred, the companies have estimated the damages for other losses using a
higher multiplication factor.
Playground Music Scandinavia’s sound recording, Snook, Svett & Tårar (indictment count 1
M), was available on The Pirate Bay between 1 and 10 days before it was available for legal
downloading. For this recording, the company has, therefore, estimated the damages for other
losses at three times the reasonable compensation. The company’s recording Aposteln
(indictment count 1 E) was available between 11 and 40 days before it was available for legal
downloading. The damages for other losses for this recording have, therefore, been estimated
at four times the reasonable compensation.
Bonnier Amigo’s recording, ‘This is Me Now’ (indictment count 1 F) was available for 41
and 90 days before it was available for legal downloading. The company has therefore
estimated the damages for other losses at five times the reasonable compensation.
Universal Music’s recording Don’t Blame your Daughter (indictment count 1 N) was
available via The Pirate Bay between 91 and 130 days before it was available for legal
downloading. The damages for other losses have, therefore, been estimated at six times the
reasonable compensation.
EMI Music’s recording of Let it Be (indictment count 1 Q) – a Beatle record – involved a
recording which it was, in fact, impossible to download legally since the artists had not
granted permission for this. The company has, therefore, estimated the damages for other
losses at ten times the reasonable compensation.
In accordance with what has been stated here, the record companies have estimated their
individual damages for the recordings made available unlawfully at the amounts shown in
Appendix 4.
- The Nordic film companies
Yellow Bird owns the rights to the three films, Den svaga punkten, Afrikanen and
Mastermind. Nordisk Film was the rightsholder of the film Pusher 3.
The films were made available unlawfully via the filesharing service The Pirate Bay, one
(Afrikanen) in November 2005 and the others in March 2006. The film Den svaga punkten
was at this time not available as a DVD recording. The films Afrikanen and Pusher 3, had not
been released.
The films were downloaded – as a result of being made available via The Pirate Bay’s
website –in accordance with details obtained from the website: Den svaga punkten 15,689
times, Afrikanen 12,267 times, Mastermind 2,533 times and the Pusher film 406 times.
66
The company’s claims for reasonable compensation for the utilisation (making available) of
the films which has occurred refers to a hypothetical negotiated amount at which the
rightsholder would have granted a license to make the films available for free downloading
on a filesharing service. These damages can be estimated at SEK 700,000 for each of the
films apart from Pusher 3, for which the estimated fee is SEK 150,000.
Alternatively, the reasonable damages for utilisation of the films can be calculated on the
basis on the number of downloads recently specified multiplied by that part of the average
price for a legal download of a film, which would have accrued to the rightsholder. The
average price for a legal download was, at the time covered by the indictment, SEK 139. Of
this income, at least sixty percent would accrue to the rightsholder. The income for the
rightsholder would, therefore, be SEK 66.70, excl. VAT.
In line with what the record companies have already stated, the unlawful making available of
films also meant that the film companies suffered losses other than a loss of royalties. The
making available also gave the general public the opportunity to download the films, i.e. to
produce copies of these, which, in turn, led to a fall in sale of film recordings, as well as a fall
in the demand for rental films. The companies have, consequently, suffered potential market
losses.
The unlawful making available has, in addition, impacted on the marketing campaigns
planned for the films. The knowledge alone that “pirate copies” of the films were available on
the market had a detrimental effect on the planned or implemented marketing campaigns for
the films.
The unlawful making available via The Pirate Bay also meant that the films were not
launched as the rightsholders had intended. In addition, the films were used to mock the
rightsholders, which means that the making available also resulted in a loss of goodwill.
The film companies have estimated the size of the damages to rectify these injuries at twice
the amount payable in reasonable damages for the use of the films.
- The American film companies
Since the defendants acted in consultation with each other, they are jointly responsible for
paying damages for infringement of copyright.
The film Harry Potter (indictment count 2 E) premiered in the cinemas in the USA and
Sweden in 2005. It was made available via The Pirate Bay on 11 February 2006. In that year,
it was also released as a DVD recording. The film was downloaded via The Pirate Bay
22,082 times according to the figures given on the website, which indicate how many times a
work has been downloaded.
The film The Pink Panther (indictment count 2 F) premiered in the cinemas in the USA on 10
February 2006. It was available via The Pirate Bay from 16 February. It was released as a
DVD recording in June 2006. The film was downloaded 49,593 times via The Pirate Bay.
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The television series The Prison Break (indictment count 2 G) premiered on television in
August 2005, and was shown as one episode per week until the end of November 2005. The
series was available via The Pirate Bay from 3 December 2005. A DVD recording of the
series was not made available until May 2006 in Europe and August 2006 in the USA. The
number of downloads via The Pirate Bay totalled 48,104.
”Syriana” was available via The Pirate Bay from 3 January 2006, but premiered in cinemas in
Sweden only on 10 March 2006. The film was available as a DVD recording from June 2006
in the USA and from July in Sweden. It was downloaded 3,679 times.
The film Walk the Line premiered in the cinemas in early February 2006, and was available
via The Pirate Bay from 15 February. It was released on DVD on 22 May 2006. The film was
the subject of 39,964 downloads via The Pirate Bay.
The film companies’ estimates of reasonable damages for utilisation is based on the number
of downloads which have taken place according to the figures given on the website, which
show how many times a work has been downloaded.
On the basis of an analysis carried out by a firm of auditors, the film companies have
estimated the price each film would have generated had it been legally downloaded. The
calculation of this price is based on the fact that none of the films were available for legal
downloading during the time they were made available via The Pirate Bay. The fact that
utilisation involved a preview license should, therefore, be taken into account. The price has
also been estimated on the basis that just over 90 percent of the individuals who downloaded
the films via The Pirate Bay were located in countries in Europe and in the USA. The fact
that the film companies did not market copies of their films without copying protecting must
also be taken into consideration, since users of The Pirate Bay, by carrying out downloads,
obtained copies which could be replicated freely. The price of each film did, in addition,
depend on whether it was a blockbuster such as Harry Potter, which have commanded a
higher price.
The companies have, therefore, estimated the price of a legal downloading for their
respective film(s) at:
- SEK 261.47 for Harry Potter,
- SEK 255.55 for The Pink Panther,
- SEK 415.81 for Prison Break (a television series),
- SEK 222.55 for Syriana and
- SEK 222.55 for Walk the Line.
With respect to other losses, the effects for the film companies are the same as those
described for the record companies. The film companies have estimated the size of these
damages at the same amount as the reasonable damages for the utilisation of the films.
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- The Defendants
Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström
Have, according to what has been reported previously, contested the claims. In support of
this, they have – as has also been reported previously – adduced, in addition to the objections
they have quoted when contesting the indictment, that they have not acted negligently, that
the plaintiff companies have not suffered any losses in the form of reduced sales and that
sufficient causality does not otherwise exist, that the information on the number of downloads
does not correspond to the number of downloaded rights or works, that damages should only
be payable for infringements committed in Sweden, that the originals were not illegal, that
accessories to an offence cannot, under the provisions in the Copyright Act regarding
damages, be held liable for the whole injury, and that they, as service providers, cannot be
held liable for damages under the provisions of the Electronic Commerce Act. They are of the
opinion that any liability to pay damages should be modified.
The verdict of the District Court
It follows from what the District Court initially cited about the defendants intentionally
committing an offence that they have, therefore, also acted negligently and that their
complicity makes them liable to pay damages. Their objections to the individual claims on
these grounds do not, therefore, stand up to scrutiny.
The District Court has previously in the section on liability found that the plaintiff companies
enjoy the sole right to the rights and works, and that the companies have not agreed to them
being made available via The Pirate Bay. They defendants objection that the originals – i.e.
the computer files which one user wished to make available to others – were legal do not,
therefore, stand up to scrutiny either. In this context, it can also be argued that even if the
user’s computer file had, originally, been produced as a copy for private use, this does not
mean that the copy could be used for purposes other than, specifically, private use (§ 12 of
the Copyright Act). A making available of the file via The Pirate Bay’s filesharing service,
which involved making available to the general public, is outside the boundaries of private
use.
The District Court has already commented on the fact that the defendants cannot avoid
liability for damages as a result of the provisions for freedom from liability for service
providers which apply in certain cases under the terms of the Electronic Commerce Act in the
section on liability.
The defendants’ additional objections to the individual claims will be discussed by the
District Court in connection with the court’s assessment of reasonable damages for utilisation
of rights and works, and damages for other losses. The District Court will then decide on
whether the liability to pay compensation will be joint and several and whether it should be
modified.
69
- Reasonable compensation for utilisation
As the District Court touched on by way of introduction, the payment of reasonable
compensation for unlawful utilisation of a copyright-protected performance is based on the
provision that, under no circumstance, must a right be utilised without consent without the
rightsholder being paid reasonable compensation. The right to such damages is not, therefore,
dependent on whether it can be proved that the plaintiff companies have suffered any actual
injury, and that the injury caused was the result of the unlawful utilisation.
In order to determine the size of the damages, it is generally accepted that tariffs, collective
agreements or similar, or alternatively the basic rules and conditions applicable to the
industry or market where the utilisation has taken place, can be used as a guide. It is,
consequently, a matter of trying to establish a hypothetical license fee for the utilisation. In
the opinion of the District Court, the meaning of the rule on damages currently under
discussion cannot, however, be that reasonable damages should be withheld if tariffs or
similar fail to provide guidance. In this case it is – as a last resort – incumbent upon the Court
to determine what constitutes reasonable damages.
All the plaintiff companies have, in this case, used the unlawful making available which has
occurred, in the form of transfer to the general public, as the basis for their claims for
reasonable damages.
The plaintiff companies have used various methods to estimate the damages.
Yellow Bird Films and Nordisk Film Valby (the Nordic film companies) have used just such
a hypothetical license fee for the right to permit the making available by others of the films
for free downloading.
The six Swedish record companies and the American film companies have, on the other hand,
used a calculation method based on individual downloads of a right or a work multiplied by
the price a legal downloading of the right or work would generate.
The Nordic film companies’ estimation method appears, in relation to the cited grounds for
claims for damages, as an applicable method for determining the size of the damages.
In support for their claims, the Nordic film companies have referred to an expert assessment
carried out by Bertil Sandgren, whose experience is based on many years of working in
leading positions in the Swedish film industry. According to this assessment, the imaginary
license fee is based on the fact that a film rightsholder, who has negotiated the making
available of the film via The Pirate Bay would have taken into consideration the fact that the
film was being made available without copy protection in a market consisting of six million
Swedish Internet users and about the same number of Internet users in the immediate area
around Sweden. In addition, the fact that there would have been a substantial reduction in
income from the purchasing and rental video markets as a result of a license being issued to
The Pirate Bay, as well as the fact that the legal online market for the film would have ceased
to exist should be taken into account. The expected number of downloads of a film via The
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investigation into the case. The District Prosecutor has moved (motions d – f) that these items
should remain held until the verdict in the case has gained legal force.
The defendants have argued that the seizures should be annulled, since the District Prosecutor
has had reasonable time to secure evidence through examination of the property.
The District Court shares the view of the District Prosecutor that it is important that the
seizure remains in force, since there may be reason to carry out further examination of the
property at a later stage, to establish circumstances of significance to the investigation. The
District Prosecutor’s special motion that the property should remain confiscated is therefore
upheld.
Indictment for breach of the Prohibition of Certain Health-Impairing Goods Act.
(Gottfrid Svartholm Warg)
The District Prosecutor’s motions are shown in Appendix 3.
Gottfrid Svartholm Warg has, as already mentioned in previous sections, denied the actions,
but has admitted the special motions.
Indictment counts 1-3
The investigation into the case reveals the following. In connection with the start of the
preliminary investigation into complicity in breach of the Copyright Act on 31 May 2006, the
police carried out a house search at an apartment at Framnäsbacken in Solna. The
preparations specified under indictment counts 1-3 were found in the apartment. The
preparations were kept in a drawer unit and in a cupboard at the desk. Some of the
preparations were included in a postal item addressed to Gottfrid Svartholm Warg’s
company, PRQ Internet.
Gottfrid Svartholm Warg has stated that the apartment belongs to his parents and that, on the
date stated in the indictment, it had been let to other individuals. He did not know that the
preparations in question were kept at the apartment.
In the opinion of the District Court, the case has not proven that the apartment was used by
Gottfrid Svartholm Warg on the date specified in the indictment. Nor has any other evidence
been presented which shows that the preparations belonged to Gottfrid Svartholm Warg. The
circumstances that some of the preparations have been found in a postal item addressed to
PRQ is not sufficient for Gottfrid Svartholm Warg to be found guilty of the offences. The
indictment is, therefore, dismissed with respect to indictment counts 1-3.
Indictment count 4
The investigation into the case reveals the following. A police patrol was called to Essinge
Brogata on 23 June 2007. In an adjacent apartment, a backpack was found in which the
preparations listed in the indictment count were kept. The backpack also contained a
62
registration certificate for Gottfrid Svartholm Warg’s company, PRQ. Gottfrid Svartholm
Warg, among others, was found at the apartment. He was heavily intoxicated.
Gottfrid Svartholm Warg has stated that, despite being intoxicated, he can remember the
event. He has also stated that the backpack was his, but that he, at some point during the
evening, had lent it to some individuals at the party. He knows “approximately” who he lent
the backpack to, but he does not want to reveal the names of these individuals.
The information provided by Gottfrid Svartholm Warg himself shows that the backpack in
which the preparations were found belonged to Gottfrid Svartholm Warg. What Gottfrid
Svartholm Warg has claimed, i.e. that he, in the course of the evening, lent the backpack to
other individuals who he does not wish to name, is regarded by the District Court as a
reconstruction of events. It has, therefore, been proven beyond reasonable doubt that Gottfrid
Svartholm Warg has been in possession of the preparations in question, and that he should,
therefore, be sentenced for breach of the Prohibition of Certain Health-Impairing Goods Act.
The special motions are based in law and admitted, and will, therefore, be upheld.
The individual claims
Initial starting point
The District Court has, in the section giving its verdict, found that the defendants were
intentionally complicit in breach of the Copyright Act, i.e. acted as accomplices in the
infringement of copyright-protected rights and works in the form of the unlawful making
available of the rights. Anyone who has caused solely a loss of wealth – a financial injury
which arises without associated injury to person or property – through the perpetration of a
crime must pay compensation for the loss. Under the general principles governing the law of
torts, there is no obstacle to ordering each and every one complicit in the infringement of a
copyright to pay compensation for this under the provisions of the Copyright Act regarding
liability to pay compensation (c.f. the dissenting opinion in the Supreme Court verdict on 20
November 2008 in case no. T 4998-06).
§ 54, first paragraph of the Copyright Act (c.f. § 57) states that anyone who, in contravention
of the Act, utilises an associated right or a work, i.e. uses the right or work contrary to § 2 of
the Act, shall pay damages, constituting reasonable compensation for the use, to the
rightsholder. The second paragraph of § 54 states that if this has been done intentionally,
damages shall also be paid, inter alia, for losses other than loss of royalties. The Act states,
therefore, that the provisions relating to damages for infringement in the Copyright Act mean
that anyone who intentionally infringes a copyright shall pay not only damages for the use of
the sole right, but also compensation for other financial loss caused thereby. The preamble
(SOU 1956:25 p. 429) to the provisions for damages also states this means that anyone who
intentionally infringes a copyright must pay compensation for all financial losses caused
thereby, and that one element of the provision for damages means that, when a copyright
performance has been used in contravention of the Act, the guilty party must always pay
63
reasonable compensation even if the rightsholder has not suffered any injury as a result of the
unlawful use.
The plaintiffs’ claims
The compensation claims of the plaintiff companies have been reported in the section Claims
and Positions. This report shows that the claims involve considerable amounts of money, and
that the companies have demanded that the defendants be held jointly and severally liable to
pay compensation.
The six Swedish record companies – Sony Music Entertainment, Universal Music,
Playground Music Scandinavia, Bonnier Amigo Music Group, EMI Music Sweden and
Warner Music Sweden – have demanded compensation for a total of EUR 2,188,071 excl.
interest.
The Nordic film companies – Yellow Bird Films and Nordisk Film Valby – claims are, in the
first instance, a total of SEK 6,750,000 excl. interest.
The American film companies – Warner Bros, Metro Goldwyn-Mayer, Columbia
Pictures, Twentieth Century Fox and Mars Media Beteiligungs – have demanded
compensation of a total of SEK 93,050,080 excl. interest.
All the plaintiff companies have claimed that the defendants, intentionally or through
negligence, have been complicit in a breach of the Copyright Act which means that
copyright-protected rights and works have unlawfully been made available to the general
public.
The making available means, in addition to a liability to pay damages for the use of the rights
or works, also a liability to pay compensation for other losses which have arisen as a result of
the unlawful making available.
Summary of the plaintiff’s arguments
- The six Swedish record companies
The defendant’s involvement with the filesharing service The Pirate Bay during the period
specified in the indictment resulted in the sound recording (copyright-protected phonograms)
specified in indictment counts 1 A – I and K – U being made available to the general public
which, in turn, meant that they could be downloaded by others, i.e. copies of the sound
recordings could be produced.
There is no licensing market or any other calculation method in the record company sector
which can be used to calculate the cost involved in lawfully making available sound
recordings. One way to calculate reasonable compensation for the use of recordings is,
instead, to calculate what the rightsholder would have been paid for a legal downloading
64
from an Internet service which supplies music files. The payment for individual downloads is
then multiplied by the number of unlawful downloads of a sound recording.
The approximate cost of lawfully downloading a copyright-protected sound recording from
an Internet service was, according to information produced by the companies, EUR 10. Of
this amount, EUR 6.50 went to the record companies (the rightsholder for the sound
recording). The cost of downloading individual songs, not whole albums, was EUR 0.70.
Information obtained from The Pirate Bay’s websites shows that it was possible, for each
sound recording, to see when the torrent file which related to the sound recording was
uploaded to the website and the right was, consequently, made available to the general public.
This is the starting point of the making available, and is shown for each recording in
indictment counts 1 A –I and K –U.
The website also contained numerical information – based on a counter – which showed how
many times a sound recording had been utilised for downloading. This numerical information
– which has been reported previously by the public prosecutor and included in the table
shown in the section “During what time periods has the making available occurred?” –
shows the number of downloads of the sound recordings up to 31 May 2006. In three cases –
indictment counts 1 B, F and L – the information refers to the number of downloads up to the
day when representatives of the record companies made a download.
The record companies have used the information on the number of downloads for each sound
recording and multiplied these by EUR 6.50 to calculate the reasonable compensation. For
sound recordings with the artists Lena Philipson (indictment count 1 I) which refers to one
song, The Cardigans (indictment count 1 N), which refers to three songs, and Snook
(indictment point I M), which refers to one song, the respective companies have multiplied
the number of downloads by EUR 0.70.
In addition, the illegal making available of sound recordings has also led to other injuries,
since the alternative of downloading sound recordings free of charge via The Pirate Bay
created an insurmountable competitive situation. One such injury is the loss of CD sales. But
other losses, including a reduced interest in records and reduced opportunities to create and
sell via on-line services, have also been suffered. Injuries related to making available are
extensive.
To estimate the compensation for such other injuries, the record companies have used a
model which is dependent on whether the sound recording unlawfully made available was
available for legal downloading at the time the recordings were made available via the
website The Pirate Bay.
For those sound recordings which were available for legal downloading – which included
most of the record companies’ sound recordings – the companies have calculated the
compensation for other losses at an amount equivalent to twice the reasonable compensation
for utilisation.
65
Certain sound recordings were, however, made available via The Pirate Bay before they were
available for legal downloading which – in addition to affecting future CD sales – also had a
detrimental effect on the online sales which had been expected through the future
downloading service. Depending on how far in advance the unlawful making available via
The Pirate Bay occurred, the companies have estimated the damages for other losses using a
higher multiplication factor.
Playground Music Scandinavia’s sound recording, Snook, Svett & Tårar (indictment count 1
M), was available on The Pirate Bay between 1 and 10 days before it was available for legal
downloading. For this recording, the company has, therefore, estimated the damages for other
losses at three times the reasonable compensation. The company’s recording Aposteln
(indictment count 1 E) was available between 11 and 40 days before it was available for legal
downloading. The damages for other losses for this recording have, therefore, been estimated
at four times the reasonable compensation.
Bonnier Amigo’s recording, ‘This is Me Now’ (indictment count 1 F) was available for 41
and 90 days before it was available for legal downloading. The company has therefore
estimated the damages for other losses at five times the reasonable compensation.
Universal Music’s recording Don’t Blame your Daughter (indictment count 1 N) was
available via The Pirate Bay between 91 and 130 days before it was available for legal
downloading. The damages for other losses have, therefore, been estimated at six times the
reasonable compensation.
EMI Music’s recording of Let it Be (indictment count 1 Q) – a Beatle record – involved a
recording which it was, in fact, impossible to download legally since the artists had not
granted permission for this. The company has, therefore, estimated the damages for other
losses at ten times the reasonable compensation.
In accordance with what has been stated here, the record companies have estimated their
individual damages for the recordings made available unlawfully at the amounts shown in
Appendix 4.
- The Nordic film companies
Yellow Bird owns the rights to the three films, Den svaga punkten, Afrikanen and
Mastermind. Nordisk Film was the rightsholder of the film Pusher 3.
The films were made available unlawfully via the filesharing service The Pirate Bay, one
(Afrikanen) in November 2005 and the others in March 2006. The film Den svaga punkten
was at this time not available as a DVD recording. The films Afrikanen and Pusher 3, had not
been released.
The films were downloaded – as a result of being made available via The Pirate Bay’s
website –in accordance with details obtained from the website: Den svaga punkten 15,689
times, Afrikanen 12,267 times, Mastermind 2,533 times and the Pusher film 406 times.
66
The company’s claims for reasonable compensation for the utilisation (making available) of
the films which has occurred refers to a hypothetical negotiated amount at which the
rightsholder would have granted a license to make the films available for free downloading
on a filesharing service. These damages can be estimated at SEK 700,000 for each of the
films apart from Pusher 3, for which the estimated fee is SEK 150,000.
Alternatively, the reasonable damages for utilisation of the films can be calculated on the
basis on the number of downloads recently specified multiplied by that part of the average
price for a legal download of a film, which would have accrued to the rightsholder. The
average price for a legal download was, at the time covered by the indictment, SEK 139. Of
this income, at least sixty percent would accrue to the rightsholder. The income for the
rightsholder would, therefore, be SEK 66.70, excl. VAT.
In line with what the record companies have already stated, the unlawful making available of
films also meant that the film companies suffered losses other than a loss of royalties. The
making available also gave the general public the opportunity to download the films, i.e. to
produce copies of these, which, in turn, led to a fall in sale of film recordings, as well as a fall
in the demand for rental films. The companies have, consequently, suffered potential market
losses.
The unlawful making available has, in addition, impacted on the marketing campaigns
planned for the films. The knowledge alone that “pirate copies” of the films were available on
the market had a detrimental effect on the planned or implemented marketing campaigns for
the films.
The unlawful making available via The Pirate Bay also meant that the films were not
launched as the rightsholders had intended. In addition, the films were used to mock the
rightsholders, which means that the making available also resulted in a loss of goodwill.
The film companies have estimated the size of the damages to rectify these injuries at twice
the amount payable in reasonable damages for the use of the films.
- The American film companies
Since the defendants acted in consultation with each other, they are jointly responsible for
paying damages for infringement of copyright.
The film Harry Potter (indictment count 2 E) premiered in the cinemas in the USA and
Sweden in 2005. It was made available via The Pirate Bay on 11 February 2006. In that year,
it was also released as a DVD recording. The film was downloaded via The Pirate Bay
22,082 times according to the figures given on the website, which indicate how many times a
work has been downloaded.
The film The Pink Panther (indictment count 2 F) premiered in the cinemas in the USA on 10
February 2006. It was available via The Pirate Bay from 16 February. It was released as a
DVD recording in June 2006. The film was downloaded 49,593 times via The Pirate Bay.
67
The television series The Prison Break (indictment count 2 G) premiered on television in
August 2005, and was shown as one episode per week until the end of November 2005. The
series was available via The Pirate Bay from 3 December 2005. A DVD recording of the
series was not made available until May 2006 in Europe and August 2006 in the USA. The
number of downloads via The Pirate Bay totalled 48,104.
”Syriana” was available via The Pirate Bay from 3 January 2006, but premiered in cinemas in
Sweden only on 10 March 2006. The film was available as a DVD recording from June 2006
in the USA and from July in Sweden. It was downloaded 3,679 times.
The film Walk the Line premiered in the cinemas in early February 2006, and was available
via The Pirate Bay from 15 February. It was released on DVD on 22 May 2006. The film was
the subject of 39,964 downloads via The Pirate Bay.
The film companies’ estimates of reasonable damages for utilisation is based on the number
of downloads which have taken place according to the figures given on the website, which
show how many times a work has been downloaded.
On the basis of an analysis carried out by a firm of auditors, the film companies have
estimated the price each film would have generated had it been legally downloaded. The
calculation of this price is based on the fact that none of the films were available for legal
downloading during the time they were made available via The Pirate Bay. The fact that
utilisation involved a preview license should, therefore, be taken into account. The price has
also been estimated on the basis that just over 90 percent of the individuals who downloaded
the films via The Pirate Bay were located in countries in Europe and in the USA. The fact
that the film companies did not market copies of their films without copying protecting must
also be taken into consideration, since users of The Pirate Bay, by carrying out downloads,
obtained copies which could be replicated freely. The price of each film did, in addition,
depend on whether it was a blockbuster such as Harry Potter, which have commanded a
higher price.
The companies have, therefore, estimated the price of a legal downloading for their
respective film(s) at:
- SEK 261.47 for Harry Potter,
- SEK 255.55 for The Pink Panther,
- SEK 415.81 for Prison Break (a television series),
- SEK 222.55 for Syriana and
- SEK 222.55 for Walk the Line.
With respect to other losses, the effects for the film companies are the same as those
described for the record companies. The film companies have estimated the size of these
damages at the same amount as the reasonable damages for the utilisation of the films.
68
- The Defendants
Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström
Have, according to what has been reported previously, contested the claims. In support of
this, they have – as has also been reported previously – adduced, in addition to the objections
they have quoted when contesting the indictment, that they have not acted negligently, that
the plaintiff companies have not suffered any losses in the form of reduced sales and that
sufficient causality does not otherwise exist, that the information on the number of downloads
does not correspond to the number of downloaded rights or works, that damages should only
be payable for infringements committed in Sweden, that the originals were not illegal, that
accessories to an offence cannot, under the provisions in the Copyright Act regarding
damages, be held liable for the whole injury, and that they, as service providers, cannot be
held liable for damages under the provisions of the Electronic Commerce Act. They are of the
opinion that any liability to pay damages should be modified.
The verdict of the District Court
It follows from what the District Court initially cited about the defendants intentionally
committing an offence that they have, therefore, also acted negligently and that their
complicity makes them liable to pay damages. Their objections to the individual claims on
these grounds do not, therefore, stand up to scrutiny.
The District Court has previously in the section on liability found that the plaintiff companies
enjoy the sole right to the rights and works, and that the companies have not agreed to them
being made available via The Pirate Bay. They defendants objection that the originals – i.e.
the computer files which one user wished to make available to others – were legal do not,
therefore, stand up to scrutiny either. In this context, it can also be argued that even if the
user’s computer file had, originally, been produced as a copy for private use, this does not
mean that the copy could be used for purposes other than, specifically, private use (§ 12 of
the Copyright Act). A making available of the file via The Pirate Bay’s filesharing service,
which involved making available to the general public, is outside the boundaries of private
use.
The District Court has already commented on the fact that the defendants cannot avoid
liability for damages as a result of the provisions for freedom from liability for service
providers which apply in certain cases under the terms of the Electronic Commerce Act in the
section on liability.
The defendants’ additional objections to the individual claims will be discussed by the
District Court in connection with the court’s assessment of reasonable damages for utilisation
of rights and works, and damages for other losses. The District Court will then decide on
whether the liability to pay compensation will be joint and several and whether it should be
modified.
69
- Reasonable compensation for utilisation
As the District Court touched on by way of introduction, the payment of reasonable
compensation for unlawful utilisation of a copyright-protected performance is based on the
provision that, under no circumstance, must a right be utilised without consent without the
rightsholder being paid reasonable compensation. The right to such damages is not, therefore,
dependent on whether it can be proved that the plaintiff companies have suffered any actual
injury, and that the injury caused was the result of the unlawful utilisation.
In order to determine the size of the damages, it is generally accepted that tariffs, collective
agreements or similar, or alternatively the basic rules and conditions applicable to the
industry or market where the utilisation has taken place, can be used as a guide. It is,
consequently, a matter of trying to establish a hypothetical license fee for the utilisation. In
the opinion of the District Court, the meaning of the rule on damages currently under
discussion cannot, however, be that reasonable damages should be withheld if tariffs or
similar fail to provide guidance. In this case it is – as a last resort – incumbent upon the Court
to determine what constitutes reasonable damages.
All the plaintiff companies have, in this case, used the unlawful making available which has
occurred, in the form of transfer to the general public, as the basis for their claims for
reasonable damages.
The plaintiff companies have used various methods to estimate the damages.
Yellow Bird Films and Nordisk Film Valby (the Nordic film companies) have used just such
a hypothetical license fee for the right to permit the making available by others of the films
for free downloading.
The six Swedish record companies and the American film companies have, on the other hand,
used a calculation method based on individual downloads of a right or a work multiplied by
the price a legal downloading of the right or work would generate.
The Nordic film companies’ estimation method appears, in relation to the cited grounds for
claims for damages, as an applicable method for determining the size of the damages.
In support for their claims, the Nordic film companies have referred to an expert assessment
carried out by Bertil Sandgren, whose experience is based on many years of working in
leading positions in the Swedish film industry. According to this assessment, the imaginary
license fee is based on the fact that a film rightsholder, who has negotiated the making
available of the film via The Pirate Bay would have taken into consideration the fact that the
film was being made available without copy protection in a market consisting of six million
Swedish Internet users and about the same number of Internet users in the immediate area
around Sweden. In addition, the fact that there would have been a substantial reduction in
income from the purchasing and rental video markets as a result of a license being issued to
The Pirate Bay, as well as the fact that the legal online market for the film would have ceased
to exist should be taken into account. The expected number of downloads of a film via The
District Court.
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Hans FREDRIK Lennart Neij, 780427-2636
Östgötagatan 72 A, Lgh 1022
116 64 Stockholm
Defence counsel appointed by the court:
Jonas Nilsson, Attorney-at-Law
Hamilton Advokatbyrå Göteborg AB
Stora Nygatan 33
411 08 Göteborg
VERDICT
Crimes commited
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
2
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
1
Damages
Fredrik Neij will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782,
- Playground Music Scandinavia AB of EUR 28,159,
- Bonnier Amigo Music Group AB of EUR 4,290,
- EMI Music Sweden Aktiebolag of EUR 162,988,
- Warner Music Sweden Aktiebolag of EUR 146,484,
- Yellow Bird Films AB of SEK 3,150,000,
- Nordisk Film Valby A/S of SEK 225,000,
- Warner Bros Entertainment Inc of SEK 2,484,225,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of SEK 5,579,325
in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions of SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and 99 percent of which is payable to Mars Media
Beteiligungs GmbH
& Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made.
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
2. The confiscated computer and communications equipment is declared forfeit. The
confiscation shall remain in place (BLG 0240-06-587 paragraphs 17, 18, 22, 24, 26,
28-34).
3. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
4. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Fredrik Neij will, jointly with the other defendants, pay compensation for legal costs to
3
- Sony Music Entertainment (Sweden) AB of SEK 468,000,
- Universal Music Aktiebolag of SEK 156,000,
- Playground Music Scandinavia AB of SEK 156,000,
- Bonnier Amigo Music Group AB of SEK 102,000,
- EMI Music Sweden Aktiebolag of SEK 264,000,
- Warner Music Sweden Aktiebolag of SEK 54,000, all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920, of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880, of which SEK 48,960 refers to counsel fees,
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246.000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,500, of which
246 000 refers to counsel feels,
,
- Blizzard Entertainment Inc of SEK 25,000 in counsel feels,
and
- Activision Publishing Inc of SEK 12,500 in counsel feels,
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. Fredrik Neij’s claim for compensation for appearance in accordance with Chapter 31 § 2
second paragraph of the Code of Judicial Procedure is dismissed.
3. The District Court awards Jonas Nilsson payment from public funds of SEK 949,025 for
his work as counsel appointed by the Court. Of this sum, SEK 656,880 refers to work, SEK
35,525 to time wasted, SEK 66,815 to expenses and SEK 189,805 to VAT.
The cost of the defence will remain with the state.
4
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Gottfrid Svartholm Warg, 841017-0537
Box 1206
114 79 Stockholm
Defence counsel appointed by the court:
Ola Salomonsson, Attorney-at-Law
Advokatfirman Salomonsson & Liljekvist HB
Kornhamnstorg 55
111 27 Stockholm
VERDICT
Crimes committed
1. Complicity in breach of the Copyright Act
2. Breach of the Prohibition of Certain Hazardous Goods Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
§ 3 paragraph 6 and § 4 of the Prohibition of Certain Health-Impairing Goods Act
Sanctions etc.
1 year’s imprisonment
The following indictments are dismissed
1. Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
5
2. Breach of the Prohibition of Certain Health-Impairing Goods Act in accordance with
the summons of 14 February 2008, indictment item 1.
3. Breach of the Prohibition of Certain Doping agents Act in accordance with the
summons of 14 February 2008, indictment item 2
4. Drug offences in accordance with the summons of 14 February 2008, indictment item
3.
Damages
Gottfrid Svartholm Warg will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782 ,
- Playground Music Scandinavia AB of EUR 28,159 ,
- Bonnier Amigo Music Group AB of EUR 4,290 ,
- EMI Music Sweden Aktiebolag of EUR 162,988 ,
- Warner Music Sweden Aktiebolag of EUR 146,484 ,
- Yellow Bird Films AB of SEK 3,150,000 ,
- Nordisk Film Valby A/S of SEK 225,000 ,
- Warner Bros Entertainment Inc of SEK 2,484,225 ,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of
SEK 5,579,325 in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500 ,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions of SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and of 99 percent of which is payable to Mars Media
Beteiligungs GmbH & Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
2. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
3. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
4. The confiscated computers will remain confiscated until the sentence has become
legally binding (BLG
0240-06-595 paragraphs 3, 8, 9 and 10).
5. The confiscated health-impairing goods are declared forfeit. The confiscation will
remain in force (BLG 0240-06-609 paragraphs 1, 2, 3, 4 and BLG 0240-06-610
paragraphs 2, 4, 7, 8, 10, 11, 15-20, 23-26, 30).
6. The 3 confiscated tablets of Klomifen are declared forfeit. The confiscation will
remain in force (BLG 0240-06-610 paragraph 6).
7. The confiscated narcotic drugs are declared forfeit. The confiscation will remain in
force (BLG 0240-06-610 paragraphs 3, 13, 14, 21).
6
8. The confiscated spoon containing traces of amphetamine is declared forfeit. The
confiscation will remain in force (BLG 0240-06-610 paragraph 5).
9. The confiscated health-impairing goods are declared forfeit. The confiscation will
remain in force (BLG 2007-0201-BG1034 paragraphs 6-8, 14, 17, 18, 20-25).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Gottfrid Svartholm Warg will, jointly with the other defendants, pay compensation for
legal costs to
- Sony Music Entertainment (Sweden) AB of SEK 468,000 ,
- Universal Music Aktiebolag of SEK 156,000 ,
- Playground Music Scandinavia AB of SEK 156,000 ,
- Bonnier Amigo Music Group AB of SEK 102,000 ,
- EMI Music Sweden Aktiebolag of SEK 264,000 ,
- Warner Music Sweden Aktiebolag of SEK 54,000 , all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920 , of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880 , of which SEK 48,960 refers to counsel fees,
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246,000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,50, of which
SEK 246 000 refers to counsel fees,
- Blizzard Entertainment Inc of SEK 25,000 for counsel fees and
- Activision Publishing Inc of SEK 12,500 for counsel fees
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. The District Court awards Ola Salomonsson payment from public funds of SEK
801,825 for his work as counsel appointed by the Court. Of this sum, SEK 629,280
refers to work, SEK 2,180 to time wasted and SEK 160,365 to VAT.
The cost of the defence will remain with the state.
7
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Peter Sunde Kolmisoppi, 780913-4815
Älggatan 29
216 15 Limhamn
Defence counsel appointed by the court:
Peter Althin, Attorney-at-Law
Advokatfirman Althin
Skeppsbron 28, 3 tr
111 30 Stockholm
VERDICT
Crimes committed
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
Damages
Peter Sunde Kolmisoppi will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
Please note this translation was commissioned by IFPI and it has not been endorsed by the Stockholm
District Court.
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Hans FREDRIK Lennart Neij, 780427-2636
Östgötagatan 72 A, Lgh 1022
116 64 Stockholm
Defence counsel appointed by the court:
Jonas Nilsson, Attorney-at-Law
Hamilton Advokatbyrå Göteborg AB
Stora Nygatan 33
411 08 Göteborg
VERDICT
Crimes commited
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
2
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
1
Damages
Fredrik Neij will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782,
- Playground Music Scandinavia AB of EUR 28,159,
- Bonnier Amigo Music Group AB of EUR 4,290,
- EMI Music Sweden Aktiebolag of EUR 162,988,
- Warner Music Sweden Aktiebolag of EUR 146,484,
- Yellow Bird Films AB of SEK 3,150,000,
- Nordisk Film Valby A/S of SEK 225,000,
- Warner Bros Entertainment Inc of SEK 2,484,225,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of SEK 5,579,325
in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions of SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and 99 percent of which is payable to Mars Media
Beteiligungs GmbH
& Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made.
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
2. The confiscated computer and communications equipment is declared forfeit. The
confiscation shall remain in place (BLG 0240-06-587 paragraphs 17, 18, 22, 24, 26,
28-34).
3. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
4. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Fredrik Neij will, jointly with the other defendants, pay compensation for legal costs to
3
- Sony Music Entertainment (Sweden) AB of SEK 468,000,
- Universal Music Aktiebolag of SEK 156,000,
- Playground Music Scandinavia AB of SEK 156,000,
- Bonnier Amigo Music Group AB of SEK 102,000,
- EMI Music Sweden Aktiebolag of SEK 264,000,
- Warner Music Sweden Aktiebolag of SEK 54,000, all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920, of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880, of which SEK 48,960 refers to counsel fees,
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246.000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,500, of which
246 000 refers to counsel feels,
,
- Blizzard Entertainment Inc of SEK 25,000 in counsel feels,
and
- Activision Publishing Inc of SEK 12,500 in counsel feels,
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. Fredrik Neij’s claim for compensation for appearance in accordance with Chapter 31 § 2
second paragraph of the Code of Judicial Procedure is dismissed.
3. The District Court awards Jonas Nilsson payment from public funds of SEK 949,025 for
his work as counsel appointed by the Court. Of this sum, SEK 656,880 refers to work, SEK
35,525 to time wasted, SEK 66,815 to expenses and SEK 189,805 to VAT.
The cost of the defence will remain with the state.
4
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Gottfrid Svartholm Warg, 841017-0537
Box 1206
114 79 Stockholm
Defence counsel appointed by the court:
Ola Salomonsson, Attorney-at-Law
Advokatfirman Salomonsson & Liljekvist HB
Kornhamnstorg 55
111 27 Stockholm
VERDICT
Crimes committed
1. Complicity in breach of the Copyright Act
2. Breach of the Prohibition of Certain Hazardous Goods Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
§ 3 paragraph 6 and § 4 of the Prohibition of Certain Health-Impairing Goods Act
Sanctions etc.
1 year’s imprisonment
The following indictments are dismissed
1. Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
5
2. Breach of the Prohibition of Certain Health-Impairing Goods Act in accordance with
the summons of 14 February 2008, indictment item 1.
3. Breach of the Prohibition of Certain Doping agents Act in accordance with the
summons of 14 February 2008, indictment item 2
4. Drug offences in accordance with the summons of 14 February 2008, indictment item
3.
Damages
Gottfrid Svartholm Warg will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782 ,
- Playground Music Scandinavia AB of EUR 28,159 ,
- Bonnier Amigo Music Group AB of EUR 4,290 ,
- EMI Music Sweden Aktiebolag of EUR 162,988 ,
- Warner Music Sweden Aktiebolag of EUR 146,484 ,
- Yellow Bird Films AB of SEK 3,150,000 ,
- Nordisk Film Valby A/S of SEK 225,000 ,
- Warner Bros Entertainment Inc of SEK 2,484,225 ,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of
SEK 5,579,325 in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500 ,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions of SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and of 99 percent of which is payable to Mars Media
Beteiligungs GmbH & Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
2. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
3. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
4. The confiscated computers will remain confiscated until the sentence has become
legally binding (BLG
0240-06-595 paragraphs 3, 8, 9 and 10).
5. The confiscated health-impairing goods are declared forfeit. The confiscation will
remain in force (BLG 0240-06-609 paragraphs 1, 2, 3, 4 and BLG 0240-06-610
paragraphs 2, 4, 7, 8, 10, 11, 15-20, 23-26, 30).
6. The 3 confiscated tablets of Klomifen are declared forfeit. The confiscation will
remain in force (BLG 0240-06-610 paragraph 6).
7. The confiscated narcotic drugs are declared forfeit. The confiscation will remain in
force (BLG 0240-06-610 paragraphs 3, 13, 14, 21).
6
8. The confiscated spoon containing traces of amphetamine is declared forfeit. The
confiscation will remain in force (BLG 0240-06-610 paragraph 5).
9. The confiscated health-impairing goods are declared forfeit. The confiscation will
remain in force (BLG 2007-0201-BG1034 paragraphs 6-8, 14, 17, 18, 20-25).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Gottfrid Svartholm Warg will, jointly with the other defendants, pay compensation for
legal costs to
- Sony Music Entertainment (Sweden) AB of SEK 468,000 ,
- Universal Music Aktiebolag of SEK 156,000 ,
- Playground Music Scandinavia AB of SEK 156,000 ,
- Bonnier Amigo Music Group AB of SEK 102,000 ,
- EMI Music Sweden Aktiebolag of SEK 264,000 ,
- Warner Music Sweden Aktiebolag of SEK 54,000 , all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920 , of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880 , of which SEK 48,960 refers to counsel fees,
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246,000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,50, of which
SEK 246 000 refers to counsel fees,
- Blizzard Entertainment Inc of SEK 25,000 for counsel fees and
- Activision Publishing Inc of SEK 12,500 for counsel fees
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. The District Court awards Ola Salomonsson payment from public funds of SEK
801,825 for his work as counsel appointed by the Court. Of this sum, SEK 629,280
refers to work, SEK 2,180 to time wasted and SEK 160,365 to VAT.
The cost of the defence will remain with the state.
7
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Peter Sunde Kolmisoppi, 780913-4815
Älggatan 29
216 15 Limhamn
Defence counsel appointed by the court:
Peter Althin, Attorney-at-Law
Advokatfirman Althin
Skeppsbron 28, 3 tr
111 30 Stockholm
VERDICT
Crimes committed
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
Damages
Peter Sunde Kolmisoppi will, jointly with the other defendants, pay compensation to
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246,000 refers to counsel
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,500 , of which
SEK 246,000 refers to counsel fees,
- Blizzard Entertainment Inc of SEK 25,000 in counsel fees and
- Activision Publishing Inc of SEK 12,500 in counsel fees
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. The District Court awards Peter Althin payment from public funds of SEK 708,054
for his work as counsel appointed by the Court. Of this sum, SEK 540,960 refers to
work, SEK 21,315 to time wasted and SEK 4,168 to expenses and SEK 141,611 to
VAT.
The cost of the defence will remain with the state.
10
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT B 13301-06
17 April 2009
handed down in Stockholm
Case no B 13301-06
PARTIES (Number of defendants: 4)
Prosecutor
District Prosecutor Håkan Roswall
The International Public Prosecution Office in Stockholm
Plaintiffs
Plaintiffs, see Appendix 1.
Defendant
Carl Ulf Sture Lundström, 600413-6377
Vorderfuchsloch 1
CH 8496 Steg
Switzerland
Defence counsel:
Stefan Jevinger, Attorney-at-Law
Rosengrens Advokatbyrå i Göteborg AB
Box 2523
403 178 Göteborg
VERDICT
Crimes committed
Complicity in breach of the Copyright Act
Statutes involved
§§ 1, 2, 46, 53, 57 of the Copyright Act
(1960:729) and Chapter 23 § 4 of the Penal Code
Sanctions etc.
1 year’s imprisonment
The following indictment is dismissed
Preparation for breach of the Copyright Act in accordance with the 2nd count of the
indictment.
Damages
Carl Lundström will, jointly with the other defendants, pay compensation to
11
- Sony Music Entertainment (Sweden) AB of EUR 41,467,
- Universal Music Aktiebolag of EUR 73,782,
- Playground Music Scandinavia AB of EUR 28,159,
- Bonnier Amigo Music Group AB of EUR 4,290,
- EMI Music Sweden Aktiebolag of EUR 162,988,
- Warner Music Sweden Aktiebolag of EUR 146,484,
- Yellow Bird Films AB of SEK 3,150,000,
- Nordisk Film Valby A/S of SEK 225,000,
- Warner Bros Entertainment Inc of SEK 2,484,225,
- Metro-Goldwyn-Mayer Pictures Inc and Columbia Pictures Industries Inc of SEK 5,579,325
in total, 25 percent of which is payable to Metro-Goldwyn-Mayer
Pictures Inc and 75 percent of which is payable to Columbia Pictures Industries,
- Twentieth Century Fox Film Corporation of SEK 10,822,500,
- Warner Bros Entertainment Inc of SEK 414,000 and
- Twentieth Century Fox Film Corporation and Mars Media Meteiligungs GmbH & Co
Film Productions SEK 4,495,950 in total, 1 percent of which is payable to Twentieth
Century Fox Film Corporation and 99 percent of which is payable to Mars Media
Beteiligungs GmbH
& Co Film Productions,
as well as interest in accordance with § 6 of the Interest Act (1975:635) from 31 May 2006
until payment is made.
Forfeiture and confiscations
1. Claims for forfeiture of value – jointly with the other defendants – are dismissed.
The confiscated computer is declared forfeit. It will remain confiscated (BLG 0240-06-
587 paragraph 7).
2. The confiscated computers found at the site of the operation of The Pirate Bay will
remain confiscated until the sentence has become legally binding (BLG 0240-06-587
paragraphs 1-16 and 23).
3. The confiscated written documents will remain confiscated until the sentence has
become legally binding (BLG 0240-06-590 paragraphs 2 and 7; BLG 0240-06-591
paragraphs 1-10; BLG 0240-06-595 paragraph
28; BLG 0240-06-596 paragraph 3; BLG 0240-06-598 paragraphs 4 and 6).
Criminal victims fund
The defendant is ordered to pay a fee of SEK 500 in accordance with the Criminal Victims
Fund Act (1994:419).
Compensation
1. Carl Lundström will, jointly with the other defendants, pay compensation for legal costs to
- Sony Music Entertainment (Sweden) AB of SEK 468,000 ,
- Universal Music Aktiebolag of SEK 156,000 ,
- Playground Music Scandinavia AB of SEK 156,000 ,
- Bonnier Amigo Music Group AB of SEK 102,000 ,
- EMI Music Sweden Aktiebolag of SEK 264,000 ,
- Warner Music Sweden Aktiebolag of SEK 54,000 , all of which refers to counsel fees,
- Yellow Bird Films AB of SEK 484,920 , of which SEK 440,640 refers to counsel fees,
- Nordisk Film Valby A/S of SEK 53,880 , of which SEK 48,960 refers to counsel fees,
12
- Warner Bros Entertainment Inc of SEK 592,000, of which SEK 504,500 refers to counsel
fees,
- Columbia Pictures Industries Inc of SEK 333,500, of which SEK 246,000 refers to counsel
fees,
- Twentieth Century Fox Film Corporation of SEK 333,500, of which SEK 246,000 refers to
counsel fees,
- Mars Media Meteiligungs GmbH & Co Film Productions of SEK 333,500, of which
SEK 246,000 refers to counsel fees,
- Blizzard Entertainment Inc of SEK 25,000 in counsel fees and
- Activision Publishing Inc of SEK 12,500 in counsel fees
as well as interest on these amounts in accordance with § 6 of the Interest Act (1975:635)
from the date of this verdict until payment is made.
2. Carl Lundström’s claims for compensation for legal costs and cost of appearance are
dismissed.
3. Carl Lundström will refund the state the sum of SEK 175,663 which, in accordance
with the court’s decision, was paid from public funds to Stefan Jevinger on 2
September 2008 in his previous role as defence appointed by the court. 1.
Other
Carl Lundström’s request that the District Court obtain a preliminary ruling from the
European Court of Justice.
13
CONTENTS
THE CASE
14
CLAIMS AND POSITIONS
16
The indictments
16
The individual claims
19
ARGUMENTS BY THE PARTIES ETC
22
The indictments
22
The individual claims
31
EXAMINATION ETC. OF THE DEFENDANTS
31
FINDINGS OF THE COURT
35
Indictments for breach of the Copyright Act
35
Comments on liability for breach of the Copyright Act
35
Comments on the questions of the issues in the case
36
Findings of the Court, continued
37
The filesharing service The Pirate Bay
38
The principal offences in accordance with the indictment for complicity
39
Acts of complicity
47
Other allegations in the indictment of complicity to breach of the Copyright Act
52
Preparation of breach of the Copyright Act
53
Freedom from liability under the Electronic Trading Act?
54
Sanctions etc
57
Indictment for breach of the Prohibition of Certain Health-Impairing Goods Act
61
The individual claims
62
Initial starting point
62
The plaintiffs’ claims
63
Summary of the plaintiffs’ arguments
63
The verdict of the District Court
68
Legal costs etc
75
Claims for costs by the plaintiff companies
75
Other compensation
76
14
STOCKHOLM DISTRICT COURT
Division 5
Unit 52
VERDICT
17 April 2009
B13301-06
THE CASE
A file is a collection of data which may contain music, films or other types of data, such as
computer games. The file can be stored on the computer hard disk, but also on CDs or DVDs
for example.
The term filesharing means that a person makes the files on a computer available to other
computer users (other computers) who/which form part of a computer network, such as the
Internet.
A number of different filesharing programs and technologies have been developed over the
years. There have been or are two main types of filesharing systems.
The client-server structure can be described as an older system, which involves a network
with a central computer (host computer) which serves users by allowing them to store
(upload) or collect (download) files. The drawbacks of this system are reputed to be its
capacity (bandwidth) and vulnerability. Napster was one example of this type of system.
Later on, filesharing software based on peer-to-peer technology was developed. This
technology means that files can be transferred between communicating computers which are
on an equal footing with each other, i.e. neither has the role of client or host computer. There
is no central computer in a network based on this technology. Filesharing software which
uses this technology includes Direct Connect, which acts as an intermediary for contacts
between individual computers connected to hubs. Another peer-to-peer technology used for
filesharing, is the software and file transfer protocol called BitTorrent. BitTorrent software is
used to divide a digital file into different segments and give them a mathematical number
(known as a hash total), and to create a torrent file. A torrent file is a file which, in principle,
contains only data which identifies the components the digital file has been divided into. To
facilitate distribution of the digital file, an address for one or more trackers is, as a rule,
specified in a torrent file.
The purpose of a tracker is to inform users of a specific torrent files which other users share
precisely that digital file. The torrent file can be uploaded to a web server which stores the
torrent file for downloading by users.
15
Between 1 July 2005 and 31 May 2006 – the period this case refers to - The Pirate Bay
website provided a filesharing service which used the BitTorrent protocol.
In January 2008, the District Prosecutor indicted Fredrik Neij, Gottfrid Swartholm Warg,
Peter Sunde Kolmisoppi and Carl Lundström for complicity in breach of the Copyright Act
(1960:729), since, jointly and in collusion with each other and another person, they had been
responsible for the operation of the filesharing service The Pirate Bay and, through this, aided
and abetted other individuals who, through transfer via the Internet of files containing certain
named copyright-protected recordings of sound and moving pictures, as well as computer
software (computer games), had made the recordings and software available to the general
public on certain specified dates and, on a certain date, also aided and abetted others in the
production of copies of the recordings and computer software. According to the District
Prosecutor, the aiding and abetting referred to the fact that the defendants, through the
filesharing service, provided others with the opportunity to upload torrent files to the service,
provided others with a database linked to a catalogue of torrent files, provided the
opportunity for others to search for and download torrent files and also provided the
functionality with the assistance of which individuals wishing to share files with each other
could contact each other through the filesharing service’s tracker function.
The District Prosecutor also alleged that the defendants were guilty of preparation for breach
of the Copyright Act, during the period 1 July 2005 to 31 May 2006, in that, in connection
with the operation and through the functionality of the filesharing service, in a specially
prepared database with associated catalogue, they received and stored the torrent files which
related to the copyright-protected rights and works. The torrent files were specifically
intended to be used as an aid in breach of the Copyright Act.
The District Prosecutor subsequently also indicted Gottfrid Svartholm Warg for breach of the
Prohibition of Certain Health-Impairing Goods Act.
The District Prosecutor later withdrew the indictment as far as it concerned the use of a file
containing Max Peezay’s record ”Discokommittén”.
Of the plaintiff companies listed in Appendix 1, 14 – six Swedish record companies, two
Nordic film companies and six American film companies – brought individual claims against
the defendants, on grounds of breach of the Copyright Act, for the joint and several payment
of damages for utilisation of rights and works, as well as damages for losses other than
utilisation. The claims totalled significant amounts. The District Court decided that the claims
would be heard in connection with the indictment. On a number of occasions during the pre-
trial conference, the Court dismissed requests from the defendants that the claims should be
heard as a separate case, under civil law.
During the main hearing in the case, the District Prosecutor initially changed the indictment
for complicity by dropping from the indictment the charge that the defendants, on certain
given dates, also aided and abetted other individuals in producing copies of the recordings
and computer games. The defendants objected that the change by the District Prosecutor was
16
not a permitted adjustment of the indictment, but that the indictment had, in fact, been
revoked on the issue of aiding and abetting the production of copies. They therefore moved
that a verdict of not guilty in that part of the indictment which referred to aiding and abetting
the production of copies be returned. The District Court found, in a decision during the trial,
that the District Prosecutor’s change to the indictment represented the kind of change to an
indictment covered by chapter 45 § 5 third paragraph of the Criminal Code and was,
therefore, a permitted change to the indictment.
During the main hearing, the District Prosecutor subsequently adjusted the indictment in the
following respects as well.
On the issue of the offences of complicity he no longer alleged that the components an index
portal in the form of a website with search function, a database with catalogues containing
torrent files and a tracker function were essential to allow users of the filesharing service to
share files with each other. The District Prosecutor also alleged that the aiding and abetting
consisted not only of the provision of an opportunity for others to upload, but also to store
torrent files to the service.
On the issue of the offence of preparation, the District Prosecutor alleged that it had been
committed only on 31 May 2006 and only in Stockholm and, consequently, not during the
period of time previously stated.
Consequently, this case concerns the issue of criminal complicity in the infringement of
copyright by individuals who are alleged to have provided a filesharing service within a
computer network, and of the liability of those involved to pay damages under the terms of
the Copyright Act.
CLAIMS AND POSITIONS
The indictments
The District Prosecutor demanded the conviction of the defendants for complicity in breach
of the Copyright Act and for preparation for breach of the Act, and set out the special motions
listed in Appendix 2.
All plaintiffs have supported the indictment for breach of the Copyright Act. With reference
to the indictment for preparation, the plaintiffs have, secondly, supported the indictment
covering the period 1 July 2005 to 31 May 2006.
Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström have all
denied liability for complicity in and preparation for breach of the Copyright Act
respectively.
The defendants have disputed the special motions aimed at them collectively or individually,
apart from the motion under e) which none of the defendants has had any objection to.
The defendants have cited the following circumstances in support for their positions.
17
Fredrik Neij:
The filesharing service The Pirate Bay was not illegal, so no criminal complicity can be
asserted simply on the basis that the service has been supplied with and provided information
on torrent files. Nor is there any evidence that a principal offence has taken place.
The Pirate Bay has only used information on torrent files from Internet users without The
Pirate Bay or any of its representatives having acquainted themselves with any copyright-
protected material or actively referred to such material. The production of copies has taken
place on the users’ computers without the recordings and computer programs covered by the
indictment having passed through The Pirate Bay’s computers.
He has not intentionally been complicit in the infringement of copyright in accordance with
indictment count 1, since he has not been aware of the existence of the files specified in the
count. It is the users of The Pirate Bay who have been responsible for the files they have
supplied and shared with others.
Fredrik Neij has agreed with the District Prosecutor’s allegation that The Pirate Bay is an
Internet filesharing service which uses the BitTorrent protocol and that the service consists of
three sub-components (indictment count 1, description of the act, first paragraph, first to third
sentences). He has agreed that the operation of the service has, to some extent, been financed
by advertising revenue. He has also agreed that, in accordance with the allegations, he has
been involved in the operation of the filesharing service on the dates and from the locations
specified in the description of the act (third paragraph). He has confirmed the District
Prosecutor’s allegation that the filesharing service provided the opportunity for others to
upload and store torrent files, for others to search for and download torrent files, and that the
service had a tracker function which made it possible for individuals who wanted to share
files to contact each other (description of the act, second-last paragraph), but has argued that
this is a widely-used, conventional filesharing technology and should, therefore, not been
regarded as aiding and abetting an infringement.
Preparation for breach of the Copyright Act has not taken place for the same reasons cited in
support of the fact that no complicity took place, and the torrent files have not been
specifically dedicated to be used as an aid in the offences.
Gottfrid Svartholm Warg:
He has cited the same circumstances as Fredrik Neij in support for his denials.
He has agreed that the tracker function – which he created – has resulted in a peer-to-peer
network. He has also agreed that the filesharing service has, to some extent, been financed by
advertising revenue, and that he has handled most of the operational aspects of the service
(indictment count 1, description of the act, third paragraph). He has emphasised that he,
jointly and in collusion with Fredrik Neij only – not the other defendants – has been
responsible for the measures involved in the operation of the filesharing service.
18
Peter Sunde Kolmisoppi:
He has not jointly and in collusion with the other defendants been responsible for the
measures involved in the operation of the filesharing service and, therefore, not provided the
opportunities which facilitated filesharing from The Pirate Bay.
He has, in addition, cited the same circumstances as Fredrik Neij in support of his denials.
Carl Lundström:
It is not an offence per se to provide a filesharing service which can be used for both legal
and illegal purposes.
The indictment refers to responsibility for collective complicity, which is not an offence
covered by Swedish law. Carl Lundström – who has not been involved with the website The
Pirate Bay – can only answer for his own actions.
He has owned the companies Rix Telecom AB and Rix Port 80 AB. The companies have
hired out computers and provided broadband space on market terms for the company PRQ
Internet Kommanditbolag, which was the owner of the domain names associated with The
Pirate Bay’s website. The companies were paid by PRQ Internet for services provided, just as
it is by the company’s other 50 – 100 customers.
He has had no intention of committing an infringement of copyright. The purpose of the
company’s contacts with the customer, PRQ Internet, was to earn money.
The indictment for preparation for breach of the Copyright Act is not fully framed. In
addition, previous circumstances are cited in support for the denial of the indictment for
preparation.
He has also cited the same circumstances put forward by Fredrik Neij in support of his
denials.
-----------
The District Prosecutor has also charged Gottfrid Svartholm Warg with breach of the
Prohibition of Certain Health-Impairing Goods Act (1999:42), of the Prohibition of Certain
Doping Agents Act (1991:1969) and for narcotics offences and put forward special motions
in connection with these indictments in the manner described in Appendix 3.
Gottfrid Svartholm Warg has denied the acts. He has admitted the special motions.
Gottfrid Svartholm Warg , as a result of being suspected of an offence on 23 June 2007, was
arrested and held in custody during the period 23 – 25 June 2007.
19
The arguments put forward by the parties with reference to the indictment will be examined
later by the District Court in a separate section of the verdict.
The individual claims
The plaintiff companies – apart from Blizzard Entertainment Inc, Warner Bros Entertainment
Inc for that part which refers to the computer game F.E.A.R., which the company is the
rights-owner for (count 3 C of the indictment for complicity) and Activision Publishing Inc –
have moved that the defendants jointly and severally pay damages to each of the plaintiffs
both for the utilisation of their rights or works, and for losses other than those stemming from
the utilisation.
The six Swedish record companies have claimed damages of a total of EUR 2,118,071, in
accordance with the following:
- Sony Music Entertainment of EUR 165,964 (55,321 + 110,643) for utilisation of sound
recordings specified in indictment counts 1 A, C, H, I, L and U,
- Universal Music of EUR 384,365 (98,393 + 285,972) for utilisation of sound recordings
specified in indictment counts 1 B, D and N,
- Playground Music Scandinavia of EUR 115,572 (37,556 + 78,016) for unlawful utilisation
of sound recordings specified in indictment counts 1 E, M and R,
- Bonnier Amigo Music Group of EUR 23,849 (5,733 + 18,116) for unlawful utilisation of
sound recordings specified in indictment counts 1 F and O,
- EMI Music Sweden of EUR 912,366 (217,334 + 695,032) for unlawful utilisation of sound
recordings specified in indictment counts 1 G, K, P, Q and T, and
- Warner Music Sweden of EUR 585,956 (195,319 + 390,637) for unlawful utilisation of
sound recordings specified in indictment count 1 S
as well as interest in accordance with § 6 of the Interest Act (1975:635) on the amounts from
31 May 2006 until payment is made.
The Nordic film companies have claimed damages of, firstly, a total of SEK
6,750,000:
- Yellow Bird Films, firstly, of SEK 6,300,000 (2,100,000 + 4,200,000) or alternatively of
SEK 6,233,616 (2,033,616 + 4,200,000) for utilisation of picture recordings specified in
indictment counts 2 A, B and D, as well as
20
- Nordisk Film Valby, firstly, of SEK 450,000 (150,000 + 300,000) or alternatively of SEK
327,080 (27,080 + 300,000) for utilisation of picture recordings specified in indictment
count 2 C
as well as interest in accordance with § 6 of the Interest Act (1975:635) on the amounts from
31 May 2006 until payment is made.
The American film companies have claimed damages of a total of SEK 93,050,080 in
accordance with the following:
- Warner Bros of SEK 11,547,638 (5,773,819 + 5,773,819) for utilisation of picture
recordings specified in indictment count 2 E,
- Metro-Goldwyn-Mayer and Columbia Pictures of SEK 22,073,458 (11,036,729 +
11,036,729) for utilisation of a picture recording specified in indictment count 2 F, 25 percent
of which is to be paid to Metro-Goldwyn-Mayer and 75 percent of which is to be paid to
Columbia Pictures,
- Twentieth Century Fox of SEK 40,003,824 (20,001,912 + 20,001,912) for utilisation of a
picture recording specified in indictment count 2 G,
- Warner Bros of SEK 1,637,494 (818,747 + 818,747) for utilisation of picture recording
specified in indictment count 2 H, and
- Twentieth Century Fox and Mars Media Beteiligungs of SEK 17,787,666 (8,893,833 +
8,893,833) for picture recording specified in indictment count. 2 I, 1 percent of which is to be
paid to Twentieth Century Fox and 99 percent of which is to be paid to Mars Media, as well
as interest in accordance with § 6 of the Interest Act (1975:635) on the amounts from 31 May
2006 until payment is made.
The plaintiff companies have, as a basis for their claims, cited that the criminal acts under
indictment counts 1 and 2 mean that the defendants intentionally were complicit in and
prepared infringements of copyright which have involved making available to the general
public copyright-protected sound and picture recording and works, or that they have,
alternatively, been negligent in their obligations concerning copyright infringement. The
making available of the recordings, which has occurred to a significant extent, involves
liability to pay damages for the utilisation of the recordings. The making available has, in
addition, resulted in losses for the rights-owners.
Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström have
disputed the individual claims. They do not in any part agree that the damages are reasonable.
They have agreed to the calculation of interest.
As grounds for their objections, the defendants have cited the same objections they have cited
in their denial of the indictments. They have, in addition, cited that they have not acted
21
negligently (carelessly) and have, in addition, cited the following grounds for disputing the
claims for damages.
The plaintiff companies have not suffered any injury since their sales of sound and picture
recordings have not fallen as a result of the alleged infringements. The making available of
the recordings has not led to those who have downloaded the recordings (produced copies)
having, consequently, failed to purchase the equivalent copies from the rights-owners. Nor is
there any other adequate causality between the specified injuries and the actions of the
defendants.
The number of downloaded torrent files has not corresponded to the number of downloaded
works. Nor is there any evidence that the downloads only involve unlawful originals.
Damages can only be paid for infringements committed in Sweden. Despite this, the plaintiffs
have presented their claims for damages in a way which does not show where the
infringement was committed.
Accomplices in breaches of the Copyright Act cannot be held liable to pay damages, since the
Act prescribes liability to pay compensation for “the person” who unlawfully utilises a right,
i.e. the perpetrator himself. Accomplices to offences cannot, in any case, be held liable for the
whole injury.
A case like that of the filesharing service The Pirate Bay, which involves a service provider
under the terms of the Electronic Commerce and Other Information Society Services Act
(2002:562), does not provide grounds for a liability to pay damages since The Pirate Bay did
not initiate the transfer of the information provided by a person using the filesharing service,
did not select the recipient of the information and did not select or alter the information.
Any liability to pay compensation shall, in any case, be adjusted with respect to the
defendants’ financial circumstances and the plaintiff companies’ need for compensation. Nor
shall joint and several liability be imposed.
------------
Carl Lundström has claimed that the design of the filesharing service The Pirate Bay,
including its sub-components, and the fact that the tracker function has created a peer-to-peer
network means that the Electronic Commerce Act is applicable to the operation. He has
argued that the wording of the Act in comparison with the EU directive on which the Act is
based is unclear and that the District Court has reason – for hearing the parts relating to
liability and damages – to obtain a preliminary ruling by the European Court of Justice, and
that the parties should be given the opportunity to comment in greater detail on which issues
should be put to the Court.
----------
The plaintiff companies have claimed compensation for legal costs.
22
Fredrik Neij has, in the event of an acquittal, claimed additional compensation for appearing
before the Court.
Carl Lundström has, in the event of an acquittal, claimed compensation for the fees of his
legal representative and for appearing before the Court.
ARGUMENTS BY THE PARTIES ETC.
The indictments
The District Prosecutor:
The filesharing service The Pirate Bay used BitTorrent technology in its operation.
The method for sharing a file containing, for example, a music recording, with others using
the filesharing service was, therefore, as follows.
The computer user who wanted to make a file available (the seeder) owned or produce a copy
of the recording on his or her computer.
The production of a torrent file which referred to the recording required a BitTorrent client,
such as Maketorrent or Azareus, i.e. a program which could divide the file into various
sections and then allocate it a hash total. To facilitate the making available of the work which
the torrent file related to, it was, in addition, necessary to add the Internet address of a
tracker. One option was to refer to several different trackers, not only the tracker provided by
the filesharing service The Pirate Bay. When the torrent file was created, the user would also
specify the designation (name/title) of the file.
The torrent file could then be uploaded to The Pirate Bay’s website and stored there by the
user, who had previously registered with the website, logging on to the website. The torrent
file could also be distributed in other ways, e.g. through the user’s own e-mail service, via
various chat programs or by uploading it to the user’s own website.
If another computer user subsequently wanted access to, for example, the music recording to
which the torrent file related, this user would visit The Pirate Bay’s website, search for the
torrent file in a catalogue of such files available on the website, and download the torrent file
to his or her computer. To access the actual music recording, the user who wanted access to
the recording (a leecher) would then have to open his or her BitTorrent program, which
would read the information on the torrent file regarding the tracker(s) specified. On
contacting the tracker, the tracker transferred information to the user’s computer about which
other users were connected and involved in sharing the relevant recording. The software
would also transfer various segments of the recording from each of these other users, until the
recording was downloaded to the user who wanted access to the recording.
23
One prerequisite for the execution of the filesharing was that the BitTorrent clients of both
the seeder and the user who wanted access were open (active).
The Pirate Bay’s website contained several web pages. The first contained a logo, search box
and links to other pages on The Pirate Bay.
By navigating to the page Bläddra bland torrenter [Browse torrents], a user would arrive at
specific categories – e.g. music, films, TV and games – from which they could obtain a
search result for torrent files named after, for example, films.
Clicking on a torrent file revealed information on, for example, when it had been uploaded,
by what user name (the uploader) and how many times it had been downloaded. The
information also included details of the content of the file the torrent file referred to, as well
as details of the size of the file and certain comments about it.
By navigating to the Nya torrenter [New torrents] page, a user could obtain information on
when different torrent files had been uploaded, listed by date and time.
By clicking on the page Topp 100 [Top 100] on the first page, the user could access popular
torrent files.
From the first page, a user could also go to a paged entitled Hur gör jag för att ladda ner
[How do I download?]. This page provided details of how to download the BitTorrent
software required for filesharing using the technology.
By clicking on Logga in [Log on] on the first page, a user could enter a user name and a
password, which was a prerequisite for downloading a torrent file.
The page entitled Registrera [Register] was used to register new users of the filesharing
service. They were asked to state, inter alia, a user name, e-mail address and password.
The page entitled Om [About] contained a presentation of the filesharing service The Pirate
Bay and the technology used by the service. In addition, the page carried the following
information on copyright-protected material:
“The members of The Pirate Bay represent a broad filesharing audience. Offensive material
may, therefore, be available. Do not e-mail us if you find something unpleasant, but instead
focus on the material you find enjoyable. The only time The Pirate Bay will remove torrents
is if the name does not reflect the content. Users should be aware of what they are
downloading.
The server contains only torrent files. This means that no copyright-protected and/or illegal
material is stored by us. The persons behind The Pirate Bay cannot, therefore, be held
responsible for the material distributed via the tracker. Any complaints from copyright
individuals and/or lobby organisations will be ridiculed and displayed on the website.”
24
The page entitled Juridisk korrespondens [Legal correspondence] shows the correspondence
“The Pirate Bay” has engaged in with various organisations or representatives of rights-
owners.
Once a torrent file had been created and addressed to The Pirate Bay’s tracker, users could,
on The Pirate Bay’s website, go to the page entitled Ladda upp torrent [Upload torrent] and
there upload the created torrent file to the filesharing service. This was done by browsing for
the created torrent file, changing its name, if necessary, categorising it and writing a
description of the torrent file. Finally, a code would be used to upload the file to the
filesharing service.
-------
The website The Pirate Bay started operating in the middle of 2004 when Fredrik Neij and
Gottfrid Svartholm Warg, who took over the operation from another person, allowed the
company, PRQ Internet Kommanditbolag, to register the name of the website in the top
domains .org, .com and .net. They were partners in the limited partnership company.
Initially, the operation was of relatively limited scope and primarily aimed at Swedish users.
In October 2004, Fredrik Neij established contacts with Carl Lundström who, at the time,
represented Rix Telecom AB. Carl Lundström offered the opportunity to obtain increased
computing power at Rix Telecom’s premises in Gothenburg, through the provision of two
servers (computers). These two servers, which were later seized, do not appear in the
accounts of Rix Telecom.
In early January 2005, Carl Lundström discussed an international launch of the website with
Fredrik Neij and Gottfrid Svartholm Warg. The opinion was that this would require other
languages to be used on the website, as well as an increase in computing power. Carl
Lundström, Fredrik Neij and Gottfrid Svartholm Warg agreed to establish a collaboration on
a company basis. The agreement was for Carl Lundström to supply additional computers and
operating capital, and to continue to provide Internet access. The intention was for Carl
Lundström to own 40 percent of the company, with the other two shareholders owning 30
percent each.
The international launch required, inter alia, the rewriting of the tracker function. This was
done by Gottfrid Svartholm Warg, who created a program for the tracker which would allow
an increase in the number of users. In addition, the website was changed to suit a more
international audience. It was also altered in a commercial sense, to allow it to accept larger
quantities of advertising.
At this point, Gottfrid Svartholm Warg established contacts with Oded Daniel in Israel, who
turned out to be a keen seller of advertisements and who also commented on the graphical
design of the website.
During this period, Peter Sunde Kolmisoppi entered the picture for the purpose of designing
the new website. He – who owned his own company, HAIQ Sweden AB – was also asked to
25
design the search function. For this purpose, the programming was carried out by certain
other individuals, but under the general supervision of Peter Sunde Kolmisoppi.
In spring 2005, additional computers were purchased for the operation. The purchases were
made by Rix Telecom, but one of the computers was posted on a clearing account which Carl
Lundström had set up with the company, i.e. this is his computer. The other computers
purchased were entered in the accounts of the company.
The Pirate Bay’s new website was ready in June 2005.
In March 2005, Carl Lundström had expressed concern about changes to the Copyright Act
due on 1 July 2005, which could mean that The Pirate Bay’s operations could be rendered
unlawful. Carl Lundström contacted a lawyer. Following discussions with his legal
representative, he e-mailed Gottfrid Svartholm Warg and mentioned that as of 1 July 2005,
the operation would be unlawful and that they should, therefore, consider relocating the
operation to another country.
E-mails were exchanged between Carl Lundström and Gottfrid Svartholm Warg, discussing
the possibility of moving to Russia or Argentina. A request by Carl Lundström to the
Swedish Embassy in Argentina for assistance in relocating the operation there, since the
situation vis a vis copyright in Argentina could be assumed to be more user-friendly than in
Europe was turned down by the Embassy. Carl Lundström then contacted an Argentinean
lawyer with the aim of ascertaining the cost of establishing the operation as a company in
Argentina. The reply, which was received in July 2005, was forwarded to Gottfrid Svartholm
Warg, with a query about whether to proceed.
In August 2005, Oded Daniel increased his efforts to sell advertising space. Peter Sunde
Kolmisoppi was involved in the advertising sales operation.
Oded Daniel then came up with the idea the company Transworld Advertising Corporation,
which he represented, as well as himself, Fredrik Neij, Gottfrid Svartholm Warg and Peter
Sunde Kolmisoppi should form a company called Random Media to run the operations of
The Pirate Bay. Transworld Advertising would invest USD 40,000 in the new company,
while Fredrik Neij and Gottfrid Svartholm Warg would contribute the websites they owned.
The articles of partnership – which were signed in September 2005 – show that in addition to
the company promoters, an external party – also designated the hoster – would be given 920
shares corresponding to 8.25 percent of the shares. The external party was Carl Lundström
who, at the time, was unaware of this fact but later became aware of it and acted accordingly.
Later, in autumn 2005 and early 2006, the filesharing operation was moved to Stockholm. In
September 2005, an agreement was signed by PRQ Internet and Rix Port 80 AB on space for
the computers (servers) and Internet access. The agreement meant that PRQ Internet, from
January up to and including May 2006, would pay SEK 17,000 per month for services
provided by Rix Port 80.
26
In early 2006, Fredrik Neij reminded the other partners to the Transworld Advertising
agreement (Random Media) that Carl Lundström was to be paid. In the reminder, Fredrik
Neij wrote that Carl Lundström’s share was “8.5 %”. In April 2006, Transworld Advertising
transferred USD 2,500 (just over SEK 18,000) to the company Morca AG, a company
wholly-owned by Carl Lundström. Documentation relating to the transfer states that it was
for “Purchase of Media”.
In autumn 2005 and in 2006, Gottfrid Svartholm Warg also received payments from
Transworld Advertising for advertising space (purchase of media) on The Pirate Bay’s
website. Fredrik Neij received three such payments in 2006. The payments, which related to
purchase of advertising space (purchase of media) amounted to SEK 1,200,000 in total.
In spring 2006, Carl Lundström also acquainted himself with the accounts from Oded Daniel
to the partners to the Transworld Advertising agreement on the advertising space sold, which
must be regarded as evidence that Carl Lundström was involved in the financing of the
operations carried on by The Pirate Bay. In April 2006, Carl Lundström sent an e-mail to
Oded Daniel with proposals for new services in the form of a pooling of The Pirate Bay’s
website and a digital television receiver, i.e. a strategic expansion of the filesharing service.
In May 2006, Peter Sunde Kolmisoppi travelled to Israel to meet Oded Daniel, and to discuss
agreements with advertisers on the website.
Oded Daniel mainly involved himself in the selling of advertising space for advertisers
outside the Nordic region. The right to sell advertising to advertisers within the Nordic region
had been granted to the companies Crystone AB and Eastpoint Media AB. The contact
person for these was Peter Sunde Kolmisoppi. He sent – via his own company, HAIQ
Sweden AB – invoices to these advertising brokers for the concession of advertising space on
The Pirate Bay. Payment was made to HAIQ Sweden.
---------
The making available – in the form of transfer to the general public – of the sound and picture
recordings and computer games included in the indictment for complicity occurred on the
dates specified in each indictment count.
The filesharing service’s website Detaljer för denna torrent [Details of this torrent], shows,
for every individual sound or picture recording or computer game, when the torrent file was
uploaded to The Pirate Bay.
Some time before The Pirate Bay’s server and other equipment was seized on 31 May 2006,
the plaintiff companies, through the staff of the International Federation of the Phonographic
Industry, IFPI, (Sweden) and the Anti-piracy Agency, had, at certain times, downloaded
(produced copies) of recordings by downloading torrent files relating to the recordings from
The Pirate Bay. The plaintiff companies could then, by using the torrent files and a
BitTorrent client, download a file containing the recordings from seeders and from others
who had not downloaded the whole file but who shared the file at the same time as, within
27
the framework for a file-share taking place at the time, they downloaded the file. The
downloads produced fully-functional copies. It was also possible, on this occasion, to see
how many times the file had been downloaded, according to information shown on the page
entitled Detaljer för denna torrent [Details of this torrent].
When the servers were seized on 31 May 2006, it became clear that in all but three cases, the
number of downloads had increased in relation to the number at the time of the downloads
made by the plaintiff companies.
Sony Music Entertainment et al (the six Swedish record companies):
In January 2006, the record companies reported certain individuals associated with The Pirate
Bay as suspected of having committed offences. At this time, The Pirate Bay had over
700,000 registered users, and the website was, in addition to Swedish, available in 20 other
languages. The Pirate Bay’s operations meant that the individuals responsible for the
operations were in any case guilty of complicity in an infringement through the actions
described by the District Prosecutor.
Certain web pages on The Pirate Bay’s website also made clear the views on the use of other
people’s copyright-protected rights or works of the representatives of the filesharing service.
The page entitled Juridisk korrespondens [Legal correspondence] showed that significant
amounts of information had been provided regarding the fact that uploading and downloading
of torrent files which referred to copyright-protected rights or works were taking place on
The Pirate Bay without the consent of the rights-owners. The presentation of the filesharing
service on the website (on the page entitled Om [About]) also showed that the attitude of the
representatives of The Pirate Bay was to ignore warnings of the use of copyright-protected
material via the operation of the filesharing service.
Warner Bros et al (the American film and computer games companies):
In addition to the allegations by the District Prosecutor on the issue of complicity, it should
be stressed that the representatives of The Pirate Bay have stated that they had the facilities
for removing torrent files from the filesharing service, e.g. if the name did not correspond to
the content of the file to which the torrent file referred.
Fredrik Neij:
In the presentation of The Pirate Bay on the website (the page entitled Om [About]), it was
also stated that The Pirate Bay had an open tracker, where anyone could upload or download
torrent files and write comments, as long as that individual was registered, and that no charge
was made for this. The website was, therefore, based on the users’ material – a user-generated
site. It was made clear to every user that the filesharing service did not contain any copyright-
protected material. A number of individuals were involved in The Pirate Bay’s operations,
and it is impossible to specify who wrote the presentation of the filesharing service.
28
The making available of a sound or picture recording or a work did not start automatically as
a torrent file was uploaded. This required the uploader to keep his/her Internet access
switched on and the BitTorrent software open.
There is some uncertainty about the information relating to the number of downloads
displayed for the torrent files, since the counter, which noted the number of downloads of the
material described by the torrent file, was not completely reliable.
The link between the making available copyright-protected recordings or works and the
alleged complicit actions is unclear on several points. It is not known who the uploader was,
where he was based, or how he had obtained the original of the file he was sharing. Nor has
there been any concrete indication of how the uploader and downloader were influenced by
the operations of The Pirate Bay or by Fredrik Neij, other than that the filesharing service
provided a filesharing model which is, in fact, legal.
Fredrik Neij was not involved in the initial operation of The Pirate Bay. In 2004, he was
asked to assist with the technical aspects of the operation. The grounds for his involvement in
the operation were neither financial nor ideological, and the work was carried out free of
charge.
The Pirate Bay was not run as a commercial project for the purpose of generating an income
for the individuals behind the operation. To finance the operation, which was relatively
expensive, the website did, however, accept advertising.
The Pirate Bay did not contain any copyright-protected material, and the individuals in the
operation were not aware that such material was included in that which was file-shared, since
this was outside The Pirate Bay’s control.
The Pirate Bay was – as stated previously – an open search service. Fredrik Neij could not,
therefore, n be responsible for the material referred to by the users via the torrent files and
even less so if the material was protected by copyright. He has, therefore, had no knowledge
of the principal offence.
In the hearing of the case, it is also important that the fundamental idea behind the Internet is
to refer to various documents, which would also suggest a right to refer to torrent files. The
BitTorrent technology is also one of the most commonly-used filesharing technologies.
The Pirate Bay must be regarded as a service provider in accordance with the Electronic
Commerce Act, i.e. a “person” who provides one of the services of the information society.
Such services are those which are provided at a distance, electronically and at the individual
request of the service recipient. A service provider who supplies information cannot, under
the provisions of the Act, be held liable for an offence which relates to the content of the
information. The purpose of the Act is, instead, to place the burden of responsibility on the
person who provides the information, and not on the person who simply supplies a route by
which the information can be transferred.
29
Gottfrid Svartholm Warg:
He set up The Pirate Bay’s operation in 2003 with a small single computer. The operation
was, eventually, named, but the name was in no way symbolic. He had the decision-making
power in the operation and made the necessary decisions. After Fredrik Neij entered the
operation, all decisions were made in consultation with him.
He created the tracker software. In doing so, he did not provide the copyright-protected
performances, nor did he urge the users to infringe copyright. Nor did the majority of files
shared contain copyright-protected material.
The agreement entered into with, inter alia, Transworld Advertising, was certainly signed, but
never resulted in any operation within the framework of the planned company, Random
Media.
It is correct that he received payments from abroad, but these did not always relate to
payment for advertising space on The Pirate Bay’s website.
Peter Sunde Kolmisoppi:
He was not responsible for the actions relating to the running of the operation, as alleged by
the District Prosecutor. The payments which have allegedly involved him have been made to
his company. In the agreement signed with, inter alia, Transworld Advertising, he was not
listed as a promoter. He did not, consequently, hold any position in The Pirate Bay’s
operation which could lead to him being regarded as responsible for it.
Most of the files made available for filesharing via The Pirate Bay did not contain copyright-
protected material. Only a very small proportion of the files related to copyright-protected
performances.
Carl Lundström:
The indictment for breach of the Copyright Act is aimed at intermediaries. The Pirate Bay’s
filesharing service is based on information transferred between computer users. According to
the Electronic Commerce Act – and EU directive 2003/31/EC on which the Act is based – a
service provider who supplies information but who has not initiated the transfer, which The
Pirate Bay has not done, cannot be held responsible for an offence, nor found liable to pay
damages.
Carl Lundström has not been involved with The Pirate Bay website. He could certainly, like
others, log on to the website and browse through it, but this does not mean that he played an
active part in the operation.
He was – and still is – a businessman involved in the financing of the operations of inventors.
He set up the company Rix Telecom in the late 1990s. This was a traditional broadband
company with several employees. He was not involved in its day-to-day operations, but dealt
with general issues.
30
In 2004, he met Fredrik Neij at an exhibition and invited him to come and work for Rix
Telecom. Through the auspices of Fredrik Neij, a meeting with Gottfrid Svartholm Warg was
arranged at the end of 2004, when The Pirate Bay had already started to operate a filesharing
service. At this meeting, he was shown how the filesharing service worked. Rix Telecom –
and its subsidiary in Stockholm, Stockholm Rix Port 80 – had, at this time, expanded their
operations to include co-location, i.e. to let offices/premises for installing computers. As early
as October 2004, Rix Port 80 signed an agreement with PRQ Internet – the legal entity which
owned the website The Pirate Bay – on the installation of PRQ’s computers in the premises
of the joint stock company. This agreement was drawn up before Rix Telecom had acquired
Rix Port 80.
Rix Telecom had, as part of its operations, bought and sold computers to its customers. The
computers would be purchased by one of the company’s employees, and it is impossible to
know why some of them were found in the computer cabinet where the servers (computers)
involved in The Pirate Bay’s operations were later seized. In early 2005, two computers
purchased on behalf of Carl Lundström were delivered to Rix Telecom. He purchased these
computers for further forwarding to PRQ Internet.
Carl Lundström became interested in PRQ Internet for two reasons. He saw PRQ as a future
customer for Rix Telecom’s co-location operations. In early 2005, he also took an interest in
The Pirate Bay’s operations and suggested becoming a shareholder in PRQ.
Later in the spring of 2005, he found out that the Copyright Act was about to be changed on 1
July 2005, and that this change could lead to The Pirate Bay’s filesharing operation being
regarded as infringing copyright. He therefore sought legal advice. He also investigated – at
the request of Fredrik Neij and Gottfrid Svartholm Warg – the opportunities for the operation
on foreign soil, including Russia or Argentina. The responses were, however, wholly
negative. In August/September 2005, he therefore backed out of the planned business
relationship with PRQ Internet or with representatives of The Pirate Bay.
Rix Telecom – and the subsidiary Rix Port 80 – still maintained business relations with PRQ
Internet for co-location services, as is shown, inter alia, by agreements from April, July and
September 2005.
The agreement from September involved Rix Port 80 letting a computer cabinet (rack
cabinet) at the company’s premises and providing broadband space (traffic and connection) to
PRQ Internet. Another agreement was signed between Rix Port 80 and PRQ Internet in
February 2006, relating to co-location (hosting of server) in a computer cabinet which Carl
Lundström, in capacity of manager of the company, was unaware. In spring 2006, Rix
Telecom purchased additional computers which were, subsequently, sold on to PRQ Internet.
Since Rix Telecom was able to obtain a better price for the purchases for later sale to PRQ,
this made the company money.
31
In April 2006, Rix Port 80 sent an invoice to PRQ Internet not only for co-location but also
for other telecoms-related services provided on commercial terms. Carl Lundström was not
involved in the invoicing process.
He was not aware of the agreement with, inter alia, Transworld Advertising, signed in
September 2005, until it was shown to him as part of the preliminary investigation. The
payment from Transworld Advertising received by him in April 2006 appears to have been
executed by Oded Daniel, whom Carl Lundström has never previously met. They only met at
a later date in April. In late May 2006, Oded Daniel contacted Carl Lundström, since they
had got to know each other after a meeting in the USA in April 2006, outside the framework
of The Pirate Bay’s operations.
The individual claims
The individual claims cited by the parties will be considered by the District Court in a later
section of this verdict.
EXAMINATION ETC. OF THE DEFENDANTS
Fredrik Neij has primarily stated the following. He has a long-standing interest in computers
and technology, and this was why he became involved with The Pirate Bay. The name had
already been established when he joined the operation. He did not join The Pirate Bay on any
political or ideological grounds. To him, The Pirate Bay simply represented a technical
challenge. He would be involved in the operation of a major website and a tracker. He would
get access to computers which he would not otherwise be able to use. He came into contact
with Gottfrid Svartholm Warg at some point in 2004. At this point, he purchased four
computers on behalf of The Pirate Bay. After he started working for Carl Lundström, they
agreed that he could store the computers at the premises which belonged to Carl Lundström’s
company, and that he would also be provided with bandwidth free of charge. He would pay
for this by working at a reduced salary. He handled the registration of the domain names and,
this is why he is specified as the contact person on the registration documents.
The Pirate Bay grew by itself. He and Gottfrid Svartholm Warg did not market the website.
He is aware that Piratbyrån had a link to the website. The Pirate Bay was, initially, in
Swedish. They then discovered that around 50 percent of visitors were foreign users. For this
reason, the website was “translated” into other languages as well. A group of graphic
designers, coders and moderators were involved in the work on the website. No-one had any
specific decision-making powers. Everyone did whatever they, individually, felt was
necessary.
He is aware that the website contained torrent files linked to films, music and games. He is
also aware that a tab on The Pirate Bay contained letters and complaints from rights-owners.
He did not, however, think that the operation was illegal, since he had checked this with
32
various legal experts. One of these was a law student who, in turn, checked this with his
teachers and professors.
The Pirate Bay’s tracker is an open tracker, which means that anyone can refer to it. The
Pirate Bay contained around 700,000 torrent files. A manual examination of every one of
these files would have been impossible. For this reason, the users were themselves held
responsible for what was on the site. Torrent files were sometimes removed from the website.
The Pirate Bay moderator would do this if someone complained that the description of a
torrent file did not accurately reflect the content.
He knows Oded Daniel. They got to know each other sometime in 2004, when The Pirate
Bay started carrying advertising in the form of banners on its website. It was Oded Daniel
who got in touch with them. Not all of his contacts with Oded Daniel have involved The
Pirate Bay. He has worked with Oded Daniel on around ten different websites. The money he
was paid by Oded Daniel’s company, Transworld Advertising, was probably remuneration
for the work he had carried out on behalf of Oded Daniel.
He gave a speech at Mynttorget after the seizure of equipment etc. from The Pirate Bay.
Piratbyrån had asked him to give the speech since he was one of the representatives of The
Pirate Bay. He did not write the speech.
Gottfrid Svartholm Warg has, primarily, stated the following. Some individuals at Piratbyrån
wanted to set up a BitTorrent tracker. This was at some point in the middle of 2003. He does
not remember who came up with the name The Pirate Bay. He purchased additional memory
for the computer and started experimenting since he was interested in the technology. At that
time, he was working in Mexico. He did, however, need more server space and this was
when he came into contact with Fredrik Neij. It was also then that the operation was relocated
to Sweden. They regarded this as a fun project. The website started to grow immediately.
New hardware was purchased continuously. They financed the operation with their own
money and through donations. They started selling advertising space on the website when it
became necessary for the running of the operation. They signed an agreement with Oded
Daniel in October 2004. An improved version of The Pirate Bay was launched in spring
2005. The new version involved the site being made available in several languages, with a
new design and much better technology.
He was not aware that the operation carried on by The Pirate Bay was illegal. He received
complaints from various rights-owners. He also responded to some of them. The Pirate Bay’s
policy was – and still is – that it is the users who utilise the torrent files on the website. This
is not something which the representatives of The Pirate Bay involve themselves with. The
only things removed from The Pirate Bay have been torrent files which users have
complained contain material which does not correspond to the description. This was done by
the moderators of The Pirate Bay. Material featuring child pornography was also removed
from the website. They would always report the matter to the police first, and, if the police
later ordered them to remove the material, they would do so. There was also an automatic
process for removing torrent files which were not downloaded.
33
The partnership agreement for Random Media was drawn up by Oded Daniel, since it was he
who had a financial stake in The Pirate Bay. This was only one of several proposed
agreements. No company was ever registered and no shares were allocated to the partners.
The agreement came to nothing.
Carl Lundström has not been involved in The Pirate Bay’s operations. Carl Lundström has no
association with The Pirate Bay other than through the provision of Internet connection and
the purchase of computers on behalf of The Pirate Bay by Rix Telecom AB.
Peter Sunde Kolmisoppi became involved when they needed a media spokesman.
Peter Sunde Kolmisoppi has, primarily, stated the following. He got to know Fredrik Neij and
Gottfrid Svartholm Warg via the Internet. He became the media spokesman for The Pirate
Bay since no-one else wanted to do the job. He does not remember when he became involved
with The Pirate Bay. He was not involved in the operations carried on. He did not develop the
layout or the categories on The Pirate Bay. He did not work on The Pirate Bay’s database.
He did, however, suggest that The Pirate Bay should extract statistics from the website and
that The Pirate Bay should introduce a support hotline. He did not purchase any computers on
behalf of The Pirate Bay. He did purchase a computer on behalf of Piratbyrån, and this was
the reason that this computer was located among The Pirate Bay computers.
The e-mail he received from Oded Daniel with proposals for measures which could be
adopted by the website The Pirate Bay was forwarded by him to another person, who was to
carry out the work. Oded Daniel often turned to him when Fredrik Neij and Gottfrid
Svartholm Warg were not getting things done. He would then help out by “pulling some
strings” with Fredrik Neij and Gottfrid Svartholm Warg, and otherwise “push” people into
getting things done. He does not know why he has received revenue reports from Oded
Daniel. Oded Daniel is a strange person, and he often received unsolicited e-mails from Oded
Daniel. He was in contact with Eastpoint, one of The Pirate Bay’s advertisers. He helped
Oded Daniel with some invoicing issues by issuing invoices through his own company.
He later started to act as an intermediary in contacts between Eastpoint and Oded Daniel,
since Eastpoint refused to speak to Oded Daniel. He met with Oded Daniel on many
occasions. He was also involved in several other business deals with him.
He was aware of the e-mails and responses published on the web page entitled Juridisk
korrespondens [Legal correspondence].
He signed the partnership agreement on the formation of Random Media. The purpose of the
agreement was not to expand The Pirate Bay. Random Media was to earn money from
advertising sales on The Pirate Bay. Another idea behind Random Media was to develop new
services, e.g. Video Bay which was to be a competitor to YouTube. He only “skimmed”
through the agreement. He did not understand everything contained therein. Random Media
did not, however, start to operate.
34
Carl Lundström has, primarily, stated the following. He was the CEO of Rix Telecom AB
during the period covered by the case. He met Fredrik Neij for the first time at an exhibition
in Jönköping in autumn 2004. During this meeting, Fredrik Neij told him that he and another
person had developed a filesharing service. The files shared could, according to Fredrik Neij,
contain copyright-protected material, but the filesharing service itself was legal. Gottfrid
Svartholm Warg demonstrated The Pirate Bay to him. At this point, Carl Lundström noticed
that it contained torrent files which referred to protected works.
Fredrik Neij suggested that he would take a job with Rix Telecom at a reduced salary. In
return, The Pirate Bay would be provided with free bandwidth and they would be allowed to
store their computers at the company’s premises. Part of the agreement was also that the
computers would remain there even after The Pirate Bay started to “generate” money. He
also purchased two new computers on behalf of The Pirate Bay.
He asked several legal experts whether or not the operation was legal. His statement to one of
the legal experts, in an e-mails dated March 2005, that the purpose of The Pirate Bay was
“pirate copying” was intended as a slight exaggeration. He wanted a reply to precisely this
question, since he did not want to take any risks in this context.
He received a negative response which he forwarded to Fredrik Neij and Gottfrid Svartholm
Warg. After receiving this message, he was no longer interested in becoming a shareholder in
“The Pirate Bay”. He did, however, later contact various people in Argentina and Russia to
ascertain whether it would be possible to set up the operation there. He tried to help out after
being asked for assistance either by Fredrik Neij or Gottfrid Svartholm Warg. He used the
personal pronoun “we” in the email, since he represented The Pirate Bay, as one of his
customers, when he made the enquiries. He met Oded Daniel at a conference in San
Francisco at some point in April 2006. He does not know why Oded Daniel had set aside
money on his behalf. Oded Daniel probably did not understand how matters stood. It cannot
have been a question of a dividend. He was interested in The Pirate Bay, which is probably
why he also received statistics on The Pirate Bay from Oded Daniel.
-----------
The parties have adduced written evidence.
At the request of the District Prosecutor, Magnus Mårtensson of IFPI Sweden and Anders
Nilsson of the Antipiracy Agency have been examined as witnesses.
At the request of the plaintiff companies, John Kennedy, IFPI, Ludvig Werner, IFPI Sweden,
Per Sundin, Universal Music, Bertil Sandgren and Per Ekengren, and
Grant Thornton, who have all submitted opinions, have been examined as witnesses.
Tobias Andersson and Kristoffer Schollin, LLD, who have also submitted opinions, have
been examined at the request of Fredrik Neij and, with reference to Kristoffer Schollin, also
at the request of Carl Lundström.
35
At the request of Peter Sunde Kolmisoppi, Professor Roger Wallis has been examined as a
witness.
FINDINGS OF THE COURT
Indictments for breach of the Copyright Act
Comments on liability for breach of the Copyright Act
The Copyright Act distinguishes between copyright and certain rights associated with
copyright. Copyright belongs to the person who has created a literary or artistic work, such as
a film or a computer program. A right associated with copyright belongs to a producer of a
sound recording or a recording of moving pictures, e.g. a record company (phonogram
producer) which records an artist’s music on a certain medium, and a film producer who
records a film. The indictments for breach of the Copyright Act are based on an allegation of
infringement of both associated rights and actual copyright, which belong to certain US film
and computer game companies.
Under the provisions of §§ 2 and 46 of the Copyright Act, copyright protection is the
exclusive (sole) right of the rightsholder to dispose of the work or produce copies and so
make the work or right available to the general public. The indictment for complicity in
breaches of the Copyright Act, as it is finally worded, is based only on allegations of
infringement of the right to make a work or a right available to the general public.
Under the Copyright Act, a work or a right is made available to the general public when, inter
alia, it is broadcast to the general public. All the charges brought by the District Prosecutor
are to the effect that files containing copyright-protected performances have been made
available to the general public through Internet transfers. Such a making available occurs
when a work or a right, either by way of a wired or wireless connection, is made available to
the general public from a place other than where the public can enjoy the work. In addition,
broadcasting to the general public includes a transfer which takes place in such a way that
individuals can gain access to the work or right from a place and at a time of their own
choosing
If such performances are made available through widely available filesharing services which
use peer-to-peer technology, it is, typically, a matter of a broadcast to the general public (c.f.
Bill 2004/05:110 s. 70).
The Copyright Act includes a number of restrictions to the sole right which belongs to the
owner of the copyright to a specific work or a right. With reference to certain works and
rights, and under the provisions of § 12 of the Copyright Act, it is, inter alia, permitted to
produce copies for private use. Such a copy may not be used for any purpose other than
private use, i.e. it may not be made available to the general public. An important exception to
the right to produce copies for private use is when the original itself has been produced or
made available in contravention of § 2 of the Copyright Act.
36
§ 53 of the Copyright Act regulates the sanctions applicable to infringement of copyright.
This statute shall, according to § 57 of the Act, also apply in cases of infringement of the
rights associated with copyright. Infringement of copyright also covers, inter alia,
infringement of associated rights, unless otherwise stated.
Under § 53 of the Copyright Act, anyone who takes actions which involves infringement of
the copyright associated with the work can be sentenced to a fine or imprisonment for a
maximum of two years, provided that the infringement was intentional or the result of gross
negligence.
The indictments cover both allegations of complicity in breaches of the Copyright Act, and
allegations of preparation of breaches of the Copyright Act. § 53 paragraph 5 of the
Copyright Act states that an attempted breach or preparation of breach of the Copyright Act
is punishable pursuant to Chapter 23 of the Criminal Code. Provisions for sentencing a
person for complicity in breach of copyright are included in Chapter 23 § 4 of the Criminal
Code, which states not only the person who committed the act can be found liable, but so too
can a person who aided and abetted the act in word or deed. The Code also prescribes that
this shall apply to any action for which a prison sentence can be imposed under other laws or
statutes.
Comments on the questions at issue in the case
Count 1 of the indictment refers to complicity in breaches of the Copyright Act. For the
defendants to be convicted in accordance with the indictment, the District Prosecutor must
prove that others, via Internet transfer of a file containing, for example, a sound recording,
have unlawfully made a copyright-protected phonogram available to the general public (i.e.
that a “principal offence” has been committed), and prove that the defendants have
encouraged the principal offence in such a way that they can be held criminally responsible
for their complicity.
In the opinion of the District Court, the natural course of action would be to examine the
principal offence first, and then move on to examining any complicity on the part of the
defendants.
The issue of whether the District Prosecutor has proved that the alleged principal offence has
been committed raises a number of different questions, including whether copyright
protection exists in the sense alleged, whether the District Prosecutor has demonstrated that
the making available has occurred during all or part of the time periods the District
Prosecutor alleges, whether it is a matter of unlawful making available and whether the
principal offence can be regarded as having been committed.
The issue of whether the District Prosecutor has succeeded in proving that the defendants
have aided the principal offence in such a way that they can be held legally responsible for
their complicity also raises a number of questions. The first question is whether the District
Prosecutor has demonstrated that all the defendants can be regarded as having acted together
37
and in collusion, as has been alleged. In addition, there is the issue of how the offence of
complicity relates to the principal offence, with reference to the extent to which or in what
way the offence of complicity may have encouraged the principal offence. In this context, the
time of the complicity in relation to the time of the principal offence should be analysed more
closely. The latter issues are significant when it comes to determine whether the actions of
which the defendants are accused objectively can be regarded as of sufficient to reach a
verdict on criminal complicity. To this can be added the question of intent and negligence.
The issues mentioned largely cover all the allegations found in count 1 of the indictment. The
indictment for complicity also includes other allegations which the District Court must
examine: whether the majority of the films made available for filesharing through The Pirate
Bay contain works and performances protected by copyright, and whether, and to what
extent, it is a question of commercial use of the said works and performances.
Count 2 of the indictment – preparation of breach of the Copyright Act – raises the question
of whether the defendants, if they convicted of complicity in breaches of the Copyright Act,
can also be convicted of preparation in accordance with the criminal allegations.
The indictment brings the Electronic Commerce and Other Information Society Services Act
to the fore. If the District Court should conclude that any of the defendants should be
convicted in accordance with the indictment – and, as a result of this, pay damages and
compensation to the plaintiff companies – the question arises if any of the grounds for
freedom from liability which can be found in the Electronic Commerce Act are applicable. A
particular issue in this context is whether the District Court should – as claimed by Carl
Lundström – obtain a preliminary ruling from the EU court.
Findings of the Court, continued
From here on, the findings of the Court will, by way of introduction, include a review of the
design and function of the filesharing service The Pirate Bay, which is material to the
judgement.
The District Court will then examine the issue of liability. The indictment for complicity in
breach of the Copyright Act will be examined under two main headings. The first will cover
the alleged principal offences, and the second the acts of complicity.
The District Court will then examine the issue of liability for preparation of breach of the
Copyright Act (count 2 of the indictment).
Following the issues of liability, the District Court will continue to examine whether there
may be freedom from liability in accordance with the Electronic Commerce Act. In this part
of its findings, the District Court will explain its decision on whether a preliminary ruling
should be obtained from the EU court.
The District Court will then consider sanctions and the separate motions by the District
Prosecutor.
38
Finally, the individual claims will be examined.
The filesharing service The Pirate Bay
The investigation into the case makes it clear that the file sharing service – which used
BitTorrent technology – had a website to which a computer user could upload and store
torrent files, that the website had a database which enabled another computer user to search
for torrent files with the aim of downloading these to his or her own computer, and that there
was a tracker which enabled computer users who wanted to share files to contact each other
for filesharing.
The tracker function was used to create a peer-to-peer network which, in turn, meant that an
indeterminate number of individuals – not a completely closed circle – could be provided
with the recording or the work a torrent file referred to.
To upload and store a torrent file, the computer user who wanted to make a file available (the
original seeder) had, or made, a copy of the file (the principal file) on his or her hard disc. A
torrent file, which referred to the principal file, was produced through the use of special
software intended for the creation of torrent files.
A number of different programs were available for this purpose. Many of them were
available on the Internet free of charge. The torrent file created contained information on the
principal file, including the number of logic segments the principal file had been divided into,
as well as the file’s hash total. The hash total was a mathematical figure, the purpose of
which was to check that every principal file was put together correctly. The seeder frequently
included certain additional information in the torrent file, including a reference to the Internet
address(es) of one or more trackers.
The purpose of the tracker was to provide the computer user with information on which other
users were, at any given time, involved in sharing the principal file the torrent file referred to.
Since the user had created the torrent file, he could – according to what has emerged during
the trial – use it in a variety of ways for the purpose of sharing the principal file to which the
torrent file referred.
One way was to upload it to The Pirate Bay’s website, where it was stored and could be
searched for by other users.
According to what has been shown by the investigation, the process of downloading a
principal file via The Pirate Bay involved a computer user searching for the torrent file he
was interested in. Normally, the name of the torrent file would correspond to the name of the
principal file. The torrent file selected by the user could be opened using BitTorrent software.
The tracker would then be contacted and would inform the user of which other users were, at
that moment, involved in filesharing the principal file the torrent referred to. A “handshake”
would be performed, and the user would be accepted into the swarm of users involved in
filesharing. Once the “handshake” had been performed, filesharing with the other users in the
swarm would commence. A swarm could include a user designated a “seeder”, i.e. the user in
39
possession of the whole principal file the swarm was sharing. The designation “leecher” was
applied to users who were in process of downloading a file to their computers. The segments
of a principal file a user downloaded were made available to other individuals in the swarm.
This speeded up the filesharing process.
The filesharing service did, consequently, mean that actual making available to the general
public of principal files containing, for example, copyright-protected sound or picture
recordings, films or computer software, was carried out by the computer users to an
indeterminate number of individuals and not, therefore, a closed circle.
The principal offences according to the indictment for complicity
For someone to be convicted of complicity in a specific offence requires the execution of a
punishable offence (the principal offence). The fact that the perpetrator cannot be punished
due to lack of intent, for example, does not preclude complicity.
The fact that the offence described, the actual principal offence, has objectively taken place is
sufficient ground for conviction.
According to § 2 of the Copyright Act, copyright to a work includes the exclusive right to
dispose of the work in such a way that it is made available to the general public. The same
applies to rights associated with copyright. According to what has been argued above, the
indictment refers to the type of making available which is involved in transferring the work to
the general public. To prove a breach of the Copyright Act first requires the sound and
picture recording and the works to be protected in accordance with the Copyright Act, and
that the alleged infringement has been unlawful in the sense that the rightsholders have not
given their consent. The District Prosecutor must then prove that it is a matter of making
available in the sense of the Copyright Act, that the making available has taken place during
the periods claimed, and that the making available is punishable under Swedish law.
- Are the rights and works protected under the terms of the Copyright Act?
For a product to enjoy copyright protection, it must be a work. The work concept means that
the product must be the result of labour and that it must contain a certain amount of
independence and originality. The term usually used is a requirement for distinctiveness. § 46
of the Copyright Act does, however, make it clear that the requirement for distinctiveness
does not apply to sound and picture recordings. For these works, it is sufficient that they are,
in fact, recordings of sound and moving pictures respectively. The District Prosecutor has
divided the indictment for complicity in an offence into a number of sub-paragraphs.
Each sub-paragraph contains a claim of unlawful making available with reference to a right
or a work specified in greater detail. Paragraphs 1 A – 1 I and 1 K – 1 U refer to records
containing music, i.e. the type of production of sound recordings which enjoy rights
associated with copyright and which are protected under § 46 of the Copyright Act, as
compared with § 61 of the Act and § 1, second paragraph, of the International Copyright
Statute (1994:193).
The producers of the films listed in paragraphs 2 A – 2 D enjoy rights associated with
copyright with respect to recordings of moving pictures, the copyright of which is protected
under § 46 of the Copyright Act. Paragraphs 2 E and 2 I refer to films which enjoy both
copyright protection and protection as associated rights, since they involve recordings of
moving pictures.
Paragraphs 2 F, 2 G and 2 H refer to films which enjoy actual copyright protection. The
reason that the works listed under 2 E – 2 I are claimed to be covered by actual copyright is
that these are American films.
Film recordings are – as is generally recognised – multifaceted, resource-demanding and
complicated projects, which typically result in films and, therefore, enjoy copyright
protection. Considering this, and since the defendants have not objected to this, it is,
therefore, regarded as established that these are films in the sense of the Copyright Act.
Paragraphs 3 A – 3 D refer to computer games (computer software). The defendants, who
have been given the opportunity to examine the computer games, have confirmed that they
possess distinctiveness. In addition, the witness Anders Nilsson, who downloaded the
computer games in question via The Pirate Bay’s website, has confirmed that the process
involves relatively advanced computer software.
In the opinion of the District Court, it has, therefore, been established that the computer
games meet the requirements for distinctiveness and are, therefore, copyright-protected.
- Who owns the rights and the works?
For the making available of a copyright-protected work or a right to be regarded as unlawful,
the making available must have occurred without the consent of the rightsholder. In the event
of an alleged copyright infringement, it may, therefore, be necessary to investigate who the
rightsholder is and obtain the rightsholder’s views on the making available.
The defendants have not questioned the plaintiff companies’ ownership of the rights and
works which have allegedly been made available unlawfully. This applies to the copyright of
the American film companies with respect to the American films. Irrespective of the
defendants’ views, the evidence in the form of DVD covers submitted by the American film
companies is, in the District Court’s view, sufficient proof of the companies’ rights as
rightsholders. The American companies have, however, also produced investigative material
in the form of copies of agreements between the companies and the originators, who have
contributed their creative efforts to the films, on the transfer of copyright to the companies.
It is, in the opinion of the District Court, clear that the plaintiff companies own the rights and
works, and that the rightsholders have not consented to these being used in the way cited in
the indictment.
- Is this a matter of making available in accordance with the Copyright Act?
All counts of the indictment relating to complicity in an offence cover descriptions which are,
by and large, the same with reference to the alleged actual making available. According to the
definition in the Copyright Act of what making something available to the general public
entails, the indictment relates to the type of making available which takes place when the
work is transferred to the general public.
The issue examined by the District Court in this context is whether the way in which the
specified files were processed may be regarded as involving broadcasting to the general
public.
In accordance with § 2 of the Copyright Act, a broadcast to the general public takes place
when the work, by wired or wireless methods, is made available to the public in a location
other than that in which the general public can enjoy the work. Broadcasting to the general
public was introduced as a new category in the concept of making available on 1 July 2005.
Examples of cases of making available to the general public quoted in the preamble include a
work transmitted on radio or television, either by traditional methods or via the Internet, or a
work being posted on an Internet website (Bill 2004/05:110, p. 378). § 2 also states that
broadcasting to the general public includes transfer which takes place in such a way that
individuals gain access to the work in a location and at a time of their own choosing.
Examples of this type of use, i.e. on-demand availability, is when a musical work or a film is
featured on a network such as the Internet, where individuals can enjoy the work at a time of
their own choosing (Bill 2004/05:110, p. 379).
Those of the District Prosecutor’s claims about the act which are of relevance here include
both the original seeder’s and the subsequent filesharer’s making available of the files
covered by the indictment.
A common factor for the named users is that they have all or parts of the relevant file stored
on their computer (hard drive). By connecting to the Internet and activating their BitTorrent
software – which is a necessary condition – they are making it possible for other Internet
users to acquaint themselves of the content of and, therefore, produce copies of the relevant
file themselves. As far as accessibility for other Internet users is concerned, the procedure is,
in principle, the same as when a work is made available by downloading it to an open Internet
website. Provided that a seeder is connected to the Internet, another Internet user, a leecher,
can gain access to the work form a place and at a time of his or her own choosing. The way in
which the specified files are processed by an original seeder and the users who, through
filesharing, have obtained all or segments of the current files does, in District Court’s view,
constitute the type of making available which, according to the Copyright Act, would be
regarded as making available to the general public.
- During what time periods has the making available occurred?
All counts of the indictment contain a time period during which the defendants are alleged to
have aided other individuals to make the files containing the copyright-protected
performances available via Internet transfers.
For the indictment to succeed with reference to the actual time periods, the District
Prosecutor must demonstrate that the rights and the works were actually available during
these periods.
The start of all time periods is the date on which the torrent file associated with the right or
the work the time-period in question refers to was uploaded to The Pirate Bay’s website. The
end date refers to the date on which the torrent file was removed from the website. For most
of the counts of the indictment, the latter date is 31 May 2006, i.e. the date on which The
Pirate Bay’s servers, within the framework of the preliminary investigation which resulted in
the current indictment, were seized.
Witnesses Magnus Mårtensson and Anders Nilsson have, with reference to each work and
during the respective time periods the claim refers to, downloaded these by going on to The
Pirate Bay’s website, searching for the torrent files associated with the works and finally
downloading the latter. The purpose of these actions was to collect evidence in preparation
for reporting the site to the police, as the plaintiffs intended to do. The District Prosecutor has
adduced written evidence relating to the downloads Magnus Mårtensson and Anders Nilsson
performed. The said evidence shows, inter alia, the date on which the downloads took place,
how many downloads had been made of each work up to the date on which the witnesses
carried out their downloads, as well as, for most works, subsequent downloads up to and
including 31 May 2006. These details are shown in the following table:
Count in the
Work
Date on which
Number of
Number of
indictment
evidence was
downloads at
downloads 31
secured
the date on
May 2006
which evidence
was secured
1A
Backyard Babies,
2006-02-28
780
1 123
“Stockholm
Syndrome”
1B
Joakim Thåström,
2006-02-28
13 721
-
“Skebok-varnsv
209”
1C
Sophi Zelmani, “A
2006-02-28
2 665
3 126
Decade of Dreams”
1D
Emilia De Porets,
2006-02-28
1 198
1 217
“A Lifetime In A
moment”
1E
Advance Patrol,
2006-02-28
1 349
1 816
“Aposteln”
1F
Amy Diamond,
2006-02-28
341
-
“This Is Me Now”
1G
Håkan Hellström,
2006-02-28
5 213
6 158
“Nåt gammalt, nåt
nytt, nåt lånat, nåt
blått”
1H
Kent, “The Hjärta
2006-02-27
2 111
3 748
& Smärta EP”
Lena Philipsson,
2006-02-27
1 128
1 382
“Han jobbar i
affär”
1K
Per Gessle, “Son
2006-02-28
3 821
5 559
Of A Plummer”
1L
Petter, “Mitt sjätte
2006-02-28
443
-
sinne”,“Ronin”,
“Bananrepubliken”
och “Petter”
1M
Snook, “Snook,
2006-02-27
1 283
4 149
Svett och Tårar”
1N
Cardigans, “Don’t
2006-02-27
380
617
Blame Your
Daughter”
1O
Cornelis
2006-03-02
1
545
Wreewijks, “Till
Sist”
1P
Robbie Williams,
2006-03-01
3 416
5 660
“Intensive Care”
1Q
Beatles, “Let It Be”
2006-03-01
4 838
5 007
1R
Rasmus, “Hide
2006-03-01
2 895
3 515
From The Sun”
1S
James Blunt, “Back
2006-03-01
15 152
30 049
To Bedlam”
1T
Coldplay, “X&Y”
2006-03-01
3 828
11 052
1U
David Bowie,
2006-03-02
8
323
“Reality”
2A
“Den svaga
2006-04-04
15 689
16 482
punkten”
2B
“Afrikanen”
2006-04-04
12 267
12 484
2C
“Pusher 3”
2006-03-29
406
894
2D
“Mastermind”
2006-03-30
2 533
4 137
2E
“Harry Potter &
2006-03-28
21 426
22 082
The Goblet of Fire”
2F
“The Pink Panther”
2006-03-29
48 596
49 593
2G
“Prison Break,
2006-04-06
46 356
48 104
Season 1”
2H
“Syriana”
2006-04-03
3 311
3 679
“Walk The Line”
2006-03-28
39 964
-
3A
“Diablo 2”
2006-04-10
16 559
16 568
3B
“World of Warcraft
2006-04-06
26 773
26 915
-Invasion”
3C
“F.E.A.R”
2006-04-10
47 931
49 641
3D
“Call of Duty 2”
2006-04-10
75 276
76 518
Examination of Magnus Mårtensson and Anders Nilsson has, firstly, ascertained that the
torrent files have indicated precisely the rights and works specified in the summons
application. It has already been concluded that the works enjoy protection under the
Copyright Act.
The downloads carried out by the witnesses were successful in that they obtained their own
copy of the work. The examination of Magnus Mårtensson and Anders Nilsson has, therefore,
established that the current rights and works were, in each case, available for transfer via the
Internet at the time they carried out the downloads (see dates listed in the table).
The question is then whether the district attorney has succeeded in proving that, as alleged,
the works have been available on other dates.
The District Prosecutor’s indictment, as far as it refers to time periods, cannot be understood
as stating that the work must have been made available at every precise minute or second
within the stated period, i.e. on a continuous basis.
In the opinion of the District Court, for the allegations to remain as a basis for the verdict, it
must be sufficient that the District Prosecutor has been able to prove that the works have, in
each case, been available to a significant degree during the relevant time period.
The Pirate Bay’s website contained information on the number of downloads for each torrent
file, i.e. a type of counter which showed how many users had downloaded the principal file in
question. A statement from Statens Kriminaltekniska Laboratorium (the Swedish Forensics
Laboratory) states that a user who downloads the full content from a torrent file sends a
signal to The Pirate Bay’s tracker that the download is completed. The tracker notes this and
increases the number of downloads for that torrent file in the database which, subsequently, is
also shown on the website. The figure specified is based on the number of complete
downloads of the material the torrent file refers to, in this case the actual music albums,
songs, films or computer games.
The statement does, however, indicate that there is a certain discrepancy in the counter,
which led to an overestimate of the number of downloads. The information given should,
therefore, be regarded with some caution, and cannot, by itself, be regarded as of decisive
significance to the question of whether the District Prosecutor can be regarded as having
proved his allegations.
The counter was linked to The Pirate Bay’s tracker. The investigation into the case has shown
that torrent files uploaded to sites other than The Pirate Bay’s website sometimes referred to
The Pirate Bay’s tracker. It is, consequently, possible that a certain number of the downloads
specified for each individual work referred to downloads which have come about after a user
has downloaded a torrent file from a website other than The Pirate Bay. In the view of the
District Court, the making available carried out by these users can also be considered within
the framework of the principal offence which this case refers to, since it is The Pirate Bay’s
tracker which has been used. Another issue of relevance to the act of complicity is the
defendants’ insight/intention regarding precisely this making available.
The number of downloads registered by the counter is shown in the table. The table shows
that certain works, e.g. 2A “Den svaga punkten” and 3A “Diablo 2”, were downloaded a
considerable number of times in the time period during which the making available is alleged
to have taken place. The equivalent figure for other works, e.g. 1 D Emilia De Porets ”A
Lifetime In A moment”, is lower.
A large number of downloads during a shorter period of time do, obviously, indicate that the
right or work in question has been available for most of the time period stated in the
indictment. The large number of downloads registered for the less popular works, as well,
indicate that the making available has taken place to the extent claimed for all the works.
Further evidence of this is the fact that the number of registered downloads increased
between the date on which the evidence was secured and the date on which the equipment
was seized, by what Gottfrid Svartholm Warg has said about unused torrent files being
removed through an automatic process, shows that it is exclusively a question of known
works and, not least, the large number of users who visited The Pirate Bay’s website.
Based on the successful downloads undertaken by the witnesses and with reference to the
reasons stated above, it is, in the view of the District Court, proven that the making available
of each individual work has taken place during the time period alleged by the District
Prosecutor.
- Is the making available an offence under Swedish law?
The investigation into the case has revealed that some of The Pirate Bay’s users, whose
making available is the subject of the action, have been located outside Sweden when they
made the works available to the general public.
Under Chapter 2, § 1 of the Criminal Code, Swedish law applies when an offence has been
committed in Sweden. The same applies if it is uncertain where the offence was committed
but there is reason to assume that it was committed in Sweden. Under § 4, an offence is
regarded as having been committed where the criminal act was committed, as well as where
the infringement took place. One issue in the case is where the principal offence should be
regarded as having taken place.
According to the District Court, there is strong reason to regard an offence which involves the
making available of something on the Internet as having been committed in a country where
the Internet user can obtain the information which has been made available, provided that the
making available has legal implications in the country (c.f. Schønning, Ophavsretsloven with
commentary, 3rd edition, p. 686). This applies not least when the information – as in this case
– is published in a language spoken in that country. This suggests that all principal offences,
even those committed by persons located outside Sweden, should be regarded as having been
committed in Sweden. This conclusion is further reinforced by the fact that the servers
(computers) hosting The Pirate Bay’s website and the tracker were located in Sweden.
In conclusion, in consequence of what has been said above, all the principal offences alleged
by the District Prosecutor must be regarded as having been committed in Sweden and being
offences in Sweden.
Acts of complicity
- Complicity – objectively
In accordance with what has been stated earlier, and under the terms of Chapter 23, § 4 of the
Criminal Code, not only the person who has committed the act (principal offence), but also
other persons who have aided and abetted this person in word and deed (act of complicity),
will be held liable for a specific act. This rule is applicable to all individual criminal offences
for which a sentence of imprisonment may be imposed. Criminal liability rests also with
anyone who has aided and abetted the act in a physical or psychological sense. The
accomplice must have facilitated the execution of the principal offence. There is no
requirement for the accomplice’s actions having been a precondition for the accomplishment
of the principal offence. Liability for complicity can apply even to someone who has
contributed only insignificantly to the principal offence.
The District Court has already concluded that punishable offences have been committed in
accordance with the District Prosecutor’s indictment. The issue which the District Court now
must decide on is whether Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi
and Carl Lundström have aided and abetted the principal offence by enabling users to upload
and store torrent files for the filesharing service The Pirate Bay, by providing a database
linked to a catalogue of torrent files, by enabling users to search for and download torrent
files and by providing the functionality with which users who wished to share files could
contact each other through the filesharing service’s tracker function.
The defendants have, inter alia, argued that liability for complicity is out of the question since
the principal offences, and how the defendants have influenced these offences, are not
sufficiently precise, bearing in mind that the perpetrators are not known. The District Court
has concluded that the District Prosecutor has succeeded in proving that the alleged principal
offence has taken place in the way claimed. There is no requirement for the perpetrators to be
known for liability for complicity to be considered. The District Court has already stated that
it is sufficient for the District Prosecutor to prove that the objective requisites for the
principal offences have been fulfilled. If a certain action is regarded as having aided and
abetted the principal offence, liability for complicity comes into play.
The investigation into the case has shown that, during the time period specified in the
indictment, The Pirate Bay was a popular website with a large number of users around the
world. The purpose of The Pirate Bay was to create a meeting place for filesharers.
The website was, according to details which have emerged during the examination of Fredrik
Neij and Gottfrid Svartholm Warg, under constant development. New hardware was
purchased continuously, and improvements made to the search functions and tracker, all with
the aim of providing efficient access to, and transfer of, uploaded material. Some users of the
website used it and the functions mentioned in such a way that the users committed a breach
of the Copyright Act in the manner alleged in the indictment (the principal offences). In
accordance with what will be further demonstrated below, all the defendants were aware that
a large number of the website’s users were engaged in the unlawful disposal of copyright-
protected material. By providing a website with advanced search functions and easy
uploading and downloading facilities, and by putting individual filesharers in touch with one
other through the tracker linked to the site, the operation run via The Pirate Bay has, in the
opinion of the District Court, facilitated and, consequently, aided and abetted these offences
(c.f. Ds 2007:29, p. 323 and Rosén in NIR 2008 p. 101).
Liability for complicity does not require The Pirate Bay’s operation to be essential to the
making available to the public of rights or works. The fact that the copyright-protected works
may possibly have been made available to the general public on other websites before they
were made available on The Pirate Bay, or that they may possibly have been made available
on other websites at the same time as they were made available on The Pirate Bay, is, in the
opinion of the District Court, irrelevant to any liability for complicity which may fall on the
defendants as a result of their actions.
The defendants have argued that any complicity on their part has not taken place before the
completion of the principal offence. Some offences, continuous offences, are regarded as
taking place throughout the duration of a certain circumstance. One example of a continuous
offence is unlawful deprivation of liberty. The offence comes to an end only when the
circumstance which occasioned the commission of the offence ceases. The making available
which constitutes the principal offence in the indictment is, as far as the original seeder is
concerned, completed once he/she uploads the torrent file to The Pirate Bay’s website and
then starts making the work available to others. Other seeders have completed their individual
offences when, after downloading segments of the protected work, they have made it
available to others. Nor does anyone have to make available a whole work to be in breach of
the Copyright Act. The making available of a segment of a work is sufficient for the offence
to be completed (c.f., for example Ds 2007:29, p. 338). The offence continues for the full
duration of the making available. The criminal action – aiding and abetting a crime – for
which the defendants have been indicted refers, in each case, to the time before the principal
offences were completed.
In summary, the operation carried on by The Pirate Bay does, objectively, constitute
complicity in breach of the Copyright Act. The question is then whether the defendants can
be held responsible for this complicity. This would, firstly, require them to be in a position
where they can be held responsible for what took place within the framework of The Pirate
Bay’s operations. Secondly, their intent must cover all the objective circumstances on which
the offences are based.
- Collective liability
The District Prosecutor has claimed that the defendants, jointly and in collusion, have been
responsible for the organisation, administration, programming, financing and operation of
The Pirate Bay, and that they should, consequently, be held responsible for aiding and
abetting the infringements of the Copyright Act which have taken place. When several
individuals are involved in the execution of a criminal offence, it can be difficult to ascertain
whose action has caused the criminal effect. Sometime, a single person has not, by himself,
met all the res gestae, but the offence has been completed by several individuals acting
together. In this event, each and every one of the participants can, under certain
circumstances, be punished as a perpetrator. The individuals involved are then said to have
acted jointly and in, silent or expressed, collusion. Complicity is not excluded by the fact that
some participants have played a more central role and have been more active than others. One
condition is, however, that it can be proven that each individual has been involved in the
execution of the offence and that he has been aware of the others’ actions.
A starting point for several individuals to be sentenced for complicity must, however, be that
it requires such individual evidence that it can be clearly established that each and every one
of those involved is to be regarded as a co-defendant (NJA 2006 p. 535). In this case, a more
accurate description would be accessory rather than co-defendant, since the indictment
concerns complicity in a breach of the Copyright Act. The principles which apply to
perpetrators are, however, in the current context, the same for accomplices.
Fredrik Neij and Gottfrid Svartholm Warg were, according to their own information,
involved in the initial operations of The Pirate Bay. They were also, according to their own
information, principally responsible for technical operations and for the technical and
functional development of the website.
The information provided by Fredrik Neij and Gottfrid Svartholm Warg is supported by the
written facts of the case and by the information provided by Peter Sunde Kolmisoppi and
Carl Lundström.
Peter Sunde Kolmisoppi and Carl Lundström have, on the other hand, stated that they have
not been involved in The Pirate Bay’s operations in such a way that they can be held
responsible for this, as alleged by the District Prosecutor.
Peter Sunde has, according to his own information, which has been confirmed by Fredrik
Neij and Gottfrid Svartholm Warg, acted as media spokesman for The Pirate Bay. Peter
Sunde has, in addition, stated that he had no other function at The Pirate Bay. However, the
written evidence presented by the District Prosecutor, consisting of, inter alia, extensive e-
mail correspondence between the defendants and Oded Daniel, as well as various payment
streams to and from Peter Sunde Kolmisoppi’s company, HAIQ Sweden AB, shows that he
was in relatively regular contact with Oded Daniel regarding both The Pirate Bay’s
advertising operations and the technical development of the website. The claim that Peter
Sunde Kolmisoppi has carried out some invoicing in the name of HAIQ Sweden AB but on
behalf of The Pirate Bay solely for the purpose of providing help to Oded Daniel appears, in
the opinion of the District Court, to be a reconstruction after the event.
The action is, rather, proof that Peter Sunde Kolmisoppi was involved in The Pirate Bay’s
advertising sales. Peter Sunde Kolmisoppi has, according to his own information, also
suggested measures which, in his opinion, ought to be taken to make The Pirate Bay website
even more popular and profitable. He also signed the agreement aimed at setting up the
company, Random Media, the principal task of which would have been to operate and
develop The Pirate Bay’s operations.
Carl Lundström was a representative of, inter alia, Rix Telecom AB. He has, according to his
own information, which is confirmed by Fredrik Neij and Gottfrid Svartholm Warg, only
provided broadband and a ”filing cabinet” for The Pirate Bay on business terms. The written
evidence quoted in the case shows that Rix Telecom AB purchased, and still owns, a number
of the computers used by The Pirate Bay in its operations.
Carl Lundström has confirmed that he, initially, was interested in becoming a shareholder in
companies associated with The Pirate Bay and that he, on his own account, offered a couple
of computers, valued at approximately SEK 40,000, free of charge to The Pirate Bay with
the intention of recovering some revenue at a later stage.
These transactions, and the fact that Rix Telecom AB owned the computers used in The
Pirate Bay’s operations, suggest that Carl Lundström had a significant stake in The Pirate
Bay and was working in collaboration with Fredrik Neij and Gottfrid Svartholm Warg.
According to Carl Lundström, he decided to pull out of the plans for a shareholding in The
Pirate Bay when, after discussions with legal representatives, he became aware that the
operation was illegal.
Since then, he has, however, been in contact with the authorities and lawyers in Russia and
Argentina, among others, to investigate whether it would be possible to relocate the operation
there. During these contacts, he has, according to the e-mail correspondence presented by the
District Prosecutor, claimed to represent The Pirate Bay. Carl Lundström has explained the
contacts specified above by saying that he was assisting a client of Rix Telecom AB, which is
something he does regularly. In the opinion of the District Court, his actions do, however,
suggest that he had a more significant interest in The Pirate Bay than he has been willing to
admit. As a consequence of the e-mail correspondence mentioned, Carl Lundström was in
contact with Gottfrid Svartholm Warg and Fredrik Neij, and this correspondence indicates
that Carl Lundström was in a position of influence with respect to the future of the filesharing
service.
The written evidence also shows that Carl Lundström was in direct contact with med Oded
Daniel who, inter alia, sent e-mails to Carl Lundström and the other three defendants
regarding advertising sales on The Pirate Bay. In the opinion of the District Court, an image
of the team behind The Pirate Bay is emerging; the four defendants and Oded Daniel. This
image is further reinforced by the agreement signed by all but Carl Lundström. Under the
agreement, a host owner/external partner would obtain the equivalent of 8.25 percent of the
shares in the newly-formed company. Additional e-mail correspondence cited by the District
Prosecutor shows that Fredrik Neij notified Oded Daniel, Peter Sunde Kolmisoppi and
Gottfrid Svartholm Warg that “Kalle” ought to be given his share, and that they had discussed
8.5 percent. This cannot, in the opinion of the District Court, be interpreted in any way other
than that Carl Lundström is the host owner/external partner who would own a certain
proportion of the newly-formed company.
The payments made to Carl Lundström also show that the person who effected these
payments specified “Purchase of Media” as a message to the payment recipient. It is difficult
to interpret the message in any way other than that the payments were for revenue generated
by advertising sales rather than payment for the computers purchased by Carl Lundström on
behalf of The Pirate Bay. Another e-mail sent by Carl Lundström to Oded Daniel shows that
he involved himself in the actual operation by making proposals for the development of new
services within the framework of The Pirate Bay.
It is, in the opinion of the District Court, clear that Fredrik Neij and Gottfrid Svartholm Warg
have played leading roles in the technical operation of The Pirate Bay. It has, however, also
been shown that Peter Sunde Kolmisoppi and Carl Lundström have had a sufficiently direct
or indirect influence over the technical development and functionality of the website that they
can be regarded as also having been responsible for it. As stated above, the written evidence
in the case has also demonstrated that the defendants have been in direct and relatively
regular contact with Oded Daniel and, consequently, have been jointly responsible for
advertising on and, therefore, also the financing of, The Pirate Bay’s operations. Carl
Lundström has, in addition, made a financial contribution through the provision of server
space and free broadband. The fact that this constituted an investment in The Pirate Bay is
already clear from the fact that he expected to earn money from the website in the future. The
actions of the defendants are characterised by a collaboration in which every person was
aware of the involvement and roles of the others. They have acted and, in other respects,
worked as a team, with the common purpose of expanding further both the technical and
business aspects of The Pirate Bay. Taking account of all the facts, the District Courts finds
that Peter Sunde Kolmisoppi and Carl Lundström have also participated in The Pirate Bay’s
operations to such an extent that they, alongside Fredrik Neij and Gottfrid Svartholm Warg,
must be regarded as responsible for the organisation, administration, programming, financing
and operation of the filesharing service in the manner alleged by the District Prosecutor.
- Participation – subjective
A requirement for the conviction of the defendants is that they have deliberately infringed the
copyright protection enjoyed by the rights and works. The subjective prerequisite must be
fulfilled, not only with respect to the aiding and abetting itself, i.e. co-perpetration, but also
with respect to the act which constitutes the principal offence. Complete agreement between
an accomplice’s view of the course of events and the actual course of events is not, however,
a requirement. In assessing the level of intent which must be present, each individual
principal offence should be considered (c.f. NJA 2007 p. 929).
The fact that the defendants intentionally brought about the actual circumstances which
constituted aiding and abetting must be regarded as established. The defendants have,
however, argued that they should not be held liable since they have had no knowledge of the
existence of the rights or works specified in the indictment and, therefore, have not
intentionally committed the principal offences. It has not been demonstrated that the
defendants knew that the specific works listed in the indictment had been made available via
The Pirate Bay. The defendants intent does not, however, have to cover the specific works
which it is alleged have been made available. It is, rather, sufficient for them to have had the
intent to bring about the existence of copyright-protected material on the website (c.f. NJA
2007 p. 929). The examination of the defendants, the letters from rightsholders published on
the website, The Pirate Bay, and the e-mail correspondence indicating that the operation
involved pirate copying make it clear that the defendants have been aware that copyright-
protected works were available via the website, and were shared via the tracker embedded
within the framework of The Pirate Bay’s operation. Despite this knowledge, they have
elected to take no action to prevent the infringement of copyright. Based on their positions in
relation to the filesharing service, The Pirate Bay, they have, in the opinion of the District
Court, together and in collusion knowingly aided and abetted infringements of the Copyright
Act by the individual users.
Other allegations in the indictment of complicity in breach of the Copyright Act
According to the indictment, the majority of the files made available for filesharing via The
Pirate Bay contained copyright-protected performances or works. The District Prosecutor has
also alleged that the operation of The Pirate Bay was financed by advertising revenue, and
that this constitutes a commercial use of copyright-protected performances and works.
- The majority of the files made available were protected by copyright
The indictment concerns The Pirate Bay’s operations and the use of certain copyrights, in the
form of the making available to the general public, during the latter part of 2005 up to and
including 31 May 2006. It is, consequently, for this time period that the District Court must
judge whether the majority of the files made available for filesharing via The Pirate Bay
contained copyright-protected performances and works.
In support of his allegations, the District Prosecutor called as a witness Anders Nilsson, who
had the following to say. In his capacity as investigator for the Anti-piracy Agency, he
became interested in The Pirate Bay as early as 2004. In 2005, The Pirate Bay’s operation
grew and there was a rise in the number of users. The Anti-piracy Agency started to check the
torrent files uploaded to The Pirate Bay, and concluded that most of these related to pirated
material. On one occasion in 2006, he checked the list of the 100 most popular/downloaded
films published on The Pirate Bay. This showed that 96 of the films on the list were protected
by copyright. There was no way to check any copyright-protection for the remaining four
films, since the originators of these films were unknown. The Anti-piracy Agency carried out
similar checks on other occasions, and always obtained the same result. He has never,
however, checked all the torrent files uploaded to the website. Since the Anti-piracy Agency
became aware of The Pirate Bay, he visited the website every week and, during these visits,
noticed that a very large number of copyright-protected works were made available via the
website.
Peter Sunde Kolmisoppi has, during examination, reported on an investigation undertaken
with the aim of establishing how large a proportion of the material made available for
filesharing via The Pirate Bay contained copyright-protected works. The fact that this
investigation was undertaken in October and November 2008 does, however, mean that it is
of no relevance in this context.
According to what has emerged during the investigation into the case, there were a very large
number of torrent files uploaded to The Pirate Bay’s website during the time period of
interest to this case. Confirmation of the allegation that the majority of these torrent files
related to copyright-protected rights and works requires a reliable investigation of all, or at
least a large number, of these. The District Prosecutor has not, however, referred to any such
investigation, so the allegation cannot, consequently, be regarded as confirmed. The
examination of Anders Nilsson has, however, shown that the most popular torrent files, at
least with reference to films, in principle related exclusively to copyright-protected works.
Carl Lundström has confirmed that The Pirate Bay’s website attracts visitors because it offers
the opportunity to utilize copyright-protected works free of charge. In an e-mail sent by him
to his legal representative, he wrote that the purpose of the website was pirate copying, and
he stated, during the main hearing, that the purpose of the website was, inter alia, pirate
copying. The 33 works which are the subject of the indictment, and the extent to which these
have been downloaded, indicate that the torrent files which relate to copyright-protected
works were extremely popular and generated numerous visits and a great deal of activity on
The Pirate Bay’s website. Although the District Prosecutor has not been able to prove his
general allegation that “most of the files which are made available for filesharing via The
Pirate Bay contain copyright-protected works and performances”, it has, for the reasons
specified above, been established that the torrent files on the website related to a significant
extent to copyright-protected material.
- Financing
The fact that the operation of The Pirate Bay has, at least to some extent, been financed
through advertisings revenue has been confirmed by the defendants. The written evidence, in
the form of invoices and information on payment transfers, submitted by the District
Prosecutor, shows that a total of at least SEK 1,200,000 has been paid to the defendants for
advertising space on The Pirate Bay’s website. The utilization of the copyright-protected
performances and works must therefore, in the opinion of the District Court, be regarded has
having taken place within the framework of a commercial purpose.
Preparation of breach of the Copyright Act
The indictment for preparation of breach of the Copyright Act is based on the defendants,
through their involvement with The Pirate Bay’s operation, having supplied a functionality in
a database prepared specifically for the purpose, with which it has been possible to receive
(upload) and store the torrent files which related to the copyright-protected performances and
works covered by the indictment for complicity in breach of the Copyright Act. According to
the District Prosecutor, the torrent files were specifically intended to be used as aids in the
infringement of the Copyright Act.
Chapter 23 § 2 of the Criminal Code states that anyone who, with the deliberate intent, inter
alia, to aid and abet an offence, has received or stored something which is specifically
intended to be used as an aid in the execution of an offence shall, in the cases specifically
mentioned, be sentenced for preparation of an offence, provided that he has not been found
guilty of completing the offence.
From what has been stated by the District Court on the issue of indictment for complicity in
breach of the Copyright Act, follows that the court has found that the torrent files which
relate to protected rights and works which are the subject of the indictment, have been used
for unlawful making available to the general public of the works during the times alleged by
the District Prosecutor. As such, the torrent files can be regarded as intended for use as aids
in the offence. The offences mentioned, i.e. making available, have, however, taken place
(been completed). The defendants have, through their involvement with The Pirate Bay’s
operations, aided and abetted the unlawful making available which has occurred.
In the opinion of the District Court, the torrent files received and stored between 1 July 2005
and 31 May 2006, have, consequently, been used to complete the offence which – in
accordance with the hierarchical relationship between preparation of, attempt to commit and
the completion of an offence – has resulted in liability for the preparations for breach of the
Copyright Act being consummated by the commission of the offence of complicity.
Any liability for preparation of an offence during the period 1 July 2005 and 31 May 2006 –
in the sense claimed by the plaintiff companies – does not, in accordance with what has been
said above, exist.
The District Prosecutor’s indictment for this offence does, however, mean – after adjustment
of the indictment – that the dealings with torrent files which occurred on 31 May 2006 only
constituted preparation of an offence. For reasons just specified, no liability for preparation is
regarding as existing.
On 31 May 2006, the computers (servers) containing the website The Pirate Bay during the
time covered by the indictment were seized. The filesharing operations from these servers
ceased in connection with this, or at least no information to the contrary has been presented in
the case. The risk that the preparation offence claimed by the District Prosecutor would be
completed must, therefore, in each case be regarded as negligible.
The indictment for preparation– as it has been drawn up by the District Prosecutor and the
plaintiff companies – is, therefore, dismissed.
Freedom from liability under the Electronic Commerce Act?
The District Court’s assessment of the indictment for complicity in breach of the Copyright
Act means that the defendants are liable for the offence. The question is then whether the
freedom from liability provisions relating to punishment – but also to the liability to pay
damages – of a “service provider” contained in the Electronic Commerce Act are applicable.
The Electronic Commerce and Other Information Society Services Act contains, for example,
provisions relating to freedom from liability for a service provider, with reference to issues of
both a legal and compensatory nature. The Act was adopted in response to the
implementation of the European Parliament and Council’s directive 2000/31/EC on certain
legal aspects of information society services, specifically electronic commerce, on the
internal market (the e-commerce directive).
The initial issue on this point is whether The Pirate Bay is a service provider which provides
any of the services of an information society? A service provider, under the terms of the
Electronic Commerce Act, is a physical or legal entity which provides any of the services
found in an information society. The defendants’ involvement in the operation of the
filesharing service must be regarded as such that they can be considered service providers. In
§ 2 of the Services Act, information society services are specified as services which are
normally provided against payment, and which are supplied at a distance, electronically and
at the individual request of a service receiver (the user of the services). The service offered by
the filesharing service The Pirate Bay includes enabling users to upload or download torrent
files on The Pirate Bay’s website and, via The Pirate Bay’s tracker, establish contacts with
other users who have/would like the file the torrent file relates to. In the opinion of the
District Court, it is, therefore, clear that the services from The Pirate Bay website have been
supplied at a distance, electronically and at the individual requests of the users. Even if the
users have not paid for the services, the requirement for compensation has still been met since
the operation of The Pirate Bay has, at least to some extent, been financed by advertising
revenue (Bill 2001/02:150, p. 56 f.). The Electronic Commerce Act is, consequently,
applicable to the filesharing services supplied from The Pirate Bay website.
The grounds for freedom from liability for service providers are found in §§ 16-19 of the
Electronic Commerce Act. The provisions correspond to articles 12-14 of the e-commerce
directive.
While articles 12-14 of the e-commerce directive refer to all types of liability in all legal
areas, §§ 16-18 of the Electronic Commerce Act focuses specifically on, inter alia, liability
for compensation and § 19 on legal liability (Bill 2001/02:150, p. 87). The content of §§ 16 –
19 §§ of the Act does, however, correspond to articles 12-14 of the e-commerce directive.
The grounds for freedom from liability in § 16 of the Electronic Commerce Act covers solely
service providers who only transfer information provided by a service receiver in a
communications network, or provides access to such a net, and where the storage of
information is carried out purely for the purpose of the transfer and does not continue longer
than required by the transfer. The provisions of § 17 cover the type of transfer where
information is stored for the specific purpose of making the transfer of information more
efficient. The provisions of § 18 cover a service provider who stores information provided by
a service receiver. § 19 cover both types – transfer and storage – by the service provider.
The purpose of the Pirate Bay’s services was, inter alia, to provide server space so that users
could upload and store torrent files on the website. This storage means that § 16 – which
covers only services where some form of automatic and temporary intermediate storage takes
place as a result of a particular transfer – and § 17 – which covers only storage carried out for
the explicit purpose of improving the efficiency of the transfer of certain information
(cacheing) – do not apply. The fact that The Pirate Bay offered a service where the user could
upload and store torrent files on the website means, instead, that it is a matter of the type of
storage service covered by the provisions of § 18 of the Electronic Commerce Act (Bill
2001/02:150, p. 21).
According to § 18, a service provider who stores information provided by a service receiver
is not, as a result of the content of the information, liable to pay compensation for injury,
provided that the supplier was not aware of the existence of the illegal information or
operation, and was not aware of facts or circumstances which made it obvious that the illegal
information or operation existed or who, as soon as he received knowledge about or became
aware of this, prevented the spread of the information without delay.
The case has demonstrated that the filesharing service The Pirate Bay was, inter alia, used to
provide the opportunity to make available copyright-protected works. It must have been
obvious to the defendants that the website contained torrent files which related to protected
works. None of them did, however, take any action to remove the torrent files in question,
despite being urged to do so. The prerequisites for freedom from liability under § 18 have,
consequently, not been fulfilled.
§ 19 of the Electronic Commerce Act is also applicable to service providers who store
information. Under § 19, a service provider who stores information on behalf of others can
only be held liable for an offence relating to the content of the information if the offence was
a deliberate act. The District Court has previously concluded that all the defendants were
aware that copyright-protected works were being made available through torrent files
uploaded to The Pirate Bay, and that they deliberately chose to ignore this fact. Even if the
defendants were not aware of precisely those works covered by the indictment, they have,
according to the previous findings of the District Court, at least been indifferent to the fact
that it was copyright-protected works which were the subject of filesharing activities via The
Pirate Bay. Considering that it is a matter of deliberate offences, the actions of the defendants
do not enjoy immunity from prosecution under § 19 of the Electronic Commerce Act.
- Should a preliminary ruling be obtained from the European Court of Justice?
Carl Lundström has requested that the District Court, in the event that the court should arrive
at the conclusion that the defendants are guilty of offences in accordance with the indictment,
should obtain a preliminary ruling from the European Court of Justice. He has not stated any
views on what issues the District Court should raise with the court, but has, instead, requested
that the District Court, if the request is granted, provide the parties with the opportunity to
comment on any questions.
In its judgement above, the District Court has concluded that the Electronic Commerce Act
does, in fact, apply to the filesharing operations carried out via The Pirate Bay, the provisions
of the Act on freedom from liability do, as a result of this, become an issue.
The provisions on freedom from liability in §§ 16 and 17, which correspond to the provisions
in the EU directives on solely the transfer of information and cacheing respectively have, for
reasons stated above, not been regarded as applicable to The Pirate Bay’s operations.
The District Court has, however, found that The Pirate Bay’s filesharing operations involved
the type of storage of information covered by the provisions the EU directive under article 14
on hosting services, but that the provision – through the introduction of the corresponding
legal provision – does not, in this case, offer grounds for freedom from liability.
In the opinion of the District Court, the provisions of the e-commerce directive correspond to
the provisions in the Electronic Commerce Act, both with reference to the categorisation of
various types of services and the scope of freedom from liability. The scope of freedom from
liability in accordance with article 14 is, with consideration of the ingress to the directive, at
least no greater than the corresponding area in §§ 18 and 19 of the Electronic Commerce Act.
Considering that there is no ambiguity regarding how the text of the law or directive itself
should be interpreted, the District Court does not find it necessary to obtain a preliminary
ruling from the European Court of Justice. Carl Lundström’s request for a preliminary ruling
is, therefore, dismissed.
Sanctions etc.
The defendants are now convicted of aiding and abetting breaches of the Copyright Act. The
verdict on Gottfrid Svartholm Warg on other charges offences is given in a later section of
the verdict.
Gottfrid Svartholm Warg has, according to the extracts from the register, no previous
convictions. The previous convictions of Fredrik Neij and Carl Lundström are of no
relevance in the determination of the sentence imposed by the District Court. On 10 February
2009, the Court of Appeal of Skåne and Blekinge convicted Peter Sunder Kolmisoppi of
accounting offences. He was given a suspended sentence combined with a fine determined on
the basis of his daily income.
No special considerations regarding the defendants personal circumstances have been
presented.
- Sanctions
The District Court will, initially, determine the appropriate penalty for the offences
committed by the defendants. The District Court has already concluded that the defendants
acted as a team in the operation of The Pirate Bay. They have, in a variety of ways,
contributed to the operation of the service and have, at the same time, been aware of the roles
played by the others. There has been a common purpose to run and develop the service.
Considering these circumstances, the appropriate penalty for the offence of complicity for
which the defendants have been convicted should be the same for all the defendants.
Under § 53 of the Copyright Act, the range of penalties is a fine or imprisonment for a
maximum of two years. Under chapter 29, § 1, second paragraph of the Criminal Code, the
damage, infringement or hazard involved in an action, what the defendant has realised or
should have realised regarding this, as well as his intention or motive, must be given special
consideration when establishing the appropriate penalty.
When the maximum sanction for infringement of rights under the Copyright Act were
increased in the early 1980s, from six months to two years, the preamble (Bill 1981/82:152 p.
18) stated that conduct involving infringement of copyright and associated rights should be
considered serious, and that there should be the opportunity, in particularly serious cases, to
impose a substantial term of imprisonment. It was also stated that it is, primarily, in cases
involving extensive commercial unlawful use of protected works and performances that the
ability to impose the more serious sentences provided by the new provisions should be used,
and that the purpose of the amendment to the Act was not to increase the sentences for minor
infringements of copyright legislation (a. Bill p. 19).
There have been few cases in this area. Case no. RH 2002:69 does, however, show that the
District Court regarded the appropriate penalty as up to one year’s imprisonment for a person
who, over a period of one year and eight months, had supplied copies of computer software
and computer games which were copyright-protected, unlawfully produced and sold a large
number of copies of the works throughout Sweden and, without the permission of the
originator, made phonograms available to the general public by offering them for sale,
reproducing and selling them and, through these actions, earned at least SEK 1,600,000.
The making available of copyright-protected works and rights which the defendants have
aided and abetted is extensive. It involves a total of 33 protected works which, in the majority
of cases, have been made available for a number of months. The damage caused by the
making available is, of course, linked to the fact that the making available took place on a
popular website with many users. Although a certain degree of caution should be exercised
with respect to the statistics produced by the counter linked to each right or work, it is clear
that the making available which has taken place has also resulted in extensive production of
copies of the rights and works. The substantial extent scope of the making available, and the
corresponding losses caused, indicate, in the opinion of the District Court, that the penalty
should be more severe.
It has been confirmed that the operation of The Pirate Bay has generated advertising revenue
which, during the period indicated in the indictment, has amounted to at least SEK 1,200,000.
On this basis alone, the District Court can conclude that the operation was carried on as a
commercial project. This conclusion is confirmed by the correspondence between the
defendants and the fact that the defendants have investigated and discussed various corporate
forms which may have been applicable to the continued operation of The Pirate Bay. It has,
consequently, been a question of an operation carried on in organised form. The
circumstances mentioned here also indicate that an increase in the penalty may be
appropriate.
In many cases, the appropriate penalty for aiding and abetting is lower than the penalty for
the principal offence itself. In practice, there are, however, examples of complicity in breach
of the Copyright Act being regarded as equally culpable as the principal offence itself (Svea
Court of Appeal, verdict no. DB 191 on 13 December 1985 in case no. B 1858/84). In the
current case, the defendants have not themselves used the rights or works. The defendants
have, however, in a commercial manner, provided others with the opportunity to make
available and use copyright-protected material. This separates the defendants from the users
of The Pirate Bay who make available copyright-protected works and, therefore, are to be
regarded as perpetrators. The perpetrators do not, in fact, enjoy any financial benefits from
their making available via The Pirate Bay. Given this and the fact that the website constituted
a prerequisite for the principal offence having such a widespread effect, there is no reason to
take a more lenient view of the actions of the defendants on the basis that it is an issue of
liability for complicity.
Considering the circumstances reported above, the District Court is of the opinion that the
appropriate penalty for complicity in breach of the Copyright Act for which each of the
defendants has now been convicted is one year’s imprisonment.
Under chapter 30, § 4 of the Criminal Code, the Court must, when setting a penalty, pay
particular attention to any mitigating circumstances which would suggest a more lenient
sentence than imprisonment. As a reason for imprisonment, the court can, in addition to the
appropriate penalty and nature of the offence, take into account whether the defendant has
any previous convictions. The statements in the preliminary work, as well as the practice
explained above, can be interpreted as stating that breach of copyright can, in certain cases,
be regarded as the type of offence where imprisonment would constitute the standard
sentence. With respect to the breach of the Copyright Act which the defendants have now
been convicted of, the high appropriate sentence itself excludes any sentence other than
imprisonment.
The offences of which Gottfrid Svartholm Warg, in accordance with what is stated in a later
section of this verdict, has been found guilty in addition to the offence dealt with here does
not affect his term of imprisonment.
Peter Sunde Kolmisoppi, who has, in the past, been found guilty of an offence, the sentence
for which has not yet been executed, should now be sentenced separately for his complicity in
breach of the Copyright Act.
The sanction for each of the defendants is, therefore, set at one year’s imprisonment.
- The separate motions
The proceeds, which also includes gains, of crime must, under § 53 a of the Copyright Act,
be declared forfeit, unless this is obviously unreasonable. Instead of what has actually been
received, its value may be declared forfeit. When assessing whether it is obviously
unreasonable to declare the proceeds of crime forfeit, circumstances such as whether there is
reason to assume that an obligation to pay damages as a result of the crime may be imposed
must be taken into account. With respect to breach of the Copyright Act, in contrast to a case
of forfeiture in the event of a crime which involves the transfer of wealth, the circumstance
that the person convicted of infringement of copyright will also be liable to pay compensation
does not automatically mean that forfeiture will be not be imposed or will be modified. Any
liability to pay compensation, including the reasonable compensation (reasonable damages)
which the person who has infringed a copyright must pay to the rightsholder, should,
however, be taken into consideration when determining whether forfeiture would be
obviously unreasonable (for information on what has been said here, see Bill 2004/05:135,
pp. 168 f, 171 f. and 118).
As stated initially, the plaintiff companies have lodged compensation claims against the
defendants for the criminal act for which they have now been convicted. Later sections of the
verdict will show that District Court has found that the defendants are liable to compensate
the plaintiff companies for the unlawful making available to the general public of rights and
works at an amount which exceeds the profit from the crime by a considerable margin. It
does, therefore, appear unreasonable in this case to declare forfeit the proceeds of the crime
stated by the District Prosecutor, SEK 1,200,000.
The District Prosecutor’s special motion for joint forfeiture of value (special motion a) is,
therefore, dismissed.
As part of the preliminary investigation into the case, a computer (server) used in the
operation of The Pirate Bay was seized from Carl Lundström on 31 May 2006. The District
Prosecutor has moved (motion b) that the computer be forfeited. The computer has, in the
opinion of the District Court, been used as an aid in the crime Carl Lundström has now been
convicted of. The property should, therefore, be declared forfeit.
On 31 May 2006, certain computer and communications equipment was also seized from
Fredrik Neij. The equipment was found in a computer cabinet at Rix Port 80, which housed
servers for The Pirate Bay’s operations, but the seized equipment was not part of the network
which constituted the filesharing service. The District Prosecutor has moved (motion c) that
the equipment be declared forfeit.
Considering what has emerged about the equipment, particularly the location in which it was
found, it must be considered that, due to the nature of the equipment and the circumstances in
general, there is reason to believe that the equipment may be used for criminal purposes. This
property should, therefore, also be declared forfeit.
Within the framework of the investigation, further computers and written documentation
were seized on 31 May 2006, since they could be assumed to be significant to the
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investigation into the case. The District Prosecutor has moved (motions d – f) that these items
should remain held until the verdict in the case has gained legal force.
The defendants have argued that the seizures should be annulled, since the District Prosecutor
has had reasonable time to secure evidence through examination of the property.
The District Court shares the view of the District Prosecutor that it is important that the
seizure remains in force, since there may be reason to carry out further examination of the
property at a later stage, to establish circumstances of significance to the investigation. The
District Prosecutor’s special motion that the property should remain confiscated is therefore
upheld.
Indictment for breach of the Prohibition of Certain Health-Impairing Goods Act.
(Gottfrid Svartholm Warg)
The District Prosecutor’s motions are shown in Appendix 3.
Gottfrid Svartholm Warg has, as already mentioned in previous sections, denied the actions,
but has admitted the special motions.
Indictment counts 1-3
The investigation into the case reveals the following. In connection with the start of the
preliminary investigation into complicity in breach of the Copyright Act on 31 May 2006, the
police carried out a house search at an apartment at Framnäsbacken in Solna. The
preparations specified under indictment counts 1-3 were found in the apartment. The
preparations were kept in a drawer unit and in a cupboard at the desk. Some of the
preparations were included in a postal item addressed to Gottfrid Svartholm Warg’s
company, PRQ Internet.
Gottfrid Svartholm Warg has stated that the apartment belongs to his parents and that, on the
date stated in the indictment, it had been let to other individuals. He did not know that the
preparations in question were kept at the apartment.
In the opinion of the District Court, the case has not proven that the apartment was used by
Gottfrid Svartholm Warg on the date specified in the indictment. Nor has any other evidence
been presented which shows that the preparations belonged to Gottfrid Svartholm Warg. The
circumstances that some of the preparations have been found in a postal item addressed to
PRQ is not sufficient for Gottfrid Svartholm Warg to be found guilty of the offences. The
indictment is, therefore, dismissed with respect to indictment counts 1-3.
Indictment count 4
The investigation into the case reveals the following. A police patrol was called to Essinge
Brogata on 23 June 2007. In an adjacent apartment, a backpack was found in which the
preparations listed in the indictment count were kept. The backpack also contained a
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registration certificate for Gottfrid Svartholm Warg’s company, PRQ. Gottfrid Svartholm
Warg, among others, was found at the apartment. He was heavily intoxicated.
Gottfrid Svartholm Warg has stated that, despite being intoxicated, he can remember the
event. He has also stated that the backpack was his, but that he, at some point during the
evening, had lent it to some individuals at the party. He knows “approximately” who he lent
the backpack to, but he does not want to reveal the names of these individuals.
The information provided by Gottfrid Svartholm Warg himself shows that the backpack in
which the preparations were found belonged to Gottfrid Svartholm Warg. What Gottfrid
Svartholm Warg has claimed, i.e. that he, in the course of the evening, lent the backpack to
other individuals who he does not wish to name, is regarded by the District Court as a
reconstruction of events. It has, therefore, been proven beyond reasonable doubt that Gottfrid
Svartholm Warg has been in possession of the preparations in question, and that he should,
therefore, be sentenced for breach of the Prohibition of Certain Health-Impairing Goods Act.
The special motions are based in law and admitted, and will, therefore, be upheld.
The individual claims
Initial starting point
The District Court has, in the section giving its verdict, found that the defendants were
intentionally complicit in breach of the Copyright Act, i.e. acted as accomplices in the
infringement of copyright-protected rights and works in the form of the unlawful making
available of the rights. Anyone who has caused solely a loss of wealth – a financial injury
which arises without associated injury to person or property – through the perpetration of a
crime must pay compensation for the loss. Under the general principles governing the law of
torts, there is no obstacle to ordering each and every one complicit in the infringement of a
copyright to pay compensation for this under the provisions of the Copyright Act regarding
liability to pay compensation (c.f. the dissenting opinion in the Supreme Court verdict on 20
November 2008 in case no. T 4998-06).
§ 54, first paragraph of the Copyright Act (c.f. § 57) states that anyone who, in contravention
of the Act, utilises an associated right or a work, i.e. uses the right or work contrary to § 2 of
the Act, shall pay damages, constituting reasonable compensation for the use, to the
rightsholder. The second paragraph of § 54 states that if this has been done intentionally,
damages shall also be paid, inter alia, for losses other than loss of royalties. The Act states,
therefore, that the provisions relating to damages for infringement in the Copyright Act mean
that anyone who intentionally infringes a copyright shall pay not only damages for the use of
the sole right, but also compensation for other financial loss caused thereby. The preamble
(SOU 1956:25 p. 429) to the provisions for damages also states this means that anyone who
intentionally infringes a copyright must pay compensation for all financial losses caused
thereby, and that one element of the provision for damages means that, when a copyright
performance has been used in contravention of the Act, the guilty party must always pay
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reasonable compensation even if the rightsholder has not suffered any injury as a result of the
unlawful use.
The plaintiffs’ claims
The compensation claims of the plaintiff companies have been reported in the section Claims
and Positions. This report shows that the claims involve considerable amounts of money, and
that the companies have demanded that the defendants be held jointly and severally liable to
pay compensation.
The six Swedish record companies – Sony Music Entertainment, Universal Music,
Playground Music Scandinavia, Bonnier Amigo Music Group, EMI Music Sweden and
Warner Music Sweden – have demanded compensation for a total of EUR 2,188,071 excl.
interest.
The Nordic film companies – Yellow Bird Films and Nordisk Film Valby – claims are, in the
first instance, a total of SEK 6,750,000 excl. interest.
The American film companies – Warner Bros, Metro Goldwyn-Mayer, Columbia
Pictures, Twentieth Century Fox and Mars Media Beteiligungs – have demanded
compensation of a total of SEK 93,050,080 excl. interest.
All the plaintiff companies have claimed that the defendants, intentionally or through
negligence, have been complicit in a breach of the Copyright Act which means that
copyright-protected rights and works have unlawfully been made available to the general
public.
The making available means, in addition to a liability to pay damages for the use of the rights
or works, also a liability to pay compensation for other losses which have arisen as a result of
the unlawful making available.
Summary of the plaintiff’s arguments
- The six Swedish record companies
The defendant’s involvement with the filesharing service The Pirate Bay during the period
specified in the indictment resulted in the sound recording (copyright-protected phonograms)
specified in indictment counts 1 A – I and K – U being made available to the general public
which, in turn, meant that they could be downloaded by others, i.e. copies of the sound
recordings could be produced.
There is no licensing market or any other calculation method in the record company sector
which can be used to calculate the cost involved in lawfully making available sound
recordings. One way to calculate reasonable compensation for the use of recordings is,
instead, to calculate what the rightsholder would have been paid for a legal downloading
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from an Internet service which supplies music files. The payment for individual downloads is
then multiplied by the number of unlawful downloads of a sound recording.
The approximate cost of lawfully downloading a copyright-protected sound recording from
an Internet service was, according to information produced by the companies, EUR 10. Of
this amount, EUR 6.50 went to the record companies (the rightsholder for the sound
recording). The cost of downloading individual songs, not whole albums, was EUR 0.70.
Information obtained from The Pirate Bay’s websites shows that it was possible, for each
sound recording, to see when the torrent file which related to the sound recording was
uploaded to the website and the right was, consequently, made available to the general public.
This is the starting point of the making available, and is shown for each recording in
indictment counts 1 A –I and K –U.
The website also contained numerical information – based on a counter – which showed how
many times a sound recording had been utilised for downloading. This numerical information
– which has been reported previously by the public prosecutor and included in the table
shown in the section “During what time periods has the making available occurred?” –
shows the number of downloads of the sound recordings up to 31 May 2006. In three cases –
indictment counts 1 B, F and L – the information refers to the number of downloads up to the
day when representatives of the record companies made a download.
The record companies have used the information on the number of downloads for each sound
recording and multiplied these by EUR 6.50 to calculate the reasonable compensation. For
sound recordings with the artists Lena Philipson (indictment count 1 I) which refers to one
song, The Cardigans (indictment count 1 N), which refers to three songs, and Snook
(indictment point I M), which refers to one song, the respective companies have multiplied
the number of downloads by EUR 0.70.
In addition, the illegal making available of sound recordings has also led to other injuries,
since the alternative of downloading sound recordings free of charge via The Pirate Bay
created an insurmountable competitive situation. One such injury is the loss of CD sales. But
other losses, including a reduced interest in records and reduced opportunities to create and
sell via on-line services, have also been suffered. Injuries related to making available are
extensive.
To estimate the compensation for such other injuries, the record companies have used a
model which is dependent on whether the sound recording unlawfully made available was
available for legal downloading at the time the recordings were made available via the
website The Pirate Bay.
For those sound recordings which were available for legal downloading – which included
most of the record companies’ sound recordings – the companies have calculated the
compensation for other losses at an amount equivalent to twice the reasonable compensation
for utilisation.
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Certain sound recordings were, however, made available via The Pirate Bay before they were
available for legal downloading which – in addition to affecting future CD sales – also had a
detrimental effect on the online sales which had been expected through the future
downloading service. Depending on how far in advance the unlawful making available via
The Pirate Bay occurred, the companies have estimated the damages for other losses using a
higher multiplication factor.
Playground Music Scandinavia’s sound recording, Snook, Svett & Tårar (indictment count 1
M), was available on The Pirate Bay between 1 and 10 days before it was available for legal
downloading. For this recording, the company has, therefore, estimated the damages for other
losses at three times the reasonable compensation. The company’s recording Aposteln
(indictment count 1 E) was available between 11 and 40 days before it was available for legal
downloading. The damages for other losses for this recording have, therefore, been estimated
at four times the reasonable compensation.
Bonnier Amigo’s recording, ‘This is Me Now’ (indictment count 1 F) was available for 41
and 90 days before it was available for legal downloading. The company has therefore
estimated the damages for other losses at five times the reasonable compensation.
Universal Music’s recording Don’t Blame your Daughter (indictment count 1 N) was
available via The Pirate Bay between 91 and 130 days before it was available for legal
downloading. The damages for other losses have, therefore, been estimated at six times the
reasonable compensation.
EMI Music’s recording of Let it Be (indictment count 1 Q) – a Beatle record – involved a
recording which it was, in fact, impossible to download legally since the artists had not
granted permission for this. The company has, therefore, estimated the damages for other
losses at ten times the reasonable compensation.
In accordance with what has been stated here, the record companies have estimated their
individual damages for the recordings made available unlawfully at the amounts shown in
Appendix 4.
- The Nordic film companies
Yellow Bird owns the rights to the three films, Den svaga punkten, Afrikanen and
Mastermind. Nordisk Film was the rightsholder of the film Pusher 3.
The films were made available unlawfully via the filesharing service The Pirate Bay, one
(Afrikanen) in November 2005 and the others in March 2006. The film Den svaga punkten
was at this time not available as a DVD recording. The films Afrikanen and Pusher 3, had not
been released.
The films were downloaded – as a result of being made available via The Pirate Bay’s
website –in accordance with details obtained from the website: Den svaga punkten 15,689
times, Afrikanen 12,267 times, Mastermind 2,533 times and the Pusher film 406 times.
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The company’s claims for reasonable compensation for the utilisation (making available) of
the films which has occurred refers to a hypothetical negotiated amount at which the
rightsholder would have granted a license to make the films available for free downloading
on a filesharing service. These damages can be estimated at SEK 700,000 for each of the
films apart from Pusher 3, for which the estimated fee is SEK 150,000.
Alternatively, the reasonable damages for utilisation of the films can be calculated on the
basis on the number of downloads recently specified multiplied by that part of the average
price for a legal download of a film, which would have accrued to the rightsholder. The
average price for a legal download was, at the time covered by the indictment, SEK 139. Of
this income, at least sixty percent would accrue to the rightsholder. The income for the
rightsholder would, therefore, be SEK 66.70, excl. VAT.
In line with what the record companies have already stated, the unlawful making available of
films also meant that the film companies suffered losses other than a loss of royalties. The
making available also gave the general public the opportunity to download the films, i.e. to
produce copies of these, which, in turn, led to a fall in sale of film recordings, as well as a fall
in the demand for rental films. The companies have, consequently, suffered potential market
losses.
The unlawful making available has, in addition, impacted on the marketing campaigns
planned for the films. The knowledge alone that “pirate copies” of the films were available on
the market had a detrimental effect on the planned or implemented marketing campaigns for
the films.
The unlawful making available via The Pirate Bay also meant that the films were not
launched as the rightsholders had intended. In addition, the films were used to mock the
rightsholders, which means that the making available also resulted in a loss of goodwill.
The film companies have estimated the size of the damages to rectify these injuries at twice
the amount payable in reasonable damages for the use of the films.
- The American film companies
Since the defendants acted in consultation with each other, they are jointly responsible for
paying damages for infringement of copyright.
The film Harry Potter (indictment count 2 E) premiered in the cinemas in the USA and
Sweden in 2005. It was made available via The Pirate Bay on 11 February 2006. In that year,
it was also released as a DVD recording. The film was downloaded via The Pirate Bay
22,082 times according to the figures given on the website, which indicate how many times a
work has been downloaded.
The film The Pink Panther (indictment count 2 F) premiered in the cinemas in the USA on 10
February 2006. It was available via The Pirate Bay from 16 February. It was released as a
DVD recording in June 2006. The film was downloaded 49,593 times via The Pirate Bay.
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The television series The Prison Break (indictment count 2 G) premiered on television in
August 2005, and was shown as one episode per week until the end of November 2005. The
series was available via The Pirate Bay from 3 December 2005. A DVD recording of the
series was not made available until May 2006 in Europe and August 2006 in the USA. The
number of downloads via The Pirate Bay totalled 48,104.
”Syriana” was available via The Pirate Bay from 3 January 2006, but premiered in cinemas in
Sweden only on 10 March 2006. The film was available as a DVD recording from June 2006
in the USA and from July in Sweden. It was downloaded 3,679 times.
The film Walk the Line premiered in the cinemas in early February 2006, and was available
via The Pirate Bay from 15 February. It was released on DVD on 22 May 2006. The film was
the subject of 39,964 downloads via The Pirate Bay.
The film companies’ estimates of reasonable damages for utilisation is based on the number
of downloads which have taken place according to the figures given on the website, which
show how many times a work has been downloaded.
On the basis of an analysis carried out by a firm of auditors, the film companies have
estimated the price each film would have generated had it been legally downloaded. The
calculation of this price is based on the fact that none of the films were available for legal
downloading during the time they were made available via The Pirate Bay. The fact that
utilisation involved a preview license should, therefore, be taken into account. The price has
also been estimated on the basis that just over 90 percent of the individuals who downloaded
the films via The Pirate Bay were located in countries in Europe and in the USA. The fact
that the film companies did not market copies of their films without copying protecting must
also be taken into consideration, since users of The Pirate Bay, by carrying out downloads,
obtained copies which could be replicated freely. The price of each film did, in addition,
depend on whether it was a blockbuster such as Harry Potter, which have commanded a
higher price.
The companies have, therefore, estimated the price of a legal downloading for their
respective film(s) at:
- SEK 261.47 for Harry Potter,
- SEK 255.55 for The Pink Panther,
- SEK 415.81 for Prison Break (a television series),
- SEK 222.55 for Syriana and
- SEK 222.55 for Walk the Line.
With respect to other losses, the effects for the film companies are the same as those
described for the record companies. The film companies have estimated the size of these
damages at the same amount as the reasonable damages for the utilisation of the films.
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- The Defendants
Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström
Have, according to what has been reported previously, contested the claims. In support of
this, they have – as has also been reported previously – adduced, in addition to the objections
they have quoted when contesting the indictment, that they have not acted negligently, that
the plaintiff companies have not suffered any losses in the form of reduced sales and that
sufficient causality does not otherwise exist, that the information on the number of downloads
does not correspond to the number of downloaded rights or works, that damages should only
be payable for infringements committed in Sweden, that the originals were not illegal, that
accessories to an offence cannot, under the provisions in the Copyright Act regarding
damages, be held liable for the whole injury, and that they, as service providers, cannot be
held liable for damages under the provisions of the Electronic Commerce Act. They are of the
opinion that any liability to pay damages should be modified.
The verdict of the District Court
It follows from what the District Court initially cited about the defendants intentionally
committing an offence that they have, therefore, also acted negligently and that their
complicity makes them liable to pay damages. Their objections to the individual claims on
these grounds do not, therefore, stand up to scrutiny.
The District Court has previously in the section on liability found that the plaintiff companies
enjoy the sole right to the rights and works, and that the companies have not agreed to them
being made available via The Pirate Bay. They defendants objection that the originals – i.e.
the computer files which one user wished to make available to others – were legal do not,
therefore, stand up to scrutiny either. In this context, it can also be argued that even if the
user’s computer file had, originally, been produced as a copy for private use, this does not
mean that the copy could be used for purposes other than, specifically, private use (§ 12 of
the Copyright Act). A making available of the file via The Pirate Bay’s filesharing service,
which involved making available to the general public, is outside the boundaries of private
use.
The District Court has already commented on the fact that the defendants cannot avoid
liability for damages as a result of the provisions for freedom from liability for service
providers which apply in certain cases under the terms of the Electronic Commerce Act in the
section on liability.
The defendants’ additional objections to the individual claims will be discussed by the
District Court in connection with the court’s assessment of reasonable damages for utilisation
of rights and works, and damages for other losses. The District Court will then decide on
whether the liability to pay compensation will be joint and several and whether it should be
modified.
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- Reasonable compensation for utilisation
As the District Court touched on by way of introduction, the payment of reasonable
compensation for unlawful utilisation of a copyright-protected performance is based on the
provision that, under no circumstance, must a right be utilised without consent without the
rightsholder being paid reasonable compensation. The right to such damages is not, therefore,
dependent on whether it can be proved that the plaintiff companies have suffered any actual
injury, and that the injury caused was the result of the unlawful utilisation.
In order to determine the size of the damages, it is generally accepted that tariffs, collective
agreements or similar, or alternatively the basic rules and conditions applicable to the
industry or market where the utilisation has taken place, can be used as a guide. It is,
consequently, a matter of trying to establish a hypothetical license fee for the utilisation. In
the opinion of the District Court, the meaning of the rule on damages currently under
discussion cannot, however, be that reasonable damages should be withheld if tariffs or
similar fail to provide guidance. In this case it is – as a last resort – incumbent upon the Court
to determine what constitutes reasonable damages.
All the plaintiff companies have, in this case, used the unlawful making available which has
occurred, in the form of transfer to the general public, as the basis for their claims for
reasonable damages.
The plaintiff companies have used various methods to estimate the damages.
Yellow Bird Films and Nordisk Film Valby (the Nordic film companies) have used just such
a hypothetical license fee for the right to permit the making available by others of the films
for free downloading.
The six Swedish record companies and the American film companies have, on the other hand,
used a calculation method based on individual downloads of a right or a work multiplied by
the price a legal downloading of the right or work would generate.
The Nordic film companies’ estimation method appears, in relation to the cited grounds for
claims for damages, as an applicable method for determining the size of the damages.
In support for their claims, the Nordic film companies have referred to an expert assessment
carried out by Bertil Sandgren, whose experience is based on many years of working in
leading positions in the Swedish film industry. According to this assessment, the imaginary
license fee is based on the fact that a film rightsholder, who has negotiated the making
available of the film via The Pirate Bay would have taken into consideration the fact that the
film was being made available without copy protection in a market consisting of six million
Swedish Internet users and about the same number of Internet users in the immediate area
around Sweden. In addition, the fact that there would have been a substantial reduction in
income from the purchasing and rental video markets as a result of a license being issued to
The Pirate Bay, as well as the fact that the legal online market for the film would have ceased
to exist should be taken into account. The expected number of downloads of a film via The
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investigation into the case. The District Prosecutor has moved (motions d – f) that these items
should remain held until the verdict in the case has gained legal force.
The defendants have argued that the seizures should be annulled, since the District Prosecutor
has had reasonable time to secure evidence through examination of the property.
The District Court shares the view of the District Prosecutor that it is important that the
seizure remains in force, since there may be reason to carry out further examination of the
property at a later stage, to establish circumstances of significance to the investigation. The
District Prosecutor’s special motion that the property should remain confiscated is therefore
upheld.
Indictment for breach of the Prohibition of Certain Health-Impairing Goods Act.
(Gottfrid Svartholm Warg)
The District Prosecutor’s motions are shown in Appendix 3.
Gottfrid Svartholm Warg has, as already mentioned in previous sections, denied the actions,
but has admitted the special motions.
Indictment counts 1-3
The investigation into the case reveals the following. In connection with the start of the
preliminary investigation into complicity in breach of the Copyright Act on 31 May 2006, the
police carried out a house search at an apartment at Framnäsbacken in Solna. The
preparations specified under indictment counts 1-3 were found in the apartment. The
preparations were kept in a drawer unit and in a cupboard at the desk. Some of the
preparations were included in a postal item addressed to Gottfrid Svartholm Warg’s
company, PRQ Internet.
Gottfrid Svartholm Warg has stated that the apartment belongs to his parents and that, on the
date stated in the indictment, it had been let to other individuals. He did not know that the
preparations in question were kept at the apartment.
In the opinion of the District Court, the case has not proven that the apartment was used by
Gottfrid Svartholm Warg on the date specified in the indictment. Nor has any other evidence
been presented which shows that the preparations belonged to Gottfrid Svartholm Warg. The
circumstances that some of the preparations have been found in a postal item addressed to
PRQ is not sufficient for Gottfrid Svartholm Warg to be found guilty of the offences. The
indictment is, therefore, dismissed with respect to indictment counts 1-3.
Indictment count 4
The investigation into the case reveals the following. A police patrol was called to Essinge
Brogata on 23 June 2007. In an adjacent apartment, a backpack was found in which the
preparations listed in the indictment count were kept. The backpack also contained a
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registration certificate for Gottfrid Svartholm Warg’s company, PRQ. Gottfrid Svartholm
Warg, among others, was found at the apartment. He was heavily intoxicated.
Gottfrid Svartholm Warg has stated that, despite being intoxicated, he can remember the
event. He has also stated that the backpack was his, but that he, at some point during the
evening, had lent it to some individuals at the party. He knows “approximately” who he lent
the backpack to, but he does not want to reveal the names of these individuals.
The information provided by Gottfrid Svartholm Warg himself shows that the backpack in
which the preparations were found belonged to Gottfrid Svartholm Warg. What Gottfrid
Svartholm Warg has claimed, i.e. that he, in the course of the evening, lent the backpack to
other individuals who he does not wish to name, is regarded by the District Court as a
reconstruction of events. It has, therefore, been proven beyond reasonable doubt that Gottfrid
Svartholm Warg has been in possession of the preparations in question, and that he should,
therefore, be sentenced for breach of the Prohibition of Certain Health-Impairing Goods Act.
The special motions are based in law and admitted, and will, therefore, be upheld.
The individual claims
Initial starting point
The District Court has, in the section giving its verdict, found that the defendants were
intentionally complicit in breach of the Copyright Act, i.e. acted as accomplices in the
infringement of copyright-protected rights and works in the form of the unlawful making
available of the rights. Anyone who has caused solely a loss of wealth – a financial injury
which arises without associated injury to person or property – through the perpetration of a
crime must pay compensation for the loss. Under the general principles governing the law of
torts, there is no obstacle to ordering each and every one complicit in the infringement of a
copyright to pay compensation for this under the provisions of the Copyright Act regarding
liability to pay compensation (c.f. the dissenting opinion in the Supreme Court verdict on 20
November 2008 in case no. T 4998-06).
§ 54, first paragraph of the Copyright Act (c.f. § 57) states that anyone who, in contravention
of the Act, utilises an associated right or a work, i.e. uses the right or work contrary to § 2 of
the Act, shall pay damages, constituting reasonable compensation for the use, to the
rightsholder. The second paragraph of § 54 states that if this has been done intentionally,
damages shall also be paid, inter alia, for losses other than loss of royalties. The Act states,
therefore, that the provisions relating to damages for infringement in the Copyright Act mean
that anyone who intentionally infringes a copyright shall pay not only damages for the use of
the sole right, but also compensation for other financial loss caused thereby. The preamble
(SOU 1956:25 p. 429) to the provisions for damages also states this means that anyone who
intentionally infringes a copyright must pay compensation for all financial losses caused
thereby, and that one element of the provision for damages means that, when a copyright
performance has been used in contravention of the Act, the guilty party must always pay
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reasonable compensation even if the rightsholder has not suffered any injury as a result of the
unlawful use.
The plaintiffs’ claims
The compensation claims of the plaintiff companies have been reported in the section Claims
and Positions. This report shows that the claims involve considerable amounts of money, and
that the companies have demanded that the defendants be held jointly and severally liable to
pay compensation.
The six Swedish record companies – Sony Music Entertainment, Universal Music,
Playground Music Scandinavia, Bonnier Amigo Music Group, EMI Music Sweden and
Warner Music Sweden – have demanded compensation for a total of EUR 2,188,071 excl.
interest.
The Nordic film companies – Yellow Bird Films and Nordisk Film Valby – claims are, in the
first instance, a total of SEK 6,750,000 excl. interest.
The American film companies – Warner Bros, Metro Goldwyn-Mayer, Columbia
Pictures, Twentieth Century Fox and Mars Media Beteiligungs – have demanded
compensation of a total of SEK 93,050,080 excl. interest.
All the plaintiff companies have claimed that the defendants, intentionally or through
negligence, have been complicit in a breach of the Copyright Act which means that
copyright-protected rights and works have unlawfully been made available to the general
public.
The making available means, in addition to a liability to pay damages for the use of the rights
or works, also a liability to pay compensation for other losses which have arisen as a result of
the unlawful making available.
Summary of the plaintiff’s arguments
- The six Swedish record companies
The defendant’s involvement with the filesharing service The Pirate Bay during the period
specified in the indictment resulted in the sound recording (copyright-protected phonograms)
specified in indictment counts 1 A – I and K – U being made available to the general public
which, in turn, meant that they could be downloaded by others, i.e. copies of the sound
recordings could be produced.
There is no licensing market or any other calculation method in the record company sector
which can be used to calculate the cost involved in lawfully making available sound
recordings. One way to calculate reasonable compensation for the use of recordings is,
instead, to calculate what the rightsholder would have been paid for a legal downloading
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from an Internet service which supplies music files. The payment for individual downloads is
then multiplied by the number of unlawful downloads of a sound recording.
The approximate cost of lawfully downloading a copyright-protected sound recording from
an Internet service was, according to information produced by the companies, EUR 10. Of
this amount, EUR 6.50 went to the record companies (the rightsholder for the sound
recording). The cost of downloading individual songs, not whole albums, was EUR 0.70.
Information obtained from The Pirate Bay’s websites shows that it was possible, for each
sound recording, to see when the torrent file which related to the sound recording was
uploaded to the website and the right was, consequently, made available to the general public.
This is the starting point of the making available, and is shown for each recording in
indictment counts 1 A –I and K –U.
The website also contained numerical information – based on a counter – which showed how
many times a sound recording had been utilised for downloading. This numerical information
– which has been reported previously by the public prosecutor and included in the table
shown in the section “During what time periods has the making available occurred?” –
shows the number of downloads of the sound recordings up to 31 May 2006. In three cases –
indictment counts 1 B, F and L – the information refers to the number of downloads up to the
day when representatives of the record companies made a download.
The record companies have used the information on the number of downloads for each sound
recording and multiplied these by EUR 6.50 to calculate the reasonable compensation. For
sound recordings with the artists Lena Philipson (indictment count 1 I) which refers to one
song, The Cardigans (indictment count 1 N), which refers to three songs, and Snook
(indictment point I M), which refers to one song, the respective companies have multiplied
the number of downloads by EUR 0.70.
In addition, the illegal making available of sound recordings has also led to other injuries,
since the alternative of downloading sound recordings free of charge via The Pirate Bay
created an insurmountable competitive situation. One such injury is the loss of CD sales. But
other losses, including a reduced interest in records and reduced opportunities to create and
sell via on-line services, have also been suffered. Injuries related to making available are
extensive.
To estimate the compensation for such other injuries, the record companies have used a
model which is dependent on whether the sound recording unlawfully made available was
available for legal downloading at the time the recordings were made available via the
website The Pirate Bay.
For those sound recordings which were available for legal downloading – which included
most of the record companies’ sound recordings – the companies have calculated the
compensation for other losses at an amount equivalent to twice the reasonable compensation
for utilisation.
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Certain sound recordings were, however, made available via The Pirate Bay before they were
available for legal downloading which – in addition to affecting future CD sales – also had a
detrimental effect on the online sales which had been expected through the future
downloading service. Depending on how far in advance the unlawful making available via
The Pirate Bay occurred, the companies have estimated the damages for other losses using a
higher multiplication factor.
Playground Music Scandinavia’s sound recording, Snook, Svett & Tårar (indictment count 1
M), was available on The Pirate Bay between 1 and 10 days before it was available for legal
downloading. For this recording, the company has, therefore, estimated the damages for other
losses at three times the reasonable compensation. The company’s recording Aposteln
(indictment count 1 E) was available between 11 and 40 days before it was available for legal
downloading. The damages for other losses for this recording have, therefore, been estimated
at four times the reasonable compensation.
Bonnier Amigo’s recording, ‘This is Me Now’ (indictment count 1 F) was available for 41
and 90 days before it was available for legal downloading. The company has therefore
estimated the damages for other losses at five times the reasonable compensation.
Universal Music’s recording Don’t Blame your Daughter (indictment count 1 N) was
available via The Pirate Bay between 91 and 130 days before it was available for legal
downloading. The damages for other losses have, therefore, been estimated at six times the
reasonable compensation.
EMI Music’s recording of Let it Be (indictment count 1 Q) – a Beatle record – involved a
recording which it was, in fact, impossible to download legally since the artists had not
granted permission for this. The company has, therefore, estimated the damages for other
losses at ten times the reasonable compensation.
In accordance with what has been stated here, the record companies have estimated their
individual damages for the recordings made available unlawfully at the amounts shown in
Appendix 4.
- The Nordic film companies
Yellow Bird owns the rights to the three films, Den svaga punkten, Afrikanen and
Mastermind. Nordisk Film was the rightsholder of the film Pusher 3.
The films were made available unlawfully via the filesharing service The Pirate Bay, one
(Afrikanen) in November 2005 and the others in March 2006. The film Den svaga punkten
was at this time not available as a DVD recording. The films Afrikanen and Pusher 3, had not
been released.
The films were downloaded – as a result of being made available via The Pirate Bay’s
website –in accordance with details obtained from the website: Den svaga punkten 15,689
times, Afrikanen 12,267 times, Mastermind 2,533 times and the Pusher film 406 times.
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The company’s claims for reasonable compensation for the utilisation (making available) of
the films which has occurred refers to a hypothetical negotiated amount at which the
rightsholder would have granted a license to make the films available for free downloading
on a filesharing service. These damages can be estimated at SEK 700,000 for each of the
films apart from Pusher 3, for which the estimated fee is SEK 150,000.
Alternatively, the reasonable damages for utilisation of the films can be calculated on the
basis on the number of downloads recently specified multiplied by that part of the average
price for a legal download of a film, which would have accrued to the rightsholder. The
average price for a legal download was, at the time covered by the indictment, SEK 139. Of
this income, at least sixty percent would accrue to the rightsholder. The income for the
rightsholder would, therefore, be SEK 66.70, excl. VAT.
In line with what the record companies have already stated, the unlawful making available of
films also meant that the film companies suffered losses other than a loss of royalties. The
making available also gave the general public the opportunity to download the films, i.e. to
produce copies of these, which, in turn, led to a fall in sale of film recordings, as well as a fall
in the demand for rental films. The companies have, consequently, suffered potential market
losses.
The unlawful making available has, in addition, impacted on the marketing campaigns
planned for the films. The knowledge alone that “pirate copies” of the films were available on
the market had a detrimental effect on the planned or implemented marketing campaigns for
the films.
The unlawful making available via The Pirate Bay also meant that the films were not
launched as the rightsholders had intended. In addition, the films were used to mock the
rightsholders, which means that the making available also resulted in a loss of goodwill.
The film companies have estimated the size of the damages to rectify these injuries at twice
the amount payable in reasonable damages for the use of the films.
- The American film companies
Since the defendants acted in consultation with each other, they are jointly responsible for
paying damages for infringement of copyright.
The film Harry Potter (indictment count 2 E) premiered in the cinemas in the USA and
Sweden in 2005. It was made available via The Pirate Bay on 11 February 2006. In that year,
it was also released as a DVD recording. The film was downloaded via The Pirate Bay
22,082 times according to the figures given on the website, which indicate how many times a
work has been downloaded.
The film The Pink Panther (indictment count 2 F) premiered in the cinemas in the USA on 10
February 2006. It was available via The Pirate Bay from 16 February. It was released as a
DVD recording in June 2006. The film was downloaded 49,593 times via The Pirate Bay.
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The television series The Prison Break (indictment count 2 G) premiered on television in
August 2005, and was shown as one episode per week until the end of November 2005. The
series was available via The Pirate Bay from 3 December 2005. A DVD recording of the
series was not made available until May 2006 in Europe and August 2006 in the USA. The
number of downloads via The Pirate Bay totalled 48,104.
”Syriana” was available via The Pirate Bay from 3 January 2006, but premiered in cinemas in
Sweden only on 10 March 2006. The film was available as a DVD recording from June 2006
in the USA and from July in Sweden. It was downloaded 3,679 times.
The film Walk the Line premiered in the cinemas in early February 2006, and was available
via The Pirate Bay from 15 February. It was released on DVD on 22 May 2006. The film was
the subject of 39,964 downloads via The Pirate Bay.
The film companies’ estimates of reasonable damages for utilisation is based on the number
of downloads which have taken place according to the figures given on the website, which
show how many times a work has been downloaded.
On the basis of an analysis carried out by a firm of auditors, the film companies have
estimated the price each film would have generated had it been legally downloaded. The
calculation of this price is based on the fact that none of the films were available for legal
downloading during the time they were made available via The Pirate Bay. The fact that
utilisation involved a preview license should, therefore, be taken into account. The price has
also been estimated on the basis that just over 90 percent of the individuals who downloaded
the films via The Pirate Bay were located in countries in Europe and in the USA. The fact
that the film companies did not market copies of their films without copying protecting must
also be taken into consideration, since users of The Pirate Bay, by carrying out downloads,
obtained copies which could be replicated freely. The price of each film did, in addition,
depend on whether it was a blockbuster such as Harry Potter, which have commanded a
higher price.
The companies have, therefore, estimated the price of a legal downloading for their
respective film(s) at:
- SEK 261.47 for Harry Potter,
- SEK 255.55 for The Pink Panther,
- SEK 415.81 for Prison Break (a television series),
- SEK 222.55 for Syriana and
- SEK 222.55 for Walk the Line.
With respect to other losses, the effects for the film companies are the same as those
described for the record companies. The film companies have estimated the size of these
damages at the same amount as the reasonable damages for the utilisation of the films.
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- The Defendants
Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Lundström
Have, according to what has been reported previously, contested the claims. In support of
this, they have – as has also been reported previously – adduced, in addition to the objections
they have quoted when contesting the indictment, that they have not acted negligently, that
the plaintiff companies have not suffered any losses in the form of reduced sales and that
sufficient causality does not otherwise exist, that the information on the number of downloads
does not correspond to the number of downloaded rights or works, that damages should only
be payable for infringements committed in Sweden, that the originals were not illegal, that
accessories to an offence cannot, under the provisions in the Copyright Act regarding
damages, be held liable for the whole injury, and that they, as service providers, cannot be
held liable for damages under the provisions of the Electronic Commerce Act. They are of the
opinion that any liability to pay damages should be modified.
The verdict of the District Court
It follows from what the District Court initially cited about the defendants intentionally
committing an offence that they have, therefore, also acted negligently and that their
complicity makes them liable to pay damages. Their objections to the individual claims on
these grounds do not, therefore, stand up to scrutiny.
The District Court has previously in the section on liability found that the plaintiff companies
enjoy the sole right to the rights and works, and that the companies have not agreed to them
being made available via The Pirate Bay. They defendants objection that the originals – i.e.
the computer files which one user wished to make available to others – were legal do not,
therefore, stand up to scrutiny either. In this context, it can also be argued that even if the
user’s computer file had, originally, been produced as a copy for private use, this does not
mean that the copy could be used for purposes other than, specifically, private use (§ 12 of
the Copyright Act). A making available of the file via The Pirate Bay’s filesharing service,
which involved making available to the general public, is outside the boundaries of private
use.
The District Court has already commented on the fact that the defendants cannot avoid
liability for damages as a result of the provisions for freedom from liability for service
providers which apply in certain cases under the terms of the Electronic Commerce Act in the
section on liability.
The defendants’ additional objections to the individual claims will be discussed by the
District Court in connection with the court’s assessment of reasonable damages for utilisation
of rights and works, and damages for other losses. The District Court will then decide on
whether the liability to pay compensation will be joint and several and whether it should be
modified.
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- Reasonable compensation for utilisation
As the District Court touched on by way of introduction, the payment of reasonable
compensation for unlawful utilisation of a copyright-protected performance is based on the
provision that, under no circumstance, must a right be utilised without consent without the
rightsholder being paid reasonable compensation. The right to such damages is not, therefore,
dependent on whether it can be proved that the plaintiff companies have suffered any actual
injury, and that the injury caused was the result of the unlawful utilisation.
In order to determine the size of the damages, it is generally accepted that tariffs, collective
agreements or similar, or alternatively the basic rules and conditions applicable to the
industry or market where the utilisation has taken place, can be used as a guide. It is,
consequently, a matter of trying to establish a hypothetical license fee for the utilisation. In
the opinion of the District Court, the meaning of the rule on damages currently under
discussion cannot, however, be that reasonable damages should be withheld if tariffs or
similar fail to provide guidance. In this case it is – as a last resort – incumbent upon the Court
to determine what constitutes reasonable damages.
All the plaintiff companies have, in this case, used the unlawful making available which has
occurred, in the form of transfer to the general public, as the basis for their claims for
reasonable damages.
The plaintiff companies have used various methods to estimate the damages.
Yellow Bird Films and Nordisk Film Valby (the Nordic film companies) have used just such
a hypothetical license fee for the right to permit the making available by others of the films
for free downloading.
The six Swedish record companies and the American film companies have, on the other hand,
used a calculation method based on individual downloads of a right or a work multiplied by
the price a legal downloading of the right or work would generate.
The Nordic film companies’ estimation method appears, in relation to the cited grounds for
claims for damages, as an applicable method for determining the size of the damages.
In support for their claims, the Nordic film companies have referred to an expert assessment
carried out by Bertil Sandgren, whose experience is based on many years of working in
leading positions in the Swedish film industry. According to this assessment, the imaginary
license fee is based on the fact that a film rightsholder, who has negotiated the making
available of the film via The Pirate Bay would have taken into consideration the fact that the
film was being made available without copy protection in a market consisting of six million
Swedish Internet users and about the same number of Internet users in the immediate area
around Sweden. In addition, the fact that there would have been a substantial reduction in
income from the purchasing and rental video markets as a result of a license being issued to
The Pirate Bay, as well as the fact that the legal online market for the film would have ceased
to exist should be taken into account. The expected number of downloads of a film via The