[Infowarrior] - Prosecution Drops Some Charges Against The Pirate Bay

[Richard Forno]

Prosecution Drops Some Charges Against The Pirate Bay
By Wired Staff EmailFebruary 17, 2009 | 12:27:29 PMCategories: Yo Ho Ho

Special correspondent Oscar Swartz reports.

http://blog.wired.com/27bstroke6/2009/02/prosecution-dro.html

STOCKHOLM — Prosecutors dropped half of the charges in the landmark  
trial of The Pirate Bay file sharing site Tuesday, leaving observers  
stunned and prompting questions about the government's preparedness in  
the long-awaited criminal proceeding.

"I will drop all charges that relate to producing infringing copies  
and will hence restrict the prosecution to the act of making works  
available to the public," prosecutor Hakan Roswall announced at the  
opening of the second day of the trial. "When I talk about making  
something available to the public I mean making available torrent  
files."

At an intermission, Roswall refused to clarify the change of heart to  
reporters. "As you can see I have a lot of other things to think  
about," he said. "There will be new adjusted charges distributed on  
paper tomorrow, Wednesday."

Four men associated with the defiant BitTorrent tracking site are on  
trial for contributory copyright infringement. Hans Fredrik Neij,  
Gottfrid Svartholm Warg, Peter Sunde and Carl Lundströmface face up to  
two years in prison each, in addition to fines as high as $180,000.

The Pirate Bay's supporters quickly claimed victory in the  
blogosphere, and many expressed astonishment at the course-correction.  
This was, after all, supposed to be the seminal piracy prosecution,  
with Hollywood throwing the kitchen sink at a few defiant Swedish  
computer nerds.

Peter Danowsky, the attorney representing the music labels, downplayed  
the reduction in charges.

"It’s a largely technical issue that changes nothing in terms of our  
compensation claims and has no bearing whatsoever on the main case  
against The Pirate Bay," he said in a statement. "In fact it  
simplifies the prosecutor’s case by allowing him to focus on the main  
issue, which is the making available of copyrighted works."

The move is remarkable because of the extensive groundwork the content  
industries and the prosecutor has laid for the case. The Motion  
Pictures Association and other plaintiffs had collected evidence for  
many months by participating in file-sharing torrent swarms, dumping  
screenshots of downloads in progress and collecting information before  
the raid on May 31, 2006, in which 195 computers were trucked away by  
the police. The prosecutor led an investigation for two-and-a-half  
years after that.

The prosecution has specified 21 works of music, nine movies and three  
computer games that were allegedly infringed. The Pirate Bay  
defendants were not charged with direct copyright infringement, but  
only in assisting in committing such acts. Under Swedish law,  
prosecutors must therefore prove the defendants engaged in  
"facilitating for other people to make available a copyright protected  
work via transmission on the internet" in a specific file on a  
specific date.

The hitch in the prosecutor's plan hinges on Pirate Bay's dual- 
functionality. The site includes a "tracker" that coordinates  
communication between peers downloading and uploading files. But it  
also has a searchable index that merely lists the torrent files  
available through a variety of trackers, not just The Pirate Bay's.  
The prosecutor now appears to agree with the defendants that he cannot  
prove that the specific files at issue were handled by Pirate Bay's  
trackers.

The only thing that is left is "assisting making available" the  
torrent files, a charge that the prosecution evidently hopes to press  
based on Pirate Bay's index alone.

The move may have been prompted in part by the defendants' opening  
statements. On Monday, Pirate Bay co-founder Fredrik Neij discussed so  
called "trackerless torrents," which use a Distributed Hash Table, or  
DHT, and don't rely on a torrent tracker at all.

"We believe he dropped charges after having googled all night about  
DHT," an upbeat Peter Sunde, one of the defendants, told Wired.com  
later. Fredrik Neij and Gottfrid Svartholm Warg boasted that they were  
just scratching the surface of the flaws in the government's case, and  
that they would raise deeper technical points later in the trial.

It remains to be seen whether facilitating making torrent files  
available is enough to commit the criminal act of assisting in  
copyright infringement.

"Absolutely not," claimed Rick Falkvinge, the leader of The Pirate  
Party. "If they can claim that facilitating for others to publish a  
torrent file, which contains no copyright protected information  
whatsoever, then this shows that they want to shut down the internet  
for good."