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Post-Pirate Bay Trial - Interview with the IFPI
May 5, 2009
Thomas Mennecke
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The Pirate Bay and the IFPI (International Federation of the Phonographic Industry) are currently locked in a compelling legal showdown that will have far reaching consequences for the future of BitTorrent and file-sharing technology. Whether The Pirate Stays online or not, the pressure is building thanks to a continued effort from the IFPI to bring justice to the four defendants, Peter Sunde, Fredrik Neij, Gottfrid Svartholm, and Carl Lundström.

Justice is something that may be difficult to come by. The Pirate Bay's Peter Sunde has said the trackers that form the Pirate Bay's community are in an unknown location. The IFPI doesn't seem too impressed, and is seems to be gearing up for their next legal assault against The Pirate Bay. There's a lifespan to everything, and The Pirate Bay is no different. The question is, whether The Pirate Bay will still exist in the months to come. To understand the current position of the IFPI after a Swedish court found the four defendants guilty, Slyck interviewed John Kennedy, Chairman and CEO of the IFPI.

Slyck: Three weeks after the conclusion of the trial, The Pirate Bay is still online. Does this temper the legal victory enjoyed by the entertainment industry?

John Kennedy: This was a criminal trial, concerning activity by four individuals in relation to a limited number of works available on The Pirate Bay during a defined time period in 2005 and 2006. Therefore criminal convictions themselves did not (and were not expected to) end the operation of the service. A range of legal steps, in Sweden and internationally, are available to protect copyright holders from the continued operation of the service.

Slyck: With The Pirate Bay still online, tens of millions of people are still actively searching for and exchanging files. What can you tell us about the efforts being taken to force The Pirate Bay offline? What progress is being made to coordinate their removal? Would you say The Pirate Bay's lifespan at this point is limited?

John Kennedy: Rights holders have already secured injunctions requiring ISPs to block access to The Pirate Bay in two other EU countries – Italy and Denmark. We expect rights holders will take further action in the coming weeks, but I can’t offer more detail at this stage.

[Editor’s note: the Italian block was lifted two months after the initial injunction, and is currently under counter-appeal by the IFPI]

Slyck: In the past, there have been many legal judgments against P2P administrators - some much harsher than the one doled out against The Pirate Bay administrators - yet file-sharing continues to be very popular. What message will this verdict send to would-be administrators, and how is this one stronger than previous sentences?

John Kennedy: The court’s decision – including criminal convictions and a prison sentence - should send a strong message to all would-be administrators especially those connected with BitTorrent. We understand from reports that several Swedish bitTorrent trackers such as Nordicbits, Powerbits, Piratebits, MP3nerds and Wolfbits have closed down since The Pirate Bay judgment. There are other illegal operations in the world that operate along similar lines to The Pirate Bay, generating money from advertising revenue while making music, films and games available without permission or payment to rights holders. It can be a lucrative model – The Pirate Bay’s operators set up a shell company in the British Virgin Islands and a bank account in Guernsey to process the money they made – which is why legal penalties against such criminal enterprises need to be serious.

Slyck: There are several major BitTorrent trials this year - OiNK, isoHunt, and MiniNova. Let's imagine a worst case scenario for these sites and compare this to the pre-Christmas copyright actions of 2004, when SuprNova, Youceff Torrents, Pheonix Torrents, and many other BitTorrent sites were taken offline. This only seemed to force the development of newer and more advanced technologies. What efforts are being taken to ensure this history doesn't repeat?

John Kennedy: There is no doubt that anti-piracy activity drives some illegal distribution networks “underground”. It is doubtful however that many of the 22 million users of The Pirate Bay would use a complicated, more difficult to access service. We would hope that they will migrate to great value legal services that actually respect the rights of artists, composers and producers.

Slyck: Many file-sharers seem perplexed that Carl Lundström was a co-defendant and received an equal sentence as the other three Pirate Bay administrators. Why was he prosecuted as an equal partner?

John Kennedy: The evidence showed that Carl Lundström had worked together with the others to find a suitable jurisdiction for The Pirate Bay, provide internet service and secure advertising revenue. The court found that he had invested in The Pirate Bay and expected to earn money from the service in the future, while knowing that its purpose was to provide pirated content. The court found him jointly liable with the others because he participated in the operation and knew what was involved.

Slyck: Let's talk about the appeal process. Realistically, how do you see things progressing from here, and when can we expect a final resolution to this case?

John Kennedy: We expect that all the defendants will appeal, and Carl Lundström has already filed an appeal, but we are confident that the Swedish judicial process will uphold the ruling of 17th April. The timing of any appeal in the criminal case is, of course, in the hands of the Swedish judiciary. It is worth noting however that any civil case is not contingent on the outcome of the criminal appeal.

Slyck: There has been some criticism of bias on the part of the judge because of his affiliation with several pro-copyright groups. How do you respond to this?

John Kennedy: As far as I understand it, one of the judges is a member of some professional associations that consider the ongoing role of intellectual property law. It would be surprising if a judge in this field were not the member of such professional bodies.

Slyck: Let's imagine a worst case scenario for The Pirate Bay; they lose the appeals process, they're thrown in jail, and the tracker network is taken offline. There will still be tens of millions of file-sharers looking for .torrents; in the past this meant the restructuring of the community under another name. How will this issue be addressed?

John Kennedy: We encourage music fans looking for online content to visit the many great value legal sites that exist. Record companies have licensed more than 10 million tracks to over 400 legitimate services using a range of technologies ranging from online stores like iTunes and AmazonMP3 to advertising-supported streaming services like Spotify. Labels are open to working with a huge range of partners on potentially viable business models that provide value to the consumer and respect copyright holders. This trial was never about technology, but about the abuse of technology to build an illegal business. Rights holders have taken legal action for years against people who manufacture, distribute and sell counterfeit CDs. It didn’t mean they hated the CD or refused to deal with people who wanted to sell legitimate CDs.

Slyck: The entertainment industry has been successful in eliminating many centralized P2P networks, but the appetite for music and movies remains very strong. Not every file-sharer wants "something for nothing", and many could be convinced to at least try authorized services. What progress do you think needs to be made to bridge the gap between file-sharers and authorized services?

John Kennedy: We know there is a strong demand for free music and movies. Entertainment Media Research found that seven in ten music consumers downloaded illegally because it was free. The fact remains that new films or albums require considerable investment and the contributors are entitled to be paid for their professional and creative contribution. Record labels are experimenting with all kinds of different models that provide fans with access to the music they want but which still remunerate artists, composers and record producers. These include music services bundled with ISP subscriptions or mobile phone handsets, advertising-supported streaming services, as well as traditional a-la-carte download stores. The curbing of illegal operations like The Pirate Bay will help these services grow in future without unfair competition.

This story is filed in these Slyck News categories
Entertainment Industry :: IFPI
File-Sharing/P2P Related :: Interviews
BitTorrent :: Trackers/Indexers

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