Piracy Charges

[mgh 89]

"The four men who run one of the most popular file-sharing sites in the world have been charged with conspiracy to break copyright law in Sweden."http://news.bbc.co.uk/1/hi/technology/7219802.stmWatch this space!

[Guest zzmikezz]

That's good news, Gerry, thank you for the link to the story. Calling the posting of links a conspiracy is novel but probably will fly.Furthermore, a concerned USA judge who wanted to break real new legal ground could then cite a conviction in Sweden as precedent in the USA. To my knowledge the USA has never recognized anything other than English and Scottish precedents and common law, but this is the 21st century and there is no legal reason why it couldn't happen.See, folks, re piracy it neither necessary nor productive to adopt the posture "Ain't it awful but nothing can be done."

[bob.bernstein 0]

Mike...as I read this Swedes broke the Swedish law and got caught.Is that how you see it?Counting on law enformcement to enforce local law is always "what can be done". Right? If so your commnet below is confusing:<>A posture of any kind no matter how adopted, appears to be irrelevant in regards to what anyones local law enforcement chooses to enforce. Don't you think?Bob

[Guest zzmikezz]

Bob,I found your post a little confusing so let me summarize what I got out of it ...I believe you're saying that there is nothing worth remarking on when a local law is enforced by local law enforcement. Well, that's not true. For example, the O.J. Simpson trial, brought in a Los Angeles court, had enormous nationwide influence on the way prosecutors and police now treat suspects in serious criminal cases. (It is no coincidence that while a case is still being built you hear "person of interest" these days much more often than "suspect")However, let's ignore that. My understanding (possibly wrong) is that Sweden has no copyright laws. However, it does have laws regarding conspiracies, and in this case it appears to me as if the conspiracy (Sweden-based) was about breaking some other country's laws.My understanding of the situation may not be correct. If not, let's hope that someone more knowledgable will post to this thread. But if my understanding IS correct, and if the resulting court case is won by the prosecutors, then we will have an international precedent along the lines of Crimes Against Humanity. NO, I'm not saying that software piracy is a crime against humanity. I'm discussing how international legal precedents might get set and then honored in the USA.

[mgh 89]

I'm afraid you are getting your hopes far too high, especially in comparing this matter with crimes against humanity. The law relating to Intellectual Property (IP) is local private law and a decision on one court in one country has no international significance. Even if a Swedish court finds them guilty that would not necessarily act a precedent even in Swedish law. In the UK the decisions of "courts of first instance" don't create a UK precedent. If they were found not guilty, I doubt that you would hail that a precedent to be followed internationally.Also they have to be found guilty. Conspiracy charges are often only second best. They're only made when a substantive charge can't be made

[Guest zzmikezz]

Gerry,I'll deconstruct the substance of your post later. But something did stand out and I will address it now.Conspiracy charges usually are actually fairly easy to prove. All that is required is a) a partnership, :( an intent of the partnership to commit a crime, and c) at least one step taken by at least one of the partners in furtherance of the intended crime.I'll be back later in the USA day, probably in our afternoon.

[mgh 89]

I agree with thevelements you identify but suggest that they are not quite as straightforward as you suggest.A partnership with who - between the four people charged only, or between the four and those who downloaded?. The first may be difficult to establish. If one person alone did what was alleged then there could be no charge of conspiracy. If the remaining three did exactly the same as the one person it's arguable if that makes it conspiracy?What crime? In many countries (UK and EU) simple infringement of copyright is not a crime - it's a civil offence for which damages can be claimed. It appears from past history that simple infringement of copyright isn't a crime either in Sweden.What steps? They may have facilited infringing copyright by others but so did manufactuerers of tape-to-tape recorders but the cases against them failed.I hold no brief for these these four are alleged to have done. I'm merely pointing out that the law in this area is far from straightforward. If it was straightforward they'd have been out of action a long time ago!

[Guest zzmikezz]

The conspiracy would be of the four of them. A conspiracy to commit a civil offence may well be a crime, just as lying in court about the reason for ignoring a traffic ticket would be criminal perjury.Much interesting stuff to discuss here, back later.

[bob.bernstein 0]

Mike..I was only saying that the local posture of people here neither inspires or dis-inspires local law enforcement agencies to do their jobs.This in response to your statement:<>in which you seem to suggest that a posture can be "productive".

[Guest zzmikezz]

Bob,I am indeed asserting that something can be done. I've posted about this at length on SimFlight and FlightSim but I don't want to do it again now, and I wouldn't want to do it here at all without Tom Allensworth's full knowledge and approval because ... well, because ... It's a very controversial subject as we have all seen, and it's really up to Tom whether he wants his site to be hosting discussions that might be even more inflammatory than the recent ones we've all been in involved in here.

[bob.bernstein 0]

Sounds interesting.I'll check out those other sites.

[Guest zzmikezz]

Gerry,Okay Gerry, I

[mgh 89]

A conspiracy charge must be more difficult to prove than a substantive charge. Instead of your three points it's only necessary to prove that they did what was alleged and it was against the law. If, as you suggest, they would be charged with conspiring amongst themselves to break copyright law then they could argue that they personally never intended to beak the law and in fact never did so. If it's extended to cover downloaders then it would be necessary to show there was an agreement between the downloaders and the four charged. Agreement is an essential part of a conspiracy. It might be legally difficult to prove one exited between the four and the downloaders. You misunderstand the Berne convention. That convention states that its signatories recognise the copyright of works of authors from other signatory countries in the same way they recognises the copyright of their own nationals This means that, for instance, British copyright law applies to anything published or performed in Britain, regardless of where it was originally created. Similarly US copyright law applies in the US. This means that, as I said, national law applies. The convention gives no specific powers for a UK citizen to be sued in the US for anything done in the UK. It's also the Berne Convention that established that copyright is automatic and doesn't have to be registered. But, of course, the convention only applies to countries that have signed up to it.I don't think that we disagree on precedent. You make the point that decisions in state courts of one US state do not form a precedent in another. A decision in a Swedish court would also not form a precedent there either. Obviously courts can adopt and do adopt doctrines from other legal systems but that is not a matter of precedent that must be followed. My basic point is that IP law is an artifical contruction which sets out rights and obligations that may differ between countries. Everyone has to work within that framework. The only moral question is whether or not to comply with those laws. Pirates obviously do not and I suggest that the law cannot be relied on the provide any real protection against piracy. It just isn't going to be possible for small firms like add-on developers to take effective enforcement action themselves and the state certainly isn't going to do it for them. The entertainment industry has failed, as have Microsoft etc. Add-on developers will have to continue protecting their products themselves. This may inconvenience or annoy some purchasers but I fear that's the only effective protection.

[Guest zzmikezz]

I'll yield on the Berne Convention. However, there is some existing or pending treaty under which what I said about violations "there" being subject to prosecutions "here" is, or will be, possible.As for conspiracies, look at it this way ... You and I can conspire to commit murder without actually committing murder.Not only that, if you are, say, the American named John Whoever, you could be arrested in Afghanistan by USA troops for conspiring to murder USA citizens on Afghanistan soil even though that act would have been, by common law, perfectly legal in the AlQaeda-controlled government of Afghanistan.The felony is the conspiracy, not the details of the purpose of the conspiracy, and if the act would have rquired ten steps to be carried to completion, conspiracy is established as soon as the first step has been taken.xxxxxxxxxxxxxxxxxxxxxxxxxAs for legal precedents, if they were not binding in the jurisdictions in which the precedents (wherever originated) were cited and found to apply, the whole concept of precedent would be empty of meaning.Within their jurisdictions of applicability, precedents are as binding as black letter law.xxxxxxxxxxxxxxxxxxxxxxxxGerry, you will always take the position "Nothing useful can be done beyond software protection schemes", whereas my position is "There is legal research that should be done, and it is important that it be done, because software protection schemes are a complete and total failure when it comes to serious piracy, and if there is a way to put existing law to use in ways that are new to the software industry in general, then this should be looked at."You personally may have no interest in this research, which is fine. You don't have a dog in this fight. However, I do (or did) have a stake in the outcome, and on a background basis I plan to continue my research.In the meantime, I will continue to publically oppose the "Ain't it awful but nothing can be done" posture. This glass is half-full, not half-empty.

[ubersu 78]

I think you are entirely correct. The only point that hasn't been brought forward in this discussion is that the case is a political football in Sweden and is opposed by an apparently rather large group of citizens and politicians. It is also my understanding that the accused have moved most of their servers out of the country at this point so that jurisdictional issues should stretch things out for a long time to come...DJ