[DDN] "P2P pirate hunting" not so efficient in Sweden and Israel: international relevance

[Claude Almansi (BW)]

Hi All

In Sweden, on May 31st 206, the police seized the servers of The Pirate 
Bay on the basis of an anti-piracy request.
 From the home page http://www.thepiratebay.org/ as I copied it in 
<http://adisi.livejournal.com/50648.html> on June 1st:

"SITE DOWN
In the morning of 2006-05-31 the Swedish National Criminal Police showed 
a search warrant to Rix|Port80 personnell. The warrant was valid for all 
datacentres of Rix|Port80 and was directed at The Pirate Bay. The 
allegation was breach of copy-right law, alternatively assisting breach 
of copy-right law.
The police officers were allowed access to the racks where the TPB 
servers and other servers are hosted. All servers in the racks were 
clearly marked as to which sites run on each. The police took down all 
servers in the racks, including the non-commercial site Piratbyrån, the 
mission of which is to defend the rights of TPB via public debate.
According to police officers simultaneously questioning the president of 
Rix|Port80, the purpose of the search warrant is to take down TPB in 
order to secure evidence of the allegations mentioned above.
The necessity for securing technical evidence for the existance of a 
web-service which is fully official, the legality of which has been 
under public debate for years and whose principals are public persons 
giving regular press interviews, could not be explained. Asked for other 
reasoning behind the choice to take down a site, without knowing wether 
it is illegal or not, the officers explained that this is normal.
The TPB can receive compensation from the Swedish state in case that the 
upcoming legal processes show that TPB is indeed legal.
CLICK HERE <http://82.99.25.142/> OR HERE 
<http://piratbyran.blogspot.com/> FOR LATEST NEWS "

On the day of the seizing (May 31st), MPAA hastened to issue a 
triumphant press release:
SWEDISH AUTHORITIES SINK PIRATE BAY (all-caps theirs), 
<http://www.mpaa.org/press_releases/2006_05_31.pdf>

Yesterday (June 3), a) there was a big demo in Stockholm (see 
<http://piratewatch.blogspot.com/> and 
<http://www.flickr.com/photos/vargklo/sets/72157594154134708/>for pics); 
b) the Pirate Bay was back online. With a new "file title" (the thing 
that appears on top of the web page in your browser) saying "The Police 
Bay", and a new logo, with added cannon balls shot at the pirate ship 
from Hollywood. See <http://yro.slashdot.org/yro/06/06/03/1220249.shtml>

MPAA still link to their triumphant  SWEDISH AUTHORITIES SINK PIRATE BAY 
press release on their home page <http://www.mpaa.org/>, though: maybe 
someone should  tell them about The Pirate Bay being back online. 
Fluctuat nec mergitur, as the Parisians said back when the town was 
called  Lutecia.

Actually, The Pirate Bay's name is ironic  - a bit like "Il partito dei 
c*glioni" born from Berlusconi calling "c*glioni" (literally, 
"testicules"; figuratively, "d*ckheads") those who would vote for the 
left, just the last elections.

The Pirate Bay is just a search engine for files offered by P2P. MPAA 
call such search engines "piracy facilitators" in their PYRAMID OF 
INTERNET PIRACY (all-caps theirs) 
<http://www.mpaa.org/press_releases/pyramid_of_piracy.pdf> (1), even 
though a search engine is obviously unable to tell whether a file 
offered via P2P is legal or not.

***

In Israel, the music industry went one step farther: in September 2005, 
in the wake of the Grokster case, NMC Music et al (2), represented by 
Sarah and Eran Presenti, sued 7 *providers* hosting such P2P search 
engines. 6 went for out-of-court settlements, paying hefty compensation, 
and accepting constant. The 7th, Avi Hirsh, represented by Boaz Guttman 
(3)  refused the settlement. On May 31st, NMC Music et al dropped all 
charges against Hirsh. Info at 4Law, in <http://www.4law.co.il/p2p.html> 
(scroll down to "Big Music ramps up on Israel").

At times, Hirsh was tempted to give in too, out of weariness. But 
Guttman told him that if he did settle, he would be acknowledging guilt 
and thus risk other claims.

Hirsh's standing his ground, and the ensuing dropping of charges against 
him, is also important internationally, because what was at stake in 
this lawsuit was the non liability of hosting providers. Music and film 
industries are attempting to ride the Grokster case to criminalize P2P 
per se at all levels, internationally.

As Guttman puts in in the above-mentioned 4Law page: "While the Israeli 
court is not committed to decisions made in the United States, a verdict 
such as the one which was concluded in the Grokster case, especially 
when it involves the US Supreme Court, can be an affecting element in 
the interpretation of the Israeli courts, as in it's analysis."

And this holds true in other countries. On April 20,  I objected to the 
sentence "Peer-to-peer (P2P) networks are already illegal under today’s 
law" in the Swiss Federal Institute of Intellectual Property's (IPI's) 
Copyright FAQs <http://www.ige.ch/faq/ur/ur_e.shtm>, saying that uses of 
P2P could be legal or illegal, but not P2P per se. In his answer on 
April 24,  their legal adviser, Emanuel Meyer, refered to the court's 
considerations on the Grokster case in order to maintain that even 
though some P2P uses could be legal, the fact that most of the P2P 
*downloads* are illegal justifies their definition of P2P as illegal: in 
spite of the fact that in Switzerland, *downloading* copyrighted 
material via P2P is not presently punishable, nor will it in future be 
according to the version of the revision of the copyright law  presently 
being examined by parliament.

So The Pirate Bay being back online and the dropping of charges against 
Avi Hirsh are important, because they show that attempts to criminalize 
P2P worldwide by wielding the US Supreme Court's decision in the 
Grokster case are not always successful.

Finally, for those of you living near Zurich, Rasmus Fleisher will 
present The Pirate Bay and related initiatives (in English) in an event 
entitled "The Grey Commons", organised by Digitale Allmend on June 28. 
Further info in German at 
<http://wiki.allmend.ch/Veranstaltungen/060628> and in Italian at 
<http://adisi.livejournal.com/50410.html>.

Best

Claude

Claude Almansi
Castione, Switzerland
www.adisi.ch


(1) There is also a MPAA video clip about the "pyramid of piracy", 
called "The piracy avalanche"; it can be viewed from 
<mms://wm9.global.synccast.com/mpaa/topsite_avalanche.wmv>, for instance.

(2) "The Israeli Union of Music Companies, which includes 27 companies, 
and the U.S. Union of Music Companies(Include ALIS, the Israeli 
representative of the MPAA and RIAA), which includes 40 companies" (from 
<http://www.4law.co.il/p2p.html>).

(3) Re Boaz Guttman, see 4Law's "about" page 
<http://www.4law.co.il/1.html>: "...Former officer in charge of the 
Cyber Crime Unit of the Israel National Police and Cyber Crimes 
Coordinator in the IT Committee in the Knesset (Israel Parliament). Boaz 
retired as Chief Superintendent, October, 2000, from the National 
Anti-Fraud Unit. During his 20 years of service he was involved in the 
investigations of the most serious white collar crimes in Israel, as 
well as the most serious cyber crime investigations in Israel .In 1998 
he lead the Pentagon hacker investigation, code named "Solar Sunrise" 
together with FBI, NASA, AFOSI and other units from US Law Enforcement. 
  (...)"