On the Recent Piracy Trial

As some of you may know, the “piracy” trial ended with the conviction of the administrators of the web site The Pirate Bay to one year in jail as well as (for Sweden) record-high damages to the entertainment industry. Whereas it is not clear if they have committed a crime – hell, it isn’t even clear that a crime has been committed – some interesting facts about the trial have emerged.

The courts in Sweden are highly politicized. As is common in civil law countries (like most Western non-anglo-saxon countries), the Swedish court system is not based on principles such as the courts or judges discovering law (which is, originally, the case in common law countries) – they but enforce the law as decided by The Ruler, be he king or a faceless parliament – and trial by peers (the jury system).

The courts do, however, have a pseudo-jury system where a judge runs the show but a number of people are chosen to assist the judge in finding the defendant guilty or not guilty of crime. These people are appointed by the political parties with representation in the parliament. In other words, there is a kind of political jury system where the political elite gets to appoint who will make sure justice is upheld. That the same elite enacts the law that is tried in the courts is not a problem to most Swedes, it seems.

In this particular trial, a high-profile trial with international coverage, the politicization of the Swedish courts is extra troublesome. The road to the trial has been paved with scandals, where the entertainment industry’s organization Antipiratbyrån not only has done the police’s job at raides against private web hosting firms, but they have worked closelly with the police investigators and even hired or paid a number of them. Furthermore, the U.S. government has pressured the Swedish government into taking a number of actions that are not necessarily allowed in the Swedish system of “justice” – sometimes even outright prohibited. 

This has not stopped the investigation, however, which is still partly based on what was found or interpretations made based on the illegal investigations. The propaganda war is also an important part of the story, where the public obviously supports and engages in file sharing (both the legal and the copyright-violating kinds) while the political elite is whole-heartedly on the side of the industry. In fact, the political elite has been enacting a number of laws significantly reducing the rights and privacy of Swedish citizens only to get to the small number of illegal file-sharers.

It is in this context that a trial with a judge and politically appointed judge assistants (nämndemän) is highly problematic. But, as I have already mentioned, this seems to not be a big problem in the Swedish public debate. The special interest owns the political elite, and the political elite both enacts and enforces the law.

Furthermore, the trial has been tragicomic. The defendants’ lawyers have very frequently objected to the prosecutor’s use of evidence not previously shown to the court. There are transcripts from the courts showing how one of the defendant’s lawyer objects saying the prosecutor is “doing it again” and that he “did it yesterday” and “will you never learn?” The court never disallowed the evidence even though the defendants had to react without any preparation whatsoever.

Also, the court has consistently misunderstood what the technology does. The prosecutor has repeatedly made statements about the “copyrighted files on the Pirate Bay server,” whereas anyone who has the slightest knowledge of the bit torrent technology knows that there should be no such files. The Pirate Bay had only a torrent library – a type of links that any search engine also has (but torrent/file links, not web links).

These problems set aside, what has caused a debate after the conviction is that new information about the judge has surfaced. Not only is he ignorant of this particular technology and allowed the prosecutor’s consistent use of procedurally prohibited conduct. He is also a member of the Swedish Organization for Copyright. In other words, he is a member of the organization that promotes copyrights and has done so since 1954.

Does this mean the trial is dismissed and needs to be done all over again? Not necessarily – the court could decide that his membership further his knowledge of the issue rather than makes him biased. And it is likely that the request for appeal from the defendants will generate exactly this assessment. 

How, then, would the appeals court assess the fact that this same judge asked (asked, not ordered) one of the politically appointed assistants to step down and leave the court due to probable bias because he was a musician and member of the same organization? It would probably think this is a separate issue and that it was the correct call by the judge…

The fact is that this is a minor issue considering what has been going on for a long time during the investigations. Police investigators have been contracted by the Antipiratbyrån and then, when/if fired from the police, hired by them. The Antipiratbyrån folks have been assisting the police during raides even though it is strictly illegal to do so – yet the politicized system of “justice” has not reacted. The Swedish government has broken its own laws to please the U.S. government and a U.S.-based industry that is way off track and unwilling to change its business strategies despite the technological advances. And the entertainment industry has received legal privileges to take actions that not even the police has the right to take.

There are simply so many strange things going on that undermine the court system, the government legal system, the legitimacy of enactment and enforcement of laws for the sake of protecting a relic of intellectual property, that this doubtlessly will be known to future generations as something to be truly ashamed about. That is, if you are a statist. If you are not, then this was expected; what was not expected is that this has been going on without even trying to cover it up.