Italy to take on the Pirates

June 2009


Italian antipiracy campaigners have welcomed the recent Stockholm District Court convictions of the four founders of The Pirate Bay Web site, saying it should clear the way for a similar case under the Italian justice system. The Swedish court sentenced the Pirate Bay four, Peter Sunde Kolmisoppi, Fredrick Neij, Carl Lundstrom and Gottfrid Svartholm Warg  to one year in prison and a US$3.6 million fine for assisting copyright infringement. The verdict is subject to appeal. But now  Enzo Mazza, president of the Italian Music Industry Federation (FIMI) has said “An acquittal in Sweden could have created difficulties for the Italian prosecution. The guilty verdict will strengthen the hand of the prosecutor in Italy” and it seems that Giancarlo Mancusi, a public prosecutor in the northern town of Bergamo, is investigating The Pirate Bay’s founders for alleged violations of Italy’s copyright law, the first justice authority to take action against the Swedish Web site outside its home territory. Mancusi obtained a court order in August 2008 blocking access from Italian ISPs to all Pirate Bay addresses, but the ban was lifted on appeal two months later and is now due to be considered in September by the Court of Cassation. The FIMI president said he expected the prosecutor to seek a trial of The Pirate Bay founders at around the same time, and he was confident he would be able to secure a conviction. “The charge is the same as the one in Sweden, so one can be optimistic about obtaining a similar verdict in Italy,” Mazza said. “The courts have already confirmed that they have jurisdiction and that Italian law has been violated. The problem is always that of achieving effective enforcement, but it’s becoming increasingly hard for copyright violators to find a safe haven”. The Bergamo appeal court which lifted the block on access to The Pirate Bay via Italian ISPs also acknowledged that there was a possible valid case that Italian law had been violated by the Swedish Web site. In a ruling published in October 2008, the court said the finance police had presented evidence that the Web site had received hundreds of thousands of contacts from computers located in Italy and that those contacts “must be reasonably related, at least for a significant part, to the acquisition over the Internet of items protected by copyright in breach of the applicable laws.”. The court said the access ban must be lifted because a law normally invoked to obtain the seizure of criminal assets had been transformed into “an atypical prohibitory order” obliging the ISPs to refrain from providing their services. Simona Lavagnini, a lawyer representing the interests of the Italian music industry, said she was confident the Court of Cassation would uphold the validity of the ISP ban. “This instrument has already been used to combat child pornography and phishing. If it wasn’t possible to use it in this case in relation to foreign Web sites, it would mean there is a gap in our legislation,” Lavagnini said in a telephone interview. Lavagnini said there was no prospect of The Pirate Bay founders ever being extradited from Sweden to serve a term in an Italian jail, but there were better chances of a possible fine being levied and of assets being seized to compensate the plaintiffs in the case for damages.

Peter Sunde’s Italian lawyer, Giovanni Battista Gallus, also professed optimism about the likely outcome of an eventual Italian trial. “I continue to maintain that no punishable activity has taken place in Italy. We can’t allow the criminalisation of an instrument such as torrent tracking, which can be employed for perfectly legal uses.”. The response to torrent trackers was similar to the initial official reaction to the introduction of video-recording machines, which can be used for both legal and illegal activities, Gallus said. Gallus also said the Italian court would have to consider how the European Union’s directive on e-commerce applied to operators who mediated between third parties but did not make any copyright material directly available themselves although these defences were considered and dismissed by the Swedish Court. The trial Judge analysed Sweden’s Electronic Commerce Act (Bill 2001/02:150, p. 21) in relation to the defendant’s claim that they could benefit from ‘Safe Harbour’ provisions. The Judge found that according to § 18, a service provider who stores information provided by a service receiver is not, as a result of the content of the information, liable to pay compensation for injury, provided that the supplier was not aware of the existence of the illegal information or operation, and was not aware of facts or circumstances which made it obvious that the illegal information or operation existed or who, as soon as he received knowledge about or became aware of this, prevented the spread of the information without delay. The case has demonstrated that the filesharing service The Pirate Bay was, inter alia, used to provide the opportunity to make available copyright-protected works. It must have been obvious to the defendants that the website contained torrent files which related to protected works. None of them did, however, take any action to remove the torrent files in question, despite being urged to do so. The prerequisites for freedom from liability under § 18 have, consequently, not been fulfilled.
(This is a translation commissioned by the IFPI not a court record of the Stockholm District Court

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