Pirate Bay verdict gives urgency to Italian case

A prosecutor is expected to seek trial of The Pirate Bay founders

Italian antipiracy campaigners have welcomed the recent Stockholm court verdict on the 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 on April 17 sentenced the four founders of the torrent-tracking Web site - 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.

"An acquittal in Sweden could have created difficulties for the Italian prosecution. The guilty verdict will strengthen the hand of the prosecutor in Italy," Enzo Mazza, president of the Italian Music Industry Federation (FIMI), said in a telephone interview.

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.

The Pirate Bay hosts torrent files that enable its more than 22 million users to locate music, movies and software on third-party uploaders' computers.

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.

The validity of the blocking order is due to be considered in September by the Court of Cassation, Italy's top appeal court, Mazza said. 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 that 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.

The Pirate Bay's founders have shown no sign yet of having been deterred by the Swedish verdict. Sunde sent a Twitter message after his conviction saying: "Stay calm -- nothing will happen to TPB, us personally or filesharing whatsoever. This is just a theater for the media."

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 criminalization of an instrument such as torrent tracking, which can be employed for perfectly legal uses," Gallus said in a telephone interview.

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.

Sunde had not been notified that he was under investigation by the Italian authorities and had only found out about it because it had been widely reported in the media, Gallus said.

"He was amazed to discover that he was subject to criminal proceedings in Italy, a country that he has never visited and where no servers associated with The Pirate Bay are located."

Gallus 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.

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