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Friday, 24 April 2009

The judge, the Swedish Copyright Association and an error of judgment...

An interesting development in the Pirate Bay case: the BBC reports that Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde, who were found guilty of breaking copyright laws by a Swedish Court last week, might seek a "retrial" based on the ground that the judge in the case, Judge Tomas Norstrom, is a member of the Swedish Copyright Association and sits on the board of Swedish Association for the Protection of Industrial Property. The judge was quick to point out on Swedish radio that "... these activities do not constitute a conflict of interest...".


While the IPKat does not know whether the judge's association with the Swedish Copyright Association on its own would be enough for a retrial under Swedish law, he has to agree with the Swedish lawyer quoted by the BBC ("an error of judgement"), that this is not an ideal situation in such a high profile case.
[Photograph source]

10 comments:

Anonymous said...

Dear All,

What is the situation in other countries as to memberships in professional organisations? Are judges members, for example, in AIPPI or other intellectual property associations?

The Swedish copyright assocation and the Swedish Association for the Protection of Industrial Property (and its Finnish, Danish and Norwegian counterparts) are not lobbying organisations, but places where "all" IP experts (regardless of whether they represent industry or not) come together.

An interesting thing in the Pirate Bay judgement is that the four counsel for the defendants are NOT IP specialists. This is probably the reason why it is so easy for them to point out the "evil" in being a member of the above mentioned associations.

Anonymous said...

If the SCA and SAIP are like their UK equivalents, then I'd rather have a judge who engages with national groups that are interested in the issues than one who is not.

I don't see anything in the report that says these are rights owner oriented groups - they may be purely educational and discursive, and it is important to know before concluding against the judge.

Anonymous said...

Several NL judges in the IP field are members of AIPPI-NL, and this only shows that they are specialized in IP law.

Anonymous said...

You three previous anonymice have all missed the point.

There's nothing wrong with a judge (i) being interested in the field, (ii) being knowledgeable about it or (iii) engaging with any IP group , so long as he/she retains true independence. Bodies like the AIPPI, for example, describe themselves correctly as being "politically neutral", but no one could describe them as being commercially neutral or economically neutral. They are pro-IP protection and we have benefited from the fact that they are, but I for one would prefer my judges from the ranks of those who have not nailed their colours to the mast.

Anonymous said...

In response to the 4th comment: somebody who believes that copyright is a good thing, does not necessarily believe that private downloads and other private and non-commercial activities are covered by copyright, and may thus have an open mind to the present case both as to the presence of an offense and as to whether the accused have committed the offense they are accused of. This shows that the membership of the two IP associations mentioned in the post does not at all prove or even suggest that the judge was biased.

But even further: suppose that the judge was already convinced that sharing of copyrighted material is a copyright infringement: no thief is entitled to being judged by a judge who is still open to the issue whether taking somebody else's property without permission is a criminal offense. Let's be realistic: all criminal judges are fully convinced that theft and murder are wrong, and nobody sees a problem in that. The only requirement is that a criminal judge still has an open mind as to the question whether the accused has committed the theft or murder he is accussed of.
So, where is the problem in the present case?

Dr Zuck said...

I do not agree that a person who is a member in these kinds of assocations is automatically pro-IP protection or pro-industry. Membership usually, at least in smaller countries, only shows that you have an interest in the field. Having a judge not knowledgeable in IP would most likely pose a much greater risk for the outcome.

gyges said...

@anon10.43am

"Dear All,

What is the situation in other countries as to memberships in professional organisations?
"

See Pinochet, In re [1999] UKHL 1.

In this case it wasn't the Judge (Lord Hoffmann)but his wife who had connections with one of the parties in the case.

From the case Lord Browne-Wilkinson explains,

"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial."

Anonymous said...

Let's be realistic: all criminal judges are fully convinced that theft and murder are wrong, and nobody sees a problem in that. The only requirement is that a criminal judge still has an open mind as to the question whether the accused has committed the theft or murder he is accussed of.
So, where is the problem in the present case?
The difference is that, as I understand it, there was no question that the suspects in the Pirate Bay case had committed the act of "running Pirate Bay". The question was whether this qualified as infringement of copyright. *If* the judge was a member of an organisation that is opposed to file sharing (note: I don't know if that is the case), then this would in my view certainly give an appearance of partiality.

If you want to compare with murder, then I propose the following analoygy: if the suspect is a physician ending, on explicit request, the life of a terminally ill patient, and the law is not at all clear on whether voluntary euthanasia qualifies as murder, I would object to the judge being a member of the organisation of catholics against euthanasia. (Please note that I'm not referring to any actual case, any actual jurisdiction or any actual organisation.)

Mats Björkenfeldt said...

Just want to inform you that the media et al in Sweden accuse the sitting judge in the Pirate Bay-case to be partial because he is a member of Swedish Association for the Protection of Industrial Property and Swedish Association for Copyright.

This may lead to a new trial in the first instance, Stockholm's tingsrätt. I find this rather silly, since I know as a member what´s going on: free discussions, pro et contra. After reading the verdict and professor James
Boyle's new book, The Public Domain, Yale University Press, specially Chapter 4, for free at http://james-boyle.com/, I think, however, the judgement is wrong and dangerous. It may not kill peer-to-peer systems, but the decision will mean that there are fewer of them that are widely used. As Boyle write: There are two key things to understand about peer-to-peer networks. The first is that they are hard to police. They have multiple nodes. That is why they work. It means they will have both infringing and noninfringing uses, and the noninfringing uses will be centrally connected to our deepest values of free speech and cultural
decentralization. Second, according to the laws of network economics, they only work well if many people use them.

After this verdict: who has the courage to manage a peer-to-peer network?

Anonymous said...

As far as I know, copyright is protected by Swedish law. Pretending that a judge is biased in a copyright infringement case because he's a member of the Swedish Copyright Association is analogous to pretending that a judge in a theft case is biased because he's member of an association for the prevention of crime.
Whether the Pirate Bay loons like it or not, copyright is the law, and judges are sworn to enforcing it. If they disagree with the law, it's the law they should (try to) change, not the judge.
As for the Swedish Association for the Protection of Industrial Property, that's even more off target: correct me if I'm wrong, but as far as I remember, Industrial Property doesn't include copyright, only patents, trademarks and registered designs...
This is PR, not a legal defence. But then, the Pirate Bay was always better at PR than at law.

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