

The Pirate Bay Trial Day 3: The ‘King Kong’ Defense - rogercosseboom
http://torrentfreak.com/g-defense-090218/

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mixmax
One thing is for sure: Thepiratebay is much much better at marketing than the
recording industry.

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rms
I can't believe they are going to win this. This is going to have interesting
long term consequences.

~~~
bep
I do believe it. Sometimes is worth remembering that the laws of the USA are
different to the rest of the world, and under Swedish law, is very probable
they will win.

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njharman
In response to the preview global license and 1 download = 1 lost sale. I'd
argue that the buzz created by the torrent release of Lost increased it's
viewership/ratings and the owners in fact owe my clients a percentage of
show's profits for their marketing efforts. I'd point out that my theory has
just as much evidence as their theory on lost sales, Actually since Lost was
profitable there is more evidence for preview torrent increasing profits than
there is for it costing sales.

And you should not be able to claim lost sales for something you are not
currently selling or plan to sell in immediate future.

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rogercosseboom
Further Reference: <http://en.wikipedia.org/wiki/King_kong_defense>

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drawkbox
The 1 download = 1 lost sale is totally flawed. It is probably closer to
participation rates online for anything which is less that 1%. Probably closer
to 1000 downloads = 1 lost sale or even 10000 downloads = 1 lost sale. Some
people have re-downloaded content that they have previously bought on multiple
formats.

~~~
humanlever
A judge in the US has agreed: [http://arstechnica.com/tech-
policy/news/2009/01/judge-17000-...](http://arstechnica.com/tech-
policy/news/2009/01/judge-17000-illegal-downloads-dont-equal-17000-lost-
sales.ars)

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globalrev
Is the pirate bay making money?

~~~
mariorz
Considering the insane amounts of traffic they get and the kinds of ads they
serve, I'd be hard pressed to believe they weren't making a small fortune.

~~~
jacquesm
this is pure speculation, but since we're down that road anyway: The Pirate
Bay has hosting in quite a few places, but many of them are in Europe where
you pay a good premium for bandwidth. Yes, they have some good advertising
contracts but I'd be very surprised if it didn't eat up just about what it
makes.

The reason for this is that I think their user demographics are shifted
towards people that do not really want to pay for content ;)

~~~
globalrev
They seem to say generally that they don't make much money but obviously that
doesn't mean that they don't.

~~~
rms
Yes, they are clearly lying and misleading a whole lot on the stand. Or at
least plausibly denying.

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manish
The era of IP, pay per download etc is going to fade away, music companies are
better off make money by subscription from user to download all the music they
want. Something like oreilly safari <http://my.safaribooksonline.com>. This
would atleast for now make users stream or download from official sources.

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jacoblyles
I find the legalism of the defense tedious. Automating the process of being an
accessory to a crime should not be a defense for it. "I didn't help people
break the law, the automated program that I created did" just doesn't fly with
me.

This ought to be a conversation about intellectual property. If you believe in
it, there is little justification for the legality of TPB. If you don't, then
TPB is fine.

The defense's arguments seem juvenile.

~~~
jscn
But they're not trying to justify themselves on ideological grounds, they're
making a legal defense. A successful legal defense will not necessarily be the
same as a mature and reasonable argument that you or I would find convincing.

~~~
jacoblyles
That's true. Maybe I should have said that I don't find their case convincing.

When the logical weakness of the defense's argument is combined with their
showy grandstanding - well it looks like the adults are suing the children in
this case. People here seem to be enjoying their antics, but to me it makes
them look non-serious.

Edit: The Pirate Bay's fans are pretty annoying and un-serious, too. There is
no nuance to their thoughts. Take a look at this comment thread:

[http://torrentfreak.com/u2s-new-album-leaks-early-despite-
pr...](http://torrentfreak.com/u2s-new-album-leaks-early-despite-private-
hearings-090218/)

I wouldn't want to sit down to a cup of coffee with any of those people,
that's for sure.

~~~
jacquesm
nobody asks you to like the people on that thread or to sit down and have
coffee with them. Likewise, the pirate bay is not guilty because of such
associations.

In most jurisdictions file sharing is legal, it depends on what you share that
decides whether it is illegal or legal, and even the file sharing of
copyrighted works is legal in some jurisdictions.

Pointing to illegal files is illegal in some places (for instance in the
Netherlands), though the legal grounds of this decision are very shaky.

The copyright backed media industry is fighting a rearguard action here, they
know they are losing, they just want to milk the cow a little longer.

With storage costs fast approaching zero and transport cost per bit fast
approaching zero it is really only a matter of time before you can carry any
content you'd ever want to consume in your whole lifetime in your inside
pocket.

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mikecuesta
I can't see the link, who's winning??

~~~
twopoint718
It doesn't seem _that_ clear, but it does look better for TPB than I would
have expected. Half of the charges against them have already been thrown out,
and they are making the argument that, as the administers of the site, _they_
don't post torrents, users do. The prosecution has to point to these specific
users (who may have screennames such as "King Kong", hence the title).

------
mariorz
I would be more inclined to support the guys if I didn't believe they were
making boatloads of money with the site.

~~~
Herring
They're not ripping you off, why do you care? Does poverty make you more
virtuous?

~~~
mariorz
I see no intention or interest at all in maybe piping back some of that money
directly to content creators. I'm aware of the logistical problems that would
entail, but trying something like that would be truly commendable and even
revolutionary (even if insignificant economically).

They seem to present themselves as if they were doing this purely out of love
or their beliefs, while serving some of the most atrocious ads on the www.

I see them constantly mocking the media's business interests while they
themselves have obviously a big money interest on the matter.

I think that makes them less virtuous.

~~~
Herring
All you did was repeat that you'd like them more if they were making less
money (or making empty gestures). I don't doubt that you think that, I'm just
wondering why. Is any of your content on TPB? Have they stopped you from
running adblock? Why would you want them to have less of an incentive to serve
you?

~~~
mariorz
It would make their attitude seem less hypocritical.

~~~
Herring
No, I haven't heard them saying hollywood makes too much money. It's usually
something about right to share, or subverting other countries' laws.

~~~
mariorz
How about this one, demanding compensation from being blocked in Denmark and
using that to start a grant for danish artists.

<http://blog.brokep.com/2008/04/14/maybe-a-grant/>

Hey brokep: How about doing something similar with the cash from all the porn
ads?

I also find it unreassuring to see he isn't interested in proposed flat-rate
compensation schemes:

[http://blog.brokep.com/2007/12/06/the-problems-with-a-
flatra...](http://blog.brokep.com/2007/12/06/the-problems-with-a-flatrate-
system/)

Maybe he thinks artists should only be compensated for live shows. Those who
can't should probably tend bar or something.

~~~
unalone
You're misinterpreting his comments. He's saying it would be impossible for
his site to find out which artists are being downloaded the most to compensate
them. That's a reasonable thing to say considering how many musicians get
torrented.

~~~
mariorz
I can think of ways of estimating even what personal play-time different
artist get. Maybe something voluntary a la audio-scrobble.

That post isn't just about the technical problems though, for example:

 _"We’re paying a tax to a system not needed anymore. The record industry is
passÃ© and we do not need nor want them anymore."_

I'm not one to defend the decrepit record industry but that's just avoiding
the real issue. Is compensating artists considered passe now too?

~~~
unalone
But you can't tell how many PIRATED musicians are being scrobbled, can you?
There's no way to detect what listens are audio and what listens aren't.

 _I'm not one to defend the decrepit record industry but that's just avoiding
the real issue. Is compensating artists considered passe now too?_

That's regarding the idea of buying records - the money from most of which
goes directly to the record industry. Different models work in different ways.

~~~
mariorz
_> But you can't tell how many PIRATED musicians are being scrobbled, can you?
There's no way to detect what listens are audio and what listens aren't._

Well in the proposed flat-rate scenario there would be no need for
distinction.

 _> That's regarding the idea of buying records - the money from most of which
goes directly to the record industry. Different models work in different
ways._

The post was talking about the flat-rate scenario not buying records, in any
case it's obvious the record industry model is dead as it currently exists.
That doesn't mean we shouldn't think about viable ways of compensating
artists.

~~~
unalone
I don't know that the flat-rate scenario is, so perhaps you can explain for
me: what's the idea? Do musicians all get paid the exact same? What exactly is
the "flat" rate being discussed here?

~~~
mariorz
It's basically a flat tax, meaning it doesn't matter how much you download or
consume, the proceeds of which would be somehow distributed back to the
artists.

The tricky part is obviously in how to fairly distribute the money, and this
is where tracking what gets listened or downloaded comes into play.

~~~
unalone
Why not eschew taxes altogether, and find a good way to convince people to pay
for music? Anything else is going to be unfair.

