Saturday, June 27, 2009

Pirates of the Swedish Coast 2: Still Guilty

The copyright pirates of Pirate Bay have had their appeal for a retrial denied. Epic fail (for them at least). The BBC reports that the defendants, who were found guilty of copyright infringement appealed and requested a new trial based on the discovery that one of the judges in the case had ties to a copyright protection group.1

While this certainly is an interesting thing to learn post-trial, it certainly wouldn't be enough to win the motion for a new trial.

I'm not up on my Swedish Civil Procedure or the Code of Professional Conduct for Swedish Lawyers and/or Judges, but I think the standard applied would probably be fairly high (nigh insurmountable?). In the United States, there could be an issue of conflict of interest,2 but even then, the ethical guidelines for judicial conduct seem to feel like there probably is not an issue.3 Note the use of italics to emphasize the speculative nature of those statements.

The Code of Conduct for U.S. Federal Judges, provides that judges are free to engage in civic and other extra-judicial activities as long as there is no likelihood that this activity would substantially interfere with their impartiality.4 Similarly, the ABA's model rules generally prohibit an attorney from representing a client when the lawyer is involved with another client whose interests are or a lawyer who has personal interest/affiliation from which a fiduciary duty extends which are adverse to the prospective client.5 Applying the Pirate Bay situation to an American court, it would be fairly clear that in the present case, unless you're in front of the Federal Circuit, where there's quite a bit of intellectual property work, you're probably going to get denied on the same motion. Even then I don't think it would have had much traction.

In the case of the Federal Circuit, membership in the pro-copyright group could be seen as prejudicial while the generalist judges likely don't see enough copyright cases for there to be a problem. Of course, the counter argument is the generalist judges maybe don't see many copyright cases and therefore may use the occasional copyright case as a platform to promote their cause if they were involved in the pro-copyright group. That would definitely be a violation of Canon 5 of the Federal Code of Conduct for U.S. Judges.6 I think the Code of Conduct neatly solves this by requiring the imparitality in the execution of justice.7 Unless you could prove the judge was openly hostile and blatantly adverse to the defendants, it's a pretty big stretch. So really, while it was probably an interesting sidenote that one of the Swedish judges was involved in a pro-copyright group, I think that motion was likely doomed to fail. On second thought even, my distinction between the Federal Circuit and the generalist judges is most likely a distinction without a difference.


1: Pirate Bay retrial call rejected, BBC News.com, http://news.bbc.co.uk/2/hi/technology/8121680.stm (last visited June 27, 2009).
2: See MODEL RULES OF PROF'L CONDUCT, R. 1.7, 1.8 (discussing a conflict of interest as a lawyer representing a client or conducting business with a client to which the lawyer has an adverse interest to the client and prohibiting such activity generally).
3: CODE OF CONDUCT FOR U.S. JUDGES Canon 5.
4: Id.
5: MODEL RULES OF PROF'L CONDUCT, R. 1.7, 1.8.
6: CODE OF CONDUCT FOR U.S. JUDGES Canon 5.
7: Id. at Canon 2.2.

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