In keeping with the Vanderbilt Journal of Entertainment and Technology Law’s and this affiliated blog’s affinity for covering satirical popular entertainment (see “Respect my Authority!” and Family Guy‘s Legal Dreams Come True Again” on this blog), a new addition has been made to the list of humorous, if not ineffective, legal defenses such as the Twinkie defense, the Idiot defense, and the Chewbacca defense (as seen on the television show South Park). During the Swedish copyright infringement trial of the operators of The Pirate Bay, a BitTorrent website that facilitates electronic file transfers between peers (movies in particular), one of the defendants’ attorneys, Per Samuelson, created what has been termed the King Kong defense.

For those who are unfamiliar with the pre-existing defenses, the Twinkie defense was invented during the trial of Dan White for the murder of San Francisco mayor George Moscone and supervisor Harvey Milk. The defense successfully argued that heavy consumption of junk food could be a symptom of White’s undiagnosed clinical depression, which in turn diminished his capacity for rational thought; he was convicted of the lesser included offense of voluntary manslaughter. The Idiot defense is employed when the defense argues that guilt or liability should not be found purely due to the defendant’s ignorance and has been used with limited success. While never actually used in a real courtroom, the Chewbacca defense was used on an episode of South Park as a satirical indictment of the jury system. In the scene, an animated and impersonated version of O.J. Simpson’s former attorney Johnnie Cochran offers an extended, nonsensical discourse regarding the planet upon which the Star Wars character Chewbacca chooses to reside in an effort to utterly confound the jury into agreeing with the defense’s legal argument.

Where the King Kong defense differs is that it actually attempts to explain a legal concept to the fact-finders in court! Samuelson attempted to illustrate the application of a European Union directive that absolves the providers of information services of any guilt that arises from content that is exchanged over the server. He attempted to persuade the court that not only were the defendant operators of The Pirate Bay merely acting as facilitators of transfers, but also that because the initiators of transfers are able to disguise both their identities and their geographical locations, when coupled with the fact that criminal charges must be made against an identifiable person, the prosecution could not succeed because it would have had to show that the defendants interacted with a hypothetical user named “King Kong, who may very well be found in the jungles of Cambodia.” The argument ultimately failed as the court found that the defendants undoubtedly had knowledge that their web site was facilitating illegal exchanges of copyrighted material. This finding is actually quite profound for it now appears that, at least in Europe, operators of peer-to-peer file exchange networks are partially responsible for the material that independent, unaffiliated users trade with each other.

Even before the trial, The Pirate Bay attracted attention for its confident contempt for and doubt of legal systems’ power to actually prosecute them for any criminal activity. The web site’s hubris has apparently caused it to become the poster child for a global movement that seeks to eradicate copyrights, arguing that they constitute uneconomic monopolies, restrict creativity, and fail to benefit society at large. While this socialist view of public ownership of all creative works may actually prove beneficial in the event that a successful and equitable socialist economy manifests itself on a large scale, the (admittedly impure) capitalism that permeates much of the global economy is based at least in part on the notion that individuals should have the right to enjoy solely the fruits of their labor. Before I descend into a debate with myself about the pros and cons of socialist and capitalist economic systems which would continue to deviate from the entertainment and technology focus of this blog, I will conclude by noting that the Swedish trial court apparently agrees that intellectual property rights are important by finding all four defendants guilty of assistance to copyright infringement and sentencing them to one year of prison and fining them approximately 3.6 million USD. An appeal is pending.

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— Jason Albosta

One Response to The King Kong Defense and the Chewbacca Defense: A Comparative Analysis

  1. […] of the more amusing legal strategies was the counsel’s ‘King Kong defence’. This goes to the heart of the issue: whether Svartholm and his collaborators are responsible for […]