The Pirate Bay trial

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The Pirate Bay trial

Protesters opposing the trial against The Pirate Bay on its first day.
District court (tingsrätt) of Stockholm, Sweden
Date decided 17 April 2009
Judges sitting Tomas Norström
Peter Sunde, Gottfrid Svartholm, Rick Falkvinge and Marcin de Kaminski at the demonstration by the court house on the first day of the trial

The Pirate Bay trial was a criminal prosecution in Sweden of four individuals associated with The Pirate Bay, a torrent tracking website, for promoting the copyright infringement of others.[1][2] The charges were supported by a consortium of intellectual rights holders led by the International Federation of the Phonographic Industry (IFPI), who have filed individual compensation claims against the owners of The Pirate Bay.

Swedish prosecutors filed charges on 31 January 2008 against Fredrik Neij, Gottfrid Svartholm, and Peter Sunde, who ran the site; and Carl Lundström, a Swedish businessman who through his businesses sold services to the site. The prosecutor claimed the four worked together to administer, host, and develop the site and thereby facilitated other people's breach of copyright law. Some 34 cases of copyright infringements were originally listed, of which 21 were related to music files, 9 to movies, and 4 to games.[2] One case involving music files was later dropped by the copyright holder who made the file available again on the website of The Pirate Bay. In addition, claims for damages of 117 million kronor (US$13 million) were filed.[3] The case is decided jointly by a judge and three appointed laymen.[4][5]

The trial started on 16 February 2009 in the district court (tingsrätt) of Stockholm, Sweden. The hearings ended on 3 March 2009 and the verdict was announced at 11:00 AM on Friday 17 April 2009: Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström were all found guilty, and sentenced to serve one year in prison and pay a fine of 30 million SEK (app. 2.7 million or USD 3.5 million). The defendants intend to appeal the verdict.[6]

Contents

[edit] The Pirate Bay

The Pirate Bay is a Swedish website that indexes and tracks BitTorrent files. It bills itself as "the world's largest BitTorrent tracker"[7] and is ranked as the 104th most popular website by Alexa Internet.[8] The website is funded primarily with advertisements shown next to torrent listings. Initially established in November 2003 by the Swedish anti-copyright organization Piratbyrån ("The Piracy Bureau") it has been operating as a separate organisation since October 2004. The website is currently run by Gottfrid Svartholm ("anakata") and Fredrik Neij ("TiAMO"). Peter Sunde ("brokep") is the site spokesperson.[9]

[edit] The police raid

Swedish protesting the police raid during a demonstration on June 3, 2006

On 31 May 2006 in Stockholm, The Pirate Bay was raided by Swedish police, causing it to go offline for three days. Upon reopening, the site's number of visitors more than doubled,[10] the increased popularity attributed to greater exposure through the media coverage. The raid, alleged by The Pirate Bay to be politically motivated and under pressure from the Motion Picture Association of America (MPAA),[11] was reported as a success by the MPAA in the immediate aftermath but with the website being restored within days and file sharing now firmly in focus in the Swedish media, The Pirate Bay considered the raid "highly unsuccessful".[12]

[edit] Trial and courtroom charges

On 31 January 2008 Swedish prosecutors filed charges against four individuals they associated with The Pirate Bay for "promoting other people's infringements of copyright laws".[1][2] The trial began in February 2009. The evidence used in the trial based on the 2006 raid of 12 premises.[13]

The Swedish national television broadcaster Sveriges Television considers the trial important[14] and provides a live online feed of the entire trial,[15] which has never been done in Sweden before.[16] The live audio and archive sections done in cooperation with Dagens Eko are part of the 24 Direkt program, which became one of their most viewed online content during the trial, second only to Melodifestivalen.[17] The trial was also broadcast live by Swedish public radio.[18]

The defendants referred to the trial as a 'Spectrial', which is a portmanteau of "trial" and "spectacle",[19][20] and set up a blog to inform users on the event.[21] The term has also caught on with some bloggers and supporters.[22]

[edit] First day of the trial

On 16 February 2009 defense lawyer Per E. Samuelson stressed to the court that "file sharing services can be used both legally and illegally". Samuelson argued that "it is legal to offer a service that can be used in both a legal and illegal way according to Swedish law" and that The Pirate Bay's services "can be compared to making cars that can be driven faster than the speed limit". Defense attorney Jonas Nilsson insisted that "the individual Internet users who use Pirate Bay services... must answer for the material they have in their possession or the files they plan to share with others."[23]

[edit] Second day of the trial – charges partially dropped

On 17 February 2009 (the second day of the trial) half of the charges against The Pirate Bay were dropped.[24] According to defense lawyer Per Samuelson, "this is a sensation. It is very rare to win half the case in just one and a half days and it is clear the prosecutor took strong note of what we said yesterday". Peter Danowsky, legal counsel for the music companies, stated "it's a largely technical issue that changes nothing in terms of our compensation claims and has no bearing whatsoever on the main case against The Pirate Bay. In fact it simplifies the prosecutor’s case by allowing him to focus on the main issue which is the making available of copyrighted works."[25] The prosecutor was unable to prove the .torrent files brought as evidence were actually using The Pirate Bay's tracker. Furthermore, prosecutor Håkan Roswall did not adequately explain the function of DHT which allows for so-called "trackerless" torrents. These shortcomings in the evidence resulted in prosecutor Håkan Roswall having to drop all charges relating to "assisting copyright infringement", leaving "assisting making available" as the remaining charge. Roswall stated that "everything related to reproduction will be removed from the claim".[26] Sanna Wolk, a doctor in law and researcher at Stockholm University observed that "this is not surprising, at least for those who follow the matter. We knew that The Pirate Bay wasn't making any copies directly".[3]

[edit] Third day of the trial

On the third day of The Pirate Bay trial, prosecution witnesses claimed damages on the basis that it should have obtained worldwide licenses for the content it distributed. Where content wasn't officially available, a Beatles song, for example, it should be charged at 10 times the going rate. This calculation underlines the prosecution's demand for 117 million SEK (US$12.9 million, €10.2 million) in compensation and damages.[27]

[edit] "King Kong" defense

On day three of the trial, defense attorney Per Samuelson presented an argument later dubbed the "King Kong defense":[28]

EU directive 2000/31/EC[29] says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don’t initiate transfers. It’s the users that do and they are physically identifiable people. They call themselves names like King Kong... According to legal procedure, the accusations must be against an individual and there must be a close tie between the perpetrators of a crime and those who are assisting. This tie has not been shown. The prosecutor must show that Carl Lundström personally has interacted with the user King Kong, who may very well be found in the jungles of Cambodia...[30]

Samuelson is referring to a real Pirate Bay user who posts via the username "King Kong", who Samuelson hypothesizes could be in Cambodia. He used this scenario to illustrate that Lundström had no control over the actions undertaken by Pirate Bay users. His main objection was that although the prosecutor had said that the accused would be tried individually, he had not once referred to them individually, but always as "them", "they" or "Pirate Bay". Samuelson said the persons behind The Pirate Bay could not be held collectively responsible for a crime committed by other identifiable individuals, such as King Kong.[31]

The term "King Kong defense" was quickly popularized by blogs, file sharing news feeds, and media reports on the Pirate Bay trial.[32] It has been compared to the Chewbacca defense from the TV series South Park, citing a reference to the "jungles of Cambodia" as "the kind of extraneous detail that makes the Chewbacca defense hilarious".[33]

In its April verdict the court found that because the defendants indeed had collective responsibility on the site's contents and knew that some torrent files point to copyrighted material, the EU directive does not apply.[9]

[edit] Fourth day of the trial

On 19 February 2009, the fourth day of the trial, Fredrik was questioned several times. It came to the court’s attention that Tobias Andersson, a future witness in the case, was in the court where he was later asked to leave the room. When it was movie industry lawyer Monique Wadsted’s turn, she introduced new evidence without warning. Noting the breach of protocol, the judge asked if it was acceptable for the court to be considering evidence that was not already presented pre-trial.[34]

[edit] Fifth day of the trial

Day five of the proceedings saw conflict as the prosecution again attempted to introduce evidence that had not been shared with both the court and the defense during pre-trial. The defense objected vehemently with defense lawyer Peter Althin equating the tactic to something out of the old Perry Mason TV show. “Suddenly, the door opens and in walks an entirely new witness.” The judge stopped the case to deliberate the matter and found in favor of the defense, instructing the prosecution to immediately hand over all material they planned to use.[35]

The prosecution and the defense spent the remainder of the day delivering conflicting portrayals of the Pirate Bay. The prosecution attempted to show the Pirate Bay as an immensely profitable business that made its money helping others violate copyright law. The defense attempted to show the Pirate Bay as nothing more than a search engine, no different from Google and thus subject to the same protections.

[edit] Seventh, eighth and ninth days of the trial

On days seven to nine, the court heard expert witnesses called by the prosecution and the defense.[36] They cited contradicting academic research on the effects of file sharing on sales in the music and film industry globally[37] and regionally in Sweden.[38]

[edit] Verdict and reactions

The four operators of the site were convicted by Stockholm district court on 17 April 2009 and sentenced to one year in jail each and a total of 30 million SEK (approximately 3.5 million USD, 2.7 million EUR) in fines and damages. The court found that the defendants were all guilty of accessory to crime against copyright law, strengthened by the commercial and organised nature of the activity. The court rejected the charge of preparation to crime against copyright law.[39] The Pirate Bay has previously stated they intend to appeal the case in the event of a losing verdict.[40] Under Swedish law, the verdict is not lawful until all appeals have been processed.[41]

Over 18,000 people joined the Swedish Pirate Party in the days following the guilty verdict,[42] raising its membership to over 33,000 members and making it the fourth-largest Swedish party by membership count, and the party with the largest youth organization.[43] In Stockholm and other cities, the Pirate Party organized protests against the court's verdict. Over 1000 protesters gathered in the streets of Stockholm the following day.[44][45] Protest leader Malin Littorin-Ferm said "we young people have a whole platform on the Internet, where we have all our social contacts -- it is there that we live. The state is trying to control the Internet and, by extension, our private lives".[46] Pirate Party Chairman Rickard Falkvinge claimed at the protests that "the establishment and the politicians have declared war against our whole generation,"[47]

Following the conviction, the IFPI demanded that Swedish internet service providers block The Pirate Bay, but the ISPs have refused to do this.[48] Jon Karlung, managing director of Bahnhof, stated that "we will not censor sites for our customers; that is not our job. I am against anything that contradicts the principle of a free and open Internet."

Several Swedish file sharing sites have closed voluntarily after the court verdict or as a result of further prosecution with The Pirate Bay as precedent.[49]

On April 20, Anonymous mobilized "Operation Baylout", which included a DDoS attack on the IFPI International website, causing the site to go offline for a few hours. They released a statement asking supporters of file-sharing to refrain from making any industry-related media purchases during the months of April and May.[50][51]

[edit] Bias

Only days before the trial began, one of the three appointed laymen was discovered to be a member of a composers' association that among others works on protecting copyright. The judge Tomas Norström found that the person is therefore biased to act as a lay judge in the trial and was dismissed.[52]

After the trial, Sveriges Radio P3 News organised an investigation that found on April 23 that the judge Tomas Norström had several engagements with organisations interested in intellectual property issues. Peter Danowsky, Monique Wadsted and Henrik Pontén from the prosecution side are also members of some of the organisations.[53] According to Norström, the organisations are involved in discussion about copyright, while the earlier layman's organisation advocates further copyright protection.[54] Several legal experts have commented that the judge should not have taken the case and that there are grounds for a retrial.[53][55]

[edit] Parties

[edit] Defendants

[edit] Plaintiffs

The criminal charges against The Pirate Bay are directly supported by the following prosecution witnesses:[56]

[edit] Feature films included in the case

[edit] Television dramas included in the case

[edit] Personal computer games included in the case

[edit] Support campaign

On 18 February 2009 the Norwegian socialist party Red began a global campaign in support of The Pirate Bay and filesharers worldwide that will last until 1 May. The campaign was timed to coincide with the trial.[58] Through the website Filesharer individuals are encouraged to upload their photographs, as "mugshots", to "let the music and movie industry know who the file-sharers are." The site encourages participation urging people to "Upload a picture of yourself and show them what a criminal looks like!". Red politician Elin Volder Rutle is the initiator of the campaign and she states to the media that "If the guys behind Pirate Bay are criminals, then so am I, and so are most other Norwegians."[59]

[edit] Events during the trial

[edit] IFPI website hack

The website of the International Federation of the Phonographic Industry (IFPI) was hacked and defaced with a message to Håkan Roswall, the prosecutor in the trial. The website subsequently became inaccessible, possibly owing to a denial-of-service attack. It was shortly brought back online. Peter Sunde, one of the defendants, responded to news of the attack with the comment "Our case is going quite well as most of you have noticed. In the light of that it feels very bad that people are hacking web sites which actually puts us in a worse light than we need to be in." To the perpetrators of the attack he also pleaded, "If anyone involved in the acts going on is reading this—please stop, for our sake. We don’t need that kind of support."[60]

[edit] Flower storm

During the ninth day of the trial, after the testimony of professor emeritus Roger Wallis had been completed, he was asked according to Swedish court procedures if he wanted any compensation for appearing in court. He declined this but commented to the court that they were welcome to send flowers to his wife if they wished. This was rejected by the judge but quickly caught on amongst supporters of The Pirate Bay following the proceedings via live feeds and other Internet services. A channel was started on the EFnet network on IRC and a website followed and by the evening flowers for almost SEK 40.000 (US$4,400, €3,500) had been ordered for the couple through Internet florists such as Interflora and local florists.[61]

[edit] Bonnier Amigo website hack

The website of independent record company Bonnier Amigo was hacked on March 1. A similar message as the one on the hacked IFPI website was published, but this time directed to prosecuting attorney Peter Danowsky representing the record labels:[62][63]

Stop lying Peter Danowsky!
You censor us, we censor you. Freedom of speech goes both ways.
This is a war you can never win. The people always win one way or another.
The people will always have their freedom.
Brothers stand behind us and together we will win this fight!
// CHHB - In times of darkness we appear once again.

[edit] See also

[edit] References

  1. ^ a b "Pirate Bay Future Uncertain After Operators Busted | Threat Level from Wired.com". Blog.wired.com. http://blog.wired.com/27bstroke6/2008/01/pirate-bay-futu.html. Retrieved on 2008-09-28. 
  2. ^ a b c Larsson, Linus (2008-01-31). "Charges filed against the Pirate Bay four". Computer Sweden. http://www.idg.se/2.1085/1.143146. Retrieved on 2008-02-01. 
  3. ^ a b Harvey, Mike (2009-02-18). "Half of Pirate Bay charges dropped". The Times. http://technology.timesonline.co.uk/tol/news/tech_and_web/article5754740.ece. 
  4. ^ "Piratnämndeman fick lämna uppdrag" (in Swedish). Sydsvenskan. 2009-02-10. http://sydsvenskan.se/kultur-och-nojen/article412141/Piratnamndeman-fick-lamna-uppdrag.html. 
  5. ^ "Unga sympatisörer och äldre nämndemän" (in Swedish). Blekinge Läns Tidning. 2009-02-16. http://blt.se/nyheter/tt_inrikes/unga-sympatisorer-och-aldre-namndeman(1155188).gm. 
  6. ^ The Pirate Bay Trial: The Official Verdict - Guilty (Torrentfreak.com, visited april 17 2009
  7. ^ Pfanner, Eric (2008-01-31). "Swedes charge 4 in case involving copyright infringement of music and films". International Herald Tribune. http://www.iht.com/articles/2008/01/31/business/pirate.php. Retrieved on 2008-10-01. 
  8. ^ "Thepiratebay.org – The Pirate Bay". Alexa Internet. http://www.alexa.com/data/details/traffic_details/thepiratebay.org/. Retrieved on 2008-10-01. 
  9. ^ a b Lewan, Mats (2009-04-21). "Sorting out the Pirate Bay verdict". CNET News. http://news.cnet.com/8301-1023_3-10224201-93.html. 
  10. ^ "Should The Pirate Bay thank MPAA for its cult following? | Startup Meme". Startupmeme.com. http://startupmeme.com/should-piratebay-thank-mpaa-for-its-cult-following/. Retrieved on 2008-09-28. 
  11. ^ Steal This Film.
  12. ^ "The Pirate Bay Not Impressed by Announced Prosecution". TorrentFreak. 2007-05-04. http://torrentfreak.com/the-pirate-bay-not-impressed-by-announced-prosecution/. Retrieved on 2007-05-20. 
  13. ^ Nilsson, David (2009-02-16). "Bevisen: Mejl och fakturor" (in Swedish). Aftonbladet. http://www.aftonbladet.se/nyheter/article4428662.ab. 
  14. ^ Fichtelius, Erik. "Varför satsar vi på Pirate Service?" (in Swedish). 24 Direkt. Sveriges Television. http://svt.se/svt/jsp/Crosslink.jsp?d=63873&a=1445342. 
  15. ^ Giertta, Helena (2009-02-10). "SVT direktsänder rättegången mot Pirate Bay" (in Swedish). Journalisten.se. http://www.journalisten.se/artikel/18246/svt-direktsaender-raettegangen-mot-pirate-bay. 
  16. ^ "Pirate-Bay-Prozess wird live übertragen" (in German). Spiegel Online. http://www.spiegel.de/netzwelt/web/0,1518,606954,00.html. 
  17. ^ Abrahamsson, Maria (2009-02-23). "Ledarredaktionens blogg – Fichtelius vill påpeka en sak" (in Swedish). Svenska Dagbladet. http://blogg.svd.se/ledarbloggen?id=12085. 
  18. ^ "Sveriges Radio direktsänder Pirate bay-rättegången" (in Swedish). Sveriges Radio. http://www.sr.se/sida/artikel.aspx?FormatId=108&ProgramId=3402&Artikel=2631714. 
  19. ^ Anderson, Kevin (2009-02-16). "Avast! Pirate Bay goes on trial". The Guardian. http://www.guardian.co.uk/technology/blog/2009/feb/16/pirate-bay-bittorrent. Retrieved on 2009-04-20. 
  20. ^ http://www.nerdcore.de/wp/2009/02/16/the-pirate-bays-spectrial-links-und-live-streams/
  21. ^ http://trial.thepiratebay.org/
  22. ^ http://www.guardian.co.uk/technology/blog/2009/feb/16/pirate-bay-bittorrent
  23. ^ Pirate Bay chiefs deny illegal downloading at trial, AFP (via Google News), February 16, 2009.
  24. ^ Pirate Bay prosecutor amends charges The Local, February 17, 2009
  25. ^ Lawyers say it is a sensation, Trelleborgs Allehanda, February 17, 2009.
  26. ^ "50% of charges dropped". TorrentFreak. 2009-02-17. http://torrentfreak.com/50-of-charges-against-pirate-bay-dropped-090217/. 
  27. ^ Big Content wants $13 million from Pirate Bay as trial starts ARS Technica, February 16, 2009
  28. ^ Day 3 — The Pirate Bay’s ‘King Kong’ Defense TorrentFreak, February 18, 2009.
  29. ^ European Parliament Directive on electronic commerce (2000/31/EC), 8 June 2000, Official Journal of the European Union, L 178, 17 July 2000.
  30. ^ Dag 3 — Advokat Per E Samuelson sakframställning för Carl lundström svtplay.se, February 18, 2009.
  31. ^ Swartz, Oscar (February 18, 2009). "Pirate Bay Crew Chums Up to Foes Over Lunch". Threat Level. Wired News. http://blog.wired.com/27bstroke6/2009/02/pirate_wednesda.html. Retrieved on February 19, 2009. 
  32. ^ Swedish: Internet hyllar King Kong-försvar On Metro accessed at February 18 2009
  33. ^ Chris Dannon (2009-02-19). "Torrent Site Fights Legal Action with 'Chewbacca Defense'". FastCompany. http://www.fastcompany.com/blog/chris-dannen/techwatch/torrent-site-fights-legal-action-chewbacca-defense. Retrieved on 2009-02-19. 
  34. ^ Day 4 - Pirate Bay Defense Calls Foul Over Evidence
  35. ^ Pirate Bay Trial Day 5: Perry Mason Episode Delays TrialMP3 Newswire, February 20, 2009
  36. ^ Trial plan revised on March 2, 2009. (Swedish)
  37. ^ Dag 8 - Althin förhör Kennedy, IFPI. 24 Direkt, Sveriges Television.
  38. ^ Dag 9 - Ponten förhör Wallis. 24 Direkt, Sveriges Television (Swedish)
  39. ^ Stiernstedt, Jenny; Johansson, Astrid E; Söderling, Fredrik; Grassman, Oliver (2009-04-17). "The Pirate Bay sentenced to one year in prison". Dagens Nyheter. http://www.dn.se/kultur-noje/musik/the-pirate-bay-sentenced-to-one-year-in-prison-1.846915. 
  40. ^ http://trial.thepiratebay.org/2009/03/05/exclusive-interview-with-brokep-today-at-12-cet/
  41. ^ Sullivan, Tom (2009-04-17). "‘Pirate Bay’ founders convicted by Swedish court". The Christian Science Monitor. http://features.csmonitor.com/innovation/2009/04/17/pirate-bay-founders-convicted-by-swedish-court/. 
  42. ^ Result of Verdict, for the Pirate Party. Blog Pirate. April 17, 2009.
  43. ^ "Medlemsantal" from piratpartiet.se, accessed on April 17, 2009
  44. ^ Swedes demonstrate in support of Pirate Bay. The Local. April 19, 2009.
  45. ^ Swedes Demonstrate Against Pirate Bay Verdict. TorrentFreak. April 18, 2009.
  46. ^ Geere, Duncan. Pirate Bay: "We will not pay any fines!". Tech Digest. April 20, 2009.
  47. ^ Sweden: Hundreds Protest Pirate Bay Conviction. Associated Press. April 18, 2009.
  48. ^ ISPs refuse to shut down Pirate Bay The Local. April 18, 2009.
  49. ^ Olsson, Tobias (2009-04-20). "Flera fildelningssajter stängda" (in Swedish). Svenska Dagbladet. http://www.svd.se/nyheter/inrikes/artikel_2766265.svd. 
  50. ^ Anon Causes Mischief For IFPI, Calls For A Media Boycott. Blog Pirate. April 20, 2009.
  51. ^ Leyden, John. Music industry sites DDoSed after Pirate Bay verdict. The Register. April 20, 2009.
  52. ^ Levy, Oscar (2009-02-10). "Pirate Bay-nämndeman är partisk" (in Swedish). Nyheter24. http://nyheter24.se/nyheter/inrikes/131267-pirate-bay-namndeman-ar-partisk. 
  53. ^ a b "Pirate Bay lawyer calls for retrial". The Local. 2009-04-23. http://www.thelocal.se/19028/20090423/. 
  54. ^ Stiernstedt, Jenny (2009-04-23). ""The Pirate Bay-rättegången kan tas om"" (in Swedish). Dagens Nyheter. http://www.dn.se/kultur-noje/musik/the-pirate-bay-rattegangen-kan-tas-om-1.850410. 
  55. ^ Johannisson, Emma (2009-04-23). "Domare i Pirate Bay-mål kan vara jävig" (in Swedish). Svenska Dagbladet. http://www.svd.se/nyheter/inrikes/artikel_2783119.svd. 
  56. ^ Allmänna åklagaren v. Neij and others, Swedish Prosecutors Agency
  57. ^ http://www.maqs.se/
  58. ^ Kalstad, Lise Marit (February 18, 2009). "Rødt med egen piratkampanje" (in Norwegian). Vårt Land. http://www.vl.no/kultur/article4135697.ece. Retrieved on February 18, 2009. 
  59. ^ "Alle disse er kriminelle" (in Norwegian). Nettavisen. February 18, 2009. http://www.nettavisen.no/it/article2546717.ece. Retrieved on February 18, 2009. 
  60. ^ "Pirate Bay Plea: Stop Hacking the Music Industry!". TorrentFreak. 2009-02-19. http://torrentfreak.com/pirate-bay-plea-stop-hacking-music-industry-090219/. Retrieved on 2009-02-19. 
  61. ^ http://www.expressen.se/Nyheter/1.1480620/professorn-vittnade-da-strommade-blommorna-in
  62. ^ "Ännu en webbplats hackad i protest mot skivindustrin" (in Swedish). IDG. March 2, 2009. http://www.idg.se/2.1085/1.215184/annu-en-webbplats-hackad-i-protest-mot-skivindustrin. Retrieved on March 3, 2009. 
  63. ^ "Another Music Industry Website Hacked". The Blog Pirate. March 1, 2009. http://www.blogpirate.org/2009/03/01/music-industry-website-hacked-again/. Retrieved on March 3, 2009. 

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