Yesterday was the third installment of the Pirate Bay Trial in Stockholm, Sweden, that has pitted a popular file-sharing site against media companies claiming copyright infringement. Fresh off yesterday's minor victory, when half the charges brought by the prosecution were dropped, counsel for the four men behind the site used something that Pirate Bay users are calling the "King Kong Defense" to press for acquittal.
With the trademark speed of any funny Web-nerd meme, the King Kong Defense quickly spread across blogs, user groups, message boards and Twitter. Almost immediately, users tied the King Kong Defense with another popular legal meme: The Chewbacca Defense.
To understand what this meme is—or why any real legal victory by way of King Kong Defense would seem deliciously funny to the technorati—a little meme history is in order.
The Chewbacca Defense is a fictional legal strategy from a 1998 episode of South Park. In the show, lawyer Johnnie Cochran is depicted confusing a jury by using the following discourse, loosely based on his defense in the OJ Simpson trial. (Courtesy South Park Studios):
Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing.
... And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests!
Swedish prosecutors filed charges against the four men behind the Pirate Bay in January 2008 for promoting the copyright infringement of others—namely, the users that find torrents on their site. Yesterday, defendant Carl Lundström’s lawyer cited a real Pirate Bay user who goes by the handle "KingKong," saying that there's no way to tie the activity of users like KingKong to the activities of the defendants. Said the lawyer:
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.
The reference to King Kong living "in the jungles of Cambodia" is the kind of extraneous detail that makes the Chewbacca Defense hilarious. Writing on the Huffington Post in 2007, Ellis Weiner defined the Chewbacca defense as when "someone asserts his claim by saying something so patently nonsensical that the listener's brain shuts down completely."
"Has Carl Lundström encouraged King Kong in the jungles of Cambodia to commit a crime?" Lundström's lawyer argued further yesterday.
Writing on Twitter on Tuesday, at least one Pirate Bay co-founder seemed confident about the outcome of the trial. "EPIC WINNING LOL," co-founder Peter Sunde wrote.
Yesterday's dropped charges came about after one of the Pirate Bay's founders argued that the prosecution had misunderstood the way torrent sites work. Torrent files, said PB co-founder Fredrik Neij, cannot be tracked back to a specific index site like the Pirate Bay. Since there are many sites that also index torrents, prosecutors can no longer claim that the four PB admins are "assisting copyright infringement."
The remaining charges consist of "assisting to make available" pirated material. If convicted, the men could face several years of prison time and fines of about $190,000 USD. A consortium of large media rights-holders, led by recording industry lobby IFPI, seeks $13 million in damages.