Pirates Defeated in Sweden

Dear Reader,

The judgment handed down in Sweden last week, which sentenced the owners of the file sharing website Pirate Bay to a year in prison and a hefty fine, has unleashed a torrent of opinions from bloggers on the copyright/consumer debate. It's even led to speculation that search engine links could infringe copyright.

Why the 'link' between Pirate Bay and search? Well, .torrent files are a more sophisticated type of Internet link (such as an http hyperlink) and the Pirate Bay is an “open database” of .torrent files.

But the key point in the Pirate Bay decision is that the vast majority of content for which people searched via the Pirate Bay site site was copyright infringing material and this was central to their business model. Whilst Google and other search engines may return some links to illegal content, the vast majority of content indexed and linked to by Google as a search engine is not in that category.
In fact, the Pirate Bay decision is consistent with the line of cases on P2P file sharing software in Kazaa and Grokster. In Grokster, the US Supreme Court decided that Grokster, Streamcast and other providers of file sharing software can be held responsible for copyright infringement carried out by their users where they take "affirmative steps to  foster infringement."

But the US Supreme Court was concerned about the potentially 'chilling' effect of its decision, especially bearing in mind that P2P software can be used as a very effective way of distributing content in a legal way. So the Court made it clear that mere knowledge of potential or actual infringement was not enough to make a distributor liable; instead, the Court must find what it called 'culpable expressions or conduct on the distributor's part which show that it intended the use of its device to infringe copyright'. And that's the key point.

Litigation, as they say, is a 'turkey shoot' and given the dearth of case law in this area it's hard to be certain that we would have had the same outcome if the Pirate Bay case had been heard in the UK. But there's certainly a good chance that the result would be the same.

The nearest UK case is CBS v Amstrad which established that just because a person supplies a product (or, presumably, a service) which may be used to infringe copyright, this does not necessarily mean that person has authorised the infringement. Specifically, the UK court held that Amstrad had not authorised infringement by selling twin-deck tape recorders which might have facilitated copying in breach of copyright, but did not "authorise" such a breach because they could also be used for copying legitimate material.

However, in the Amstrad case, one of the factors that the court took account in reaching this decision was that Amstrad had made it clear in advertising the product that certain copying would require permission from the copyright owner and that Amstrad did not have authority to grant any required permission.

Pirate Bay, by contrast, has consistently goaded the media and positioned itself as leading a rebellion against copyright laws and, as already noted, the vast majority of content that people looked for via the Pirate Bay site site was copyright infringing material.

So I don't think that the Pirate Bay decision shakes the foundation of the Internet. If you market something which is designed and marketed to encourage people to take stuff belonging to someone else for free, what do you expect? Sure, it reinforces the need for more legitimate business models to deliver content to consumers, but the solution lies there, and not just taking the stuff.

Have a good week.

Laurie Kaye

Comments

[yish]

The legal aspect may be straightforward, but the ethical position is not so clear-cut. If I download music through a copyright-infringing service, am I really "taking stuff belonging to someone else"? Perhaps I'm just trying it on?

See: http://www.guardian.co.uk/music/2009/apr/21/study-finds-pirates-buy-more-music