Thursday, 5 March 2009

Justice at Bay

The Pirate Bay trial is over... so for those that haven't been following it, here's my brief summary...

Filesharing is a criminal offence in Sweden.

The Pirate Bay is a site that links to Torrentfiles - which in turn link to parts of files that can be downloaded and assembled by a torrent client. The site doesn't link to copyright material or participate in the transfer. (Something the prosecution didn't seem to understand)

Torrent allows distribution of files - it is copyright neutral. There are many people that use it for distributing copyright material - but others that use it for other types of work.

The prosecution wants a conviction because by running a Torrent tracker the Pirate Bay makes it easier for users to find copyright material to download. And downloading according to them costs them money - and The Pirate Bay has money from advertising revenues. And they want BIG damages to scare other alleged offenders.

The defence says:
  • The Pirate Bay should be covered by the EU e-trade directive - which says that the service provider is not responsible for the information provided on the service. This is the same as the telephone company not being liable if I use the phone to arrange a crime, or use the phone book to look up a criminal's number.
  • That the Pirate Bay has not been directly involved in downloading and linking is not illegal. The prosecution say it is (a proposition that has enormous consequences for other Internet use).
  • That the prosecution has built a case on what the Pirate Bay site does - but not shown any concrete link from any individual to any of the concrete cases of copying the case builds on - and that the law requires that they show individual culpability.

The prosecution have argued for enormous damages based on each download being a lost sale - plus additional damages for copying of pre-released material. The lost sales argument is bogus - a fraction of free downloads would become sales if only charged for downloads were available. Also - the damage to the media company of lost sales is a fraction of the retail price - given that they have not incurred any material costs themselves for the download. Particular losses due to pre-released material must surely be a responsibility of those that copied and uploaded he unpublished work? Does the Pirate Bay Site differentiate what the release status of linked torrent files are?

My take is that the media industry have lost income through filesharing - empirically it seems reasonable - but nowhere near their unrealistic claim. And the Pirate Bay has contributed to an infrastructure that make file sharing possible. But file sharing is copyright neutral.

Most probably the accused sympathise with illegal file sharing and are politically opposed to copyright - but they are not on trial for their views. If the e-trade directive holds - or it is legal to run a search service that among it's links includes copyright sources - or if it's not proven beyond reasaonable doubt that they individually contributed to a the specific cases examined - then regardless what political message it sends these guys should go free.

The verdict.. announced in April

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