Why no one should be shocked by The Pirate Bay verdict

[Speederlander]

Why no one should be shocked by The Pirate Bay verdict

The guilty verdict against The Pirate Bay has generated shock and outrage among the eyepatch-wearing community, but a look at the history of such cases shows that the verdict is pretty much what should have been expected.

The Pirate Bay verdict last week, crowed about by content owners, caused a very different reaction among self-styled digital pirates. "Sweden is also presently a country in RAGE because of the clearly political motivated and big money—oops, I meant Big Content manipulation of our legal system," wrote one.

Conspiracy theories abounded. In a Web interview on Friday, defendant Peter Sunde Kolmisoppi even wondered aloud about the fact that a movie industry lawyer issued a statement praising the court's reasoning only minutes after the verdict was issued (Kolmisoppi had himself been tipped off to the verdict the day before). Suggestions of dark conspiracy theories and Big Content's machinations hung heavy in the air.

But why, exactly, are people surprised at the outcome? When looked at in context, the Swedish decision isn't particularly shocking, and in fact would have been far more unusual had it gone in favor of a site that trafficked widely in .torrents of illegal content, ran its own tracker, called itself "The Pirate Bay," refused to take down links to infringing content, and posted smart-ass replies to copyright owners' requests.

The verdict might well be altered on appeal, it might have been the result of political pressure, and it might be a very poor decision—such things will become clearer in time. But it's certainly not surprising.

A look back

Consider the history. In the US, Napster was shut down even though it did not host files directly. When services like Grokster sprang up in Napster's wake and tried to make their services more decentralized to avoid even the appearance of control, courts still didn't accept the argument that they had clean hands.

These cases weren't decided by some local judge, either. The Grokster case went all the way to the Supreme Court, where the seminal MGM v. Grokster decision said that sites could not avoid all liability for copyright infringement simply by arguing that they have some legal uses.

This was the famous Sony defense, from the case which legalized Betamax/VCR sales. It survived both federal court and the Ninth Circuit Court of Appeals, but the Supremes found that a Sony defense did have some limits:

One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses...

Nothing in Sony requires courts to ignore evidence of intent to promote infringement if such evidence exists. It was never meant to foreclose rules of fault-based liability derived from the common law. Where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability...


On the record presented, respondents' unlawful objective is unmistakable. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations.

The sort of secondary liability for infringement is also what doomed The Pirate Bay (Swedish law has its own peculiarities, of course, but the basic concept of contributory infringement exists in both legal systems). As copyright attorney Ben Sheffner put it in a blog entry Friday, "At what point will defenders of the Pirate Bay and similar sites and services realize that 'but we didn't actually host the movies and music ourselves' is not a defense to a claim of secondary liability (i.e., assisting others to infringe)? Napster tried that defense, as did Aimster and Grokster. How did that work out?"

Not just Grokster

It didn't work out well for TorrentSpy, which also made claims that it was just a normal search engine. After repeated court rulings went against the site, including one that the site admins had deliberately destroyed evidence, it shut down in March 2008.

Major P2P hubs like Oink have been shuttered all over the world, and the biggest ones are currently fighting court cases of their own. IsoHunt has mounted the "Google defense" in its own court case, telling the judge, "There are hundreds of public torrent sites, some limited to a specific subject matter, others general aggregators like isoHunt, who like Google, try to cover as much of the Internet as possible. The essential functions performed at a torrent site are also performed at a comprehensive search site like Google or Yahoo!"

In the wake of Grokster, though, this looks like a tough fight to win, and isoHunt has to win it in both Canada and the US (it's being sued in both places).

And Mininova, the largest BitTorrent site in the world, has a May trial date in the Netherlands to see whether it will need to proactively filter copyrighted content or whether it need only respond to individual takedown requests (unlike The Pirate Bay, Mininova does respect such requests, though copyright holders routinely object to the burden this places on them due to constant re-uploading of content).

The "Whack-A-Mole" strategy that Big Content is using, one which has largely failed to stem piracy, is being replaced with an emphasis on "graduated response" or "three strikes" laws that could boot illegal file-swappers off the Internet. But while the campaign hasn't stopped piracy, it hasn't lost many major cases in court, either. It's certainly possible to rail against dark powers and political forces—which may be present in some cases—but careful judgments like the Grokster ruling show a willingness among some of the world's top legal thinkers to differentiate between Grokster and Google.

The fact that a Swedish court found a similar distinction between The Pirate Bay and Google may be wrong, misguided, ill-informed, backwards-looking, truculent, horrible, and misshapen, but the one thing it's not is surprising.


http://arstechnica.com/tech-policy/n...ay-verdict.ars

[Calmatory]

Epic winning.

Some professions will perish as technology advances. Get over it and stop crying, MAFIAA(And OP ).

[Gambit_2K]

The biggest Swedish torrentsites like Powerbits and Nordicbits have been shut down, and 10 others with 100K user each or more. It's a sad day for Sweden and the rest of the world.

[Vinas]

The biggest Swedish torrentsites like Powerbits and Nordicbits have been shut down, and 10 others with 100K user each or more. It's a sad day for Sweden and the rest of the world.

I'm not sad for the scene... Warez has lived on for more than 20 years. The distribution method might change a little but the material will remain. So it makes it harder for little Jonny to download movies. Good -- he doesn't need the trouble. The Virus Bay was never helpful IMO and the torrent sites aren't helping me any. Horrible speeds I've heard.

Not that I want to see these guys prosecuted by the RIAA and their cronies. That is the sad part. It's been said time and time again... "How can you expect to make money out of suing your potential customers?"

I guess I'm still optimistic that the RIAA and company are only hurting themselves in the long run. Meanwhile, I hear iTunes is making money.

[mrcape]

Who cares if it was a surprise. Surprise or not it's still LAME. People will continue to share until the laws and distribution methods change, and they will. Hopefully along the way other groupps will mount stronger defenses and the RIAA, Majors, MPAA etc. will waste a lot of money.

I wonder what's popping over at isohunt with the CRIA - nothing.

[Russian]

The record companies are the only ones really fighting for this. Why? Because... they are the middlemen. They can only make their money if they sell records. They dont get nearly as much money from concerts or apparel or anything outside of records. So they will push this model to the ends of the earth. They are attempting to force us to enjoy our music and pay ridiculous prices for it. Especially when most musicians just want their music to be heard and enjoyed. Plenty of musicians nowadays do concert tours more often in order to make more money. The days of simply selling albums is over. If you are a true artist, and not some fabrication of the record studios, then you can be successful regardless of how much you make. The real key here is... even if all the record companies disappear we will still have music and musicians. We really dont need them in this modern age.

[mrcape]

Why don't the majors go back to selling vinyl? I would actually buy that and I'm not kidding at all. Bickering aside, this is really a sad issue for me as a long time supporter and collector of music who pretty much quit music when physical record shops started shutting down. I used to spend about twelve hours a week in record stores.

I'd like to see record labels sell products again, not wack quality downloads, physical products. The artists don't want in on this bullcrap either. It's starting slowly, but some core musicians are taking it way way back to a point where they are not even selling their music. Taking others (labels, RIAA, Apple) making money out of the equation. A friend of mine owns a shop in Brooklyn where they regularly have "listening parties" and the artists actually attend and speak about the songs. It could be a good thing if this corporate mess hangs itself with it's own rope of greed. Now that would be something to celebrate, and not a surprise either.

[mrcape]

Interesting you posted that while I was writing Russian. : )

[Speederlander]

As long as people have easy access to free games, software, music, movies, and all the other free stuff that can be digitized, it's happy times. Free Stuff! Call it a getting even, call it not wanting to pay for bad quality, call it things being too expensive, in the end it's Free Stuff!

The other thread successfully made the Free Stuff Entitlement Movement look like what they were. Too bad it's gone.

[Russian]

Interesting you posted that while I was writing Russian. : )

Im a fast writer.

To address your response i would simply say that any physical format can and will be duplicated, especially in such a digital age. My biggest suggestion to artists, is if that they really care about the music they should ditch their record labels and either start their own or join a label that is not a nazi label. One that cares about the music and not the bottom line. The entire premise of music is based on influence. How can any new music be created if influence costs money? Some of the best musicians today, im sure, got some of their greatest influences through pirated means. Yes, they probably went back and bought it for themselves... but that is purely out of respect and admiration of the artist. If people are cheapskates, i understand that. But i strongly feel that music and creativity are only best accomplished through the free flowing movement of ideas. Locking up music through DRM and Suing file sharers is only going to yeild us worse music with close to no originality. As if this is not already happening with most major labels.

As long as people have easy access to free games, software, music, movies, and all the other free stuff that can be digitized, it's happy times. Free Stuff! Call it a getting even, call it not wanting to pay for bad quality, call it things being too expensive, in the end it's Free Stuff!

The other thread successfully made the Free Stuff Entitlement Movement look like what they were. Too bad it's gone.

The question then becomes, what creative right do record studios really have? (beyond contractual obligations)

To me, they have no creative rights. They are purely a middleman created in order to propagate music to the masses in the most profitable way.

This is similar to Movie studios in Hollywood. They are not out to make a great film, they are out to make a film that makes money. And that is why we have the "Hollywood Formula" and why we have things referred to as "boxoffice hits". Because in the end, they don't give a rats ass about whether or not there was artistic or creative value to the film. They just want to get more people to see it and pay for it. Which to me, is not what music or movies are about.

In the end if we lost things like large movie studios and record labels, i dont necessarily think we would lose much in the area of good music or movies. Since some of the best movies and music are and have been independently created and then snapped up later on.

[Salsoolo]

The Pirate Bay, the name itself is the biggest mistake.. i think the owner should be jailed for along time for his stupidity.
why dont he shut down the site or change the name? for the sake of the torrent world. that would keep the attention away a little.

[mrcape]

The other thread successfully made the Free Stuff Entitlement Movement look like what they were. Too bad it's gone.

I didn't notice that. I saw a lot of fluffy words and fact claiming totaling up to one simple argument - "it's the law". I think there's a lot more to talk about.

[Extigy]

It's a very grey area. My opinion is, trying to stop the distribution of files in a legal manor is a waste of time. It's like speeding on roads. Most people do it, Some unfortunate people (often stupid) get caught, but does it stop other people doing it ? NO. Also, Every torrent site you get shut down, 100 more will appear.

There needs to be a more intelligent design to stop the distribution of files without the need for DRM/rootkits/monitering peoples traffic that doesnt also stop the owner from copying the files to their personal mp3/mp4 players or other computers.

[mrcape]

To address your response i would simply say that any physical format can and will be duplicated, especially in such a digital age.

It was never a problem in the past with dual cassette decks, mix tapes and the like. I think it's the scope of the digital market that scares them. They need to adapt.

btw - I agree with your other points

[mrcape]

It's a very grey area. My opinion is, trying to stop the distribution of files in a legal manor is a waste of time.

I agree. Stomping feet for the law is a e solution.

Correct me if I'm wrong, but I don't think there has actually been a successful prosecution of a downloader, only uploaders/seeders, and most of those are thrown out.

[Loque]

not this again... the case is not closed and far from finished, this sounds like the usual media sensationalist headlines.

[SamHughe]

I didn't notice that. I saw a lot of fluffy words and fact claiming totaling up to one simple argument - "it's the law". I think there's a lot more to talk about.

Too bad you missed all the other parts talking about the moral and ethical responsibilities.

Going back to topic, even though I think the Pirate Bay and it's users were a part of something illegal (and immoral), I also think the way we deal with this PROBLEM is as ed up as it gets. You cannot deal with the piracy problem by trying to take down one site at a time. It is ridiculous! It is like fighting a swarm of bees with a fly splatter. And stupid things like DRM and RIAA going after teenagers is just making things worse. Actions like these only helps building resistance and making the pirates look like some sort of freedom fighters.

The right way to attack the problem, IMO, is making piracy obsolete.
Take down the game/movie prices to a more affordable level. Establish a better customer service where the customer, if not satisfied, can return the merchandise. Make policies so that if a production company releases a half-ass done game, they had to recall it and refund the customers. Lots of education on intellectual rights would also help.

[Biker]

Too bad it's gone.

Don't worry this will be gone soon too

[paulhamm]

Funny how the MAFIAA thinks bailing out the ocean with a strainer is going to work. They do seem to be extraordinarily persistent in their form of insanity. The courts decision in neither surprising nor particularly relevant, except for TPB people looking at jail time. The only real fear I have is that legal p2p-ers will likely be looking at even more suspicion with more decisions like this one. So what is the next move? encryption? distributed trakkers? something else? Fully encrypted data streams running over port 443 with onion routing should really be interesting. Should really help the ISPs with traffic issues.

[Katanai]

They can take all torrent sites down for all I care. If I want something I get it and I don't really care how or where it's coming from...

[mrcape]

Take down the game/movie prices to a more affordable level. Establish a better customer service where the customer, if not satisfied, can return the merchandise.

I think this is some common ground we share. I do care about the artists, and it's a shame the groups representing them are so greedy. The sad part is that the Corporate group is the only one that won't go this direction. As long as they won't, people will fight back in the form of piracy.

[Donnie27]

I think this is some common ground we share. I do care about the artists, and it's a shame the groups representing them are so greedy. The sad part is that the Corporate group is the only one that won't go this direction. As long as they won't, people will fight back in the form of piracy.

Total Bologna! Down-loaders steal content from big and small, rich and poor. There are games on the $9.99 Isle that are still being downloaded. Sorry but I think Speederlander is absolutely right.

This isn't some kind of Act of Robin Hoodery, it is nothing more but thieves trying to make their thievery seem acceptable.. The other dewd giving advice like "This is similar to Movie studios in Hollywood. They are not out to make a great film, they are out to make a film that makes money." Fisking a-right they're out to make money, so does software, clothing and many others being warezed and bootlegged. What, commies don't understand how the Capitalistic Free markets work? Last time I checked, downloading movies that sucked didn't happen just like making lots of money doesn't either. If a movie sucks, word spreads pretty dag-goned fast! Guess what, it doesn't get downloaded either. Who downloads movies that suck or even average ones for that matter. Bad music doesn't have to worry about DRM, no frakkin one is downloading or copying it LOL!

[G0ldBr1ck]

Total Bologna! Down-loaders steal content from big and small, rich and poor. There are games on the $9.99 Isle that are still being downloaded. Sorry but I think Speederlander is absolutely right.

This isn't some kind of Act of Robin Hoodery, it is nothing more but thieves trying to make their thievery seem acceptable.. The other dewd giving advice like "This is similar to Movie studios in Hollywood. They are not out to make a great film, they are out to make a film that makes money." Fisking a-right they're out to make money, so does software, clothing and many others being warezed and bootlegged. What, commies don't understand how the Capitalistic Free markets work? Last time I checked, downloading movies that sucked didn't happen just like making lots of money doesn't either. If a movie sucks, word spreads pretty dag-goned fast! Guess what, it doesn't get downloaded either. Who downloads movies that suck or even average ones for that matter. Bad music doesn't have to worry about DRM, no frakkin one is downloading or copying it LOL!

^ +1

[Brother Esau]

Yes Piracy will end just like the way they got rid of the hideous Evil Weed Marijuana

Just another Bull way of lawyers getting rich off of others sufferance and they keep it illegal because there is money to be made by perpetuating anarchy for profit just like the war on drugs!

[Jamesrt2004]

Total Bologna! Down-loaders steal content from big and small, rich and poor. There are games on the $9.99 Isle that are still being downloaded. Sorry but I think Speederlander is absolutely right.

This isn't some kind of Act of Robin Hoodery, it is nothing more but thieves trying to make their thievery seem acceptable.. The other dewd giving advice like "This is similar to Movie studios in Hollywood. They are not out to make a great film, they are out to make a film that makes money." Fisking a-right they're out to make money, so does software, clothing and many others being warezed and bootlegged. What, commies don't understand how the Capitalistic Free markets work? Last time I checked, downloading movies that sucked didn't happen just like making lots of money doesn't either. If a movie sucks, word spreads pretty dag-goned fast! Guess what, it doesn't get downloaded either. Who downloads movies that suck or even average ones for that matter. Bad music doesn't have to worry about DRM, no frakkin one is downloading or copying it LOL!

+1 ^^


Although I have to say Prices are too high for some high-school/College kid like myself, I go to the cinema once or twice a month max, but I cant go all the time and buying a dvd is actually more expensive(12/13 for good films) So I have to resort to pirating a movie every now and then as I just cant afford the prices (£8 to see a movie at cinema it should be half that!)....