Intellectual Property Law

Sweden Taking Pirate Bay to Court While Music Biz Demands EU Crack Down

By IBLS Editor

Like all major copyright scofflaws, the Pirate Bay had to know its date with Armageddon would likely happen at some time and now Sweden has taken umbrage at the file sharing site and is readying a prosecution against them. With ten-million peers and a million torrents of stolen files, the Bay has certainly grown beyond a cute adolescence. And with CD sales in free-fall as a result of theft and rampant sharing, the music industry is demanding the EU develop a better plan to help slay the voracious copyright-leech that will kill its host, if left unchecked.

Swedish authorities were pressed by a deadline to either prosecute or let drop the charges against Pirate Bay, and now have decided to take them to court. Pirate Bay claims to be the world's largest "BitTorrent" file-share site, and is currently located in the Netherlands, although it was previously housed in Sweden. The site was raided by the Swedish authorities on May 31, 2006 and its equipment, including over a hundred computer servers, was confiscated on multiple charges of copyright violation, and the website shuttered. It came back online 3 days later from a different location. It was rumored that the Bay was raided because of a request from the U.S., and especially from pressure out of Hollywood.

BitTorrent is a technology designed for transferring files efficiently and is user-to-user in nature, or "peer-to-peer." It employs an enormous technological evolution over the previous copyright infringing sites like Napster, that centrally held music and other files. Instead, groups like Pirate Bay serve as a mother-ship connection hub. The music shared is held by individual peers and then can be downloaded when another peer asks for a file transfer which the Bay tracks down. So Pirate Bay and others like it are procurers and not holders. The Pirate Bay hub is called a "tracker" and coordinates the action of all the peers, and it does not have exhaustive information on the contents of the downloads being distributed, which means many users can be supported with small tracker bandwidth. One of the main philosophies of the BitTorrent model is that the tracks are always open so that when any peer is online he or she is having their files searched and downloaded.

The legal theory for charging the piracy superstars by Swedish authorities is to accuse the site's administrators of accessory and conspiracy to break copyright law, and they plan to focus upon charging management. The leadership to be named named in the charging instrument will probably include Pirate Bay's Peter "brokep" Sunde, Gottfrid "anakata" Svartholm, and Fredrik "TiAMO" Neij and perhaps even Swedish neo-fascist Carl Lundström, who hosts the Bay website via his company Rix Telecom.

Swedish prosecutor Hĺkan Roswall believes the Pirate Bay's organizers can be punished for aiding copyright theft, even if the charges don't threaten any more than a year or two in prison, and large fines. Roswell calls the case a "classic example of accessory ? to act as intermediary between people who commit crimes, whether it's in the physical or the virtual world. It's not merely a search engine. It's an active part of an action that aims at, and also leads to, making copyright protected material available."

The defense for the Pirate Bay will be that no copyrighted material exists on the Bay's servers and that the site simply can't be held responsible for others uploading such content. The public response of the Pirate Bay's managers is a complete dismissal of the merit of the charges. Sunde claimed in an interview with Reuters that the claims were "idiotic," and asserted the Swedish prosecutors had "no legal ground" for the accessory charges to be filed against him.

Elsewhere in Europe, the music business is demanding authorities begin to take the issue of music piracy more seriously, and have called on the EU to follow French president Nicolas Sarkozy's leadership and force Internet service providers to halt service to users illegally downloading music.

John Kennedy, the CEO of the International Federation of the Phonographic Industry (IFPI), the record industry trade association, said, "Up until now, ISPs have allowed copyright theft to run rampant on their networks, causing a massive devaluation of copyrighted music. The time for action is now -- from the EU and other governments." The IFPI suggests that the days of governments and industry indulging ISPs and their copyright stealing customers is coming to an end and that 2008 will see real fruit on the fight against piracy.

Late last year, President Sarkozy threw his support behind an initiative to partner the French Government with the record industry and Internet providers that would force Internet Service Providers or ISPs to automatically disconnect customers caught illegally downloading copyrighted items.

Jean Berbinau, general secretary of French regulatory body Autorité de Régulation des Mesures Techniques (Regulatory Authority for Technical Measures) believes it is time for the authorities to act. Berbinau says, "We have to do something, but it is only transitional, only to give time to the industry to adapt and maybe to encourage a new business model." Berbinau is the one who must implement Sarkozy's new policy, which will include a "three-strikes-and-you're-out" policy that would be triggered after two warnings had been sent. An e-mail message would alert users that they have been ID'd as breaking copyright laws, but which would only apply to those involved in large-scale file-sharing. Berbinau continued, claiming of the messages, "They would be sent to each IP [internet protocol] address. It is not a huge technical challenge. I don't think it is possible for society to have laws and then to tolerate a universal breach of them," he added.

Kennedy praised France, saying, "More than anyone else in 2007, our industry has to thank French President Nicolas Sarkozy and the chairman of FNAC [the France-based chain of record and electronics superstores], Denis Olivennes, for the change of mood."

Full post as published by IBLS Internet Law Blog on January 30, 2008 (boomark / email).