With the entertainment industry applauding the decision, the blogosphere divided to an extent, but mostly convinced the whole thing proved the movie and music firms still don't "get the internet", and with the four pirates themselves vowing to appeal, supporters of rogue BitTorrent tracker The Pirate Bay actually took to the streets in Sweden this weekend to demonstrate against the court ruling that will put four men associated with the controversial search service in jail.
As much previously reported, on Friday morning three of the men who helped create the tracker service, Frederik Neij, Gottfrid Svartholm Warg and Peter Sunde, and their chief funder Carl Lundstrom, were all sentenced to a year in jail for their role in enabling vast amounts of copyright infringement online. They were also ordered to pay £2.4 million in damages to the various claimants in the civil part of the case, a sum only Lundstrom could actually even conceive of paying.
Some seemed surprised by the ruling, perhaps because the Pirate Bay four, and especially spokesman Peter Sunde, had been bullish about their chances of defeating the combined criminal and civil case against them, until the final stages of the proceedings when he became a bit more pessimistic. Or perhaps because the prosecution's case was hindered at the outset of the actual trial when prosecutors were forced to drop a load of charges relating to unprovable direct infringement claims.
But The Pirate Bay's defence was very weak, relying chiefly on hard to believe claims of ignorance regarding the levels of piracy the tracker service enables, stressing the chaotic nature of The Pirate Bay organisation as if that was a good excuse, and relying on the common defences in contributory/authorising infringement cases - we don't host any infringing content ourselves, and our service has legitimate uses.
But such defences have failed in a number of high profile lawsuits against the makers of P2P file-sharing software, who also don't host any infringing content and whose software has legitimate uses. The key to liability for so called contributory infringement in the internet age is whether an organisation which enables file-sharers responsibly communicates copyright law to its consumers, and whether they make reasonable efforts to restrict illegal usage. The Pirate Bay does neither. You might not agree with the way copyright law has developed in this domain, but - while previous key cases have been elsewhere in the world - the Swedish judge's ruling on Friday was wholly predictable, given the lack of a killer defence from the Four.
The jail sentences were possibly more surprising than the guilty verdict and multi-million dollar damages. They certainly set The Pirate Bay case apart from past headline grabbing file-sharing lawsuits, which were wholly civil affairs. Bankruptcies often followed, jail time did not. Though I suspect the jail time for The Pirate Bay four has as much to do with their attitude to the legal system as the seriousness of their copyright crimes.
The Pirate Bay team have frequently circumvented, dissed and generally laughed at past court rulings and legal efforts designed to restrict their copyright infringing services, and I think it's fair to say they have been contemptuous towards Sweden's copyright laws and the businesses that benefit from them. Such contempt might actually be healthy in a democracy, and in The Pirate Bay's case it was certainly funny at times, but judges generally like the law and don't like people who think it's a bit of a joke. That's not the say the Four were necessarily ethically wrong to laugh, diss or circumvent, but you have to accept that if you do so, you're not gonna enjoy much leniency should you find yourself at the mercy of a judge.
So, given the way copyright law has been going, and the way The Pirate Bay has been behaving, no surprise at all really. For a different ruling you'd really need a change in the law. Which is, of course, what the Swedish based Pirate Party, sort of the unofficial political wing of the Bay (though they're not formally affiliated), is lobbying for. And it was they who organised this weekend's protests in Stockholm, Goteborg, Karlstad and Lund.
The Pirate Party, which wants file-sharing to be legal where sharers do not profit from their sharing, called the ruling "a gross injustice" and "judicial murder". They argue that the trial wasn't a real criminal trail but, rather, a political trial, and that the defendant's jail sentences are designed to make a political point rather than punish any real crime. The 500 odd supporters at the Stockholm rally, dressed in bandanas and carrying skull and crossbones flags, cheered Pirate Party founder Rickard Falkvinge as he addressed the crowd in the Swedish capital's Medborgarplatsen. He positioned The Pirate Bay debate as being one between the old and the young, telling the crowd "the establishment and the politicians have declared war against our whole generation".
In a blog entry on their site this weekend, confirming their intent to appeal, The Pirate Bay returned to bullish form, insisting the convictions were just a wobble and that they will win the legal fight eventually. Continuing their contempt for the law thing, they formally confirmed they will resist paying any of the damages awarded to the content owners, and urged Bay fans not to start raising funds to help them do so (as some already had). They urged said fans to, instead, fileshare more than ever, to encourage friends to start filesharing and, perhaps, buy an official Pirate Bay t-shirt.
It's not yet clear how long the appeals process will take, the Bay's blog says it could be two to three years before the next court hearing. They seem adamant the tracker will continue to operate in the meantime, though one would assume the content owners will at least try to enforce the court ruling and have the service closed down. Not that that's ever worked before. Time will tell I guess.
Meanwhile, for all those in the blogosphere and mainstream media wondering whether The Pirate Bay ruling, because it extends the contributory infringement concept to internet search services (whereas previously it was mainly used against makers of P2P software), might result in Google and the likes being sued for infringement by the movie studios and record companies, well let me answer that question for you. No. Not unless they launch a specific MP3 search service like those operated by Baidu and Yahoo! in China. I refer you to my previous comments about 'responsible communication' and 'reasonable efforts to restrict'. Thank you and good night.