Pirate Bay walks the plank

After the end of the Pirate Bay trial nearly a month ago it seemed likely that the four defendants were going to escape serious criminal charges. Within days of the start of the trial their lawyers had successfully argued that most of the serious charges were dropped and their now legendary King Kong defence looked set to save them from the remaining ones too; however the Swedish court has now passed a guilty verdict, along with a year's prison sentence for each of them and a hefty $3.6m fine.

If you're new to this story then it's worth reading some of my previous posts for a catchup.

In a fitting twist, the verdict was leaked from the court and published online a Torrent hours before the official announcement.

The original charges of "complicity in the production of copyrighted material" and their multimillion dollar damages were dropped within two days of the trial when it became apparent that the prosecution didn't really understand what The Pirate Bay actually does. The defendants have been found guilty of the revised charges of "complicity to make (copyrighted material) available" which has brought much lower sentences and fines.

If this sounds a little odd then it's because not many countries have copyright legislation as tight as Sweden's which is both the reason that The Pirate Bay started there and the reason the prosecution wanted to pursue it in that country.
Ars Technica spoke to music industry legal consultant Peter Danowsky who explained that in Sweden "A work is made available as soon as it is for sale or for hire or given away, this does not have to involve any actual transfer of the work. And the right to control availability is protected by the Act, so making available can be in violation of copyright even though no actual distribution has taken place."

Plain sailing?
So what's going to happen next? There are mirror servers for The Pirate Bay in other countries so they've not been shut down and in any case there are a lot of other torrent indexes around.
Social Media guide Mashable have reported that one funny side effect of their King Kong defense and comparisons to Google as a search site is that someone has created a torrent search using Google's Custom Search function.

The Pirate Bay defendants plan to appeal and have stated that they can't and won't pay the fines - see @JemimaKiss's recent article in the Guardian. Recently their supporter have started hacking the International Federation of the Phonographic Industry's website and sending black faxes in protest.

While I'm not in favour of mass copyright infringement, we've certainly not seen the end of BitTorrents or illegal file sharing and just like the shutdown of the original illegal Napster site lead to the peer-to-peer networks like KaZaA or Limewire, and then on to torrents, the technology will keep adapting ahead of the industry attempts to shut it down.

It's just a shame that the recording industry didn't embrace new technology a little quicker so they could have been the ones setting the pace with something innovative but legal. Tools such as Spotify and Last.fm come close but it's taken a long time for them to come on the scene.

It's raining torrents!

Kick Start
This year seems to have kicked off with a bang on all things copyright related. First we had amazon.co.uk launching their DRM-free MP3 download service and hot on their heels came Apple's long-overdue decision to remove the copy protection from their catalogue too (all sing with me "I see a little silhouette of a price war...").

The British Government published their Digital Britain report which included recommendations for ISPs to take a more active part in halting illegal file sharing.

Then came the news that New Zealand seems to be ignoring civil-rights and going for an approach on copyright infringement that can best be summed up as "I think he's guilty so he must be" which flies in the face of western judicial practice.

Now there's the latest update in another long-running saga; Sweden vs The Pirate Bay, one of the largest indexes of torrents currently available.

The Technology
In case you aren't familiar with torrents they are the latest incarnation of Peer-to-peer filesharing (P2P) which works by having users all over the world sharing content with each other via programs like Napster, Kazaa and Limewire. BitTorrent emerged in 2001 and takes the technology to a new level where a torrent file is created which contains information about the location of multiple (could be thousands) of seeds or users which are sharing that file. Once a user downloads a file they can then become a new seed which allows the numbers of available downloads to grow exponentially. Torrent data is estimated by some to make up to 35% of all internet traffic.

The Pirate Bay
So that's BitTorrent explained but to explain why there's all the fuss about it you need to look at what's being shared and while it can be used to download the latest Linux distribution it's more commonly used to share copyright music, video and software... which the entertainment and computing industrial giants would rather didn't happen.

The Pirate Bay, created in 2003 and hosted in Sweden, is probably the world's largest tracker of these torrent files and you can tell from it's name which side of the fence they sit on when it comes to copyright. Over the last few years it's been raided by police, been on the defending and prosecuting sides of a number of lawsuits and even attempted to buy Sealand, the micronation located about 6 miles off the Sussex coast, to use to host their servers.

Half time scores - The Pirate Bay 1, Sweden 0
Now the site's founders and admins Carl Lundström, Peter Sunde, Frederik Neij and Gottfrid Svartholm Warg are in court in Sweden accused of copyright infringement however it has quickly become apparent that the prosecuting lawyers don't actually understand the technology they are trying to shut down, presumably only driven by their share in the multimillion pound potential damages being claimed.

The key to their defence is that the site is a tracker or index of the torrents themselves and that even the torrents are only lists of users sharing a particular file. They don't make copies themselves or host it so while you've probably got views on their moral standpoint it's a lot harder to actually go after them legally.
If you take the prosecution to it's natural extension then you need to sue search engines like Google for listing sites that host or link to copyright material (actually that's an even better case to prosecute since Google actually maintains a copy of every site it indexes). Hey, let's sue the ISPs for giving us access to the whole damn shooting match in the first place.

These suggestions have been flying around on tech sites like The Register but it's crossed into mainstream reporting with Charles Arthur writing in the Guardian with a discussion on who would actually benefit from the demise of The Pirate Bay.

So an entire day and a half into the big copyright test case the prosecutors have been left with egg on their faces as charges are amended to remove "complicity in the production of copyrighted material" and replace it with "complicity to make (copyrighted material) available" which isn't quite the same thing.

What next?
General opinion on the blogosphere is that The Pirate Bay are going to go on to win the rest of the case but even if they don't the final charge will be much less dramatic than the claimants hoped for. Regardless of what happens to this particular site the torrents are still out there and there's plenty of other trackers around so will it even make a difference? In a similar arena, Kazaa and Limewire still allow easy P2P sharing years after the high-profile cases against Napster.

There are suggestions that users who download illegal copies are actually more likely to go on to spend on the legal versions, Charles Arthur's belief is that they will revert to more casual networks of friends sharing these materials but my view is that the internet is a big bad place and shutting down a single index might slow things down for a while but it's not going to stop it

For the moment we wait to see what's coming next in the Swedish case.

Stand up against "Guilt Upon Accusation"

I'd quite like to live in New Zealand. I'm lucky enough to have been there twice and I really liked the relaxed attitude and the fact I could indulge in various outdoor activities on such a grand scale (skiing and scuba diving are the main examples that would be a lot more fun in NZ).

However I've recently started hearing about a proposed change to their laws which would disconnect internet access from anybody accused of copyright infringement, without trial or court scrutinised evidence.

Now I'm not condoning copyright infringement but I do like to stand up for rights, especially if it goes against a fundamental belief like "Innocent until proven guilty".

If you're thinking that this doesn't affect you since you don't live in New Zealand then consider that this becomes law there then our governments might be tempted to follow suit.

The organisers of the protest are urging people to blackout their avatars on popular social networking sites - details are at the Creative Freedom protest site. If you're blogging, tweeting, facebooking etc then follow the instructions on how to show your support. There's some high profile people like Stephen Fry already taking part.