These pirates won't be sunk
17 Apr 2009

the_pirate_bay_logoThe conviction of the Pirate Bay Four is not just a breach of the right to free expression, says Sean Dodson, it’s an absurdity in an era when free online content seems the only way forward for the entertainment industry

In this increasingly digital world, access to the Internet is being seen as a fundamental human right. Article 10 of the European Convention on Human Rights (ECHR), which is incorporated into the domestic laws of both the UK and Sweden, allows for a right to freedom of expression. This right includes the freedom to hold opinions, and to receive and impart information and ideas. Such a position has indeed been adopted by the European Commission in regard to filesharing. Last April it recognised filesharing as part of that right and as such recommended that member states, namely France, desist from plans to ban frequent filesharers from the Internet.

As our lives become ever more reliant on information technology, so our rights to access digital content need to be protected, just as the rights of copyright holders need to be protected from piracy. This is the central issue of the Pirate Bay case, which has ended this morning with the four defendants, Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde and Carl Lundström, being found guilty of infringing copyright in a Swedish court.

It isn’t just the severity of the sentence — a year in jail and a heavy fine — that has disturbed many about the Pirate Bay ruling. It is the way that Hollywood and the music industry — Sony Music Entertainment, Warner Bros, EMI and Columbia Pictures — has persistently used strong arm tactics to quell an activity that seems so entrenched that it seems folly to try to stop it in this way.

Because of the way BitTorrent — a application used to share files across the Internet — works, pirated material is neither stored on, nor passed through, Pirate Bay’s servers. Instead the site provides an index of torrent files that direct a user’s client software to the content. The charge against Pirate Bay is not that they were filesharers themselves, but that they facilitated filesharing by creating a search engine that allowed others to do so. In other words Pirate Bay had created a technology that has the potential to facilitate a breach of copyright. Håkan Roswall, acting on behalf of the content companies, argued successfully that the defendants were culpable, citing a Swedish Supreme Court decision from 1963, that ruled that a defendant who held a friend’s coat while the friend duffed somebody up was also culpable in the attack.

But to my mind, the very companies suing Pirate Bay have also been complicit in much the same way. If you set aside the fact that they foisted digital technology on the public in the 1980s, they then went forward and developed a set of technologies — the re-writable digital versatile disc being just one example — that have helped spread piracy in much the same way as Pirate Bay. They not so much took hold the friend’s coat, but helped fashion the knuckleduster with which to beat the victim. And if you extend the logic that by creating a technology that can assist piracy you are also culpable of piracy, why stop at the Pirate Bay? Surely a whole network of agents collude to help filesharers engage in the act, including Google, Internet service providers, the inventors of BitTorrent and the telecommunications companies that distribute content to the Internet.

Which brings us back to the central question. Is indexing digital content covered by Article 10? I would argue that it is. This is because the filesharing networks themselves are passive in all this. They are conduits that can be used for both harm and good. If the rights holders have any beef, then it is a beef with the individual infringers of copyright, the people who upload and download copyrighted content, those that are doing the fighting, not those that are holding the coat.

But do the rights holders want to be suing anyone in the first place? Wouldn’t their collective energies, those brilliantly and expensively educated minds, be better off spent on devising a business model that actually works? Last August Eric Garland wrote a controversial report that suggested that record companies embrace filesharing, citing the fact that many people had illegally downloaded a Radiohead album, even though it was initially available for free. Radiohead eventually still managed to sell 1.2m copies of the album. ‘Rights-holders should be aware that these non-traditional venues are stubbornly entrenched, incredibly popular and will never go away,’ Garland told the Financial Times. ‘The expectation among rights-holders is that, in order to create a success story, you must reduce the rate of piracy — we’ve found that is not the case.’

To see how this might work we must look at the business model of another Swedish company: Spotify. Spotify streams music across the Internet providing free content in exchange for an advertisement every 20 minutes or so. It seems like the most sensible solution yet put forward. Users get their content for free, which the young now seem to expect as a right, and rights holders get a small royalty each time the track is played. It proves that new business models and rights to self expression can sit easily together on the Internet as long as the rights holders stop trying to beat everybody up.

Sean Dodson writes about technology for a wide variety of publications, including the Guardian and the Melbourne Age

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