The Pirate Bay
Published on 6 May 2009 at 2:04 pm.
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Filed under Misc, illegal file sharing, Copyright Infringement.
Blog Author: Tony Ballard
It was unfortunate for the team of individuals who brought the Pirate Bay website to the world that they were in Sweden. As they have discovered to their cost, copyright infringement in Sweden is not only a tort but also a criminal offence.
On 17 April 2009 they were found guilty of aiding and abetting their file-sharing users to infringe the copyright in music, films and computer games by making them available to the public. They were sentenced to one year in jail and ordered to pay the equivalent of some millions of dollars to the music and film companies whose works were distributed by some 700,000 users through the peer to peer file sharing network set up by the Pirate Bay.
Under Swedish law, their file sharing users were not only infringing copyright but also committing a criminal offence. That is the feature of Swedish law that was their downfall. Under the Swedish Criminal Code, aiding and abetting an offence is itself an offence, rendering the aider/abetter liable to both punishment and damages. The fact that the Pirate Bay site hosted none of the music, film or other copyright works and none of the team committed any primary infringement was neither here nor there.
In the UK, where the making available of copyright works by users is an infringement but not a criminal offence, similar reasoning would not apply and action against the promoters of a similar site would have to be based on different grounds. The UK courts might have to revisit the seminal 1988 Amstrad decision on whether making and selling twin-head videocassette recorders, which were capable of both lawful and unlawful use, amounted to infringement (it did not). So the decision tells us little about how the UK courts would approach the matter.
On the other hand, it is interesting to see that the Swedish court rejected defences based on the Swedish implementation of Article 14 of the e-Commerce Directive, which protects information society service providers from liability for hosted content. The Pirate Bay site was hosting “torrent” files that contained in effect directions as to where to find the film or other work but not the work itself. The extent of the protection depends on the service provider’s state of knowledge of what it is hosting and, in relation to liability for damages, on expeditious take-down on becoming aware of illegality. In a not too closely reasoned passage of the judgment, the court had no difficulty in rejecting defences based on this ground, saying that all the defendants were aware that copyright works were being made available through the files hosted by the site, that they deliberately chose to ignore it and that none of them took any action to remove the files in question despite being urged to do so, not least by rights holders’ lawyers whose letters they cheerfully published on their site.
Even though it is not a precedent for courts in other jurisdictions, the decision of the Swedish court takes it place in the line of cases beginning with Napster (2001) and Grokster (2005) that shows the courts closing in on deliberate internet piracy. Whether it has any messages for other site owners whose users may be engaged in infringing activities facilitated by them remains to be seen. They may wish to choose their jurisdiction carefully. Meanwhile rights owners can be cautiously optimistic that the trend in judicial decisions towards resisting piracy is continuing, although it has been reported that an appeal has been lodged by the four men and there are calls for a retrial following claims that the judge was biased. But like the Hydra, the Pirate Bay service is still available on servers said to be in the Netherlands or Belgium and Russia and claims now to have 25m active users.