The Pirate Bay – winning the battle but not the war?

April 29, 2009

The jailing of the four men behind The Pirate Bay file-sharing website has made headlines around the world. Music and film companies, in particular, have been up in arms about the existence of file sharing-sites for a number of years, which deprive them of much needed revenue. In sentencing the four in question to one year in jail and a fine of around £2.4m, the Swedish court sent out a strong message that file-sharing will not be tolerated.

The defence was in two parts that:

(i) Pirate Bay did not host any unlawful material but simply provided the technology to allow users to share material; and

(ii) file-sharing services can be used both lawfully and unlawfully and that Pirate Bay can't be held responsible for how its users choose to use the site.

These arguments were fundamentally rejected by the Swedish court.  The court found the defendants provided a file sharing service in an organised and coordinated manner knowing that copyrighted material was unlawfully being spread via the service.  As such, the defendants had deliberately promoted the copyright infringements of others and were responsible for contributory copyright infringement.  The approach taken by the Swedish courts is consistent with how a similar case would be dealt with by the English courts.

However, whilst the decision has been celebrated by those companies which lose revenue to file-sharing sites, is this really as big a victory as it seems? The managers of The Pirate Bay have already vowed to continue operating the site and there are many other sites offering similar file-sharing services. The case relating to The Pirate Bay was brought in Sweden because that was where the website was based, but other file-sharing sites are based in a multitude of jurisdictions and just because the Swedish courts have taken this view does not mean that the courts of other countries will necessarily follow it. In addition, on a purely logistical level, the cost and expense of pursuing all of these sites is likely to be prohibitive and the file-sharers, as well as the industry, know this.

So, whilst this high profile case represents a significant step forward for copyright holders, it is perhaps best seen as a victory in one battle in what is likely to be a long-running war. It does though send a clear message to the illegal file sharing industry - the threat of a huge fine and prison should be enough to deter all but the most determined of file sharing operators.  This threat coupled with the determination of copyright holders to hold ISPs accountable in some way for the use of file sharing sites means the screw is certainly being tightened in this long running battle.   Ultimately, as the case of Napster proves, we suspect there will only be one winner.

Related pages:

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