When I idealized this post, I did not want to make it about copyright. But I guess it’s nearly impossible to talk about The Pirate Bay (TPB) without talking about copyright. As I previously wrote about, three administrators and one investor of TPB were put on trial for copyright infringement, and assisting in making copyright content available. As you probably know, the former charges were dropped by the second day of trial, and the four were found guilty of the latter. That is one of the things I want to talk about.
If the context of torrent trackers, “making copyright content available” means to provide links. No more, no less. In BitTorrent, the shared content, copyrighted or not, is stored on the users’ machines; the tracker (TPB in this case) merely contains a file that says this content is on that and that machine. The user (or more accurately, the user’s BitTorrent client, presumably in behalf of the user) then goes and downloads (i.e. copies) that information into the users’ computer). Compare this to how Google works: you search for a given keyword, and are presented with a set of results. Each of those results is a link, which says that the resource to where I point contains your keyword. If the pointed resource is copyrighted text, then that means you’ve just got a link from Google to a source of copyrighted material, that you can now copy at will.
It seems (and I would agree) that if TPB is guilty of assisting infringement, than so is Google. But there are at least two notorious differences between both, and I think those were the ones that really pushed the “guilty” verdict:
- First, Google indexes essentially, well, everything. TPB on the other hand only indexes torrent files. And, the argument goes, torrent files are usually used to shared music and videos and software, and etc, ergo, are more target and facilitating copyright infringement.
- Secondly, while Google will comply with requests (aka DMCA takedown notices, and the ilk) to remove links to copyrighted material, TPB openly mocks such requests, as well as the ones making them (besides taking no action at all to remove those torrent files, of course).
But it is easy to see that none of those stand closer examination, no matter how much pointless blabber you wrap around it. You cannot assume that BitTorrent will be used only to commit copyright infringement, because well, the protocol doesn’t care about that. Furthermore, if you consider that copyright was originally intended as an incentive to creators, to create more work that would eventually be added to the public domain, then the value of BitTorrent suddenly becomes clear: to allow the free exchange of that body of knowledge, art, music, movies, etc that some of us like to call culture. It is only when one starts to see copyright as some sort of inherent, timeless right (therefore applicable to all information), that one can justify such a bold claim as “BitTorrent is only used for copyright infringement”. But such was never the status of copyright, and should never be the status of copyright (a post will follow explaining why this so).
As to the mockery, and putting forth one last word regarding the status of copyright, I truly dread the day when that status becomes such that mocking it becomes, at best, a stigma, and at worst, unlawful. But this does suggest the TPB folks don’t really care about copyright (and honestly, who can blame them?). And the question now becomes: by not caring, and by doing so explicitly, should that count as “assisting copyright infringement”? The judge certainly seemed to think so. But the judge is wrong. To the best of my knowledge, TPB never forced anyone to commit copyright infringement. Rather when it was used to do so, was because 1) some user already decided to breach copyright (download), and 2) some other user did it before (upload). Users, not the admins. This leaves the question of their (TPB admins’) blatant refusal to remove torrent to copyrighted material. What the law says in this matter I am not sure of (but I will inform myself before writing the aforementioned next post). In any case, assuming the worse, which is, that the law says that the offending torrents should have been removed, than that’s the only thing they should be guilty of! One year in jail and a little under 3 million euros in fines for such a “crime” is absolutely preposterous.