Piracy under fire

Between July 2005 and May 2006, The Pirate Bay website provided a filesharing service utilising the BitTorrent file transfer protocol.  This protocol involves dividing a principal file (eg a MP3 music file) into segments, which can be identified and accessed by locating small “torrent” files containing metadata about the file to be shared and the computer distributing it.  The Pirate Bay website allows users to upload, search for and download these torrent files.  BitTorrent client software then uses the information provided in the torrent files to locate and download the segments of the file, and then recreate the principal file. 

The Stockholm District Court found that, through this process, Pirate Bay users were making available a copyright work to the general public without authorisation.  However, Pirate Bay users were not in fact the target of the District Prosecutor’s action. 

Rather, the Prosecutor pursued the individual operators of The Pirate Bay website, on the basis that they were aiding and abetting the principal offence carried out by Pirate Bay users.  The Court ultimately agreed with the Prosecutor, finding that the individual operators had facilitated the relevant filesharing by providing a website with uploading, downloading and search facilities, and by putting individual filesharers in touch with one another.  As a result, the Pirate Bay operators were sentenced to a year’s imprisonment and held liable for 30 million kronor (approximately AUD$5 million) in damages.

The decision has been hailed as a triumph for rights holders.  The chairman of the Motion Picture Association of America claiming the decision upholds the rights of creative industries “to have their … works protected against illegal exploitation and to be fairly rewarded for their endeavours”.  On the flipside, anti-copyright organisations and copyright reformists have called the decision “a gross injustice” and “a political trial”. 

The Pirate Bay judgment is consistent with the 2001 ruling in the Napster case, seen as the foundational case on copyright issues in the context of filesharing.  Although the technology used by Napster was not BitTorrent file sharing, the US Court of Appeals ruled in that case the operators of the Napster service were liable for contributory copyright infringement. 


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