The Pirate Bay’s Prosecution Ignites A Political Firestorm

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Remember the first time you used Napster?

During its brief, digital lifespan, it felt like magic.

You could type in the name of any musical artist in the history of the world and Napster would produce dozens, if not hundreds, of song titles. Click any of them, and within minutes you could listen to the song. When Napster first launched, in the days when CDs and radio still dominated the music scene, this alone was a revelation. But what made it even better, what made it ubiquitous, was that it was free — which also meant that it wouldn’t last long.

The music industry marshaled its lawyers and crushed Napster, effectively putting it out of business for buccaneers infringing on its copyrights. Kazaa, Grokster, LimeWire and countless others followed in Napster’s footprints: meteoric rises coupled with throngs of avid users, then rapid downfalls at the hands of established competitors and the courts.

But then along came The Pirate Bay, a service that an 18-year-old Swede named Gottfrid Svartholm founded in 2003. As the other Napster clones fell, TPB grew, and Svartholm recruited two other fellow techies, Fredrik Neij and Peter Sunde, to help him run it.  Eventually, its users were exchanging millions of songs and movies, many copyrighted, every month.

Today, TPB is one of the largest illegal file-sharing services on the planet, and its resilience and relative longevity is testimony to the powers of innovation, the merits of defiance, and — on a much more practical level — to the benefits of having your servers located in Sweden and being able to move them elsewhere at the drop of a hat.

Lawyers from movie studios and record labels have sent TPB angry letters asking it to take down material that they said violated copyright protection. The site has traditionally responded with famously rude emails.

“As you may or may not be aware, Sweden is not a state in the United States of America. Sweden is a country in northern Europe,” read an email TPB posted on its site. “Unless you figured it out by now, U.S. law does not apply here. For your information, no Swedish law is being violated. […] It is the opinion of us and our lawyers that you are…morons, and that you should please go sodomize yourself with retractable batons.”

Clearly, the TPB boys weren’t ready to fold simply because industry heavyweights had come out swinging.

“They are very outspoken about the fact that they think what they’re doing isn’t wrong, even though it violates U.S. law. They feel that people should be able to share files,” Ernesto Van Der Sar, co-founder of the blog TorrentFreak, says of TPB. “That made them, if not heroes, then at least vigilantes, to many people.”

As TPB continued to fend off music and movie executives, the Swedish government began to listen more closely to the industry’s concerns and targeting TPB — setting in motion a legal battle in Sweden that is still playing out today.  Some of the founders face jail time and hefty fines.

And the scrum enveloping TPB has become a touchstone for a much broader and divisive political debate pitting the merits of copyright protection against individual privacy and the open, free-wheeling nature of the Internet.

Amid this debate, Hollywood and others with high stakes in the copyright battle concede how difficult the web makes it for them to protect their wares. Like TPB’s crew, Robinson is unsparing in how he assesses the opposition.

“It’s a lot more difficult to shut down a physical store and move it to another part of town than it is, in the Internet world, to move your server from the Netherlands to a server in Russia,” says Mike Robinson, who oversees anti-piracy efforts for the Motion Picture Association of America. “There will always be criminals. Whether you’re talking about online piracy, whether you’re talking about physical piracy, whether you’re talking about assault, bank robberies or something else, there’s always a certain segment that will engage in that.”

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Rickard Falkvinge is a round-faced, 40-year-old Swede with blue eyes and pin-straight, rust-colored hair. He combs it straight back from his forehead, but a few strands always seem to remain askew. He is a talker, and when he lapses into silence his fleshy lips and wide mouth, unaccustomed to the break, appear poised to jump right into another sentence.

He says he bought his first computer when he was eight — in 1980 — and that he started his first software company when he was 16. He was sharing files years before the World Wide Web even existed. He reminiscences fondly about weekends attending “copy parties,” held in schools and other public buildings, during which he and other techies would gather and dupe one another’s software.

For all of his passion for technology, he said that he had never been particularly political until the summer of 2005, when the Swedish government began siding with the film and music industry in the copyright standoff with TPB by actively considering legislation that would more aggressive safeguard film and music copyrights.

Falkvinge says that Stockholm’s cafes were buzzing about the law that entire summer. Swedes, he says, were concerned that so much of the culture was being locked up by corporate monopolies, and worried that enforcing copyright effectively would require a serious invasion of their privacy online.

“Everybody took part in these discussions — and basically said that the politicians were stupid,” Falkvinge recalls. “Everybody except the politicians. It was like they were completely unaware that this discussion even existed.”

So, on New Year’s Day of 2006, the technologist became an activist. He launched a new political party — the Pirate Party — online with the mission of advocating the benefits of free information and reduced copyright protection in the Swedish parliament. Within a day or so, his site had already gotten a million page views. News of the party coursed through the light-speed channels of the Internet, attracting more followers.

“I wasn’t surprised that there were people interested in this movement; I had done the math, and I knew that there were 1.2 million in Sweden sharing culture at the time, so I knew there was the potential for a significant movement,” Falkvinge recalls. “But I was surprised at how quickly people found out about us.”

To qualify as an official political party in time for the Swedish elections the following fall, they needed to get 1500 signatures by the end of February. They thought they could save time by collecting them electronically, but election authorities informed them that they needed physical signatures.

“It actually turned out to be a good thing,” Falkvinge says. “Because it gave us a reason to meet, organize and gel as a group.” Within days, Falkvinge’s group had registered as a political party.

Meanwhile, The Pirate Bay was in trouble. Swedish officials raided its servers in the summer of 2006, shutting down the site. The founders restored service to The Pirate Bay using a backup three days later, but in 2007, the Swedish Prosecution Authority told the founders — and Carl Lundstrom, the heir to a cracker fortune, who had underwritten the site — that they were under investigation for copyright infringement.

Lundstrom and the founders lawyered up and a trial got underway in early 2009.

Jonas Nilsson, Neij’s attorney, said that the defense claimed that TPB’s founders couldn’t be held liable for copyright infringement because their site was a “passive, automatic service.” All it did, the defendants said, was tell users where to find information about downloading files (files which might or might not have been copyrighted).

The court didn’t buy it. It sentenced Neij to a year in prison and demanded that he pay damages of 30 million Swedish kronor. Other defendants got similar sentences.

Falkvinge, who attended the trial, said that the courtroom was packed with reporters eager to cover the biggest piracy trial in years and he encouraged members and supporters of the Pirate Party to protest the trial every day. The media seized on the protests as emblematic of young Swedes’ support of TPB.  And the coverage reached a fever pitch when the court announced the guilty verdicts.

“There was an outcry over this grossly unfair injustice; there were huge protests the next day in some large squares in Stockholm,” Falkvinge says. “We knew that that was our ticket to the European Parliament.”

It was indeed. Sweden held elections for the European Parliament in June 2009, and the Pirate Party stunned political analysts by snaring 7 percent of the vote, netting them two delegates in the European Parliament.

The party’s success in Sweden also emboldened budding Pirate Parties overseas — most notably in Germany, where the local Pirate Party eventually made significant inroads in the parliaments of four different German states.

There are now Pirate Parties at some stage of development in more than 50 countries. Though the movement hasn’t yet replicated its Swedish and German successes elsewhere, Falkvinge said he’s optimistic about its prospects in Finland, the Czech Republic and Switzerland in the near future.

Pirate Parties now even exist in the United States. Despite obstacles for third parties domestically, the parties have presences in Massachusetts, New York and California.

Tethering the entire movement is a goal of relaxing or eliminating what it sees as a “copyright monopoly” that hinders the spread of culture and information. They say that because file-sharing involves “copying,” not “taking,” it’s disingenuous to call it stealing — and, perhaps more significantly, that the benefits of free information for society outweigh the potential costs to the artist.

“We’ve now made it possible to access and contribute to all of humanity’s knowledge and culture, 24/7, by being a connected human being on the planet,” says Falkvinge. “That is such a huge leap ahead for civilization that if it means that some business models will cease to be successful, then, frankly, those businesses will have to start selling mustard, or doing something else to make money, because there’s no place for them.”

The Motion Picture Association of America (MPAA) and its allies in the content industry see the attacks on copyright as a threat to the livelihoods of those who work in the music and film industries. For them, piracy is nothing more than theft.

“What that analogy misses is that it takes hundreds of people to create a film,” MPAA spokesperson Kate Bedingfield says of Falkvinge’s point of view. “And when it’s stolen, and that product doesn’t come back to the people who created the film, that’s lost wages, that’s lost revenue.”

Ted Shapiro, the MPAA’s general counsel in Europe added that he believes that the most ardent philosophical defenders of piracy have also profited off the practice.

“It’s very clever,” he says. “It’s a cynical attempt to make this all about free speech and piracy… but I find that normally, these are only cynical moneymakers who want to trade on other people’s content, and they will use excuses like this in order to protect their sites.”

As the Pirate Party has evolved, the movement that informs it is no longer only focused on file-sharing; it has developed a much broader platform inspired by a belief in the power of sharing in all aspects of life and a great deal of faith in technology.

“The Pirate Party started out as a protest movement against the copyright industry’s effort to clamp down on sharing, but we’re starting to see the same pattern occurring in the rest of politics,” says 22-year-old animator Zacqary Adam-Green, who is second-in-command in the New York branch of the Pirate Party. “So we’re also working on increasing participation in democracy and introducing more peer-to-peer principles in the economy.”

Many Pirates, for example, believe that information technology should be used to make government more transparent; they suggest that the laws being considered in legislatures be posted online throughout the entire process of debate and amendment. Most of them also believe that services like Wi-Fi, education and health care should be freely accessible, without corporate interference.

Falkvinge is now a roving ambassador for the Pirate Party and his successor in Sweden, Anna Troberg, runs the party itself. Troberg is a convert to the pro-piracy camp; she long worked as a book publisher and a translator, and saw piracy as a threat to the livelihoods of artists like herself.

She began to second-guess herself after writing a blog post attacking piracy, and finding the responses she got persuasive. After researching the issue for the next two weeks she changed her position.

“At the time, everyone in publishing was very negative; they were always complaining that new technology was going to destroy culture,” she says. “Once I started talking to the Pirates, I saw that they were much more positive — they were trying to find new solutions using technology.”

No matter how quickly the party spreads from here, though, and no matter how much they eventually change intellectual property laws, it will be too slow for the founders of The Pirate Bay.

Although they finally lost an appeal of their case in Sweden’s highest courts earlier this year, the founders had already fled the country. Authorities also haven’t been able to collect the fines levied against the founders, according to Shapiro.

Meanwhile, Nilsson says he is working with the other defense lawyers to try to bring a case against the nation of Sweden to the European Union’s Court of Human Rights.

“In the European Convention for Human Rights, there are certain rules, and certain articles, about the right to take, give and spread information,” Nilsson says. “It’s a very important rule.”

Still, it won’t become clear until the end of this year, at the earliest, whether the Court will agree to hear the case.

TPB remains fully operational. Its servers were moved out of Sweden, and are now presumed to be located in the Netherlands and Russia, outside the purview of Swedish law enforcement agents, according to Robinson, the MPAA’s head of antipiracy activities. And the TPB trials, with all of their attendant publicity, simply served to raise the site’s profile internationally.

“When they first raided The Pirate Bay in 2006, it was pretty small. There were maybe 200,000 or 300,000 users,” says TorrentFreak’s Van Der Sar. “Today, there are about 5 million unique visitors a day.”

That, as much as anything, illustrates the difficulty of enforcing copyright law in the digital era.

Alexandre Montagu, a New York attorney who specializes in intellectual property, notes that copyright law was designed to protect book publishers, not electronic information.

“This is not a war that they’re going to win through legal battles,” he says of big content companies like film and music studios.

Montagu said that he thinks better antipiracy technology, and a more forceful pursuit of paid online video on the part of the studios, would probably be more effective than all their lawsuits. But he also said that he thinks that the legal challenges presented by the Internet will eventually require a truly innovative solution, perhaps in the form of a new international convention on digital law.

The Pirate Party agrees that intellectual property laws need to be rethought to accommodate the Internet, but it would go much further than Montagu by eliminating penalties for copyright infringement within the home — if not altogether. After all, some party members say, the battle over copyrights and digital piracy is only a skirmish in a broader and inevitable war over how technology is continuing to change and challenge the foundations of the global economy.

“When there is an abundance of anything, capitalism seizes up; it’s meant to allocate scarce resources,” argues Adam-Green. “In that sense, piracy is a dress rehearsal for the new economy. Because art and culture have become like tap water — it’s abundant, it’s infinite and, as it turns out, the traditional system has no idea what to do when that happens.”

 

 

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