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On May 31st 2006, the offices then housing The Pirate Bay's servers were raided by Swedish police, prompted by allegations by the Motion Picture Association of America (MPAA) of copyright violations, causing the popular torrent tracker to go offline for three days during which the entire European internet traffic reportedly dropped by 40%. Following a two-year investigation, on January 31st 2008, Swedish prosecutor Hkan Roswall filed charges against four of the individuals behind The Pirate Bay, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi, Fredrik Neij and Carl Lundstrm, for allegedly assisting in copyright infringement and in making copyrighted material available online. The charges are supported by a consortium of intellectual rights holders led by the International Federation of the Phonographic Industry (IFPI). One of the most high-profile of its kind, the two-week trial, dubbed by The Pirate Bay as the Spectrial (a portmanteau of spectacle and trial) began on February 16th and ended on March 3rd, with the final verdict expected on April 17th. In this article I will look at some of the important points raised during the trial, commenting on them where appropriate, and discuss the issue of illegal file-sharing with emphasis on the music industry. Please be aware that much of the discussion reflects a personal opinion and that Rockfreaks.net in no way participates in illegal activities of any sort. Readers are encouraged to think critically about the content and respond with their own views in comments at the bottom of the page.
As TorrentFreak has already provided an in depth narrative about the day-to-day progress of the trial, I see no reason to rehash it great depth here, but will rather attempt to bring across the most important issues from the two week spectacle. The quintessential aspect of even attempting to understand and evaluate the trial, of course, is to understand how BitTorrent technology actually works - something which the prosecution failed to comprehend, resulting in 50% of the charges against The Pirate Bay to be dropped already on the second day of the trial. Hkan Roswell attempted to use as evidence screenshots of a number of .torrent files, but failed to adequately explain the function of a Distributed Hash Table (DHT), which allows for so-called trackerless torrents. The flaw in the evidence was pointed out by Fredrik Neij who went on to explain that the prosecution misunderstood the technology and told the court that the evidence in no way shows that the .torrent files actually used The Pirate Bay's trackers in the first place. As a result, Roswell was forced to drop all charges relating to assisted copyright infringement, so that the remaining charges are simply with regards to making copyrighted content available. So to avoid misinterpreting BitTorrent technology, let's take a look at how it actually works.
BitTorrent is a peer-to-peer (p2p) file sharing protocol most commonly used for distributing large files over the Internet, and is estimated to account for some 35% of all Internet traffic. The protocol works initially when a file provider makes data available to the network by creating a BitTorrent (.torrent) file, which contains metadata about the file(s) to be shared and the tracker that coordinates its distribution. What essentially happens is that the file provider treats the file as a number of identically sized pieces and creates a checksum (used for detecting errors that may have been introduced during storage of the data) for each piece using a secure hash algorithm, which is then recorded in the .torrent file. This known as seeding, and enables others, peers, to connect and download the file. When a peer eventually receives the pieces, the checksum of each piece is compared to the recorded checksum to check that the piece is error-free by a BitTorrent client (a program that manages torrent downloads and uploads using the BitTorrent protocol). Once a peer has downloaded the file, it becomes available for other peers to download thus creating another seed for it. Depending on the number of seeds for a given file, this technology allows peers to download the file from multiple locations concurrently, exponentially increasing the likelihood of a successful download and significantly reducing the original distributor's hardware and bandwidth resource costs. In addition, the protocol provides redundancy against system problems and reduces dependence on the original distributor.
The Pirate Bay is a Swedish web service that indexes and tracks .torrent files. As such it provides a search engine to its database of .torrent files (not the actual files) and a BitTorrent tracker, which coordinates communication between peers attempting to download the payload of the torrents. The Pirate bay publicizes its tracker's URL, and the site's users then upload torrents to the index with the tracker's URL embedded in them, providing all the features necessary to initiate a download. That is, The Pirate Bay is no more responsible for the content hosted on its servers than a search engine like Google, which incidentally provides a far more comprehensive list of links to torrents hosted on virtually every one of the hundreds of BitTorrent trackers that exist. Please take note of this important fact, as it has been revisited a number of times during the actual trial.
Further highlighting the prosecution's, and indeed probably the entire music industry's confusion as to how BitTorrent technology, and particularly trackers like The Pirate Bay work, is their belief that the website somehow participates in the exchange of copyrighted material by users. Carl Lundstrm's lawyer, Per E. Samuelsson laid the problem out in what has since become known as the King Kong defense. He referred to EU directive 2000/31/EG, which states that he who provides an information service is not responsible for the information that is being transferred; in order to be responsible, the service provider must initiate the transfer. In the case of The Pirate Bay, as just mentioned, the transfers are initiated by users who are physically identifiable people who, as Samuelsson famously told the court, call themselves names like King Kong. He went on to point out that according to legal procedure, there must be a clearly discernible tie between the perpetrators of a crime and those who are assisting in it. What the prosecution failed to show was that Carl Lundstrm had personally interacted with King Kong, who may very well be found in the jungles of Cambodia.
Indeed, the efforts by representatives of the music industry to combat piracy appear more often than not to be misguided. Rather than embrace an emerging technology, organizations such as the RIAA (Recording Industry Association of America) and MPAA prefer to stick to their recurrent suspicion to all things new. Recall that these same organizations once feared then-new technologies like radio and cassette tapes; the digital revolution introduced yet another enemy and history repeats itself. The general strategy now seems to be a combination of muscle-flexing (through a few prominent court cases, such as the Pirate Bay trial), bullying and threatening the little guy they claim to stand up for. While there is no question that distributing copyrighted material without a license is a crime, the methods often used to combat the problem are unacceptable. Case in point: the IFPI and others actually believe the opposite of the directive - or choose to ignore it - and have, unfortunately with some success, pressured several internet service providers around the world to take up unprecedented and morally questionable measures to further their agenda.
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