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Pirate Bay convictions are legally insignificant outside Sweden

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Editorial A court in Sweden has found the co-founders of file-sharing site The Pirate Bay guilty of copyright offences. Each of them has been sentenced to one year in prison. But while the ruling has symbolic significance outside Sweden, it has little legal significance.

Peter Sunde, Carl Lundström, Frederik Neij and Gottfrid Svartholm Warg said they will appeal the verdict and the sentence, which includes a fine of 30 million kroner, around £2.4 million. Their site did not host infringing files, it just made it easy to access them. They were charged with being accessories to the breach of copyright laws.

There is speculation in early reports on the ruling that other sites may be in danger.

"It begs a number of important questions, not least how the ruling will affect search engines," wrote The Telegraph. "Will Google, for example, fall foul of copyright laws simply for returning a search result that links to a site that does not have permission to host copyrighted material?"

The answer is no. Mainstream search engines have nothing to fear. A crucial part of the case against The Pirate Bay was that the vast majority of content that people sought through the site was infringing copyright. Google returns some links to infringing content and eBay hosts some auctions for pirated goods but that does not make their operations illegal. Not even in Sweden. Google and eBay do not encourage infringement and most uses of their search and auction services are lawful.

The case against The Pirate Bay, on the other hand, was that infringement was core to the site's business model. The operators were accused of profiting from adverts that made them money due to the popularity of infringing movies, music and software to which they were providing a gateway.

The argument against The Pirate Bay founders has been used successfully before, against erstwhile file-sharing giants Napster, Grokster, Morpheus and Kazaa. The key difference with the Pirate Bay trial is only that it was heard in a criminal court, not a civil one.

In the US Supreme Court, peer-to-peer service providers Grokster and Streamcast (the company behind Morpheus) lost because they had intended their sites to be used for copyright infringement. Inducing infringement or contributing to infringement are unlawful acts in the US. The court said that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

In the UK, there is no law against contributory copyright infringement; but there is a law against authorising infringement. That law exists in Australia too and it was used in Australian courts to bring down Kazaa.

The entertainment industry is prepared to assert its rights aggressively and most people knew that before today. Common sense says that when you build a site like The Pirate Bay, you are playing with fire. Whether you're taken before a civil court or a criminal court, you're probably going to get burned. So the deterrent was already in place. Today's ruling will not affect most intermediaries, and the rules of engagement in the war against illegal file-sharing remain largely unchanged.

By Struan Robertson, editor of OUT-LAW.COM. The views expressed are the author's own and do not necessarily represent the views of Pinsent Masons.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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