Pirate Bay convictions are legally insignificant outside Sweden
Safe for Google, eBay to remove tin hats, too
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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.
COMMENTS
Re: Dodgy Decision
>> Rather like convicting a store owner of being an accessory to murder because his store sold the knife that was used to kill someone. No, not even that. It's like prosecuting a store owner who doesn't actually sell the knives, but has a flyer posted in the store with directions to stores that do sell knives.
Not really. More like the store owner had a window full of posters, 90% of which were directions to places which sold shotguns without records or checking the customers shotgun certificate. And then charging him in relation to assisting the illegal sale/purchase of the shotgun.
Although, I doubt the above would get you a year in prison and a multi million pound fine - even if the shotgun was later used in a murder.
AC@08:54
"The premise in law is not selective and if TPB are guilty of assisting copyright infringement in Sweden then so is every search engine on the web which hosts results for torrents"
But
Google is *not* hosted in Sweden (AFAIK) so Swedish laws do not apply to it. Only search engines which are hosted in Sweden (I recall a something crawler being hosted in one of the Scandinavian countries but I think it's Norway) *might* be affected. I believe for legal purposes the question is where is the company's registered head office.
Now if assisting copyright infringement is illegal in the US (as other posters have claimed it is) then they should go after Google as well. Google would be in trouble right now if its registered head office is in Sweden, but I'm pretty sure it isn't. IANL.
To be honest if your going to set up a site like this the first question is not the tech. Its checking the international laws to find the most friendly country to set the company up in. In principle the servers could still be in Sweden although remote admin could be good enough to run a dark data centre in the country. I guess they thought Sweden was a Neutral country so that was not needed. That was a mistake. Not that I'm advocating assisting copyright infringement, which is a criminal offence in Sweden.
@ignoramus
"If a copyright holder asks the torrent sites to remove any link to their product name, failure to do so should be a criminal offence. FIGHT PIRACY. It is destroying digital industries."
This is an excellent example of an argument based on ignorance of the foundation of the western society. Following this advice is a definitive exercise in destroying any foundation for a democratic society.
Just in case the author still would not understand:
*** accusation is on its own not satisfactory as evidence of a criminal offence ***.
FIGHT STUPIDITY. Its destroying our society!
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