The Pirate Bay Verdict Won't Affect File Sharing - Columns by Dan Costa

Today, a court in Stockholm, Sweden passed judgment on the four guys who run The Pirate Bay—one of the most popular BitTorrent sites on the Web, with an estimated 22 million users worldwide. The trial has been mind-numbingly boring and outrageously funny. Although the fate of four men stood in the balance—they were each sentenced to a year in jail—one thing this trial hasn't been is terribly important. Sure, the Web will be abuzz with discussion of legal precedents and protecting copyrighted information internationally; but even with the guilty verdict, rampant file trading will continue unabated. At least until the Web service providers succeed in their myopic, misguided Internet-metering mission.

Pirate Bay
The Swedish-based Pirate Bay has been around since 2003; its founders—now convicts—are Carl Lundstrom, Frederik Neij, Peter Sunde, and Gottfrid Svartholm Warg. For years, Sweden turned a blind eye toward The Pirate Bay's activities. Now, thanks to the prodding of U.S.-based copyright holders, they're taking action. In addition to jail time, the copyright owners want damages of about $14.2 million. If big media prodded, The Pirate Bay certainly provoked.

The site routinely posts its responses to Cease and Desist letters from various copyright holders; they make for pretty entertaining reading— that is, if you're not a copyright owner. When Electronics Arts wrote a letter concerning unauthorized copies of The Sims 2 on the site, The Pirate Bay responded like this:

Hello and thank you for contacting us. We have shut down the website in question.

Oh wait, just kidding. We haven't, since the site in question is fully legal. Unlike certain other countries, such as the one you're in, we have sane copyright laws here. But we also have polar bears roaming the streets and attacking people :-(.

After complaining about unreleased Billy Corgan tunes available for download on The Pirate Bay, Warner Bros. Records got this:

We are well aware of the fact that The Pirate Bay falls outside the scope of the DMCA—after all, the DMCA is a US-specific legislation, and TPB is hosted in the land of vikings, reindeers, Aurora Borealis and cute blonde girls.

There's much, much more, and it's fun to read as long as you are not offended by adolescent snarkiness, profanity, and suggestions for the creative use of police batons. Suffice it to say, The Pirate Bay's founders did not cease or desist.

Mininova
Because of the way BitTorrent works, The Pirate Bay's servers don't actually host any copyrighted material, but that's a technical, if not an academic, point. The Pirate Bay hosts the tracker used to find these files, and visitors to the site can easily search vast numbers of copy-protected files and download them with the help of a BitTorrent client. This technology isn't limited to The Pirate Bay. There are dozens of sites that do the same thing—go to Mininova.org and ISOHunt.com and you can find the same files, albeit without the parrots and eye patches. My favorite BitTorrent client, Vuze, offers searches directly from within the client. No amount of legal action can shut ALL of these sites down.

The Pirate Bay's crypto-anarchist founders were charged with "assisting copyright infringement." That has since been reduced to the lesser charge of "assisting making available copyright material." Whatever the legal wrangling, by any reasonable definition these crypto-anarchists are certainly doing those things. The problem is, shutting down The Pirate Bay won't change a thing.

When I call The Pirate Bay's founders crypto-anarchists, I don't do so casually. According to Wikipedia: Crypto-Anarchism is an ideology that expounds the use of strong public-key cryptography to enforce privacy and individual freedom. And that is exactly what The Pirate Bay does, although it does charge for the privilege.

A few weeks ago, the European Union's IPRED (Intellectual Property Rights Enforcement Directive) became law in Sweden, forcing ISPs to reveal the names and IP addresses of copyright violators. The next day, Internet traffic in Sweden dropped 30 percent. As a response, the founders of The Pirate Bay are introducing an anonymizing VPN service, IPREDator, that conceals your ISP address. The irony is that by charging $5 per month for the IPREDator service, these guys will make more money than they ever did by simply posting BitTorrent trackers. So far they've amassed more than 100,000 pre-launch sign-ups.

More PB
Move, countermove. Repeat. The content industry's game of legal Whack-A-Mole continues. But there might be an endgame in sight: Internet metering could very well succeed where all these legal wars have failed.

My colleague Sascha Segan wrote about the perils—and potential profits—of Internet metering just last week. I believe that some form of variable pricing could make sense, but the plans put forth by Time Warner, Comcast, and others smack more of greedy profiteering than fair metering of broadband access. They would make P2P file trading too costly—it's estimated that downloading an HD movie would cost between $5 and $25, just for the bandwidth.

Hulu
Making P2P expensive seems like great news for copyright providers, but there are some big downsides. For one thing, it also makes legal delivery of music and video too expensive. Bye-bye Hulu, TV.com, Amazon Unbox, and Netflix On Demand; even the iTunes Store could become prohibitively expensive when customers are paying by the gigabyte. These services are just starting to take off and could generate real revenue for content creators, but they will perish right alongside P2P networks if the wrong metering plan gets pushed through.

Regardless of the Pirate Bay verdict, the lesson here is clear: Don't try to fight technological revolutions with clumsy, antiquated legal actions. Harassing customers, threatening Web sites, and standing in the way of progress are doomed to fail. These tactics discourage industries from innovating, developing creative business models, and offering customers better solutions. If the executives of the music industry would only spend as much time and money taking advantage of digital technologies as they do fighting them, maybe they could build the next iTunes. Or Boxee. Or BitTorrent.

Until then, I'm with the crypto-anarchists.

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