To jail the sharers

You may have seen the news: the founders of the website were found guilty of “assisting making available copyright material” last week, fined, and sentenced to a year in prison. The accused have promised to appeal, meaning that the final verdict is still, doubtlessly, a few years away.

The most amazing thing has been the reaction in the media: Other blogs are claiming that, if there is a real belief that legal actions such as this one are the proper course of action, Google should be next. As a search engine, it can be used to track down torrent files, perhaps more effectively than specialist sites like the Pirate Bay. Google also makes itself highly customizable, allowing for things like this to happen.

The Globe and Mail claims that the verdict will result in massive ramifications, worldwide.

Other people are claiming that file sharers are the biggest legal downloaders of all.
The facts, for those who are interested, are somewhat less one-sided.

As far as legal action goes, the result against The Pirate Bay — who boast about their copyright infringement to anybody who will listen — might not be so easily extended to produce similar results against other torrent sites who do not share the Pirate Bay’s agenda (publicly). A search engine which is not limited to torrent files likely cannot be prosecuted successfully. The truth is that the Pirate Bay had everything going against it:

1. It exists as a central directory to download torrent files to share (often copyrighted) material; it serves no other purpose.

2. It makes a point of mocking copyright holders, with these words: Any complaints from copyright and/or lobby organizations will be ridiculed and published at the site.

Compare this to the copyright policy of another popular torrent download site, isoHunt:
Note that as of Jan. 22, 2007, we have moved servers to Canada and is no longer subject to US DMCA laws. But we are keeping this copyright policy and procedure modeled after the DMCA, as it worked for us and for copyright owners in the past, and we find this procedure and takedown process to be mostly fair.

There is a clear difference in intent between the two sites, although the services provided by the sites (enabling filesharing through the provision of torrent files) is clearly the same. Can isoHunt be held accountable for copyright violations in the same manner as The Pirate Bay? To the same degree? Quite possibly not, in any court of law that purports to be fair and takes a company’s policies into account.

As an organisation founded upon the prinicple of flouting copyright law, and continuing to embrace said principle, the Pirate Bay was bound to run afoul of copyright laws eventually — those looking for precedents in other cases should look for something different.

So where does all this rambling leave us? Nowhere. The Pirate Bay was in the unique position of both encouraging copyright infringement and providing the means to do so; as long as others are doing either one or the other, it is unclear how this case affects them.

To bring this around to the policy angle, we return to the articles linked to above. My favourite quotes from the whole mess of press that this verdict has created are:

One of the reasons why rights holders would go after illegal sites is to try to create the preconditions for a marketplace (Barry Sokoman, quoted in the Globe and Mail)
The BI Norwegian School of Management, which conducted the research, confirmed that illegal downloaders actually purchased music by requesting receipts from online music stores like iTunes and Amazon. (Mashable)

To Mr. Sokoman, I would suggest that shutting down the Pirate Bay would do nothing. It would further disperse those who download things without copyright. To set “the end of piracy” as a precondition to creating an online marketplace is bad policy. In fact, I would argue that there is little point in attacking these sites until such a marketplace is available.

When people leave a filesharing site, they do not stop sharing files. But they do not all flee to the same place; suddenly you have ten sites, where you had one before. Unless you have provided a destination for these people to flee to (your marketplace of fairly-priced copyrighted materials), you will not have the ability to influence where they go. Having a marketplace from which filesharers can get material legally should be a precondition to trying to rein in the black market, not vice-versa.

Mashable’s quote goes nicely hand-in-hand with this. People who download things like to download things. There is no real market, outside of music, in which to do this downloading. As a result downloaders do so in violation of copyright, even where they would otherwise pay to do so legally. Some are using the study to claim that copyright violation is good for the industry; I am not convinced this is true. But it certainly demonstrates that, given a marketplace, a large number of the people downloading would go there.

The entertainment industry pours lots of money into these anti-piracy endeavours, and they work if you measure the wrong thing. Sites get closed — Napster and Kazaa being the Pirate Bay’s forefathers in this regard. But this policy continues to fail against the right measurements. These sites are like the heads of a hydra: if one is closed, two take its place. And each generation learns lessons from the one before; copyrights become harder to enforce, and more people are comfortable with the idea of downloading their music, movies and software.

Even worse, this has gone on so long that there is an entire generation of young adults who have never had to pay for it, and don’t want to start.

A good policy would be to give downloaders a legal avenue — music now has its iTunes and Amazon, but the rest of the entertainment industry is woefully behind. The entertainment industry has proven that it cannot change people’s behaviour: they will download. Maybe it should try giving them a place to do it from.

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