Internet Pirates Face Walking the Plank in Sweden

A criminal trial underway in Sweden is testing a very American notion: that artifacts that carry a copyright should not simply be lifted or stolen — that their use requires permission and compensation. That definition of intellectual property may appear almost quaint in these days when it is easy to find almost anything on the Internet and just as simple to download. But the founders of ThePirateBay.org — three geeky Swedish would-be cultural revolutionaries who were funded in part by user donations — are in the process of finding out whether they face prison time for facilitating that process for their users.

Each day, millions of users visit ThePirateBay.org, where they can browse hundreds of files containing copyrighted music, movies and other digital media — including some works like the Beatles’ Let It Be album that have yet to be commercially released as digital files. The Pirates — and their supporters who have staged street demonstrations, Twittered the court proceedings and may have crashed the websites of their perceived enemies — insist that they simply bring users together to who have files they are willing to share. If users choose to find illegal content and trade it, the site’s operators say, that’s their business. Not so, say the Hollywood and music-industry heavies who brought the civil case that accompanies Sweden’s criminal prosecution, it’s really our business. (See the 50 best inventions of 2008.)

After years of legal challenges by corporate lawyers and rhetorical ripostes by the Pirates, the battle between profiteers and buccaneers was joined when Swedish police raided the site in 2006, resulting in the ongoing civil and criminal trials. The proceedings are the latest twist in a long history of a global fight over property rights — a struggle that some say began in America with the country’s Founding Fathers ( Benjamin Franklin was all for handing out for free the ideas for his inventions like the Franklin Stove) and extended through Yippie Abbie Hoffman (who named his 1971 book about conning the system Steal This Book).

But in 2009, the fight is more than just a new way to wage an old war of ideas. It’s about whether Internet companies whose business is to help users find content that other companies have spent money to create ought to be hailed as innovators or hauled into court as thieves. Some folks, for example, see Google News as a quick and easy way to find the best journalism on the Web. Others complain that it lets the search engine company make billions while the media companies that paid to produce the content struggle to break even.

The trio behind ThePirateBay.org could face prison if convicted on charges that amount to aiding and abetting copyright infringement on a massive scale. The most serious charge — complicity in the production of copyrighted material — was dropped earlier this week for lack of evidence, but the trio still could walk the plank, should prosecutors prevail. If they lose the criminal case, they could owe nearly $10 million sought in the civil action being heard simultaneously in the Stockholm courtroom.

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Similar cases have had their day in court in the U.S. Ever since Congress passed the Communications Decency Act of 1996, courts have let internet service providers off the hook for distributing obscene or otherwise illegal material. And Internet publishers, like newspaper sites, are ordinarily not liable for defamatory material contained in comments posted by readers. Google has been challenged here and abroad for the way it uses other sites’ content on its Google News site. So far, though U.S. courts have sided with the search engine company, courts in other countries have seen it differently. Google lost a copyright case in Belgium brought by a consortium of photographers and journalists in 2007, and other suits are likely to proliferate. And while Swedish court decisions won’t have any binding effect on cases in the U.S. or other countries, what happens in Stockholm is expected to become a bellwether in the ongoing fight over who owns the information on the Internet, especially given that Sweden, like the U.S., has tightened its anti-piracy laws partly in response to heavy pressure from the recording and entertainment industry. (See the 50 best inventions of 2008.)

For years ThePirateBay.org has been public enemy number one for the music business and Hollywood. By the time police raided the outfit’s offices in 2006, the war of words — and legal threats — had been years in the making. And no wonder. The three main defendants certainly have Hoffman’s flair for the dramatic, and more than a share of the late Yippie leader’s propensity to stick it in the eye of the establishment. The site proudly displays its amassed correspondence from corporate lawyers who have written by the dozen to give notice of copyright infringement. Take this response in 2004 to complaints by the U.S.-based gaming software giant Entertainment Arts: “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 :-(“

Two years ago, Peter Sunde, one of the men now on trial, told The Guardian of London that he and his partners feared nothing from the complaints. “We get legal threats every day, or we used to,” Sunde said. “But we don’t have a problem with them — we’re just a search engine.” His colleagues Gottfrid Svartholm Warg and Fredrik Neij are also on trial, along with a wealthy businessman accused of providing bandwidth and other support for the site.

But the companies that own the music and movies that The Pirate Bay’s customers are downloading see it differently. “I certainly don’t see them as romantic pirates: It’s out and out theft,” John Kennedy, top executive of the international music industry body IFPI, told The Guardian. Big-name artists, too, have weighed in. Prince has threatened to sue, and this week one of the founders of the Swedish super group ABBA denounced the site as a gift to those who want to be “lazy and mean.” “It is easier and cheaper to steal than to download legally.” Bjorn Ulvaeus wrote in an online Swedish op-ed. “Is it really so damn difficult to pay your way?”

Others are cheering loudly for the trio, though, including some lawyers and academics who have long argued that copyright law protects only the powerful, and helps maintain America’s place as an exporter — for profit — of cultural works. If a movie is available in the U.S., why shouldn’t a computer user in China get to see it too — even if the movie won’t be released in his own country for months?

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Some scholars say the music and movie companies are wrong to insist on strong ownership interests in copyright. “It doesn’t have to be an either/or dichotomy,” Professor Neil Netanel of UCLA’s School of Law told TIME. “Why not look at copyright as the right to be paid, but not necessarily ownership of the work itself. You could establish a levy on equipment or some other fee that everyone pays that can go to compensate the authors or artists. But the authors (or other copyright holders) wouldn’t have the right to keep you from sharing the work.”

Netanel made just that proposal in a 2003 article in the Harvard Journal of Law and Technology, arguing that a 4% levee on computers, MP3 players and all other devices used to enjoy digital media would adequately compensate the authors and the companies alike. “And look at all the effort it would save,” he says. (See the top 10 gadgets of 2008.)

Fred von Lohmann, the senior copyright lawyer for the Electronic Frontier Foundation in San Francisco, advocates a more gradual approach, keeping much of copyright law intact for video but making radical changes for music, given that the recording industry is suffering much more severely than Hollywood. The key, he says, is to compensate authors and artists while at the same time making room for “disruptive technology to emerge. Some of the developments we have seen have threatened to disrupt existing business models, but that’s okay. There would never have been an iTunes store without Napster, and wihtout YouTube we’d never have hulu. So we have to leave room for that.”

Meanwhile, the Internet revolutionaries have been busy too. On Thursday, hackers laid siege to a number of sites connected to the plaintiffs, and temporarily sent IFPI.se — the home of an international recording artists’ association — off line. Arriving home from the trial, Sunde issued an appeal for his supporters to chill. “Our case is going quite well as most of you have noticed,” he wrote on his blog Copy Me Happy. “In the light of that it feels very bad that people are hacking web sites which actually puts us in a worse light than we need to be in. … Please stop, for our sake. We don’t need that kind of support. The Internet is having a fever and this might be a way to get cooled down. But I hope it’s over now and that we can go back to winning our case.”

Win or lose, Sunde and others have said The Pirate Bay will continue. Its trackers — the digital components that enable users to quickly find media on the Web — have been sent to users in other countries. If the site is closed in Sweden, they’ve promised it will reappear elsewhere.

That may be true, but the prosecutors and industry plaintiffs are just hoping that by the time The Pirate Bay drops anchor in a new haven the men who have captained the ship in Sweden will be much poorer — and perhaps in prison.

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