On 17 April 2009, the four men behind the popular Pirate Bay website were found guilty of copyright infringement and sentenced to one year imprisonment and payment of a fine of SEK 30 million (£2.4 million).
The defendants include the site’s operators Fredik Neij, Gottfrid Svartholm Warg and Peter Sunde Kolmisoppi. The prosecutor also charged the Swedish millionaire Carl Lundström, who has donated money to the organisation and has helped configure larger numbers of computers to host the site. The defendants have run The Pirate Bay since 2004 after it was set up a year earlier by the Swedish anti-copyright organisation “the Piracy Agency”.
The Pirate Bay, based in Sweden, is an online service that directs users by means of hyperlinks to of a huge volume of copyright films, music, books, television programmes, games, software and other content. The service is free to use and is supported by advertising.
Using the peer-to-peer file sharing protocol BitTorrent, The Pirate Bay site allows users to make a .torrent file or group of .torrent files available to the network. The .torrent files links to content hosted elsewhere. The site then acts as an indexer, tracker and search engine of those .torrent files, enabling users to search for and download the organised .torrent files from their host location. Those in turn allow users to find other people who have what they want and to share the .torrent files amongst themselves. Every BitTorrent user with a copy of the .torrent files contributes a piece to the overall downloading.
The Pirate Bay site is the world’s largest BitTorrent tracker with an estimated 22 million simultaneous users. It is available in 34 languages, from Arabic to Slovenian.
Communication to the public and jurisdiction
The District Court of Stockholm found that The Pirate Bay file sharing service makes .torrent files linking to copyright protected works available to the public without the permission of the rights holders. The file sharing constitutes an illicit communication to the public of protected works in violation of Swedish copyright law.
Under Swedish law, a crime has been committed if it occurs in Sweden or, when it is uncertain where a crime has been perpetrated, there are reasons to assume that the crime has been committed in Sweden. The Swedish Court decided that a crime which involves the making available of something on the Internet shall be assumed to have been committed in a country where an Internet user can access the information; provided that the making available of the information has an affect on the right holders’ exploitation of the works in that country. Taking account of the fact that The Pirate Bay is available in the Swedish language and that its servers are placed in Sweden, the Court concluded that the copyright infringements committed by the users of The Pirate Bay have been committed in Sweden and that they are punishable under Swedish law; irrespective of whether .torrent files are hosted by file sharers in Sweden or elsewhere.
Complicity in copyright infringement
To be convicted for complicity in crime in Sweden, it is not a requirement that perpetrators behind the main crimes, i.e. copyright infringement, are identified, provided, however, that a crime has been committed. Having decided that copyright infringement has been committed through The Pirate Bay site, the Court turns to the question whether or not the defendants have participated in the illegal sharing of copyright protected material.
By providing a user-friendly interface and search engine, enabling users to search for specific content or to browse the organised lists of films, music tracks, games and other content, and by providing a tracker that helps users connect to that content and download it, the Court finds that the defendants have facilitated and thus aided piracy. The Court acknowledges that their purpose was to make The Pirate Bay a meeting place for file sharers and they worked as a team to develop the site technically and commercially. Although the defendants have denied any commercial motives behind the site, evidence presented by the prosecutor indicates that the defendants construed an operation designed to make revenues for themselves. The evidence includes a signed agreement between the defendants to share the proceeds from advertising revenue as well as offshore bank accounts. As the defendants knew that copyright content was shared on the site and did nothing to prevent the piracy, the Court concluded that the defendants wilfully participated in the illegal sharing of copyright protected material. The one year imprisonment sentence is the longest period of time ever awarded by a Swedish court for violation of the Swedish copyright law, although the maximum sentence is two years.
The entertainment companies’ claim of SEK 107 million (£9.3 million) for damages in relation to a sample of the 33 works of music albums, films, television series and computer games selected by the prosecutor, was reduced to SEK 30 million (£2.4 million). The court found that the damages constitute reasonable compensation for the use of the works and for further damages, such as lost remuneration and disturbance of the market for the works.
The defendants remain unrepentant and have said that they will appeal to the higher Swedish Courts. They have until 8 May 2009 to appeal.
If the judgement is not subsequently overturned, the case has potentially wide-reaching ramifications for all websites available in Sweden that publish hyperlinks leading to infringing material. Rightsholders may now view Sweden as a ‘preferred jurisdiction’ for bringing action against international sites that include links to infringing material. The judgement may trouble sites such as search engines, which provide users with links to all areas of the web, and social networks, where users are free to post links to whichever online destinations they choose.
However, there is some way to go before we can regard this decision as a basis for the principle that by merely publishing a link to illegal content, you are liable for complicity in copyright infringement. First, the decision will most likely be appealed and the arguments will be heard by at least one higher Court. Second, and more importantly, The Pirate Bay decision is based on an unusual set of facts; the founders were actively involved in a political campaign to encourage copyright infringement in Sweden and set out to provoke copyright holders. By contrast, nearly all search engines and social networks take careful measures to avoid liability for copyright infringement, including operating a legal ‘take down’ regime, under which they remove an item of content after receiving notification from rights holders that the content has not been authorised. Nonetheless, even though the Swedish Courts cannot set a legal precedent across the globe, if other courts take account of its decision, the case will have ramifications for any business whose operations include the provision of hyperlinks to unauthorised content.