Pirate Bay Is Infringing Copyright, European Court of Justice Rules (theguardian.com)

The European court of justice (ECJ) has ruled that BitTorrent site The Pirate Bay is directly infringing copyright, in a move that could lead to ISPs and governments blocking access to other torrent sites across Europe. From a report: The ruling comes after a seven-year legal battle, which has seen the site, founded in Sweden in 2003, blocked and seized, its offices raided, and its three founders fined and jailed. At the heart of the case is the Pirate Bay's argument that, unlike the previous generation piracy sites like Napster, it doesn't host infringing files, nor link to them. Instead, it hosts "trackers," files which tell users of individual BitTorrent apps which other BitTorrent users to link to in order to download large files -- in the Pirate Bay's case, usually, but not exclusively, copyrighted material.

Comments

Re:Land of the free, home of the Brave

[dugancent]

Wrong continent.

Reasoning

[phantomfive]

This is the stated reasoning of the court:

the ECJ [argued] that the Pirate Bay goes further than a protected site should, by offering not just a search feature, but also categorising files, deleting faulty trackers, and filtering out some types of content. That means, in the court’s eyes: “The operators of the platform play an essential role in making those works available.”

I still think the primary mistake was naming themselves "The Pirate Bay." They should have followed the practice that politicians use in naming bills. Call it the "Noble Defenders of Copyright Bay" or something.

Re:Reasoning

[klingens]

So if they would have automated all this (deleted torrents without tracker) or let it be purely crowdsourced by the users (tagging), etc. In short, made a site which doesn't do manual intervention by admins, then it would be legal?
Or would the court find another convoluted reasoning to end up with a judgment they want?

Re:Reasoning

[bill_mcgonigle]

Or would the court find another convoluted reasoning to end up with a judgment they want?

The question is "what legal reasoning can we proffer that will result in more revenue for the media corporations?". The specific judgements will depend on the circumstances.

Re:Reasoning

[phantomfive]

Or would the court find another convoluted reasoning to end up with a judgment they want?

I don't have deep understanding of the court process of the ECJ, but it was clearly a judgement call, with heavy discretionary power given to the court. Here's another quote:

“The Pirate Bay’s own statements on the matter were also held against it, the court said: “The same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works.”

So their goal was to convince the court that the primary purpose of the website wasn't piracy. Starting with the name "The Pirate Bay" doesn't help, although it's a great name.

Re:Reasoning

[AmiMoJo]

Each ISP does it differently. Some just block via DNS, some try to do DPI because they already have the infrastructure for spying on their customers, but all of it fails against VPNs, TOR and simple proxies.

Re:Reasoning

[MrLint]

Well I'd like to take this 'reasoning' even further.

If you are an ISP that decides to get brain damage and not act like a common carrier.... and the ISP decides to "categorize downloads, block sites, and filter out certain types of content" for the purposes of protecting the copyright of a 3rd party (or if you are in the UK because your govt just hates pron), do you suddenly become 'directly infringing' if you aren't 100% accurate?

It would appear that the argument being made is that if you do anything to the data, or even the meta data you are on the hook for its use by a 3rd party.

Re:Reasoning

[phantomfive]

Common carrier is a US concept, not a European concept.

That said, this wasn't a question of whether you are 100% accurate or not in your filtering. It's a question of what the intentions were. The court here found that the Pirate Bay was telling people to come get protected works. TPB did not manage to make a convincing argument otherwise.

Killing of the messenger

[denis-The-menace]

This is now a precedent.

If you have *instructions* in your possession to lead you to copyright infringement, you are guilty of infringement.

Do we have other examples?

Re:Killing of the messenger

[wisnoskij]

Have a point.
If The Pirate Bay is a curated site where the content is actively curated, then any illegal content is clearly their fault.

Re:Killing of the messenger

[cunina]

Total amount of illegal content hosted by TPB: 0 bytes.

Re:Killing of the messenger

[ljw1004]

This is now a precedent.

If you have *instructions* in your possession to lead you to copyright infringement, you are guilty of infringement.

Do we have other examples?

That's a wildly incorrect interpretation of the ruling. Read the judgment: http://curia.europa.eu/juris/d...

1. European law says that an author has a "right of communication to the public".
2. This case was precisely about the definition of "communication to the public".
3. It has to involve an "act of communication" and a "public".
4. An "act of communication" (according to prior case law) includes just offering links to your users. However it specifically doesn't include (according to statute) situations when you merely provide facilities that let users communicate between each other.
5. The operators of the Pirate Bay did provide links, and they did a lot more than "merely provide facilities that let users communicate with each other": they also provided a search service, provided a classification service, they themselves checked to ensure that copyright material had been placed in the appropriate category, they themselves deleted non-functioning links, and they actively filter content. Therefore they were making an act of communciation.

Your example of "instructions in your possession" fail the two tests that were the sole focus of this judgment: they are not an act of communication, and they're available to the public.

Re:Killing of the messenger

[idji]

No, they are not just a messenger - A messenger does not look at the message, they pass it on unknowing of content.
Piratebay is categorizing, filtering, promoting and checking links, which means they know exactly what they are passing on.

Re:Economic Victory

[MachineShedFred]

Ridiculous reasoning. Cavemen painted on the walls without having a DMCA in place, copyright protection, or a mega-corporation offering them exclusive perpetual distribution rights contracts.

Culture will happen regardless of whatever nonsense motivations you put behind it. An artist doesn't stop being an artist because people that weren't going to buy the art anyway, in fact, don't buy their art.

Whack-a-mole

[bool2]

Where is the TOR equivalent of these sites? Surely that's where this game of whack-a-mole is headed - the lawless dark web.

Re:Whack-a-mole

[DanielRavenNest]

A combination of meta-torrents and blockchain methods would eliminate the need for websites entirely.

A meta-torrent is a file which indexes other torrents. Such files already exist. For example, you can download all the magnet links for the Pirate Bay up to a given point in time as a 90 MB torrent. Since new torrents come out all the time, a blockchain would be useful here. Blocks are verified by a hash for each block's contents, and is linked to the previous block. In this case, the contents would be new information about new torrents.

So your local program connects to the torrent network, and starts downloading pieces of the meta-torrent. Once you have it all, you can look up other files to download locally, and add them to your program to get from the network.

Re:Economic Victory

[Jzanu]

Sure.... How do you find it, who pays for channel distribution (broadcast or hosting for electronic media), who pays for storage and display (physical media)? How does the artist eat, pay rent, afford school fees for their kids, etc.? Money is required to function in the economy, and artists are not exempted from that requirement.

It's obvious they are breaking laws..

[sqorbit]

It is quite clear that The Pirate Bay is violating copyright laws. The debate should be whether or not the laws are correct or not. I take neither side in this battle publicly. I don't think the fact they are providing copyright software is up for debate though.

Re:It's obvious they are breaking laws..

[Anonymous Coward]

How is it clear? None of the files they hosted were copyrighted AFAIK?

In essence, the question is whether someone standing on the sidewalk saying "Get your illegal drugs over there ----> (points to someone in the alley with the actual drugs)" is guilty of any crime. Some will argue no, some will argue yes, but the ECJ has decided the answer is yes.

Re:It's obvious they are breaking laws..

[cheesybagel]

The Pirate Bay hosted torrent files which basically contain filenames and checksums for file blocks. These don't contain the actual data anywhere.

Later they switched to Magnet links which basically only have the torrent checksum and the filename.

Re:The european court of justice infringing copyri

[CanadianMacFan]

It was the torrent files and the fact that they curated them that got TPB into trouble. Not that they had links to files.

Re:Economic Victory

[klingens]

Sure.... How do you find it, who pays for channel distribution (broadcast or hosting for electronic media)

broadcast is actually free: so called "free TV". In fact it even makes much more money via ads than it costs to distribute this way: those freeTV channels pay money for the right to distribute it and earn a profit themselves on top of that.
Infringing Internet distribution is paid by the infringers: they store it on their own media and use their own bandiwith to distribute. So no money needed either there.

, who pays for storage and display (physical media)?

Same. See above: the copyright infringers do that themselves and are happy about it.

How does the artist eat, pay rent, afford school fees for their kids, etc.? Money is required to function in the economy, and artists are not exempted from that requirement.

Question: how did the painting caveman eat? How did Shakespeare eat? Both created lots of art before any form of copyright. I think Shakespeare didn't have kids, instead he had a whole acting troupe to feed. No school fees but feeding them all might be worse than schooling the statistical 2,1 kids we have today. Especially when school education is free in all reasonable countries.

Re:Economic Victory

[lgw]

Culture will happen regardless of whatever nonsense motivations you put behind it.

We were in a weird place for the past 20 years, where it wasn't clear how the artist could shed the corporate distribution, yet still make money - how to solve the logistical problem of payment, really. But now the evidence is mounting that Patreon and the like will really work for artists.

But that won't work for billion-dollar film budgets. Movies in particular remain a sticking point. It's not clear that crowdfunding can work for those. However, I'm very hopeful for a surge of indie material once "good enough" 3D animation gets cheap enough. I think crowdfunding will work fine to get competent voice actors on a project.

Patriot Bay

[Anonymous Coward]

I still think the primary mistake was naming themselves "The Pirate Bay." They should have followed the practice that politicians use in naming bills. Call it the "Noble Defenders of Copyright Bay" or something.

Patriot Bay?

Sounds good. Sounds legit. Evil lurks. Similar to other "Patriot" themed things.

Re:Economic Victory

[Tom]

But that won't work for billion-dollar film budgets. Movies in particular remain a sticking point.

Copyright infringement is a problem, sure. However, even with all the torrent sites, movie budgets have been constantly increasing, and profits are great (if you ignore the Hollywood account that makes the most successful movies lose money on paper).

Hollywood is doing great. The focus on the AAA movies is completely misguided. We should turn our eyes to the smaller movies, the indie movies and such and check what the result there is. Hollywood blockbusters, like the five or six times before that they cried and at least one time swore under oath that something needs to be done or they're out of business, Hollywood blockbusters are doing just fine.

Re:Economic Victory

[Cmdln Daco]

Otherwise you must pay for it, or it won't get made at all.

So if we all download Disney crap enough, the place will finally shut down and cease to exist? Can Sony be chained to Disney before it walks the plank?

Yarr.