By Timothy Dillon
Photo courtesy of Wikimedia Commons.
Black markets have always existed. These are markets that are unregulated and controlled with unofficial oversight, if there is any oversight at all. They operate under the guise of providing goods and services in demand that the regular markets lack an adequate supply of. Or, it could be that the good or service in question is illegal in and of itself. We have seen it all at this point. There are many types of black markets, but The Pirate Bay, isn’t one of them.
In case you have been totally unplugged the past decade, the Swedish website The Pirate Bay is the largest torrent tracking website on the net. Thus it is also the largest hub for trafficking trademarked and copyrighted material, especially music, movies, software, and documents. So is the website a black market? After all, it does provide a place for people to acquire illegal media. But that’s not what makes a market; there is no money exchanged between TPB and its users.
The fact that TPB provides its service free of charge does allow it to occupy a niche that so far has only been the stuff of legends. Robin Hood robbed from the rich and gave to the poor, but even that analogy is flawed, since TPB is also not Robin Hood. TPB is the horse that Robin Hood rode in on. How can we hold the horse responsible for the crimes committed?
The analogy quickly falls apart once you realize that these webmasters are not horses. They are intelligent and calculated. They are Gottfrid Svartholm, Fredrik Neij, and Peter Sunde, all of whom were featured in a documentary surrounding TPB, released this past February. The documentary, The Pirate Bay: Away From Keyboard, itself takes us into the world of three young people who test the boundaries of what you can call free speech.
On a number of occasions, including in the documentary, they refer to the site as a contact service. During the trial of TPB, much of the ideology behind the site was explained. What makes TPB different from Napster and other bit torrent websites, is that TPB happens to be the largest, most consistent, and perhaps the most defiant. Furthermore is perpetuates this idea that they are pioneering freedom of expression in the 21st Century.
“Our policy has always been that the site is an empty page that is created by the users. We do not interfere with content,” Svartholm tells the court. Each of the founders outlines the need for an unregulated Internet where free speech and open sourcing of media and information can take place. They declare that The Pirate Bay is at the center of this issue.
In the aftermath of trial, the founders of TPB were each sentenced to a year in prison and fined upward of $3.6 million. Upon appealing the decision, the prison sentences were reduced to between four and ten months but fines nearly doubled to $6.5 million. Their final appeal to the European Court of Human Rights ended with failure once again to overturn the decisions made against them.
The programming cohorts claim that their freedom of expression had been violated. What you might find strange, is that the courts actually agree with this:
In the present case, the applicants put in place the means for others to impart and receive information within the meaning of Article 10 of the Convention. The Court considers that the actions taken by the applicants are afforded protection under Article 10 : 1 of the Convention and, consequently, the applicants’ convictions interfered with their right to freedom of expression. Such interference breaches Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 : 2 and was “necessary in a democratic society” to attain such aim or aims.
This means that a high court, concerned with protecting the basic human rights of people, has officially accepted limiting the freedom of expression for these individuals because what they were saying was not conducive to a democratic society. Head spinning? Perhaps too angry to speak? Let’s break it down.
The court recognized that their basic human rights had been violated. This was simply a group of young programmers who created a way for people to communicate and share information. It is a fact that people then used the site to exchanged copyrighted material; however, none of that material was ever housed on TPB servers. Yet, the courts found them culpable in facilitating copyright infringement.
When Svartholm, Neij, and Sunde appealed this decision, pointing out that they were just providing a means of communication and information exchange, which is when their freedom of expression was officially denied. Their creation, The Pirate Bay, is not conducive to a democratic society, since it allows for the blatant infringement of other people’s rights (intellectual and property rights).
They were found guilty based on violating Article 10 section 2, but what is interesting, is that they only provided a forum for others to violate section 2. This means they were found guilty by aiding and abetting section 2 violators.
What this has done is set the precedent for allowing the rights of some to matter more than the rights of others. In this case the courts have decided that the rights of corporations like Apple, Microsoft, DreamWorks, and EA (who the defendants did not directly steal from) supersedes their free speech. While this is a case that will not be easily cited in future cases, it has created a precedent for the suppression of expression.
Since the trials and sentencing, the founders of TPB were ordered to move on from their control and management of the website. Yet the site continues. Neij has found exile somewhere with his family in Laos and continues to run the site.
“The statute of limitations is five years. They can’t issue an international warrant of arrest. I can sit here and jerk off for five years. And I will,” says Neij in a response to losing his appeal to the court. Later, in a Facebook post, TPB announced it would no longer we sharing torrents directly. Instead they would be using magnet links, which would lead to torrent files and make it more difficult for opponents of the site to deal with and track.
TPB has never turned up an opportunity to publicly humiliate and insult it’s opponents. On it’s website you can see a list of emails and TPB’s responses to them. Besides being blatantly rude and a bit obsessed with sodomy, you do get the idea that these founders lived in a false sense of security for some time, as if they were untouchable. But let’s not assume they thought that the digital world wasn’t real.
The documentary is subtitled with “Away From Keyboard.” This is a term that has been growing in popularity and has been replacing the alternate phrase, “In Real Life.” As stated in the documentary, the founders of TPB believe that the Internet is real life. Considering the multi-million dollar fines and prison sentences in reaction to this website, it is difficult to argue with that view.
And yet TPB continues. According to Suade in one of his final testimonies in the documentary, he states, “The Pirate Bay is ten times larger than Napster was at it’s peak, and it’s still growing.”
This force of digital nature will continue since it does exist as the founders said it does. It is a blank page waiting to be filled with content by its users. In recent years, the number of people using torrent sites has only increased surging to averages around 150 million monthly users. There is obviously a demand for a free supply of media on the high seas of the Internet, and The Pirate Bay abides.