Introduction

I have just finished reading the verdict today from the Pirate Bay trial that gave the defendants a year each in prison and 3 million euros in damages to pay for running the bittorrent site the Pirate Bay in Sweden. It is a well written verdict, and the arguments seem well-founded in the current Swedish law, barring for the somewhat loose connection between the crime and some of the defendants.

I am not here to discuss the politics of file-sharing, but I found an interesting angle in the 107-page document that I think will be one of the future foci as the trial and the debate goes on into other stages: The European Directive concerning electronic commerce.

Article 12

It is interesting to note that the court decides that the Pirate Bay is such a service for the “information society” that is covered  by the 2000/31/EG directive. Wow – this must be great news for the Pirate Bay guys, since it is – as I see it – the only way that this verdict will be changed in the later stages in its totality (and not only for some of the defendants).

Here is a summary of the applicable legal text (full text here):

2000/31/EG directive Article 12 – “Mere conduit”

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the transmission.

2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

In essence the court argues that this article quoted above is not applicable, even though they see Pirate Bay as an information society service that is thereby covered by the directive. The reason is, according to the verdict that

The purpose of Pirate Bay’s services was e.g. to provide server space so that users could upload and store torrent-files on the web site. This storage means that Article 12 (in Swedish law paragraph 16) – that only covers services where some form of automatic and temporary storage (cacheing) takes place … is not applicable. (from the verdict)

Basically they argue that since the possibility to upload and store torrent-files is provided, another article is applicable. This other article does not give the Pirate Bay guys freedom from liability.

Why article 12 may be applicable

However, I can see some strong arguments for that it is applicable, now that the court sees the Pirate Bay as a provider of services for the information society. Here is a first stab at a line of argument:

1. The information that is uploaded is not the protected works, or any parts thereof, but pointers and references to places that may know where parts of that work may (or may not) be found.
2. The BitTorrent technology is a communications protocol, where the torrent-files (that are uploaded to Pirate Bay) are a part of that communications
3. The role of the torrent file in BitTorrent communications is only to enable communication to take place between parties sharing files. Therefore, a torrent file should be viewed as information that has the “sole purpose of carrying out the transmission in the communication network”, in the directive.
4. The directive seems to be written with communication between primarily two parties communicating for a given limited duration in time. However, the idea with BitTorrent is to enable many to communicate with many for a longer duration.
5. This is where the court might get things wrong: The directive says that the provider should be without liability if 1) they only store information needed for the communication to take place (which is argued above), and 2) only stores this information for a time needed for the “transmission to take place”, and 3) if this storage is “automatic, intermediate and transient”.
6. Since the BitTorrent transmission, as per definition by the communications protocol, takes place potentially unlimited in time and between many parties, it must be concluded that an operator or provider of such a service must store the torrent-files indefinitely, or at least longer than what the court labels “temporary”.
7. The directive does not give a limit in the length of time the information can be stored – it only says it can be stored for a “reasonable time to complete the transmission”.
8. The court’s argument it that the storing of torrent files are not “automatic and temporary”, and that’s why the Pirate Bay guys are still liable.
9. And here is the end of my argument: The directive specifies further what it means by “automatic, intermediate and transient storage of the information transmitted” by adding “in so far as [the storing] takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission”.
10. From the perspective of Pirate Bay as a provider, the uploading of the torrent files by users to enable communication between parties is “automatic, intermediate and transient” insofar that user’s torrent clients create the torrentfiles and uploads them to Pirate Bay to enable communication, the files are an integrated and unseparable part of the communications protocol, they are intermediate in that they are only there to broker the communications, and transient insofar as they only need to exist as long as the transmission takes place (which might be indefinately).
11. Therefore, since the purpose of the information in the torrent files are to enable communication between parties, and since they are stored at the Pirate Bay only for the purpose to carry out the transmission, and only during that time than is reasonably necessary for the transmission, article 12 is applicable.

I am sure that Swedish and European copyright laws can be changed to the better.  But as long as we have the laws we have, all should strive to adhere to them. It is not totally clear to me that the guys behind Pirate Bay have committed any crimes (at all), but we know that many users of their service have done so. This post does not argue that stealing other parties intellectual property is a good thing, or that Pirate Bay is a good (or a bad) thing

In conclusion, I think the court was a little too quick to dismiss the idea of the directive’s article 12 that the provider is without liability in certain circumstances, since these circumstances seems to be fulfilled. Especially since the court writes that they see the Pirate Bay as covered by the directive in itself. I am surprised that no old media has discussed this, since it it also at the heart for the question: Is the Internet still legal after this?