Pirate Bay’s sinking ship

Published in The Music Network


With a big win against the Pirate Bay and some critical developments taking shape in France and New Zealand, the tide is turning in the music industry’s epic battle against online music piracy.

The Net has been aflutter with commentary since Stockholm’s District Court sunk the Pirate Bay on copyright charges, with an April 17 verdict which saw each of the bittorrent tracker’s four defendants sentenced to a year in jail and slammed with damages totalling SEK 30 million ($4.96 million).

Elsewhere, campaigners in France and New Zealand have offered up a whiff of fundamental change through measures which enlist the cooperation of ISPs to hold serial file-sharers accountable for their actions. While both countries’ respective proposals have endured set-backs, there remains the scent of real change in the air.

“It’s possibly a little early to say the planets are aligning, but in view of recent activity in NZ, France and Sweden, there is clearly a trend that is moving in one specific direction,” says Marianna Annas, GM of the Music Industry Piracy Investigation unit.

The guilty verdict against Sweden’s Pirate Bay sent out a clear message to any wannabe music pirate sailing the high seas of the Net: illegal downloaders beware. Copyright infringement will be firmly dealt with, and a spell in a cell awaits anyone who dared defy.

“This is good news for everyone, in Sweden and internationally, who is making a living or a business from creative activity and who needs to know their rights will protected by law,” responded John Kennedy, CEO of London-based international labels trade body the IFPI, which has fought long and hard to safeguard the copyright owners’ works.

For now, the recorded music industry can enjoy a tangible result in the Pirate Bay decision, whose ripples will be widespread. But the fight to squeeze out illicit file-sharing is far from over.

“Nobody wants jail time, it’s the highest form of punishment on the calendar, so it might have an effect,” notes Trajce Cvetkovski, a Brisbane-based barrister, IP expert and author of “The Political Economy of the Music Industry.” “But there is no evidence that suggests prosecution works, whether it’s at the P2P service or the end-user.”

Moreover, some contentious new findings from the BI Norwegian School of Management on the music-buying habits of P2P users actually suggests that illegal downloaders were more likely to buy music than non-P2P users.

The “Pirate Bay Four” have subsequently appealed, meaning the case will likely drag on by a year at least and the sentences doled out may be reduced. Observers also point out that the damages were considerably less than the SEK 117 million ($19.3 million) figure sought by the entertainment industries, and the prosecution costs in the case would have been high. “The decision,” adds Cvetkovski, “really isn’t that spectacular both in terms of general deterrents or specific deterrents.”

The recorded music industry has been here before, and walked away with the spoils. Back in 2005, the U.S. Supreme Court’s ruling against P2P file-sharing service Grokster and the following year Kazaa was the loser in an Australian Federal Court ruling. In both those cases, the Grokster and Kazaa networks were found to have contributed to copyright infringement for their own benefit. And P2P file sharing now is still as much of a threat as it was then.

The real-world argument goes that the kids who write these programs simply won’t be deterred, and the mantle of irritator-in-chief will simply be passed on. Like the mythical Hydra, cut the head off the snake and two will appear in its place. It will surely take more than a single lawsuit to remove the head of the P2P beast for good.

It’s been 10 years since the music biz took unprecedented legal action to halt Napster, and in that time the industry has adopted a smorgasbord of responses, from the hardline tactic of issuing lawsuits to individuals, the painstaking process of amending copyright laws and, in a more recent change of tac, engaging with the Internet service providers to come up with a mutual solution.

The music industry’s message has stayed the same throughout – file-sharing is theft. And the message, it seems, is now getting through to the highest levels. After the best part of a decade fighting a lone hand against illegal file sharing, the cudgel has been taken up in some countries by governments, lawmakers, and in Australia’s ongoing iiNet case, the movie studios. The smart money is on victory through a confluence of educational and legal strategies, with support from many corners.

Closer to home, New Zealand’s controversial “three strikes” legislation has been delayed to make amendments to some ambiguous text, while France’s similar proposal was rejected on April 9 following a pitiful turnout at the French National Assembly. All is not lost, industry execs say, and both proposals will be presented again in due course. “We expect that impending developments in France and NZ will be closely observed here,” notes Annas.

And where exactly does Australia sit within with this ever-changing world of P2P? Well, right smack bang in the middle. Australians typically are early adopters of new technology and the Rudd government’s proposed multi-billion dollar broadband network promises to connect Australians with high-speed e-commerce. The digital music sector should be sent into overdrive. But on the flip side, if legislation does not keep up with changes in the digital environment, the potential for a worsening piracy climate becomes obvious.

“Australia will continue to have discussions at government level in relation to the creation of a code of conduct,” vows Annas. “We remain positive that government will endorse the interests of content owners within a prescriptive code of conduct.”

The industry war on ISPs has reached new ground, but the battle goes on.