The Pirate Bay and Peer-to-Peer (from a legal perspective)
What is the Pirate Bay?
According to Wikipedia:
“The Pirate Bay (sometimes abbreviated to TPB) is an online index of digital content of entertainment media and software. Founded in 2003 by Swedish think tank Piratbyrån, The Pirate Bay allows visitors to search, download, and contribute magnet links and torrent files, which facilitate peer-to-peer (P2P) file sharing among users of the BitTorrent protocol.
In April 2009, the website's founders (Peter Sunde, Fredrik Neij, and Gottfrid Svartholm) were found guilty in the Pirate Bay trial in Sweden for assisting in copyright infringement and were sentenced to serve one year in prison and pay a fine. In some countries, Internet service providers (ISPs) have been ordered to block access to the website.
Subsequently, proxy websites have been providing access to it. Founders Svartholm, Neij, and Sunde were all released by 2015 after having served shortened sentences. The Pirate Bay has sparked controversies and discussion about legal aspects of file sharing, copyright, and civil liberties and has become a platform for political initiatives against established intellectual property laws and a central figure in an anti-copyright movement. The website faced several shutdowns and domain seizures, switching to a series of new web addresses to continue operating.”
More on Pirate Bay
This comes from a European Commission study:
“ThePirateBay.org Available in 35 languages, ThePirateBay.org is allegedly one of the largest BitTorrent websites globally. The website facilitates sharing all kinds of content (including films, music, TV programmes, software, videogames and books) in its peer-to-peer network. Although copyright holders have successfully taken action against the operators of BitTorrent websites in a number of jurisdictions throughout the world and the website was closed down for a while, it reappeared and continues to be active. It released the Pirate Browser, a selfcontained portable web browser with pre-set bookmarks to BitTorrent websites hosted on the TOR network.
The website has been reported to have multiple alternative domains hosted in various countries around the world over the years. The total number of visits of the site between April 2017 and March 2018 was around 3,1 billion. The average rank worldwide was 103 during this period. In December 2017 the Swedish Supreme Court confirmed that domains can be seized under Swedish law, upholding the Court of Appeals' decision to seize piratebay.se and thepiratebay.se from one of the original founders.”
News stories and articles involving The Pirate Bay:
- Is Pirate Bay still safe to use?
- Pirate Bay legal troubles
- Swedish Court to block Pirate Bay for Three Years
- DMCA warning
- Google rejects DMCA takedown request from Pirates Bay
- Pirate Bay loses a lawsuit
- Pirate Bay files a copyright infringement lawsuit
- Pirate Bay lawsuit targets Comcast users
What is Peer-to-Peer (p2p)?
Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1024–25 (9th Cir. 2013) was a federal court case that discussed file sharing technology: “This case concerns a peer-to-peer file sharing protocol known as BitTorrent. We begin by providing basic background information useful to understanding the role the Fung sites play in copyright infringement.” I. Client-server vs. peer-to-peer networks “The traditional method of sharing content over a network is the relatively straightforward client-server model. In a client-server network, one or more central computers (called “servers”) store the information; upon request from a user (or “client”), the server sends the requested information to the client. In other words, the server supplies information resources to clients, but the clients do not share any of their resources with the server. Client-server networks tend to be relatively secure, but they have a few drawbacks: if the server goes down, the entire network fails; and if many clients make requests at the same time, the server can become overwhelmed, increasing the time it takes the server to fulfill requests from clients. Client-server systems, moreover, tend to be more expensive to set up and operate than other systems. Websites work on a client-server model, with the server storing the website's content and delivering it to users upon demand.” “Peer-to-peer” (P2P) networking is a generic term used to refer to several different types of technology that have one thing in common: a decentralized infrastructure whereby each participant in the network (typically called a “peer,” but sometimes called a “node”) acts as both a supplier and consumer of information resources. Although less secure, P2P networks are generally more reliable than client-server networks and do not suffer from the same bottleneck problems. See generally *1025 Metro–Goldwyn–Mayer Studios, Inc. v. Grokster, Ltd. (“ Grokster III ”), 545 U.S. 913, 920 & n. 1, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). These strengths make P2P networks ideally suited for sharing large files, a feature that has led to their adoption by, among others, those wanting access to pirated media, including music, movies, and television shows. Id. But there also are a great number of non-infringing uses for peer-to-peer networks; copyright infringement is in no sense intrinsic to the technology, any more than making unauthorized copies of television shows was to the video tape recorder. Compare A & M Records v. Napster, Inc., 239 F.3d 1004, 1021 (9th Cir.2001) with Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 456, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). THE COURT CONTINUED: II. Architecture of P2P networks “In a client-server network, clients can easily learn what files the server has available for download, because the files are all in one central place. In a P2P network, in contrast, there is no centralized file repository, so figuring out what information other peers have available is more challenging. The various P2P protocols permit indexing in different ways.” A. “Pure” P2P networks In “pure” P2P networks, a user wanting to find out which peers have particular content available for download will send out a search query to several of his neighbor peers. As those neighbor peers receive the query, they send a response back to the requesting user reporting whether they have any content matching the search terms, and then pass the query on to some of their neighbors, who repeat the same two steps; this process is known as “flooding.” In large P2P networks, the query does not get to every peer on the network, because permitting that amount of signaling traffic would either overwhelm the resources of the peers or use up all of the network's bandwidth (or both). See Grokster III, 545 U.S. at 920 n. 1, 125 S.Ct. 2764. Therefore, the P2P protocol will usually specify that queries should no longer be passed on after a certain amount of time (the so-called “time to live”) or after they have already been passed on a certain number of times (the “hop count”). Once the querying user has the search results, he can go directly to a peer that has the content desired to download it. “This search method is an inefficient one for finding content (especially rare content that only a few peers have), and it causes a lot of signaling traffic on the network. The most popular pure P2P protocol was Gnutella. StreamCast, a Grokster defendant, used Gnutella to power its software application, Morpheus. See Grokster III, 545 U.S. at 921–22, 125 S.Ct. 2764.” B. “Centralized” P2P networks “Centralized” P2P networks, by contrast, use a centralized server to index the content available on all the peers: the user sends the query to the indexing server, which tells the user which peers have the content available for download. At the same time the user tells the indexing server what files he has available for others to download. Once the user makes contact with the indexing server, he knows which specific peers to contact for the content sought, which reduces search time and signaling traffic as compared to a “pure” P2P protocol.” “Although a centralized P2P network has similarities with a client-server network, the key difference is that the indexing server does not store or transfer the content. It just tells users which other peers have the content they seek. In other words, searching is centralized, but file transfers are peer-to-peer. One consequent disadvantage of a centralized P2P network is that it has a single point of potential failure: the indexing server. If it fails, the entire system fails. Napster was a centralized P2P network, see generally Napster, 239 F.3d at 1011–13, as, in part, is eDonkey, the technology upon which one of the Fung sites, ed2k-it.com, is based.” C. Hybrid P2P networks “Finally, there are a number of hybrid protocols. The most common type of hybrid systems use what are called “supernodes.” In these systems, each peer is called a “node,” and each node is assigned to one “supernode.” A supernode is a regular node that has been “promoted,” usually because it has more bandwith available, to perform certain tasks. Each supernode indexes the content available on each of the nodes attached to it, called its “descendants.” When a node sends out a search query, it goes just to the supernode to which it is attached. The supernode responds to the query by telling the node which of its descendant nodes has the desired content. The supernode may also forward the query on to other supernodes, which may or may not forward the query on further, depending on the protocol.” See generally Grokster III, 545 U.S. at 921, 125 S.Ct. 2764. “The use of supernodes is meant to broaden the search pool as much as possible while limiting redundancy in the search. As with centralized P2P systems, supernodes only handle search queries, telling the nodes the addresses of the other nodes that have the content sought; they are not ordinarily involved in the actual file transfers themselves. Grokster's software application was based on a P2P protocol, FastTrack, that uses supernodes.” See Grokster III, 545 U.S. at 921, 125 S.Ct. 2764. III. BitTorrent protocol The BitTorrent protocol, first released in 2001, is a further variant on the P2P theme. BitTorrent is a hybrid protocol with some key differences from “supernode” systems. We discuss those differences after first describing BitTorrent's distinguishing feature: how it facilitates file transfers.” A. BitTorrent file transfers. “Traditionally, if a user wanted to download a file on a P2P network, he would locate another peer with the desired file and download the entire file from that peer. Alternatively, if the download was interrupted—if, for example, the peer sending the file signed off—the user would find another peer that had the file and resume the download from that peer. The reliability and duration of the download depended on the strength of the connection between those two peers. Additionally, the number of peers sharing a particular file was limited by the fact that a user could only begin sharing his copy of the file with other peers once he had completed the download.” “With the BitTorrent protocol, however, the file is broken up into lots of smaller “pieces,” each of which is usually around 256 kilobytes (one-fourth of one megabyte) in size. Whereas under the older protocols the user would download the entire file in one large chunk from a single peer at a time, BitTorrent permits users to download lots of different pieces at the same time from different peers. Once a user has downloaded all the pieces, the file is automatically reassembled into its original form.” “BitTorrent has several advantages over the traditional downloading method. Because a user can download different pieces of the file from many different peers at the same time, downloading is much faster. Additionally, even before the entire download is complete, a user can begin sharing the pieces he has already downloaded with other peers, making the process faster for others. Generally, at any given time, each user is both downloading and uploading several different pieces of a file from and to multiple other users; the collection of peers swapping pieces with each other is known as a “swarm.” B. BitTorrent architecture “To describe the structure of BitTorrent further, an example is helpful. Let us suppose that an individual (the “publisher”) decides to share via BitTorrent her copy of a particular movie. The movie file, we shall assume, is quite large, and is already on the publisher's computer; the publisher has also already downloaded and installed a BitTorrent “client” program on her computer. To share her copy of the movie file, the publisher first creates a very small file called a “ torrent” or “dot- torrent” file, which has the file extension “. torrent.” The torrent file is quite small, as it contains none of the actual content that may be copyrighted but, instead, a minimal amount of vital information: the size of the (separate) movie file being shared; the number of “pieces” the movie file is broken into; a cryptographic “hash” that peers will use to authenticate the downloaded file as a true and complete copy of the original; and the address of one or more “trackers.” Trackers, discussed more below, serve many of the functions of an indexing server; there are many different trackers, and they typically are not connected or related to each other. Second, the publisher makes the torrent file available by uploading it to one or more websites (“ torrent sites”) that collect, organize, index, and host torrent files. Whereas Napster and Grokster had search functionality built into their client programs, the standard BitTorrent client program has no such capability. 7 BitTorrent users thus rely on torrent sites to find and share torrent files. There is no central repository of torrent files, but torrent sites strive to have the most comprehensive torrent collection possible. The Fung sites have two primary methods of acquiring torrent files: soliciting them from users, who then upload the files; and using several automated processes (called “bots,” “crawlers,” or “spiders”) that collect torrent files from other torrent sites. Because of this latter route, which other torrent sites also routinely use, torrent sites tend to have largely overlapping collections of torrents. According to a declaration Fung signed in April 2008, there were then over 400 torrent sites. Because the torrent sites typically contain only torrent files, no copyrighted material resides on these sites. Lastly, the publisher leaves her computer on and connected to the Internet, with her BitTorrent program running. The publisher's job is essentially done; her computer will continue to communicate with the tracker assigned to the torrent file she uploaded, standing ready to distribute the movie file (or, more accurately, parts thereof) to others upon request. A user seeking the uploaded movie now goes to the torrent site to which the torrent file was uploaded and runs a search for the movie. The search results then provide the torrent file for the user to download. Once the user downloads the torrent file and opens it with his BitTorrent program, the program reads the torrent file, learns the address of the tracker, and contacts it. The program then informs the tracker that it is looking for the movie associated with the downloaded torrent file and asks if there are any peers online that have the movie available for download. Assuming that publishers of that movie are online, the tracker will communicate their address to the user's BitTorrent program. The user's BitTorrent program will then contact the publishers' computers directly and begin downloading the pieces of the movie. At this point, the various publishers are known as “seeders,” and the downloading user a “leecher.” Once the leecher has downloaded one or more pieces of the movie, he, too, can be a seeder by sending other leechers the pieces that he has downloaded. A final few words on trackers. Although no content is stored on or passes through trackers, they serve as a central hub of sorts, managing traffic for their associated torrents. 8 The tracker's primary purpose is to provide a list of peers that have files available for download. Fung avers that this function is the only one provided by his two trackers, discussed below. Because trackers are periodically unavailable—they can go offline for routine maintenance, reach capacity, be shuttered by law enforcement, and so on— torrent files will often list addresses for more than one tracker. That way, if the first (or “primary”) tracker is down, the user's client program can proceed to contact the backup tracker(s). See Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1025–28 (9th Cir. 2013).
The Pirate Bay Trial
According to wikipedia:
“The four operators of the site were convicted by Stockholm district court on 17 April 2009 and sentenced to one year in jail each and a total of 30 million Swedish kronor (approximately US$3.5 million, €2.7 million) in fines and damages. The court found that the defendants were all guilty of accessory to crime against copyright law, strengthened by the commercial and organized nature of the activity.
The court, however, never presented its corpus delicti (that is, it never attempted to prove that a crime was committed, but it succeeded in proving that someone was an accessory to that crime). Prosecutor Håkan Roswall cited in his closing arguments a Supreme Court of Sweden opinion that a person holding the jacket of someone committing battery can be held responsible for the battery.
In its verdict, the court stated that “responsibility for assistance can strike someone who has only insignificantly assisted in the principal crime”, referring to a Supreme Court precedent where an accountant was sentenced for accessory to crime even though his actions were not criminal per se. The court rejected the charge of preparation to crime against copyright law. The lawyers of all four defendants appealed the verdict, with Lundström's lawyers filing their appeal immediately on the day the verdict was given. The entertainment industry lawyers appealed as well, on reintroducing the dismissed charge and on the method of calculating damages, which in their opinion does not fully cover the lost income.”
Contact a [P2p] BiTtorrent Defense & IP Law Firm
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