Copyright Cyberspace Headline Intellectual Property

The Pirate Bay’s Founders Go Down For Contributory Infringement Of Copyrighted Works

On its “About” page, The Pirate Bay describes itself as follows:

The Pirate Bay is the worlds largest bittorrent tracker. Bittorrent is a filesharing protocol that in a reliable way enables big and fast file transfers.

The website was founded by a Swedish anti-copyright organization and has gone through a few changes of ownership before being handed over to the current organization that runs the site.  Here is another section of the About page:

Any complaints from copyright and/or lobby organizations will be ridiculed and published at the site.

.Torrent files, the type of file located on The Pirate Bay’s servers, are commonly used to pack copyrighted material for easy sharing between users.  The Pirate Bay’s founders believed that they could escape liability from charges of illegal activity.  As they found out in April 2009, the four founders were found guilty, in a Swedish District Court, of assisting in making copyright content available, and each were handed a 1-year jail sentence and $905,000 to pay to Nordic entertainment industries in damages.

The founders immediately appealed the decision to the Swedish Appeal Court.  The court affirmed the district court’s holding and found three of the four founders guilty of assisting in making copyright content available, but slightly lowered the prison sentences, and increased the total amount of damages to $6.5 million between the three founders.  The reason that the fourth founder has not yet been found guilty is because he was not present at the hearings due to his poor medical conditions; he will receive his punishment at a later date.

The courts have had to determine whether The Pirate Bay should be held contributory infringer based on the actions of its users.  The Pirate Bay is a contributory infringer if it either 1) Intentionally induced its users to infringe the entertainment industry’s copyrighted works; or 2) Supplied a product to its users with actual or constructive knowledge that the product was being used to infringe the copyrighted works.  In this case, The Pirate Bay was not providing a “product.”  The product is .torrent downloading software.  The Pirate Bay does not make any such item. Instead, consider the extent of control exercised by The Pirate Bay over its users means of infringement.  Did The Pirate Bay’s website intentionally induce its users to infringe the copyrighted works?

Expect an appeal to the Swedish Supreme Court sometime in the near future.  In the meantime, The Pirate Bay continues to exist under the control of a different entity.