The news today is the conviction and sentencing of 4 people from The Pirate Bay.
The IT issues here are very murky, so let me help.
First off, the news coverage is lousy. Most say the conviction was for file sharing and copyright violation.
Murky enough in fact, that the guilty may not have shared any files or violated any copyrights. Don’t expect reporters to explain that properly.
Did these 4 people do something unethical? Possibly.
Did they do something illegal? That’s doubtful.
Did they engage in reprehensible behavior that got the movie studios to run them to ground and hang any offense on them they could? Yes.
Did they deserve it. Probably so.
But, it’s murky, and here’s why. In fact, it’s so murky that you’re going to have to read for a while before we return to The Pirate Bay.
What’s at issue here is file sharing, and it’s technical incarnation – torrenting.
A torrent starts with someone who is violating copyright, and probably intends to (although note that there are many torrents of non-copyrighted material, so it isn’t the torrenting itself that’s the problem). From here on, I’ll assume that they are using copyrighted content that they own legally, but have mens rea.
The first step is to create a torrent for the content. A torrent is a small file with directions on where to break a large file into pieces, and to put it back together the same way. More importantly, it also has a location for the content.
This is like splitting up a newspaper into individual broadsheets: since the page numbers are there, you can reconstruct the paper.
Artists claim that there is a problem right there with splitting their work, but this isn’t very tenable. If you own a Big Mac, no one objects to you taking it apart and removing the pickles. You just can’t resell it as a Big Mc.
There’s more of a case for the artist if the torrent actually splits the content in some serious way. In the newspaper analogy, this is like having an article start on one broadsheet and end on another. Artists can and do claim that this ruins the integrity of their work. But, this is also nonsense, since at a small enough level, the components of the content can’t be copyrighted. For example, my content in this post is copyrightable, but the individual words are not. So, if the pieces in the torrent are small enough, the artist has no case. In practice, the pieces usually aren’t this small, but this is a technical detail done for convenience.
Now we get to sharing the file. Take the example of music: the position of content providers is that one person can play a song they own for others who don’t own it. So, you and a friend can sit together and listen to your music. But you can’t copy it for them, and this is where things get weird, because it means that it’s illegal to have an original and an owner-made copy of the same song playing at the same time in the same room for the two of you – even if they blend to make one sound without two identifiable parts. You’d have to be pretty desperate to make that argument. Now, content providers are absolutely right that what is going on is a lot worse than this, but it should be clear that their position fails a reductio ad absurdum test.
Torrenting is then a nightmare for a content provider. The person who has the torrent is called a seeder. The seeder gets their torrent file out to another person, say, through e-mail. That person is called a leecher. The leecher can use the torrent file to call the seeder’s computer and ask for a piece of the original content. This is where the seeder starts on the road to a copyright violation. But, they probably haven’t violated the letter of the law yet because that piece may not constitute a complete or identifiable part of the content for which copyright might plausible apply.
But … remember … we are in the digital age. There might be more than one leecher. The cool thing about torrenting is that the two leechers can ask for different pieces of the original content.
But, now the leechers become potential copyright violaters, because torrent software not only connects them both to the seeder, but also to each other. So, at the next stage, they can each ask for another new piece of content from the seeder, but also for the pieces that the other leecher has! If you’ve gotten this far, I strongly suggest that you go and look at this illustration: the efficiency is astounding – 7 copies of 6 pieces of information are created in merely 9 steps.
This is why last week’s news of the pirating of X-Men Origins: Wolverine is a big deal. A few hundred torrenters can turn a single pirated copies into millions in a few hours. The real reason that Fox critic Roger Friedman was fired was:
Friedman's real sin wasn't reviewing the movie so much as making it obvious how easy it was, with just one click of the mouse, for a typical middle-aged male to watch an illegally pirated Hollywood summer movie …
Yet still, the decentralization of torrenting means that it isn’t clear that any individual piece sent by any leecher or seeder is covered by copyright. At worst, the leecher hasn’t done anything problematic until they get all the pieces, at which point they become a full-fledged seeder. This is why this is called peer-to-peer file sharing: initially the leechers and seeders aren’t peers, but eventually they will be.
Content creators would say the leecher has definitely violated copyright at this point. But again, it’s hard to say that this follows if they don’t exploit the copyright in a meaningful way that benefits them.
Clearly the leecher has done something reprehensible. But merely possessing copyrighted material that you didn’t pay for and using it for your own pleasure is legal: that’s why folks abandon newspapers in public places – perhaps someone else might like to read them. Content providers want us to think of this as trafficking in stolen goods. It is … a little. So little that one could make an argument that it is common law that file sharing has been OK all along.
The position of content providers is that because the leecher is avoiding a potential purchase, that the content provider has lost real money. Perhaps. But, they usually claim that the deserve the retail price for their product, and here their argument runs into problems with the microeconomics.
Consumers have a reservation value: the maximum they will pay for a product. For content, there are two types: those with reservation values higher than the retail price, and those with reservation values below the retail price. The former will buy the product, the latter won’t. The existence of file sharing offers a way to get the content at something far below retail price: not zero, but close enough.
Content providers claim that file sharing encourages high reservation value consumers to avoid retail purchases. Fair enough. I’d value these losses at the retail price. The thing is – no one knows how many of these people are out there.
But, content providers also like to claim losses from those with lower reservation values. The thing is, those folks wouldn’t make a purchase at all, so the content provider hasn’t actually lost the retail price. Instead, what they’ve lost is the reservation price, which might be quite small. For example, back in 1998, when there was no legal framework covering MP3 downloading, the first song I downloaded was one I already owned on CD. How much was the MP3 worth to me? Ten cents, maybe? Content providers would have us believe that they lost a $15 CD sale on me, when in fact what they lost was the potential to sell me a CD single at a price they were never thoughtful enough to offer. Even so, perhaps I did get ten cents of value I didn’t pay for. That’s not the big deal that content providers claim it is.
Let’s review.
The seeder has bad intent, but all they’ve done is tempt the leecher. If no one leeches, there is no crime.
The leecher also has bad intent, and has definitely avoided a purchase. But, the loss from that behavior is, on average, nowhere near as large as is commonly believed. Further, it may already be legal: it’s not illegal to sit in parks where people leave newspapers on benches to avoid paying for them. It also wouldn’t be illegal to follow a note on a park bench telling you to go to an address where someone has left a paper they’re done with.
The torrent itself isn’t illegal either: it’s just a set of directions. I suppose this type of directions could be made illegal, but it hasn’t been. And … you can imagine the freedom-of-speech problems that would entail.
And the file sharing is illegal, but absurd at some level. The intent is a problem, but the mechanics are clearly legal.
This is where The Pirate Bay comes back into the picture. What they do is host files: if you send them a file, they’ll put a link to it on their web page. The people who send them files are seeders. The people who go there are leechers. I said up above that the seeder and leecher might do this through e-mail (as I did with non-copyrighted material about 2 weeks ago) – what The Pirate Bay does is act as a clearinghouse.
The Pirate Bay is thus the internet version of the public park bathroom where people meet to pursue some sexual interests. Seeders and leechers are analogous to people whose sexual practices aren’t illegal, but which others don’t widely approve of.
Except The Pirate Bay also hosts advertising, and this is where they make their money.
Note that as a host, The Pirate Bay doesn’t need to be either a seeder or a leecher. It’s possible that none of the people involved with the site have ever violated copyright. Probably not, but it’s telling that they weren’t accused of that … certainly that makes me think that winning that point wasn’t on the minds of the plaintiffs. So, The Pirate Bay facilitates peer-to-peer sharing without actually doing any of the sharing.
Time to sum up. Four people are going to jail for making money from a site on which other people get together to do something that you have to stretch a bit to call a crime.
This deserves an analogy: this is like going to San Francisco in the 1970s and sending the owners of gay bathhouses to jail merely and only because they get paid to put advertisements on the walls.
Get the picture? No matter what your position on gay bathhouses, it wasn’t the advertising on the walls that made people buggy about them. But, this is what the movie studios are reduced to arguing … and winning with … this time.
I don’t know about you, but this makes me think the movie studios who brought this case will be gone in my lifetime, but that the file sharers will still be here.
