Over an eleven day period ending last Wednesday, three lay judges and one professional judge presided over the most closely followed and polarized trials in recent Swedish history. In their hands lies the fate of the Pirate Bay – the ever-popular BitTorrent website. With the court’s judgment due in April, file-sharers and copyright holders all over the world will be paying close attention to Sweden to determine the immediate future of BitTorrent file sharing on the internet.
Co-founded five years ago by Fredrik Neij, Gottfrid Svartholm Warg, and Peter Sunde, the Pirate Bay has grown into one of the most frequented BitTorrent websites on the internet. Through the site, it is estimated that between 22-25 million users from around the world swap large files and content with each other. Studies have found that on average, BitTorrent traffic accounts for 1/3 of all traffic on the internet. Furthermore, it is believed that a significant portion of the content transferred via BitTorrents is copyrighted and transferred illegally without the permission of rights holders. Though it is disputed by some experts, creators and owners of copyrighted works are concerned that BitTorrents and specifically the Pirate Bay are eroding their market by facilitating the infringement of their works. Because of these concerns, law enforcement agencies and copyright holders have taken action against BitTorrent websites such as the Pirate Bay.
Criminal and civil proceedings were commenced against Pirate Bay in January 2008 accusing the three founders and ISP owner, Carl Lundström, with the crime of facilitating copyright infringement. If the prosecution is able to prove that the accused intended to encourage unlawful sharing of copyrighted material via The Pirate Bay, then they may face up to two years in prison, fines of $180,000 and civil damages of $13 M.
The Technology
BitTorrent is a peer-to-peer (P2P) communication protocol that allows users to transfer large amounts of content over the internet quickly. What is unique about the BitTorrent protocol as compared to other similar P2P file-sharing programs such as LimeWire, Bear Share, Kazaa, eDonkey2000, etc, is that it is a highly decentralized infrastructure. It distributes content quickly by allowing users to download content from many peers in parallel and then begin uploading to other peers before the entire content has been received.
To download content from a peer a user must first have the corresponding .torrent file. This .torrent file is small and found on websites (though feasibly it could be found anywhere such as email, newsgroups, etc). Contained within the file is the necessary information for a user’s BitTorrent application to find and download the desired content from the peers. Among other things it contains file names, sizes, and links to trackers. A tracker is an application that is hosted on an internet server and is responsible for listing the peers that are currently sharing the desired content. When a user’s BitTorrent application opens the .torrent file, it contacts the tracker via the link, receives a list of peers that are sharing the desired content, then begins to download different chunks of the desired content from multiple peers in parallel.
Pirate Bay plays a special role in this scheme. First, they host a website where peers can upload .torrent files. Second, they allow other users to search for and download the .torrent files that reside on their website. Third, they also host a tracker that maintains a list of peers that are actively sharing the content. At no time is the desired content stored or transferred via the Pirate Bay website or network. Pirate Bay is theoretically only a website of links that point to content. Not only does this minimize the computer and network resources Pirate Bay needs to service 22 million users, but it also provides a viable legal defence to copyright infringement.
‘It’s like Google’
One of the main defenses used by BitTorrent websites is that they are simply another internet technology that allows users to post, search and download content. The technology is agnostic – it does not differentiate between copyrighted and non-copyrighted content. It is up to the end user to determine how they will use the technology. As managers of the website, they only provide the technology but do not differentiate between legal and illegal sharing of files between users. This monitoring aspect is left up to the users that upload the .torrent and download the desired content.
As such, the services provided by the Pirate Bay and other BitTorrent websites (eg. IsoHunt) are frequently analogized to the Google search engine. Both technologies search and provide links to content on the internet not the content itself. While this may be true, there are key differences between the two technologies that should be taken into account.
Google’s technology crawls through the internet, scanning webpages, indexing key-words, and cross-referencing with other webpages. While Pirate Bay may perform some searching and indexing of only .torrent files by crawling the web and other torrent websites/indexes, a significant number of .torrent files are actually uploaded by users of the Pirate Bay – a feature which is not available on Google’s search engine. It is true that a user may be able to find .torrent files via Google through using specific search parameters (eg. filetype:torrent <file name>), and that the search results may even be similar to the output from a torrent site, however, Google does not store the .torrent file locally. Even Google’s cache feature (which retains website information on a local Google server), does not retain the .torrent file but rather just the webpage pointing to the .torrent file.
Trackers are an important part of the BitTorrent technology but it is difficult to find a parallel in Google’s search engine. The links provided by the Pirate Bay tracker are usually not to static IP and website addresses but rather end-users with dynamic IP addresses who are not always online. By not having static IP and website addresses it makes it more difficult for owners of copyright to contact and enforce their rights against end-users that violate their copyright. This is further exacerbated by the BitTorrent technology that allows swarms (hundreds) of users to upload and download files simultaneously. Instead of sending an email to a webmaster of a webpage, a copyright holder would need to track down the dynamic IP addresses of transient users. Even if the owner of the copyright is able to gather the dynamic IP addresses, ISPs are unlikely to provide the real identity of the subscriber behind the IP. This may change, however, as the Swedish Parliament is expected to adopt a proposal that would allow rights holders to force ISPs to provide subscriber information so they can be sued for copyright infringement. While this new law may make it easier to enforce copyright in Sweden, it will be ineffective against the remaining 25 million Pirate Bay users in the other jurisdictions of the world without a similar law.
One of the main distinguishing factors between Google and Pirate Bay may not actually have anything to do with the technology. Pirate Bay pride themselves on the lack of cooperation and goodwill they provide to those seeking to protect their copyright. Copyright holder requests for removing content were denied by Pirate Bay and publicly mocked by the site administrators. Google on the other hand has made some efforts to implement technologies to identify potentially copyrighted content on their YouTube service, and respect requests to remove links to copyrighted works on their search service.
Finally, unlike Pirate Bay, Google provides more than just links to large files that can be downloaded. Google combs the internet for all websites and content and provides a valuable service by making it all searchable. While Google undoubtedly collects and lists links to copyrighted material, there is still a vast majority of links that point to content made freely available to the general public. The Pirate Bay search, on the other hand, is only limited to .torrent files. An application that allows users to download large files at fast speeds to a personal computer inherently seems to attract the potential for greater copyright infringement. This is evident by simply looking at the ratio of links pointing to copyrighted material vs public works. Few would disagree that Pirate Bay has a significantly higher ratio of links allowing the infringement of copyrighted content than Google.
Like Google, the BitTorrent protocol and websites such as the Pirate Bay are extremely powerful tools that can be used for lawful purposes. However, caution must be used in drawing too close of an analogy between the two technologies. Perhaps this is no more evident than through personal experience. If one were to navigate to the Pirate Bay website at this moment what would they find? An honest observer would certainly conclude that the majority of links on the Pirate Bay enable the infringement of copyrighted material. Could one say the same about Google?
