The one-sided assumptions in the Pirate Bay ruling

This is a translation of an article that I wrote in Swedish newspaper Svenska Dagbladet on Nov 27th, following the verdict from the Swedish Court of Appeal in the famous Pirate Bay copyright infringement case.

According to the current ruling in the Pirate Bay trial, the Court of Appeal makes a very interesting comparison between The Pirate Bay and services like Google and YouTube, which also distribute copyrighted material:

“If the nature of a search service is such that it primarily is a valuable tool in lawful activities, and of general benefit to society, if this legitimate use predominates, but the distribution or transmission of illegal material in spite of precautions cannot be ruled out, the operation of such a service should be considered as legitimate.” [emphasis added]

In fact, the ruling depends on whether one sees file-sharing as a fundamentally good thing for society, or as a public hazard. Once again, the saga of The Pirate Bay shows that the law is eminently political.

A new, yet formalised way forward

Bennett Lincoff, former Director of Legal Affairs for New Media at ASCAP, was in Sweden recently. Although he is not an outright opponent of the current copyright system, he has a radical proposal of how copyright law should work online. The recording industry still bases their entire business model on selling copies; a retrograde strategy, he argues. Instead, he proposes a digital transmission right for the Internet. He argues that the Net is fundamentally incompatible with the old business model of selling individual copies of popular culture.

This is a new type of license, a digital transmission license to replace all other rights on the Internet. In his proposal, anyone who wants to transfer copyrighted material digitally would have to buy such a transmission license: websites that broadcast music, namely Internet radio or other types of streaming media, but also individual file sharers who know that they share large amounts of copyrighted music.

The carrot and the schtick?

Peer-to-peer-based file-sharing in Sweden: Clashing proposals from the interventionist state on what to do with a wildly file-sharing population. Pacify them with broadband-tax subsidised, “free” file-sharing or instil a general fear of uploading by penalising those who do?

In the current, once again harshening legal climate surrounding p2p-based file-sharing in Sweden, where the infamous EU-wide IPRED directive is now making inroads and might be implemented early next year (effectively granting powers to private bodies to monitor and police what they consider illegal copyright infringements), it is noteable that there are two strands of the debate which both assume state intervention, but in different ways. These two forms of intervention – in effect, corporatist solutions where existing industries are subsidised by the state – are, however, seemingly incompatible with one another!

Creative Commons consolidates old-school copyright? That argument is secondary

There is a type of criticism against Creative Commons which has grown quite prominent within the copyleft recently. The main tenet in this line of argumentation seems to be that Creative Commons through its reliance on the existing copyright regime actually reinforces copyright.
For example, Crosbie Fitch recently argued for this stance on the fc-uk-discuss mailing list. He described Creative Commons (CC) as flawed, because it helps consolidating old-school copyright:

CC is flawed in that it consolidates the perception that the artist should be able to control the use of their art.
[…]
CC consolidates copyright.
It is as if the IP maximalists said to a great lawyer “How can we get the masses to respect our copyrights?”, and he replied “Simple: encourage the masses to embrace copyright themselves, in everything they do. If everyone believes in it, it becomes more powerful. They will then perceive their use of manacles upon their culture as enfranchising, as their own emancipation.”