May 2nd, 2009
Pirate Bay verdict dismissed safe harbors, comparison with Google
Two of the interesting tidbits from Ars Technica’s review of the Pirate Bay verdict were of particular interest to me: the comparison of Pirate Bay to Google and the question of Safe Harbors.
It’s certainly true that Google has pointers a plenty to illegal torrents, so why should the Pirate Bay be hung out to dry while nothing is said of Google?
Here is the judge’s answer in its most condensed form: “In accordance with what will be further demonstrated below, all the defendants were aware that a large number of the website’s users were engaged in the unlawful disposal of copyright-protected material. By providing a website with advanced search functions and easy uploading and downloading facilities, and by putting individual filesharers in touch with one other through the tracker linked to the site, the operation run via The Pirate Bay has, in the opinion of the District Court, facilitated and, consequently, aided and abetted these offences.”
The European Union’s Electronic Commerce Act contains Safe Harbors similar to the American Communications Decency Act and Digital Millenium Copyright Act’s, which should protect a site from the illegal activities of its users. Why wasn’t Pirate Bay protected?
Because the law requires that a service provider was “not aware of the existence of the illegal information or operation, and was not aware of facts or circumstances which made it obvious that the illegal information or operation existed or who, as soon as he received knowledge about or became aware of this, prevented the spread of the information without delay.”
Since they posted many of the takedown letters sent in by copyright owners, the admins certainly knew about all sorts of copyright infringement taking place on their site. They did nothing about it and instead mocked the rightsholders. “It must have been obvious to the defendants that the website contained torrent files which related to protected works,” said the court. “None of them did, however, take any action to remove the torrent files in question, despite being urged to do so. The prerequisites for freedom from liability under §18 have, consequently, not been fulfilled.”
