On the Defense of the Moral and Ethical Existence of The Pirate Bay
In society and civilizations modern epoch, technological advances have greatly increased mankind’s ability to create and disseminate both information and knowledge. Historically and before the age of the printing press, the education of society and the fostering of a unique sense of culture were made possible through individual creation. Displayed and perpetuated in various forms such as art, writing, and basic rhetoric, each instance could often be tantamount to a lifetime of hard-work and strife. As such, the dissemination of specific works was often limited to particular socio and cultural regions. This limit was overcome in 1448 following the creation of the moveable-type printing press by German inventor, Johann Gutenberg. The Gutenberg press worked by utilizing hand-cut wooden letters which could be moved and rearranged to form words, sentences, and entire pages. This pivotal technological advancement allowed for the ease of production and more importantly, the ease of mass-reproduction. As demonstrated through the renowned Gutenberg Bible, this new mode of production allowed for important works to be recreated on a level of ease exponentially greater than the former method of hand reproduction. As a result, information and knowledge could be disseminated to a larger populace which allowed for the growth of society and culture. (Massachusetts Institute of Technology School of Engineering, 2004) This breakthrough and advancement in technology was arguably the greatest in history until the invention of digital computing and the World Wide Web.
The invention of digital computing and the World Wide Web could arguably be said to have single-handedly carried civilization into its current modern epoch. The first stepping stone, the internet, was created in the 1960s by the United States Department of Defense as a means of rapid communication from locations across the nation. The Advanced Research Projects Agency Networks, also known as ARPANET, created by theAdvanced Research Projects Agency linked and connected the University of California at Los Angeles, SRI International in Menlo Park, California, the University of California at Santa Barbara, and the University of Utah. The internet, which transpired from this original project, was utilized a few decades later to create the World Wide Web. Originally created in 1990 by CERN scientist Tim Berners-Lee, the World Wide Web employed the internet to connect users together from across the globe. Utilizing Hypertext Transfer Protocol and a created browser operating with a HTML language, Berners-Lee was able to successfully communicate through the internet. With a lapse of only a few short years, millions of unique computers were connected to this new World Wide Web through thousands of different servers from across the globe. (Curtis, 2011) This technological advancement, along with continual growth and innovation, allows for near instantaneous dissemination of all forms of information; including: speech, art, literary works, music, and all other forms of basic media.
The ease of mass distribution allowed by the internet and the World Wide Web is accompanied by numerous ethical and moral dilemmas. One such quandary, which is an increasingly salient issue in modern society, is the re-creation, publication, and spread of copyright protected works. Contemporary copyright laws and regulations in the United States draw its origins from the United States Constitution. As stated in Article I, Section 8, Clause 8, “The congress shall have the power…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.” This basic constitutional statute set forth the precedent and right of copyright in the newly founded and autonomous United States. (Pallante, 2014) As technological advances have exceeded the relevance of former regulations and doctrines however, United States copyright law has been forced to remain malleable and highly adaptable to current situations. In its current standing, United States copyright law, as specified in the Copyright Act of 1976, give copyright holders the exclusive right to, “reproduce, prepare, distribute, perform, and display” created works. In addition, the Copyright Act of 1976 designates eight specific forms of individual works which can elicit legal copyright protection. These are: literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. (United States Copyright Office, 2014) As is further established by United States copyright law, copyright holders are guaranteed specified amounts of time in which individual works are protected. As such, the infringement and illegal use of copyrighted works by individuals not specified under legal protection can be subject to civil or criminal action as is appropriate per situation. These seemingly straightforward laws and regulations have become increasingly confounded when intertwined with the societal advancement and use of the internet and World Wide Web.
The first instantiation of the bastardization and devolution of copyright laws, regulations, and protocols in the United States can be observed within internet websites devoted solely to the transfer of protected individual works, information, and data. Although outright the means utilized by these various websites are not outright an ethical or moral dilemma, the ways in which these sources are used can be morally and ethically ambiguous, if not outright problematic. Still notionally in its infancy, the internet and the World Wide Web are often metaphorically likened to the Wild West. With the prevalence of vast resources on a world wide web which can be considered to be infinitely boundless, copyright laws are easily outmaneuvered, if not completely dismantled. Websites, on both a national and international level, can utilize neutrality laws, or lack thereof, to accomplish the goals of the individual or the many. One highly salient and distinct example in modern media and society of an internet website that falls into this legal, moral, and ethical ‘gray-area’ is The Pirate Bay.
The Pirate Bay was officially launched on September 15th, 2003 by the Swedish organization Piratbyrån, also known as, “The Pirate Bureau.” The Pirate Bureau is an organization dedicated not to radical or revolutionary change, but to a self-designated conversation regarding, “copying, information infrastructure, and digital culture.” (Ernesto, 2013) The Pirate Bureau was self-described as an advocate to digital piracy and a stark advocate against the oppositional Swedish anti-piracy group, Antipiratbyrån. Due in part to the radically changing atmosphere of digital downloading and the internet as a whole, The Pirate Bureau hoped to act as an intermediary for conversations regarding changes in ethical commonplace and legal regulations as a whole. In a way of starting and making a demonstrable change and difference in both the conversation and the real world of digital space, The Pirate Bureau launched The Pirate Bay a few months after the initial banding of the group itself. (Ernesto, PIRATE BAY’S FOUNDING GROUP ‘PIRATBYRÅN’ DISBANDS, 2010)
The Pirate Bay was launched and initially run live from a server in Mexico by co-founder Gottfrid Svartholm, also known as Anakata. As self-described by members of The Pirate Bureau, The Pirate Bay was created to propagate their goals of easing the mass dissemination of information in a free, easy, and open space. As stated by Pirate Bay co-founder Peter Sunde, “We and Piratbyrån wanted more Swedish and Scandinavian content. So we started a big library, and that is The Pirate Bay.” After a short duration in its original Mexican local, Anakata along with fellow Pirate Bay co-founder, Fredrik Neij, also known as TiAMO, moved the website to a server location in Sweden. The infant website utilized a Pentium III 1GHz laptop with only 256MB of RAM to become fully operational. Within only a year of coming online and becoming fully operational, The Pirate Bay recorded over a million unique peers. In addition, within this short time The Pirate Bay was already hosting more than sixty-thousand digital information files. These files, which would become the basis of future controversy, were largely illegal and infringed works in nature. The website underwent a revamp and upgrade in the summer of 2005 due to the consistent increase in visitors and users. As well, alteration was a near necessity as the founders noted a vast majority of visitors and users were from countries outside their home Scandinavian region. In addition to a new website design, the founders upgraded the website so as it would be available in a multitude of different languages. By the end of 2005 with a total of nearly three-million, the website had garnered nearly triple the amount of unique visitors and. By the time of The Pirate Bay’s expansion and revamp, the original innovators from The Pirate Bureau had stepped aside, leaving control to founders Anakata and TiAMO. (Ernesto, THE PIRATE BAY TURNS 10 YEARS OLD: THE HISTORY, 2013)
In the following years, The Pirate Bay continued to expand, grow in user-ship, and upgrade its technological capabilities. In its creation, The Pirate Bay operated as a centralized source of BitTorrent tracking and downloading. As such, The Pirate Bay was in itself a direct source of both legal and illegal copyrighted information and works. Due in part to its large user-ship and pressures from both national and foreign authorities, but largely due to theories of innovation, The Pirate Bay in 2009 decided to officially end its employment as a BitTorrenttracker and direct source of information and creative works. Instead of hosting a centralized server as a source for downloading information and works, The Pirate Bay moved to a decentralized system of tracking and downloading. This new system utilized individual users across a vast digital network to transfer and share information and other data. This system, using magnet links, was believed by founders of The Pirate Bay to not only be a present form of future innovation, but a means to downloading information and data safer, easier, and quicker. As stated on The Pirate Bay home blog, “Now that the decentralized system for finding peers is so well developed, The Pirate Bay has decided that there is no need to run a tracker anymore, so it will remain down! It’s the end of an era, but the era is no longer up2date.” The blog further stated this move is advantageous due to the increased reliability of use. Without a centralized server, it would be essentially impossible for the entire system to crash or ‘go down’. As well, without a single centralized server, all information and data is safe from being terminated, shutdown in its entirety, or outright blocked. (The Pirate Bay, 2009)
In addition to the aforementioned advantages gained through a decentralized Pirate Bay, operational costs are severally diminished due to the decreased need for server space and time. Although diminished, The Pirate Bay still requires funding to operate on at least an essential basis and to continue securing its numerous server locals. One of the largest sources of funding for The Pirate Bay is basic donations from both legitimate and anonymous sources. In its original format as a centralized tracker, The Pirate Bay hosted a link on its homepage for donations to the website. This original resource, allowing users to gain “VIP” status through donations, allowed for better access to trackers and greatly diminished visible advertisements on the website. Donations were solicited through bank account transfers, direct mailed cash, and SMS donations. Following the removal of the donation page from the main website in 2006, a donation link was posted on a secondary page of the website, but without any preferential ‘VIP’ status. (The Pirate Bay, 2006) In addition to the donation resource at the time, The Pirate Bay also received funding from non-anonymous sources. One such source was from Petter Nilsson of a Swedish political reality show. Amounting to the equivalent of almost five-thousand US dollars, the donated winnings from the show, The Top Candidates, were used to buy a new server and database, as well as to purportedly reduce the necessity for website advertisements. (TBZ, 2006) In addition to donations, The Pirate Bay has historically raised funds through advertisements on their homepage. Advertisements vary in nature, but can be keenly observed on all extended search pages. During a 2009 trial deposition, The Pirate Bay was accused by prosecutor Godfrey Svartholm Warg of soliciting over one-million US dollars a year. In contradiction to this statement, co-founder Peter Sunde claimed The Pirate Bay drew in an estimated total of only one-hundred thousand US dollars a year. Further, Sunde claimed this net revenue was streamed solely into Pirate Bay expansion, renovation, and other expenses. (Sundberg, 2009) In its current state, The Pirate Bay solicits a large portion of its net revenue through Bitcoin and Litecoin donations. The Pirate Bay currently hosts a transfer link for both forms of currency. Both Bitcoin and Litecoin are forms of an innovative and modern crypto-currency that is based and held solely in digital space. Since both forms of currency are transferred solely from parties in digital space alone, the necessity of maintaining a ‘paper-trail’ stemming from past cash and money transfer donations is by default relaxed. Bitcoin and Litecoin however, unlike state accepted currency, are subject to drastic fluctuations in value due to market influences and other outside factors. (Cyprus, 2013)
As the Pirate Bay has continued to grow and expand since its inception in 2003, the website has been subject to numerous legal threats and legitimate measures. Stemming from its core being as a resource for downloading, transferring, and sharing copyrighted property, The Pirate Bay has faced both digital and physical threats from local Swedish authorities as well as international authorities. From the very beginning, the founders of The Pirate Bay have starkly deflected all attacks against the website and the data they host. According to the founders, on an international basis, especially in regards to the United States, The Pirate Bay is technically out of the zone of illegality due to the differences in Swedish and United States copyright laws. Furthermore, since their move to solely .torrent files and magnet links, the founders claim the site does not centrally host any copyrighted material. As stated on the website, “The tracker provides the user only with .torrent files which contain no copyrighted date. The actual copyrighted material is to be found on the individual machines of our users, not on our servers.” (Graham, 2009) Regardless of formatting and legality, The Pirate Bay nonetheless has not been afraid to directly confront threats, especially international threats and those coming from the United States. In August of 2004, The Pirate Bay gained levels of infamy from a confrontation with United States based movie studio, DreamWorks. In response to the appearance of the movie Shrek 2 as a downloadable item on The Pirate Bay, DreamWorks and their lawyers drafted and mailed a takedown notice. In their letter, DreamWorks claimed Shrek 2 was protected under copyright law and all instances and appearances of it on The Pirate Bay represented an infringement of copyright, trademark, and intellectual property protection. Further, DreamWorks noted The Pirate Bay could be subject to legal action if their demands were not met ‘forthright’. In a direct and harshly differentiating opinion, co-founder Anakata responded by first stating United States copyright laws had no bearing in Sweden and further if any continued contact was made, DreamWorks will be subject to a harassment suit. The entirety of the DreamWorks initial letter and The Pirate Bays response was eventually posted on websites main page. (Anakata & DreamWorks, 2004)
Following the rise of seemingly frivolous legal threats by major United States studios, actions took a more physical turn when Sweden took matters into their own hands. On May 31st, 2006, sixty-five Swedish authorities raided a Stockholm data center with the goal of locating and permanently shutting down all Pirate Bay servers. The motive for the raid rested solely in pressure from international companies, largely being from the United States entertainment industry, and their own moral and legal conflict with copyright and intellectual property infringement. In particular, the United States based Motion Picture Association of America prompted Swedish judge Tomas Norström to issue a formal order. Following the police raid, The Pirate Bay was successfully shut down, albeit for only a short time. Furthermore, co-founders and website operators, Fredrik Neij, Per Svartholm Warg, Peter Sunde and Carl Lundström were formally arrested and eventually charged with, “promoting other people’s infringement of copyright laws.” In an expected sequential response, the Motion Picture Association of America Executive Vice President and Director of Worldwide Anti-Piracy Operations released a formal response saying, “The bottom line is that the operators of the Pirate Bay and others like them are criminals who profit handsomely by facilitating the distribution of millions of copyrighted creative works and files protected under the law.” (Ernesto, THE PIRATEBAY IS DOWN: RAIDED BY THE SWEDISH POLICE, 2006) In a brief stroke of luck and irony following the raid, the website was back to operational status in only three days. This is due largely to co-founder Fredrik Neij performing a full website backup of all of The Pirate Bay’s tracking services and data prior to the raid. Although digital servers and data resources were confiscated by Swedish authorities during the raid, the website was able to regain functionality through the use of this backup. (Ernesto, THE PIRATE BAY CELEBRATES INDEPENDENCE DAY, SIX YEARS AFTER THE RAID, 2012) At the conclusion of the trial in April of 2009, the four men were convicted of accessory to crimes against copyright law and were formally sentenced to a year in jail and faced fines equivalent to over three-million US dollars. In the current status, all of the convicted members have served varying prison sentences; largely in defiance of public protests and petitions. (Ernesto, THE PIRATE BAY TURNS 10 YEARS OLD: THE HISTORY, 2013) As noted in celebratory fashion on The Pirate Bay’s blog, regardless of legal hindrances and shortfalls, the website continues to celebrate an ‘independence day’ every year on May 31 as a means of encouragement for their cause and in defiance of authorities.
Aside from both legal threats and physical actions taken against The Pirate Bay and its founders and operators, The Pirate Bay has been subject to numerous measures seeking to outright counter the website and its base functionality. Instead of directly attacking the website and its foundation outright, various governments, media agencies, and internet service providers have sought to disrupt the website by blocking the means of user access or by attempting to pass and enact legislation illegalizing any means of downloading, transferring, or distributing copyrighted data or information. The largest means of disrupting the use and continuance of The Pirate Bay by state governments has been to exploit legal bans outright blocking national access to the website. One of the most prominent instances of state intervention came on May 10, 2012 when a Dutch district court The Hague passed a ruling stating internet service providers in the Netherlands must effectively block The Pirate Bay, less they face fines amounting to the equivalent of almost thirteen-thousand US dollars a day. The ruling followed court hearings whereas the plaintiff, anti-pirate organization Stichting BREIN, claimed The Pirate Bay continuously acts in the distribution, organization, and transfer of copyrighted material. The court ruling would prevent users, who are subscribers of Dutch internet service providers, from accessing the website. (Zeldin, 2012)This state ban of The Pirate Bay was affective for only two years however. In 2014, a Dutch court of appeals overturned the block ruling the ban was, “ineffective.” The ruling came after two Dutch internet service providers, Ziggo and XS4AII, claimed the ban was ineffective due to the use of internet browser proxies and various other means to effectively maneuver around the ban. The court also noted that since the ban took effect in 2012, the downloading of illegal and infringed material had conversely risen. Internet service provider XS4AII had further claimed the blocking of The Pirate Bay represented a contrary to basic human rights and freedoms stating, “We are very pleased that the court ruled in favor of the freedom of information, protecting a fundamental right of all Dutch citizens.” (Gibbs, 2014) Although this particular ban has been ruled ineffective and was ultimately removed, numerous countries still uphold and enforce an internet ban of The Pirate Bay. Across the globe, countries such as the United Kingdom, Belgium, Ireland, Italy, Iran, and Finland continue to enforce legal blockades of The Pirate Bay. As well, individual national internet service providers have also selectively blocked customer access to The Pirate Bay. As was ultimately discovered by the Dutch court of appeals however, internet users can and will nonetheless utilize a vast collection of website proxies to effectively and easily counter and circumnavigate these bans. (The Proxy Bay, 2014)
In pursuant of national legal bans of The Pirate Bay, some countries have attempted to pass legislation attempting to counter websites such as The Pirate Bay through means of illegalizing the acts of either supporting or participating in the downloading, transferring, and distribution of copyrighted works. In particular, the United States Congress in 2011 attempted to pass the Stop Online Piracy Act, or SOPA, and the Protect Intellectual Property Act, or PIPA. With direct support from the Motion Picture Association of America and the Record Industry Association of America, SOPA and PIPA were essentially pieces of legislation seeking to inhibit the distribution of copyrighted and infringed works. In particular, both SOPA and PIPA sought to disrupt different websites and other means which were located outside of the United States; including The Pirate Bay. As is similarly stated in both pieces of legislation, these acts could require an internet service provider to take specific actions to effectively prevent internet users from accessing and using websites supporting and participating in the distribution, transferring, and downloading of copyrighted or infringed works. In turn, this would force websites to remove all links and connections to particular websites, prevent and block the transfer of funds, and to effectively and efficiently remove all copyrighted and infringed material on home United States websites as well. According to interpretations from opponents in regards to the text of this act, it could essentially develop into a form of selective censorship. This is due to the requirement that an internet service provider must effectively shut down any website which has been found to be in violation of the acts guidelines. In theory, this could drastically affect mainstream websites such as Google, Facebook, and YouTube. Opponents further state this could create an, “internet blacklist,” and could significantly deteriorate a free and open internet. (Magid, 2012)
In rapid and widespread response to both SOPA and PIPA, American citizens and mainstreams corporations strongly voiced their dissent to the acts. These dissenting opinions were mobilized through physical and digital protests, petitions, and numerous documented emails and phone calls to individual members of congress. Opposition to SOPA and PIPA reached a climax on January 18th, 2012 with a coordinated internet blackout by participating websites. The stated goal of the blackout was to raise peak awareness and opposition to SOPA and PIPA. Mainstream and heavily trafficked websites such as Wikipedia, Reddit, Google, WordPress, Tumblr, and Wired participated in some degree in the protest. In total, almost seventy-five thousand websites participated in the blackout. The vast majority of participating websites completely blacked out access to their respective webpages for a twenty-four hour period. In addition, these blacked out websites displayed messages in clear opposition to SOPA and PIPA. Wikipedia for example inscribed on their homepage, “Right now, the U.S. Congress is considering legislation that could fatally damage the free and open internet.” As well as blacking out their respective websites and displaying oppositional messages, the majority of websites pushed and advocated for all individuals who were against the bill to call or email individual members of congress and to continually sign petitions and formally participate in public protests. As documented on the home organizational website for the January blackout, over ten-million petition signatures were signed, over eight million calls were attempted, over four million emails were sent, and nearly a billion unique users were blocked from participating websites. (Fight for the Future, 2012) As a result of the blackout and an increasingly large and vocal opposition to SOPA and PIPA, the voting of both acts in congress was indeterminately postponed and was effectively shelved. (SHAKIR, 2012)
In its current state, The Pirate Bay continues to expand and fulfill its role as a source of internet freedom and information access. According to the internet web traffic and ranking company, Alexa, The Pirate Bay currently ranks as the ninety-second most visited website in the world and the eightieth most visited website in the United States. In addition, The Pirate Bay receives over seven daily page views per unique user every day with an average use time of over four minutes. Aside from the United States, The Pirate Bay is the seventy-sixth top ranked website in India and the thirty-eight top ranked website in Canada. In its home country of Sweden, The Pirate Bay ranks as the twelfth most visited website. Although these ranks reveal a certain level of traffic from users across the globe, the numbers are invariably skewed and indefinitely lowered due to the availability and use of hundreds of different proxy websites linking directly to The Pirate Bay. (Alexa Internet, Inc., 2014)
Before I continue, I belief it is imperative to briefly explain and elaborate on some technical aspects of The Pirate Bay, specifically as to the means and processes of downloading information and data and the techniques in which The Pirate Bay currently exists and functions. In its original state, The Pirate Bay functioned by providing potential users with torrent files. So what are torrent files exactly? Specifically and outright, a torrent file is a digital data file with the extension of .torrent. The process of downloading a .torrent file works in a few different steps. First, a potential user is initially required to download an operational bittorrent client. A bittorrent client, such as BitTorrent or μTorrent, is essentially a computer program designed for the downloading and possible future distribution of digital data files. Acting as a protocol or middleman between the source of the data and the tangible possession of the data, bittorrent’s are utilized by users to essentially get from a point A to a point B. Within conceptual legal theory, bittorrent clients are not violating laws in their outright existence as they are designed specifically and solely for the downloading of all digital material, both legal and illegal. (BitTorrent, 2014) Following the successful download of any number of various bittorrent clients, a user can now continue onto the actual process of downloading a particular piece of data. From a specific website, such as The Pirate Bay, a user can select the option to download a particular piece of data through a .torrent file. When this option is selected, the specific client utilizes digital trackers to first download the data file into multiple parts. Next, the client pieces together the various file segments into one whole data file that can then be held and managed by the user. Although explained simply enough, the use of .torrent files comes with different advantages and disadvantages. The advantages of using .torrent files lie in its download speed because the trackers all reside within a centralized source. As well, .torrent files allow for the much quicker and efficient search and locating of specific files; again due to the use of a centralized source. Aside from these advantages, the core disadvantages lay in the fact .torrent files reside within a centralized source. In a centralized system of trackers, if the source goes down, through either server overload or outright blocks, the particular piece of data becomes completely unavailable. As well, .torrent files are more susceptible to becoming outdated due to limited updates and many essentially become obsolete or unusable. (Khurshid, 2012)
Due to both perceived and realized threats of maintaining a system of solely .torrent files, The Pirate Bay decided in 2012 to switch from .torrent files to a system of magnet links. In opposition to .torrent files, magnet links contain all the data and information required for download within the link itself. This means a magnet link does not require a centralized source of trackers to successfully download of piece of digital data. When a user selects a magnet link to download, a bittorrent client utilizes information residing solely in the link itself to find other peers and the informational data required for download. As noted by The Pirate Bay in their reasoning for the technological switch, there are more advantages to using magnet links instead of .torrent files and with far fewer and less disadvantaging consequences. The greatest advantages to using magnet links reside within the fact magnet links are stored in a vast and decentralized source network. When downloading a magnet link, a bittorrent client uses the information present in the link to download the digital source from multiple different sources at once; most notably being other peers. As a result, there is no threat of unavailability from server outage or blocks when using magnet links. With a much larger and wider network of sources and other peers, magnet links are also far easier to search for and locate. Arguably the sole disadvantage that accompanies that use of magnet links is the speed of which a download can occur. Such is that a magnet link utilizes a decentralized network of sources, the individual user has far less control over download speed and as a result of utilizing multiple sources, downloads may invariably be slower. (Khurshid, 2012)
So why did The Pirate Bay ultimately decide to make the transition from .torrent files to magnet links? First, the transition allowed The Pirate Bay to operate under an increased level of security and stability. Due to magnet links not residing on a centralized Pirate Bay server, the website as a whole is far less susceptible to shutdowns. As a result, The Pirate Bay gives a much higher level of reliability to its entire user base. In addition, without the need for a centralized server, The Pirate Bay is able to operate with far fewer resources. This means fewer servers are needed, less bandwidth, and less digital space and as such, the monetary costs of remaining operational are greatly diminished. Next, since a Pirate Bay using solely magnet links stems from a decentralized network, the website will be less susceptible to legal threats and actions. With the former use of .torrent files, the website hosted copyrighted material and works on their own private servers. As can be noted with previous raids and attempted shutdowns, the former setup rested far deeper in conspicuous and possibly illegal grounds. With the switch to decentralized magnet links, the bulk of downloads are sourced from thousands, if not millions, of different peers located across the globe. Although some opponents to this transition may claim the switch will greatly increase the time required to download, The Pirate Bay stated, “It shouldn’t make much of a difference for the average user. At most it will take a few more seconds before a torrent shows the size and files.” Given the much greater and necessary value placed in website security and functionality, the minute increase in user download time is an appropriate and concluded acceptable shortfall in respect to the advantages guaranteed through a system of magnet links. (Ernesto, THE PIRATE BAY, NOW WITHOUT TORRENTS, 2012)
Aside from the technical aspects of individual downloads from The Pirate Bay, the increased use of proxy websites and now private browsers needs to be addressed. First and foremost, what is a proxy website? A proxy website, also referred to as a proxy server, is a computer which indirectly connects an individual user to a specified source. Basically, an individual user at point A can connect to website point C through proxy server point B; Simplified further as such: A->B->C. When a proxy server is used, an individual can gain full access to a specified website without needing to access it directly through its traditional web address. (Indiana University, 2014) In relation to The Pirate Bay, proxies are employed in order to access the main website in countries whereas The Pirate Bay is blocked. As a result of currently being blocked in a multitude of different countries and internet service providers, The Pirate Bay maintains and updates a list of optional proxy websites on a daily basis. The list, aside from providing web addresses and direct links, provides the country in which the proxy server is located, the speed of the proxy server, and the current operational status of the proxy server. Countries where proxy servers are located include, but are not limited to: the United States, France, the United Kingdom, Germany, and Ireland. In addition to this list of proxy servers, the webpage includes various other methods for bypassing Pirate Bay blocks and instructional steps for the creation of new individual proxies. Through the use of these proxy servers, The Pirate Bay is able to be continually accessed across the globe, regardless of any attempted blocks. (The Proxy Bay, 2014)The rise and growing prevalence of these proxy servers were a directly cited reason in the decision by the Dutch court appeals to reverse the internet service provider block of The Pirate Bay.
Aside from the use of proxy servers, the next step taken by The Pirate bay to circumnavigate website blocks was the release of the “PirateBrowser” in August of 2013. Unlike proxies, the PirateBrowser is an internet browser in itself; similar in concept to Firefox, Internet Explorer, or Google Chrome. The PirateBrowser works by bundling a version of Firefox, a Tor client, and various proxy configurations into one. The browser works like any other browser with the idea that an individual user can browse the World Wide Web. The only exception with the PirateBrowser however is it is intrinsically designed to bypass all forms of website blocks, including blocks on The Pirate Bay and other similar websites. Although often grouped with other created browsers with similar purposes, the PirateBrowser does not give its users anonymity; it only provides the means to bypass blocks. It was without coincidence this innovative browser was released on the tenth anniversary of the founding of The Pirate Bay. The PirateBrowser is meant to be a tool and the next technological step in countering internet blocks and censorship. As stated by The Pirate Bay, “… [PirateBrowser] is just the first step in their efforts to fight web censorship.” (Ernesto, PIRATE BAY RELEASES ‘PIRATE BROWSER’ TO THWART CENSORSHIP, 2013)
With a strong historical and technical background of The Pirate Bay in hand, it is now important to have a core understanding of United States copyright law, both historically and in its present state. Only with this knowledge can one begin to understand the true nature and salience of issues regarding The Pirate Bay. The origin of copyright law in the United States dates back to the United States Constitution in 1787. Article I, Section 8, Clause 8 of the United States constitution states, “The Congress shall have Power to...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries....” This brief, yet critical portion of the Constitution outlined Congress’s ability and power to establish regulatory and legislative guidelines regarding copyright law and patent law. Although in its basic origin this “Copyright Clause,” of the constitution does not outline specific laws or guidelines, it does clearly state and outline the principles and theories in which future legislation should be built upon. (Nachbar, 2014)
Following the instantiation of core principles and guidelines seen in the Copyright Clause of the United States Constitution, United States copyright law has undergone numerous alterations, expansions, and upgrades. In 1790, Congress passed the first official United States Copyright Act which would serve as a foundation on which all future acts would be built upon. In suit with the principles laid out in the Copyright Clause, the Copyright Act of 1790 sought to promote the progress and innovation of all sciences and arts. In this Act, individuals who created original works could be granted a copyright protection term of fourteen years from the point of original creation with the possibility of a fourteen year extension if the holder was still living at the conclusion of the first term. As a provision of the Copyright Act of 1790, one in which would be mirrored in all future acts, original creators were required to submit for official registration in order to be granted copyright protection. (United States Congress, 1790)
Almost forty years later, the United States Congress delegated on and eventually passed its first major revision to the Copyright Act of 1790 in the form of the Copyright Act of 1831. In totality, there were three dominantly established modifications in this new Act. First, the length of the original copyright term was extended from fourteen years to twenty-eight years with a possibility of a fourteen year extension. Secondly, a clause was added to the Act granting originally created musical compositions the possibility of gaining copyright protection. Finally, the term of statute of limitations for legal actions regarding copyright infringement was extended to two years. (United States Congress, 1831)
The next alteration to United States law came in 1909 with the highly influential Copyright Act of 1909. Signed into law in March of 1909, this act remained the dominant and most updated piece of copyright legislation in the United States until it was surpassed and replaced by the Copyright Act of 1976. Congressional proponents of the Copyright Act of 1909 sought to create an appropriate balance between the rights of the creators, through adequate and appropriately lengthened copyright protection, and the rights of the public to access and utilize created works for their own good. One of the most notable modifications to copyright law in the Copyright Act of 1909 was the lengthening of time in which original works could be protected. This new act allowed for original works to be protected under copyright law for a length of twenty-eight years with an option of extending the term for an additional twenty-four years following the expiration of the first term. In addition, the Copyright Act of 1909 held that legal copyright protection would only be granted and guaranteed to original works which were published and displayed federal copyright notice If these former two requirements were not sufficiently met, the specified works would by law fall into the public domain, enabling any United States citizen to fully exploit the work in any way. (United States Congress, 1909)
The next piece of copyright legislation which serves as the underlining basis for all current copyright laws and regulations in the United States is the Copyright Act of 1976. In direct comparison to the other historical United States copyright acts, the Copyright Act of 1976 serves as a thorough and considerable modification to United States copyright law. First and foremost, the Copyright Act of 1976 includes a considerable update to whom and what may be considered for legal copyright protection under the guidelines of original authorship. Unlike previous acts, the Copyright Act of 1976 lists seven different categories for defining authorship. These are: literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. This list represented a drastic update from previous acts and allowed for a much greater majority of creators to be legally protected. The next step the Copyright Act of 1976 took in modifying and updating United States copyright law was to explicitly state five different rights granted to the authors or holders of copyright protection. These granted rights are: the right to reproduce or copy the original work, the right to create derivative works of the original work, the right to distribute copies of the original work for sale, lease, or rental, the right to perform the work publically, and finally the right to display the original work publically. Simply stated, the Copyright Act of 1976 granted copyright holders the primary and exclusive rights to reproduce, derive, distribute, perform, and display original works. Following this, the Copyright Act of 1976 fully organized and instantiated for the first time in United States copyright law history the concept of fair use. By definition, fair use is described as, “The use or copying of copyrighted material done for a limited and ‘transformative’ purpose.” (Stim, 2010) In the Copyright Act of 1976, fair use is detailed in relation to appropriate guidelines and types of use. The act lists four categories in which the use of copyright protected works would be consider fair use. These are: the purpose and character of use; regarding if the use is commercial or non-profit in nature, the nature of the copyrighted works, the amount in total of the derived work in direct relation and comparison to the original work, and finally the effect the new work has on the overall perceived or tangible value of the original work. (United States Copyright Office, 2012) This designation of fair use serves the importance of allowing for a middle ground between a starkly ranging spectrum of legal and illegal uses. The next modification and arguably largest upgrade to United States copyright law under the Copyright Act of 1976 was in the prescribed length of guarantee copyright protection for original works. In a glaring change from previous acts, the Copyright Act of 1976 guaranteed copyright protection for the entirety of the original copyright holder’s life plus an additional fifty years following the death of the copyright holder. In addition to this specified length of protection for original authors, the Copyright Act of 1976 dictated that anonymous works and other works falling outside the outline guidelines for original authorship will be protected for the length of seventy-five years. Two other provisions additionally outlined in the Copyright Act of 1976 dictate and describe the transfer of copyright and the registration of copyright. In regards to the transfer of copyright, the act specifies that an original owner must in written, legal, and clear language, sign over ownership to a designated party for copyright protection to be maintained and upheld. Finally, in opposition to previous copyright acts, the Copyright Act of 1976 stated the formal registration of original works was not a prerequisite for copyright protection. Although formal registration could and would be granted upon request, copyright protection was nonetheless extended to all works which are, “fixed in a tangible medium.” (United States Copyright Office, 1977)
Past the formal legislation of the Copyright Act of 1976, the most recent addition to United States copyright law was the Digital Millennium Copyright Act of 1998. Unlike the basic guidelines and regulations outlined in the Copyright Act of 1976, the Digital Millennium Copyright Act of 1998 sought to formally outline, codify, and criminalize various trespasses against national and international copyright law. As outlined in the legislation, the Digital Millennium Copyright Act of 1998 sought to bring United States copyright law onto equal grounds and acquiescence with the international legislation of the World Intellectual Property Organization, or WIPO, Copyright Treaty and the WIPO Performances Phonograms Treaty. By legally coming to terms with WIPO guidelines, the United States could battle copyright and intellectual property infringement on a stronger level throughout national and international space. The Digital Millennium Copyright Act of 1998 attempted to act as an intermediary work of legislation, deemed necessary due to modern technological advancements and innovations in copyright and intellectual property; in primary reference being, the internet and the World Wide Web. (Indiana University Information Technology Services, 2011)
By design, the Digital Millennium Copyright Act of 1998 has five main titles of legislation. Title I: WIPO Treaty Implementation is the section of the Digital Millennium Copyright Act of 1998 which effectively brought the United States up to date with international legislation. The first dominant portion of this section sufficiently adjusts United States copyright law to adequately conform to the legal standards of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Formally signed by international members of WIPO, these two pieces of legislation brought copyright law into range of digital technologies such as computer programs, digital databases, and the digital circumnavigation of legal measures for the protection of works. The next majority portion of this section sought to restrict the circumnavigation of systems put in place to prevent copyright and intellectual property theft or alteration. This portion dominantly illegalizes means employed to evade methods of digital copyright control and protection by categorically banning items, “primarily designed or designed to circumvent, with limited commercial significance other than to circumvent, and marketed for use in circumventing.” Criticism has been adjoined to this section of the Digital Millennium Copyright Act of 1998 due its non-existent specifications in the use of these technologies for means of legal fair use. (United States Copyright Office, 1998)
Title II: Online Copyright Infringement Liability Limitation Act serves to protect and reduce the liability of online service providers and internet service providers from cases of copyright and intellectual property infringement. As stated within the section, liability reduction is categorized into four categories, “transitory communications, system caching, information storage, and information location tools.” Protection from liability is only guaranteed, however, if the individual provider sufficiently upholds copyright guidelines through designated takedowns and blocking of specified infringed copyrighted material. In addition, this section allows for subpoenas to be issued, within discretion, to online or internet service providers at the behest of the owners or holders of the copyright protection in order to gain the identity of individuals acting in violation of copyright law.
Title III: Computer Maintenance Competition Assurance Act simply legalizes the act of copying and creating copies of copyrighted material in order to sufficiently perform the act of computer maintenance or repair. Title IV: Miscellaneous Provisions specifies various provisions to copyright law in regards to the Copyright Office, education, library exemptions, and the transfer or bargaining of movie rights. The final section, Title V: Vessel Hull Design Protection Act simply creates and establishes the design of boat hulls as an officially copyrightable and protectable work. (United States Copyright Office, 1998)
Through the standards, guidelines, and laws laid out in the Copyright Act of 1976 and the Digital Millennium Copyright Act of 1998, the United States has, on multiple famous occasions, attempted to disrupt or outright dismantle sources of copyright and intellectual property infringement. Two example cases that are very salient in regards to mainstream popularity and in relation to The Pirate Bay are Napster and LimeWire. Napster, created in 1999 by Shawn Fanning, was a digital file sharing program designed specifically to allow individual users to share digital data. As was similar with the original Pirate Bay formulation, Napster operated under a centralized server and had an implemented search function and a full communication network. With its official operational start-date in June of 1999, Napster allowed users to search, download, and transfer digital data on a controversial and innovative basis; most importantly, for free. At the time of its creation, Napster was the first user orientated service that was dedicated solely to the dissemination of digital music files. A little more than a year after its creation however, Napster came under direct attack by the music industry, specifically the Recording Industry Association of America, or RIAA. The first occurrence came in June 2000 when the RIAA filed for a court ordered injunction to block the transfer of all RIAA copyrighted music; eventually being granted on July 26th. (ANTE, 2000) The case, A&M Records, Inc. v. Napster, Inc. saw the plaintiffs as all of the major members of the RIAA, including the music industries ‘big four’ and the defendants as Napster and its founders. Upon failing to ultimately prove or adequately defend a fair use argument, Napster was eventually ruled against in court proceedings. Following the loss, Napster and the plaintiffs agree upon a settlement of twenty-six million dollars. Following this decision, Napster formally declared bankruptcy in 2002, ending this version of Napster. (Crews, 2001)
The next case, LimeWire, was created in 2000 by Mark Gorton following the rise and popularity of Napster. Like Napster, LimeWire operated as a network for users to download, transfer, and share digital music files. LimeWire, as a standalone program, was downloaded by over three-million users within a year of its creation. In 2009, it was used by an estimated fifty-eight percent of all users downloading music. Following this rise in popularity and usage, LimeWire, like Napster before it, came under legal attack by the RIAA. Claiming LimeWire almost universally functioned through the propagation of copyright protected material, the RIAA filed for a court ordered injunction which was eventually granted in October 2010. The RIAA claimed the usage of LimeWire by its users extended far beyond fair and personal use. In a statement regarding copyright violation in relation to the use of LimeWire, “What you buy is the right to use the material any time and any way, but you don’t have the right to it to copy and distribute it online where it is accessible globally.” Following the court ordered injunction, LimeWire and all of its services were effectively and permanently shut down. (ZAHN, 2010) As reported by the Huffington Post, LimeWire eventually settled with the RIAA and the included major music labels for a purported sum of one-hundred and five million dollars. It was due to this exorbitant sum and the continuation of multiple legal issues that forced LimeWire to officially shut down in December 2010. (The Associated Press, 2011)
As can be demonstrated through the cases of Napster and LimeWire, the United States is keenly apt to exploit any formulation and variation of United States copyright law to dissuade the download, transfer, or dissemination of copyrighted works. In addition to targeting specifically the individual acts of downloading, transferring, and disseminating copyrighted works, the United States strongly targets the specific means of these acts. As the United States and in part, the United States music and entertainment industry, gain more legal means and avenues for the prevention of the download, transfer, and dissemination of copyrighted works it necessary for all current and future websites and sources, such as The Pirate Bay, to continually innovate and expand their means of continuance. It is important for websites and sources, such as The Pirate Bay to continually strive to gain a stronger footing in the moral conscious of individuals across the globe. As the battle between the proponents of the free and universal flow of all information and data and those for strong and expansive copyright and copyright law continue to grow, it is increasingly necessary to specify the grounds for the moral and ethical existence of sites such as The Pirate Bay and their continual expansion and possible inversion of current copyright standards and beliefs.
In order to gain a greater insight into the moral and ethical grounds for the existence and continuance of The Pirate Bay and in turn to be able to aptly defend these grounds, it is necessary I outline and briefly summarize the philosophical theories which will be appropriately and acutely drawn upon. The first and most dominating theory is Utilitarianism as conceptualized and theorized by John Stuart Mills. As an ethical consequentialism theory, utilitarianism looks primarily at the result of an individual action instead of the means or duties reasoned before the action has occurred. As a generally encompassing whole, consequentialist arguments are often stated in the simplified form of the end justifying the means; with the end being the result of the action and the means being the reasoning behind an action and the action in itself. As an ethical theory, utilitarianism has the support of numerous branches of society and culture due to its universal applications in modern ethics, its pursuit of an ethical mean which seeks to benefit society and culture as a whole, and the arguable fact that as a theory, it is not contingent on ‘black and white’ ethical outcomes of good or bad.
The theory of utilitarianism, as held by Mills, is fundamentally based upon Jeremy Bentham’s, “greatest happiness principle.” This principle posits, “Actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness.” In direct relation to this principle, Mills further states happiness can be simply described as, “pleasure and the absence of pain” and inversely, unhappiness as, “pain and the privation of pleasure.” Mills further elaborates on this principle in assumed consideration as to not accidently pigeon-hole all actions into either completely good or completely bad. In order to do this, Mills first dictates a scale of high to low on which the good, or happiness and pleasure fall. Mills reasons a scale of this nature is useful, if not outright necessary, due to the high capabilities of human function. He states that humans innately possess capacities of higher means than any other animal stating, “Humans being have faculties more elevated than the animal appetites and, when once made conscious of them, do not regard anything as happiness which does not include their gratifications.” In this argument, Mills exemplifies and argues the best and higher pleasures are those in relation to knowledge such as, “objects of nature, art, poetry, history, and the ways of mankind, past and present, and their prospects in the future.” With this, Mills argues for a scale of pleasures based upon higher pleasures coming in the form of mental pleasures and lower pleasures coming in the form of simple bodily pleasures. With the grasp of levels and ranges of pleasures in hand, Mills proposes the final end in the summation of utilitarianism and the means for deciding the base utility of an action can be stated in the proposition, “…whether we are considering our own good or that of other people—is an existence exempt as far as possible from pain, and as rich as possible in enjoyments, both in point of quantity and quality being the preferences felt by those who, in their opportunities of experience, to which must be added their habits of self-consciousness and self-observation, are best furnished with the mean of comparison.” Simply, in relation to humans with an intrinsic sense of autonomy, free will, and sufficiently rational guise, all actions with a higher end proportion of overall good for all involved are considered morally good and all actions with a higher end proportion of overall bad for all involved are considered morally bad. (Mills, 2001)
With this foundation of utilitarianism in hand, we can now properly look into and analyze intellectual property under the lenses of a utility justification. As stated by the World Intellectual Property Organization, intellectual property is, “a creation of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.” As is further broken down, intellectual property falls into five distinct categories: copyright, patents, trademarks, industrial designs, and geographical indications. For the purpose of any further argument, intellectual property in the form of copyright will be the main distinction. This refers to all individually created literary and artistic works such as, music, books, movies, and other computer programs; including both of a physical and digital format. (World Intellectual Property Organization, 2014)
According to a utilitarian argument for intellectual property and specifically copyright protection, its necessity is based upon incentive. This incentive based necessity is grounded in the principle that copyright protection, enables and ensures a continued ‘want’ and ‘desire’ to continually produce individual works. With specific protections guaranteed, creators are allowed and ensured the ability to gain personal benefit from said works. This benefit will generally appear in the form of monetary values extending from the sale, distribution, or recreation of original works. Protection is paramount to this argument due to the correlated argument that without specific protection for originally created works, personally gained benefit will be severely inhibited if not diminished all together. Personal benefit is imperative to individual creators not only because of perceived future gains, but also for the requisite of an individual to recover first copy costs. First copy costs refer to the monetary expense to produce the first original piece of work. In the example of a piece of music, first copy cost may refer to the cost of production, recording, hiring of musicians, and other basic studio expenses. It follows from this theory that the overall expense of the first production is greatly diminished from the mass production, sale, and distribution of other copies. Without the possibility of adequate future monetary gains, it may be impossible to sufficiently or equally recover these initial expenses. With a theorized loss of personal benefit, an individual may lose the incentive to continually create new works, especially if initial expenses can never be recovered. This argument holds the ethical necessity of copyright protection seeks to benefit society through the continued incentive and inevitable creation of new original works. (Moore, 2011)
Although a utilitarian basis for copyright protection works to prove its continued necessity, it is not without a number of conflicts, particularly in regards to modern United States copyright law. First, in regards to the foundational principles of utilitarianism, one must look at who the greater good is, who is receiving the greatest good, and finally who is possibly being harmed. Through an incentive based concept of utilitarian copyright protection, the beneficiary of the good can be seen in two different lenses. First, protections ensure an individual creator can recoup first copy costs and in turn pursue future profits, thus benefiting the individual creator. Following from this, it can be inferred that the general public is also a beneficiary of overall good from a continued incentive to create due to the ability to obtain and utilize these created works; whether it be through listening to music, reading a book, or the utilization of any other resource. A problem arises when the spectrum shifts in favor of benefiting the individual creator far more than the greater general public. According to the most recent United States copyright law as seen in the Copyright Term Extension Act of 1988, protection is guaranteed for the entirety of the original creators life, plus an additional seventy years past death. In theory, this act could prevent a specific work from falling into the public domain for a period of over one-hundred and fifty years. This recent shift in protection terms begins to call into question who is receiving the greatest benefit from copyright protection. Although some level of protection may be deemed necessary to protect the values of incentive, a protection term that is too lengthy may inevitably inhibit the future production of individuals who seek to build upon former works, thus ultimately harming the public good.
This harm to public good through extended copyright terms can be aptly observed in the music industry, specifically within the cultural art of remixing and digital sampling. In specific consideration to United States culture, remixing and sampling have been utilized across the music industry almost since the beginning of basic electronic recording. The concept of remixing or digital sampling refers to the act of using specific portions of a previously recorded song to create a new piece of music. On face-value, utility based copyright may be against this protection as it essentially stripping the original creator of the value and ownership of the original work. A problem arises however when one considers the culture of remixing and digital sampling as a whole and specifically how it works. This problem is tied to the amount of original work being used by a new artist. As is often observed, artists frequently use small and often unnoticeable portions of an original work. For example, this may range from a few guitar hooks to a simple drum pattern. Given the rise of technological capabilities, the culture of remixing and digital sampling has gained a heightened prominence in modern music and society.
As could be expected with an increase in salience, remixing and digital sampling has been met with numerous legal obstructions. The most prominent, Bridgeport Music, Inc. V. Dimension Films, greatly hampered avenues of new production through these aforementioned means. In the court ruling against the group, N.W.A., it was decided the group infringed upon an originally created work by the group, Funkadelic. With this ruling, the argument for ‘de minimis’ use was essentially torn-down. Under the claim of de minimis by N.W.A., the use of only two-seconds of guitar for the production of a new creative work did not essentially violate any of the rights of the original creator. The decision of this court case meant an artist was required to pay an agreed upon price if they were to legally use any portion of an original song. This price is not an industry standard however and can greatly vary based upon artist opinion and perceived market value. Due to this, many new artists cannot afford to pay the required price to use a portion of an original work. In an interpretable and perceived future consequence, this may lead to the future loss of creation of new and original works. This may in turn ultimately harm the greater public whilst only protecting a small minority associated with the original work. (DiCola & McLeod, 2011)
Next, it is essential to elaborate on the interconnected, ‘Lockean’ model of intellectual property. As John Locke holds, property is gained through its inescapable connection to individual labor. As autonomous individuals with free will who have inherent natural rights and the born ability to reason, think, and produce, that which is produced from the ability of the former is also theirs under a natural rights argument of property. Locke argued that an individual cannot be separated from their self, identity, and responsibility of actions. Because of this principle, if an individual of this character uses his self and labor to produce something original, the self and labor cannot be explicitly separated. For Locke, since the former and the later could not be separated, natural rights as applicable to the individual creator should be applied to the newly created work. This expansion of rights can be extrapolated to all original creations ranging from farmland and home construction to more modern applications of art and music creation. In regards to the ownership of originally created musical works, through first copy costs and the intensive labor directly associated with production, an artist is intrinsically attached to the specific work, thus owed property production rights to the specific work. (Uzgalis, 2012)
Like the utilitarian basis for copyright protection, the Lockean model of intellectual property and copyright protection is also subject to its own issues and dilemmas. The first issue stems from Locke himself in the form of the, “Lockean Proviso.” As stated in the Second Treatise of Government, “Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use.” Essentially interpreted, the acquisition of property through the mixture of self and labor is okay insofar as it does not take anything away from others or prevent the future possible acquisition of property by others. Although in his Treatise Locke is largely referring to property in the form of land, water, and other natural things, this proviso can be appropriately extrapolated to the property ownership of the arts and music. Locke held the right to obtain property was a natural right of all mankind in that it followed from natural law and it benefited mankind as a whole. When this proviso is applied to the likes of over-extensive copyright protection terms, it may be interpreted to say these terms diminish the ability of others to obtain property in the form of newly created music. In addition, over-extensive copyright terms, through their diminishing of an individual’s ability to produce new property in the form of creative works, limit the propositional progress of society and mankind as a whole. (Fisher, 2001)
Aside from arguments against the utilitarian and Lockean views supporting the existence of intellectual property protection and copyright law, there exists other arguments based upon free speech and information distribution as a whole. According to Edwin Hettinger, the basis for these arguments may rest in the fact intellectual property represents a ‘non-exclusive’ object. By non-exclusive, it is meant the piece of property in question is not consumed by a single use and furthermore, it is able to exist in different mediums and locations at simultaneous moments. This non-exclusive property of objects can apply to music, books, and any medium that theoretically may be obtained through a digital medium such as The Pirate Bay. According to Hettinger, the extensive protections guaranteed to original works inhibits the free flow of thought and expression of the public, which solely benefits the creator and not those in which the works were theoretically created for. Further, he states this prohibition of a free flow of thought and expression tends to limit human advancement and knowledge as a whole. Hettinger also points out a fundamental paradox in intellectual property protection and copyright. He states the purpose of intellectual property and copyright is to protect the creator, create incentive, and finally to maximize the benefit for society through new creation. The paradox arises when institutions of intellectual property and copyright fail to provide society with an adequate benefit and sufficient means for the use and dissemination of information and knowledge; again observed mainly in the form of over-extensive copyright protection laws. As this paradox continues to exist, the sustainability, reliance, and benefit of existing intellectual property and copyright laws can be called into question and the existence of means to circumvent these laws in order to provide a possibly hindered benefit to the public. (Hettinger, 1989)
In contrast, but still in parallel to the ethics of intellectual property and copyright, the ethics and ideologies surrounding modern censorship play a role in the existence and justifications for entities such as The Pirate Bay. For the purpose of this discussion, it should first be noted that censorship in this role refers solely to government action taken against public will and not matters imposed by an individual or private body. According to the American Civil Liberties Union, censorship is defined as, “The suppression of words, images, or ideas that are ‘offensive,’ [happening] whenever some people succeed in imposing their personal political or moral values on others.” Based upon this stated definition, censorship is deemed illegal and prohibited in the United States due to the First Amendment of the Constitution and specifically the right of freedom of speech for all citizens. As further defined by the American Civil Liberties Union, the conflict and debate with censorship is based around the conceptual theme of advancing and sustaining rights against all modern technological advancements. (American Civil Liberties Union, 2014)
In the United States, although hampered by basic first amendment rights, attempted forms and tactics of censorship have become increasingly prevalent, especially in regards to digital downloading and intellectual property piracy. In recent history, the United States congress has attempted to pass two bills, the Stop Online Piracy Act and the Protect Intellectual Property Act. Although both bills were inevitably shelved due to mass protests by the public and general lack of support, both served as examples of strong attempts to censor the internet and the digital sphere as a whole. These acts attempted to expand the criminalization of the means and uses of digitally downloading copyrighted materials. As implied by the wording in these acts, successful passage would have theoretically allowed the government to disable and block entire websites due to their violation of copyright laws. In correlation with preexisting intellectual property and copyright laws, these acts sought to protect the creators of original works and those in possession and maintenance of copyrighted works. This for example would include a musical artist, the music industry, and all other corporate entities with legal holdings to copyrighted materials. Although seemingly beneficial at face value, opponents argued and inevitably protested due to the possible conflict and violation with the first amendment right to freedom of speech. This conflict would stem directly from the ability to block entire webpages due to support, access, or even presence of any copyrighted material, regardless of the quantity. This liability in theory could shut down mainstream websites such as Google, YouTube, or The Pirate Bay. (Magid, 2012)
So how exactly do first amendment rights and the internet blend perfectly into censorship debates? On face value, the internet represents a technologically advanced form and source of basic human communication. Prior to the invention and implementation of the internet and digital sphere, all forms of communication and the dissemination of public goods occurred in a physical and tangible realm. Unlike printed or recorded mediums however, the internet represents a unique medium of communication in that it serves a global base on a near instantaneous basis. A book or song created or uploaded to a digital medium in one location can be seen or heard by others simultaneously across an infinite space. The debate between first amendment rights and internet censorship in the United States then takes a turn towards looking at what qualifies as right guaranteed by freedom of speech and what hypothetically may not. Ranging on a spectrum of scholars and politicians to the ordinary individual, the lines between internet freedom and censorship begins to blur and is often difficult to fully quantify. As demonstrated through legal actions, forms of censorship in the United States have tended to grow towards a limitation of unchecked internet freedom, especially in regards to intellectual property and copyrighted material. Proponents of this iteration of internet censorship, although indirectly referenced and not directly quoted or stated as a form of censorship, seek to block the illegal transfer and dissemination of copyrighted material in a pursuit to protect the original creator and holder(s) of protected materials. Opponents of this form of internet censorship, as observed through national public protests of the Stop Online Piracy Act and the Protect Intellectual Property Acts in November of 2011, seek to propagate an internet uninhibited by all forms of legal actions and blockades. (Magid, 2012)
The debate now lies within the struggle between intellectual property protection and the censorship of the internet. At the core of this debate is the question simply stated as, who is the beneficiary and is this beneficiary the ethically justified proprietor? This debate, in regards to intellectual property and copyrighted works, can be simplified to the pull and contrast between the creator of original works, the de facto copyright holder(s), and the general public and society and culture as a whole. When questioning whether certain forms of censorship are ethical in regards to maintaining the rights of the original creators, it is necessary to note who is largely benefiting and who theoretically should be benefited the most. By its stated ideals, intellectual property and copyright laws seek to protect the original creator through the maintenance of market values in order to keep an incentive to create. This protection and incentive for creation is ideally of utility to the public sphere through the continued advancements of the arts and sciences. Through different iterations of copyright laws however, this stark point has begun to shift. The most recent United States copyright acts have allowed for protected material to remain in protection for nearly two-hundred years, far past the life of the original creator. This means that specific works will not fall into the public domain, becoming accessible and free for all, for nearly two centuries. Subsequently, this means that for this lengthy period, works cannot be altered, built upon, or used as direct or in-direct influence for the creation of other new works. This modern iteration of copyright laws has been claimed by many opponents to be a bastardization of intellectual freedom and the ability to pursue creative creation.
At the center of this debate is The Pirate Bay; the near epitome of internet freedom and a direct counter to all forms of internet censorship and copyright. The Pirate Bay, as a source of digital works, many of which are protected through copyright, operates as a free and open website for all to use on a global basis. Fighting for survival through multiple attempts of shutdowns including internet blocks, countrywide bans, and physical legal actions, The Pirate Bay in recent history has continued to thrive as a public. Through the utilization of multiple servers and proxy websites, The Pirate Bay has grown to span and encompass a global user base and is near objectively impossible to shut down. As The Pirate Bay continues to grow, expand, and disseminate copyrighted works it is imperative to examine if its mere existence is ethical, especially in regards to who and what it may be hurting and who and what it could be benefiting.
In regards to this inquiry and the utility of The Pirate Bay as a whole, it is first paramount to apply John Stuart Mill’s harm principle. As stated in his work On Liberty, Mills describes this principle through the use of power and the exercise thereof by stating, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Through further stated specifications of this principle, Mill first identifies a harm as any action, both on a public or individual basis, that “[can be] injurious or setback important interests of particular people, interests in which they have rights.” This means an action can be ruled harmful if the consequence violates the rights or liberties of an individual or a group of individuals. Secondly, Mill importantly notes that an action can be ruled harmful not solely based upon its expressed consequences, but also if the explicit action carries a strong risk of resulting in some form of ‘harm’. Through these two core ideals, Mill proposes it is at times acceptable to restrict certain liberties and individual rights. The call for restriction begins to obscure when types and levels of harm are analyzed and further, the question of whether creating restrictions to prevent harm in turn can create another or even worse harm. When attempting to apply this principle to The Pirate Bay, it is crucial to scrutinize if its existence and continued operation represents any instance of harm and if this possible harm can be ‘injurious’ to any individual person or group of persons and if overall it runs counter to public utility.
Fundamentally, The Pirate Bay exists as an extension to an individual’s right to freedom of information and open access to arts and sciences, or simply put, culture. It may be succinctly argued The Pirate Bay represents an acute harm to the holders of copyright and those who have their original works freely downloaded and disseminated. Investigated further, this supposed harm, by definition, applies to the holders of legal copyright protection which may refer to either the individual creator or a corporate entity, such as a music label. With this in mind, bypassing copyright protection through The Pirate Bay may harm either an individual or an entire group. In opposition to this possible harm however, one must look at who The Pirate Bay is benefiting and if restricting its actions due to a possible harm will subsequently harm a greater populace. If all operations such as The Pirate Bay were extinguished, there would inevitably be a far less free flow of information across the internet and society as a whole. This would include all creative arts and sciences, such as music, and could diminish the public access to basic forms of culture. By restricting The Pirate Bay based upon a categorical harm to the creators and holders of copyrighted works, a greater harm could arguably be seen in society and culture as a whole. Thus, any restriction taken against The Pirate Bay for the benefit of a portion of society against the whole may be considered unethical. (Brink, 2007)
As we continue to look at the The Pirate Bay as being ethically justified in its existence, we again must turn to John Stuart Mill and his concept of a marketplace of ideas. Although not plainly defined as such, Mill describes a marketplace of ideas in relation to free speech and the debate on it thereof. He holds an individual can never be definitively sure an opinion is justified without a critical social critique. As stated in On Liberty in support of a continued and open critique, “We can never be sure that the opinion we are endeavoring to stifle is a false opinion, and if we were sure, stifling it would be an evil still.” He holds the best and most easily justified opinion or belief is one in which is not solely in conformity to other individual or societal opinions and beliefs, but one which can be subjected and held up against public ‘assessment’ and debate. In relation to liberty and individual rights, this critique or assessmentis fundamental in finding and deciding what is of the most benefit to others and society as a whole or what ideal provides the greatest overall utility. Although The Pirate Bay represents a non-physical form of speech, it nonetheless represents a form of speech intrinsic to modern culture and technological advancements in a digital world. The internet and by default, The Pirate Bay, represent a new frontier of a conceptualized marketplace of ideas. A frontier in which ideas, beliefs, and culture as a whole can be disseminated and debated against with the strongest and most beneficial aspects rising to the justifiable top. The existence and use of The Pirate Bay helps to counter aspects of society which often seeks to inhibit a marketplace of ideas such as industry marketing and advertising. With a strong marketplace supported by The Pirate Bay, justified and ‘good’ aspects of culture will dominate based upon peer debate and basic structures of popular dominance and ideas based solely upon corporate and commercial ideals may tend to falter. This will result in society and culture gaining access to the best ideas, arts, and sciences which will inevitably benefit the majority populace and society and culture as a whole. (Wilson, 2007)
The Pirate Bay as a whole represents the means for pushing society and culture towards future advancement and a greater good. Its very existence and continued propagation across the global internet embodies a continued strife between political and public will and a pursuit of moral and ethical utility. The Pirate Bay allows for the individual to download, share, and enjoy creative works free of monetary or legal obligations. With this free and continued availability of information and creative works, society and culture can continue to grow. Individuals can utilize downloads of previous works as resources for their own creative works; as the means of changing, altering, building upon, or using purely as inspiration. A strong marketplace of ideas supported by The Pirate Bay can help continuously to push society and culture towards the best ideas, concepts, inventions, and creations. Without this strong base of free information, society and culture may continue to be largely driven by market and commercial ideals and the possible inhibition of progress and superior advancement. In addition, The Pirate Bay in its totality represents a change in societal ideals as a whole and a possible future alteration in public hegemony. In a global anonymous survey conducted by The Pirate Bay and in cooperation with the department of Sociology of Law at Lund University in Sweden, nearly sixty-two percent of responders, or almost fifty-thousand individuals, stated they think, “file-sharing will develop in ways that neither law nor market can control.” In addition, almost eighty-four percent of responders, or almost sixty-four thousand individuals, stated they utilize some form of file-sharing, either uploading or downloading, more than once a month. These statistics may tangibly demonstrate the beginnings of a shift in societal ideals. (Cybernorms Research Group, 2011)
Although it has yet to be seen whether or not the existence of The Pirate Bay represents a final step in social reform and internet freedom, it is increasingly evident it represents a clear critical juncture in society. In its most fundamental principles, The Pirate Bay represents a direct counter to internet censorship and stringent copyright laws and guidelines. By its very existence, The Pirate Bay represents a conversation; a need to look at who is currently benefiting the most and who truly needs to instead be the one benefiting the most . Whether or not the modification of modern copyright laws are an appropriate or even sufficient answer, it remains clear, the sole existence of The Pirate Bay represents a good for both the individual and society as a whole and is currently paramount to a continued ambition and struggle towards a free and open internet, independent marketplace, and thriving culture.
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