The Pirate Bay verdict last week, crowed about by content owners, caused a very different reaction among self-styled digital pirates. "Sweden is also presently a country in RAGE because of the clearly political motivated and big money—oops, I meant Big Content manipulation of our legal system," wrote one.

Conspiracy theories abounded. In a Web interview on Friday, defendant Peter Sunde Kolmisoppi even wondered aloud about the fact that a movie industry lawyer issued a statement praising the court's reasoning only minutes after the verdict was issued (Kolmisoppi had himself been tipped off to the verdict the day before). Suggestions of dark conspiracy theories and Big Content's machinations hung heavy in the air.

But why, exactly, are people surprised at the outcome? When looked at in context, the Swedish decision isn't particularly shocking, and in fact would have been far more unusual had it gone in favor of a site that trafficked widely in .torrents of illegal content, ran its own tracker, called itself "The Pirate Bay," refused to take down links to infringing content, and posted smart-ass replies to copyright owners' requests.

The verdict might well be altered on appeal, it might have been the result of political pressure, and it might be a very poor decision—such things will become clearer in time. But it's certainly not surprising.

A look back

Consider the history. In the US, Napster was shut down even though it did not host files directly. When services like Grokster sprang up in Napster's wake and tried to make their services more decentralized to avoid even the appearance of control, courts still didn't accept the argument that they had clean hands.

These cases weren't decided by some local judge, either. The Grokster case went all the way to the Supreme Court, where the seminal MGM v. Grokster decision said that sites could not avoid all liability for copyright infringement simply by arguing that they have some legal uses.

This was the famous Sony defense, from the case which legalized Betamax/VCR sales. It survived both federal court and the Ninth Circuit Court of Appeals, but the Supremes found that a Sony defense did have some limits:

One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device's lawful uses... Nothing in Sony requires courts to ignore evidence of intent to promote infringement if such evidence exists. It was never meant to foreclose rules of fault-based liability derived from the common law. Where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability... On the record presented, respondents' unlawful objective is unmistakable. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations.

The sort of secondary liability for infringement is also what doomed The Pirate Bay (Swedish law has its own peculiarities, of course, but the basic concept of contributory infringement exists in both legal systems). As copyright attorney Ben Sheffner put it in a blog entry Friday, "At what point will defenders of the Pirate Bay and similar sites and services realize that 'but we didn't actually host the movies and music ourselves' is not a defense to a claim of secondary liability (i.e., assisting others to infringe)? Napster tried that defense, as did Aimster and Grokster. How did that work out?"

Not just Grokster

It didn't work out well for TorrentSpy, which also made claims that it was just a normal search engine. After repeated court rulings went against the site, including one that the site admins had deliberately destroyed evidence, it shut down in March 2008.

Major P2P hubs like Oink have been shuttered all over the world, and the biggest ones are currently fighting court cases of their own. IsoHunt has mounted the "Google defense" in its own court case, telling the judge, "There are hundreds of public torrent sites, some limited to a specific subject matter, others general aggregators like isoHunt, who like Google, try to cover as much of the Internet as possible. The essential functions performed at a torrent site are also performed at a comprehensive search site like Google or Yahoo!"

In the wake of Grokster, though, this looks like a tough fight to win, and isoHunt has to win it in both Canada and the US (it's being sued in both places).

And Mininova, the largest BitTorrent site in the world, has a May trial date in the Netherlands to see whether it will need to proactively filter copyrighted content or whether it need only respond to individual takedown requests (unlike The Pirate Bay, Mininova does respect such requests, though copyright holders routinely object to the burden this places on them due to constant re-uploading of content).

The "Whack-A-Mole" strategy that Big Content is using, one which has largely failed to stem piracy, is being replaced with an emphasis on "graduated response" or "three strikes" laws that could boot illegal file-swappers off the Internet. But while the campaign hasn't stopped piracy, it hasn't lost many major cases in court, either. It's certainly possible to rail against dark powers and political forces—which may be present in some cases—but careful judgments like the Grokster ruling show a willingness among some of the world's top legal thinkers to differentiate between Grokster and Google.

The fact that a Swedish court found a similar distinction between The Pirate Bay and Google may (or may not) be wrong, misguided, ill-informed, backwards-looking, truculent, horrible, and misshapen, but the one thing it's not is surprising.