The victory for the entertainment business was Pyrrhic, although this initial success is dampened by a possible mistrial . Nevertheless, four Swedes have been martyred. Yet content creators and consumers are no closer to new business models that solve the problem.

Piracy is not usually honorable. But it is often a symptom of some kind of failure or injustice. The 17th Century pirates of the high seas were rebelling against tyrannical maritime labor practices. The pirates in Somalia are a direct result of government failure, and the pirates put on trial in Sweden were the result of a market failure, which is sadly now a decade old.

That the market has not come up with alternatives to file-sharing good enough to make piracy moot is the real problem, and the companies and individuals that have stood in the way of this are the ones who owe content creators an explanation. Extremists on both sides are hailing this as a win, but it’s the majority of us in the middle who continue to lose out.

This was a show trial about money and politics, but most of all it was a sideshow. This argument is over and the entertainment industries should be focusing on the licensing schemes, royalty agreements and the new business models content creators desperately need. Thankfully many more of them are. But this verdict will encourage the ones who are not to continue pretending there is some other way around this problem that involves suing people.

No one should have to accept people “stealing” their work, just as no one should have to accept a company demanding that its business model works when it doesn’t. But we all have to adapt to new market realities. The way we communicate and distribute all kinds of information will continue to change at an alarming pace. Taking hard-line measures against file-sharing in the interests of a handful of large organizations sets a dangerous precedent for the future of privacy, net neutrality and freedom of speech. Intellectual property laws are about striking a balance between the interests of individual IP creators and society as a whole. If the law tips too far in either direction, the whole system will fall. Bad legal decisions on piracy may actually end up doing more damage than the piracy itself.

The Pirate Bay verdict gives lawyers everywhere a mandate to continue chasing shadows. It won’t stop the Pirate Bay, let alone online piracy. The enormous surge in the Pirate Party’s membership that was reported after the trial is just the beginning. Most of the commentary that followed rightly talked of cutting heads off hydras and hitting hornet’s nests, etc. What that really means is anonymity features and non-accountability measures being baked into BitTorrent software, probably in the next six months to a year.

Pirate Bay spokesman Peter Sunde said after the trial that “there’s no difference between us and Google.” The judge thought there was a difference – intent. The Pirate Bay was all about file-sharing and Google is not. But thanks to this trial the next generation of file-sharing sites will be much more secretive. The next mutation of The Pirate Bay will have no subversive rhetoric and won’t mock the labels and studios chasing it. It will be silent. It won’t respond. It wont be nearly as fun as TPB, but there will be no real differences between it and Google. No one will be able to prove intent, making it even more of a threat. Doesn’t exactly sound like a win for anybody in the business of creating content.

The real winners won’t be the ones that come out on top of this long, bitter trial process, appeals and all, which could take five years. It will be the side that develops the new technologies that will render that court decision meaningless before it is even issued. They may be Scandinavian pirates or Hollywood privateers, or some combination of thereof. The file-sharing community is working ten times harder because of this trial. The entertainment industries would be wise to do the same, and wiser to find ways to work with the pirates they continue to fight. The fact that they didn’t do so ten years ago cost a generation of artists billions.

No-one is ever going to trial for that.

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Matt Mason

Author, The Pirate’s Dilemma

e: [email protected]

w: thepiratesdilemma.com