Surely 2009 is the most sensitive year for peer-to-peer and the industry crusade against free on-line contents sharing. In Italy we have the previously discussed issues with the incompetence and obscene servility of our representatives, and moving the attention toward Europe things get even worse if possible. Two in particular are the noticeable questions of these weeks in Europe, the conviction of The Pirate Bay crew and the approval in France of the Sarkozy doctrine also known as three strike law or HADOPI law.

An assault on the heart of P2P

The trial against the people involved in TPB marked a point of no-return in the confrontation between the copyright owners and the P2P users, a community scattered through tens of different platforms that can realistically see in the Swedish Bay one of the main focuses of sharing on its whole. The Pirate Bay feeds data exchange among more than 20 million BitTorrent peers in any given moment, therefore it’s understandable that reactions to the conviction of its admins were so many, immediate and sometimes surprising.

After a waiting of a few weeks from the end of the Spectrial, the spectacle-trial promised by the admins of the Bay, the court issued a guilt judgement against the four defendants, all accountable of having facilitated sharing of copyrighted material through TPB. For Peter “Brokep” Sunde, Fredrik “TiAMO” Neij, Gottfrid “Anakata” Svartholm and Carl Lundström the sentence is the same and comprises a fine of 905,000 dollars (for a total amount of 3 million dollars or 30 million kronor) and 1 year in prison.

According to the court the four men acted like a team, were well-aware of the fact that their tracker was used to share “pirated” files and very little count Brokep’s observations on him being a simple spokesman for the crew or the vague connection of businessman Carl Lundström with the three young men and the activities of the site. The Pirate Bay is illegal as much as the BitTorrent protocol used through it, the court says, and the verdict motivations also mention the fact that the site hosts advertising banners hence it must be considered as a “commercial” initiative.

At first the four defendants reacted with astonishment: Brokep defined the verdict “unreal” and the jail conviction unexpected, saying he hadn’t the money requested by the majors and strengthening with his typical style that “we wouldn’t pay if we could. If I would have money I would rather burn everything I owned“. The guilt verdict in the first instance is only the initial phase of a trial destined to last for years, Sunde said, and the appeal is already on its way.

Meanwhile the verdict excited the minds of TPB and P2P supporters mostly in Sweden, where the day after the Pirate Party arranged a protest in Stockholm crowding a thousand people. “Politicians have declared war on our entire generation“, the party leader Rick Falkvinge said to the crowd, blaming the deputies for their digital illiteracy and repeating that “The Pirate Bay is a completely legitimate service that transmits information between people” and after a verdict like this “no one can feel secure when linking to a YouTube clip on its website“.

That this simply isn’t one of the many cases of legal fight against file sharing is demonstrated by the huge growth in popularity for the aforementioned Pirate Party, that in just three weeks after the verdict saw its members triplicate until it became the third largest party in Sweden. The strife has been catalyzed in a political movement that seems to be ready to go to Bruxelles after the upcoming elections for the European Parliament, Falkvinge states he is “extremely optimistic” and is willing to reform copyright in Europe turning it into an obligation exclusively suitable for commercial activities.

On the TPB blog Brokep has invited everybody to calm down, has assured that the site will continue to work as usual and has urged anyone to share more than ever crying aloud “We’re All the Pirate Bay“. The technological wing of the protest has thought up the so-called Operation Baylout, inviting the users to overwhelm the industry and its lawyers with the result of inducing traditional and not that much traditional DDoS attacks. What contrariwise reacted pretty badly to the verdict were the Swedish BitTorrent trackers, sites like NordicBits that closed en masse fearing for the possible implications of the Bay surrender.

The verdict against The Pirate Bay is “way over the top”, frontman of Snow Patrol band Gary Lightbody has stated criticizing the jail punishment and acknowledging the file sharing as a fundamental technology that is here to stay. The majors and their representatives obviously don’t agree, urged by the clamorous success in Sweden to oblige the providers to block the access to TPB, to prosecute Sunde & fellows in other countries too and to push harder on the conviction requiring new fines and preparing new charges, including the one initially removed from the trial to treat The Pirate Bay as a service of direct copyright infringement.

The Spectrial goes on with the appeal requests individually submitted by the four defendants, and promises to be even more spectacular than it has been until now starting with the criticism about lacking of objectivity toward the court that leaded the trial. It has been recently discovered that Tomas Norström, the judge that issued the verdict, is a well-known friend of the majors involved in several pro-copyright organizations. The best part is that to verify the good will of Norström they called Ulrika Ihrfelt, another assured supporter of the industry reasons, and lastly a panel of three judges including Anders Eka, previously a colleague of lawyers Monique Wasted and Peter Danowsky (representing the majors in the trial) in the Stockholm Center for Commercial law.

Politics enslaved by the lobbies

The conviction of The Pirate Bay crew aroused strong reactions and drove the majors to continue to fight P2P, but the real threat to face within the next months is the “three strike law”, the spectre of forced disconnections that started to wander through all Europe after having been ultimately approved by the French Parliament. The new law establishes the obligation for providers to send out two warnings to the customers that according to the industry associations have infringed copyright, and if the aforementioned customers will not change their habits they will be cut off from the Internet for at least a year even if they will have to continue to pay the connection bills.

The HADOPI law allows the majors to overtake the judiciary power, and what’s worse it tears apart the principle of Internet access as a fundamental right of European citizens as recently stated by the EU Parliament. The three strike law has been definitely approved in France but its shadow was spreading way before in any corner of Europe: in Ireland the contents industry threatens the ISPs asking them to set up forced disconnections for users, the same as in the United Kingdom and in Spain where the industry also pretends that providers pay an extra fee for all the copyright infringements occurring on their networks.

Against the adoption of the three strike law in UK is the music veteran Billy Bragg, who on the Guardian complains about the inability of the industry to adapt itself to the technology revolution of P2P and free access to music contents, evoking “some form of P2P subscription service” as the only possible solution because it is “the most convenient way for consumers to access music“. According to Bragg the true reason for which the recording labels do not want to follow that way is the fact that it implies the loss of control on contents distribution.

Other than being the wrong solution to a problem that does only exist within the interests of labels executives, the three strike law also threatens to be a disaster from a technical standpoint: BayTSP, one of the companies the labels started to use to issue the infamous infringement warnings to users, does its work with no proper security policy letting Google index the aforementioned warnings and using a web platform vulnerable to Cross-Site Scripting (XSS) attacks. The supposed future of copyright defense is born already dead, apparently.

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