The Pirate Bay trial rolls on into its third day, finally getting into the meatier legal arguments that we haven't seen in the opening statements. At issue, once all the damage claims and talk of piratical booty is stripped aside, is whether the Bay has anchored its ship in a "safe harbor." That is, does it have liability for what its users do? And, if so, how does it differ from the other, not-being-prosecuted-by-the-Swedish-government user-generated content sites on the Web?

Sweden's The Local newspaper, which has been covering the case in English, notes that the safe harbor issue was raised today by defense lawyers. The site "provides a legal function and technology," he told the court, and any issues related to copyright infringement have to be taken up with the site's users—the website itself does not host any copyrighted content.

The Pirate Bay is described as little more than Google, a search engine that just happens to return plenty of results for copyrighted content. But Google, YouTube, and other sites that index the Web or allow user uploads also return such results.

“I submit that the torrent files one finds on The Pirate Bay can also be found by other search engines, like Google,” said defense lawyer Jonas Nilsson.

Carl Lundstr�m, an Internet businessman who is not part of the site but is accused of being a part owner, used a similar defense. According to TorrentFreak, his lawyer said, "EU directive 2000/31/EG says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don't initiate transfers. It’s the users that do and they are physically identifiable people. They call themselves names like King Kong."

If content owners want to go after infringers, they are free to do so, but that means going after individuals—not a site that provides legal tools.

The content owners pointed out, however, that The Pirate Bay refused to remove files from its tracker even when notified that they linked to infringing material. In the US, websites are required to take down such content in order to maintain their legal immunity from prosecution; The Pirate Bay, however, preferred to post the takedown requests along with taunting messages.

In addition to taking no action on requests from rightsholders, the other issue likely to come up at trial is the sheer volume of infringing material on the service. While legal content is certainly available, the site's name is an accurate indicator of most of the content it indexes. Does a site that takes absolutely no action to curtail illicit file transfers and indexes such material almost exclusively truly qualify for a safe harbor? We'll find out in three more weeks.

Not all the battles are legal

Meanwhile, the "spectrial" continues to play out in the media. Abba's Bj�rn Ulvaeus lashed out at The Pirate Bay backers yesterday, saying that they fought for "the 'freedom' to be lazy and stingy." "Is it really so damn difficult to pay your way?" he wondered.

But whatever the merits of the rightsholder position, it's certainly astonishing to watch the global media industries so artfully beaten in the media by the antics of some twentysomething Swedes. No, the pirate bus and the megaphones and the flags and the Twittering and all the rest of it might have nothing to do with the legal case, but it's become quite clear that the issue of copyright has escaped the law's orbit. If content owners can't tell a better story to the public, especially to those raised on a diet of Napster and BitTorrent, then the legal maneuvering is likely to fail.

And, in the court of public opinion, it's The Pirate Bay that comes across looking impish and interesting, while the "creative industries" seem anything but. The music and movie industries, which do have a story to tell about art, entertainment, and new business models, could really use some better PR—and not necessarily the kind that comes from PR firms.

Otherwise, they risk being further undermined in the public consciousness through a string of clever anecdote bombs such as the one dropped today by defendant Peter Sunde Kolmisoppi. "We had some pizza after todays episode of #spectrial," he tweeted today. "Met the whole opposing side and asked if they could pick up the check. They refused :("

And yes, it's what any of us would have done when in court against our bitterest enemies. But, when the old and obvious responses have gained little traction, why couldn't the content owners show a bit of humanity and pay for some pizza—and then tweet about it themselves?