Stirring the Waters: Whether The Pirate Bay Case and the Thomas-Rasset Case Will Impact File Sharing and Piracy in Sweden and the United States

Author:Victoria R. McDonald
Position:J.D., The University of Iowa College of Law, 2011
Pages:563-595
Stirring the Waters: Whether The Pirate Bay Case and
the Thomas-Rasset Case Will Impact File Sharing and
Piracy in Sweden and the United States
Victoria R. McDonald*
I. INTRODUCTION ......................................................................................... 564
II. BACKGROUND .................................. ........................................................ 567
A. The Pirate Bay Case .......................................................................... 570
1. The Case ........................................................................................ 571
2. The ―Political Trial of the Decade‖ .............................................. 572
3. Fallout of and Response to the TPB Case ................................... 573
4. Immediate Impact of the Pirate Bay Case .................................. 574
5. The Appeal .................................................................................... 574
B. The Thomas-Rasset Case .................................................................. 576
1. Take One: Capital Records, Inc. v. Thomas ................................ 576
2. The Second Attempt and Reaction to the Second Verdict .......... 577
3. The Third Time is Definitely Not the Charm ............................. 577
III. LEGAL BACKGROUND ............................................................................. 580
A. Swedish Copyright Law and Reform ............................................... 580
1. The Pirate Party ........................................................................... 582
B. U.S. Copyright Law and Expansion ................................................ 584
1. Calls for Reform ............................................................................ 584
IV. ANALYSIS ............................................................................................... 585
A. Types of Deterrence ........................................................................... 586
B. Potential Success of Each Country‟s Pirate Party and the Ability
To Reform .......................................................................................... 587
C. Social View of File Sharing .............................................................. 589
D. Alignment with Existing Copyright Enforcement ........................... 591
E. Availability of Alternate Means ....................................................... 592
* J.D., The University of Iowa College of Law, 2011; B.S., Marquette University, 2008. I would
like to thank my amazing parents, Jerry and Rose McDonald, for continuously supporting and
inspiring me in all that I do, Mitch Webb for his patience and encouragement, and my
Transnational Law & Contemporary Problems colleagues for their support and dedication.
564 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 20:56 3
V. CONCLUSION ........................................................................................... 595
ABSTRACT
With a few clicks of a mouse, single mother Jammie Thomas -Rasset
illegally downloaded twenty-f our songs. A few years later, she now faces a
$1.5 million verdict after the recording industry successfully sued her for
copyright infringement. Across the ocea n, four men behind the internationally
popular file sh aring site The Pirate Bay face jail time an d an even larger fine
after Swedish courts found them guilty of knowingly providing the
infrastructure which allows file sharers like Thomas-Rasset to illegally
download media files. While these suits have generated immense media
scrutiny and popu lar attention, the contemporary culture of file sharing,
outdated copyright laws, the lack of political support, and a variety of other
factors will limit the deterrent effect of the large verdicts.
I. INTRODUCTION
Due to the ease, access, and potential for copyright infringement that
online media files offer, copyright enforcement actions have targeted peer -to-
peer (―P2P‖) file sharing, a form of file sharing that has generated much
debate since its advent almost two decades ago. Unlike typical copyright
infringement, activities such as piracy, illegal downloading , and P2P file
sharing can present unique technological and societal issues. For example,
whereas property battles are typically confined to a plot of land or a single
building, the battle against piracy exceeds any physical boundary.
Evolving file sharing networks and protocols allow people to share near -
perfect copies almost instantaneously and around the world, creatin g
international copyright enforcement concerns. Even wh en courts or file
sharing site operators successfully shut down o ne file sharing site, a new er,
more technologically advanced site is u sually available to take its place.
1
As a
result, copyrig ht owners continue to face a significant battle in their war to
eliminate copyright infringement.
In addition to the technological challenges that f ile sharing poses to
copyright enforcement, societal trends also increase the difficulty of
enforcement. With a few clicks, even technology novices can gain access to
minute-to-minute news, real-time sports coverage, and information for a
research report. These internet and technology users have almost
instantaneous access to a sea of both legal and illegal online media inc luding
music, television, and movie files. However, like people who frequently ex ceed
1
See generally MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 92526 (2005) (observing that
after Napster‘s demise, Grokster and StreamCast not only appeared stronger on the market, but
actually sought to capitalize on Napster‘s death by marketing to and attracting former Napster
users and developing a similar, albeit different, system of file sharing).
Summer 2011] STIRRING THE WATERS 565
posted speed limits on the highway, illegal file sharers often do not seem to
consider copyright laws or damage remedies. In fact, ―59 percent of
Americans polled considered ‗parking in a fire lane‘ a more serious offense
than movie downloadin g.‖
2
With the growing prevalence of technological
gadgets among more d iverse demographics
3
and the addition of more and
more international users,
4
there is a greater opportunity for widespread
illegal file sharing.
Recently, two high-profile file sharing cases illustrated the international
difficulty in adequately enforcing copyrights within a file sharing framework
and were among the most influential music cases of 2009.
5
In April 2009, a
Swedish court co nvicted four men of aiding and abetting copyright
infringement due to their development and operation of the internationally
popular file sharing site, The Pirate Bay (―TPB‖),
6
which flagrantly
disregarded copyright laws and openly encouraged copyrig ht infringement.
7
The case not only generated an international media storm,
8
but also fueled
the rapid growth of the Pirate Party, a political party focused on copyright
and intellectual property reform.
9
In fact, shortly after the controversial
verdict, Sweden elected its first ―Pirate‖ to the Parliament,
10
which further
2
Etan Vlessing, Poll: Americans Think Downloading No Big Deal, MSNBC (Jan. 26, 2007),
http://www.msnbc.msn.com/id/16828408/.
3
See, e.g., Press Release, Parks Associates, Number of Smartphone Users to Quadruple,
Exceeding 1 Billion Worldwide By 2014 (Mar. 23, 2010), available at
www.parksassociates.com/press/press_releases/2010/mar23-smartphone.html (noting that the
number of smartphone users is expected to quadruple in the next three years, and finding that
the demographics of smartphone users is diversifying).
4
See, e.g., Number of Internet Users in Emerging Markets to Double by 2015: Report , INTL BUS.
TIMES, Sept. 1, 2010, available at http://www.ibtimes.com/articles/48246/20100901/boston-
mobile-internet-bric-gdp.htm (predicting that internet usage will continue to rise around the
world as access to internet increases and price of connection continues to decrease).
5
Ben Sheffner, The Five Legal Cases That Defined the Year in Music, REUTERS, Dec. 18, 2009
[hereinafter Sheffner, The Five Legal Cases That Defined the Year in Music], available at
http://www.reuters.com/article/idUSTRE5BH5ET20091218.
6
See Aaron Patrick & Sarah McBride, Four Guilty in Web Piracy Case, WALL ST. J., Apr. 18,
2009, available at http://online.wsj.com/article/SB123996047873328827.html.
7
See Legal Threats Against The Pirate Bay, THE PIRATE BAY, http://thepiratebay.org/legal (last
visited Mar. 26, 2011) (showing examples of TPB‘s response to several legal and copyright
inquiries, often including vulgar language and blatantly ―ridiculing the senders‖).
8
See, e.g., Rick Falkvinge, The Pirate Bay: „Political Trial of the Decade,LOCAL (Swed.) (Feb. 11,
2009), http://www.thelocal.se/17520/20090211; Jemima Kiss, The Pirate Bay Trial: Guilty
Verdict, GUARDIAN, Apr. 17, 2009, available at
http://www.guardian.co.uk/technology/2009/apr/17/the-pirate-bay-trial-guilty-verdict; Neil Curry
& Mairi Mackay, Four Found Guilty in Landmark Pirate Bay Case, CNN (Apr. 18, 2009),
http://edition.cnn.com/2009/TECH/04/17/sweden.piracy.jail/index.html.
9
The Pirate Party, PIRATPARTIET, http://www2.piratpartiet.se/international/english (last visited
Mar. 26, 2011).
10
Swedish Pirates Capture EU Seat , BBC (June 8, 2009), http://news.bbc.co.uk/2/hi/8089102.stm
(noting that the Pirate Party secured 7.1 percent of the Swedish vote to win one EU seat and
that the win was in part due to the recent TPB decision and fallout).

To continue reading

FREE SIGN UP