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Comment by mixmax | Hacker News Reader

In denmark all access to thepiratebay has been blocked by the major internet providers. When you go to any piratebay page you get this: http://www.maximise.dk/temp/STOP.htm (translated: http://translate.google.com/translate?prev=_t&hl=en&...)

It's based on a court decision where IFPI (association of record companies) sued Danish Internet providers, claiming that since illegal content could be downloaded from thepiratebay all access should be blocked. Unfortunately they won, meaning that I can't read this post (Well, I can, but non-tech savvy users can't) and that I can't get linux torrents, and other legal content.

Looking at the court case Google, youtube, and many other sites should also be blocked since they also give a user the possibility of locating and downloading illegal content. But I guess these targets are too big...

It's absolutely appalling and a clear breach of free speech.

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I think the largest factor in targeting the pirate bay is that they are not pretending to be anything but a source of pointers to possibly illegal information, google, youtube and so on can spend millions on their defense and have a clearly legal use as well. The pirate bay has a much harder time making that case and is a softer target.

I have two problems with this case:

1) Thepiratebay's blog is also covered, thus making it impossible for them to state their case to the people. Effectively their voice is censored by the ban.

2) Thepiratebay isn't illegal in Sweden. Banning something that isn't illegal borders on totallitarian.

> "Thepiratebay isn't illegal in Sweden. Banning something that isn't illegal borders on totallitarian."

I'm confused. I thought you said it was banned in Denmark, not Sweden. What does Swedish law matter if you're a Dane?

It's not banned by the Danish state but by the Danish ISP's.

The piratebay is not illagel in Sweden (yet) in the sense that last time there was a court case about the legality of linking to copyrighted material it was found to be legal. I think this was in 1995 or something.

If The Piratebay is found illegal then the ISP's will not go after the site but they will go after ISP's and force them to block the URL like they have in Denmark

The Pirate Bay has many clearly legal uses, as well.

What percentage of Pirate Bay traffic do you think is legal usage? I'm guessing less than 1%.

What percentage of Google's traffic do you think is legal? I would guess at least 80%.

These things matter in court.

Exactly. That does not detract from the simple fact that the pirate bay itself does not distribute anything illegal at all, and in that respect they are as legal as any other site that produces pointers to information.

The problem here is that it has turned out to be notoriously hard to go after the distributors of the files so now the legal spotlight has turned on the distributors of the whereabouts of those files.

I once wrote a bit about this stating in brief that the piratebay is the internet equivalent of saying that you know where there is a bicycle standing without a lock, clearly that should be legal.

STEALING the bicycle is illegal.

What if someone made a magical index of all the bikes in the city that are unattended and unlocked? Should that be legal?

Sure. Its definitely not ideal for the bike owners, but that doesn't mean it should be outlawed. There are many reasons this would be legit information to have and possess, and not all of them are nefarious in nature. Using your logic, should we also restrict websites that track campaign donations, just becuase the campaigners find it painful to their process?

The assembly of information is rarely a bad thing. Theft of said bikes is the 'bad thing'. Punish the people stealing, not the people creating maps.

Plus many organizations, including many governments, perform equally line-skirting things when collecting credit data, purchasing information, and private information. At least if it is public, you could see that your bike is known to be unlocked, so you could do something about it.

The pirate bay is seen/treated differently than all other user-content-generated sites, but it shouldnt be. Fair is fair.

Using your logic, should we also restrict websites that track campaign donations, just becuase the campaigners find it painful to their process?

I think you are misrepresenting the logic. The difference here is the difference between a common sense argument & an argument that contains clearly distinguishable definitions. The latter is the kind needed (usually) for legal matters. But a lot of the time we are just trying to find a legally acceptable definition for the common sense argument. 'Illegal if it's mostly for illegal stuff,' is not the kind of law courts would be comfortable with. But I would argue that the issue is with defining an abstract principle. Sometimes these issues are resolved with linguistically.

The Pirate Bay's Raison D'Etre is pretty much to do with illegal content. The existence of some legal reasons is a fringe issue. (You might dispute this. In that case, the argument is over this point.) Imagine your unlocked bike list. Or how about a children home alone list. Defining this in an airtight manner that would satisfy the common sense is almost impossible. Specifically defining 'mostly' (as in mostly illegal content) would create a situation where there is a threshold to be met. This shelter could be used as a shield against prosecution. Defining it in terms (eg intent) would create different problems.

But these are problems always present in legislation. That doesn't mean you give up on laws. I think that most proponents of Pirate Bay (regardless how clever the arguments) are in the medical marijuana camp. They aren't themselves convinced that Pirate Bay should be there because of possible legal uses. They are themselves convinced by believing that content should be free or that IP laws should be changed or that Government shouldn't take on itself the role of policing this realm.

The law handles ambiguity all the time. See Judge Learned Hand's negligence rule for example. He famously stated that a defendant is negligent (say, a shop owner whose customer slipped on some ice on his steps) if the cost of taking precautions is less than the product of the magnitude of the likely damage and the probability that such damage will occur. In our example of the shop owner, spreading salt on one's steps is very cheap and the expected magnitude of damages is a bit larger, so a shop owner must keep his steps free from ice.

http://en.wikipedia.org/wiki/Calculus_of_negligence

This is an ambiguous standard, but it gives the judge a guideline to make his ruling.

Similarly in criminal cases, intent must be present for criminal act to have occurred. This is another fuzzy rule, but probably a good one.

Law is never hard and fast. Don't believe me? Ask a lawyer.

I think I must have been unclear. That was my point. Ambiguity is presented as an insurmountable barrier here with slippery slop type arguments: 'By that logic.'

Common sense gives is a pretty clear sense of legality here. Pirate Bay = Mostly illegal content. Google = All content (mostly legal). Youtube = ambiguous but has a clear substantial & non-trivial legal component.

It may be nice to think of the law as common sense, but in most countries this is not the standard. Because 'common sense' changes, frequently and without cause.

'Common Sense' can be misleading in many situations -- medicine, law, business strategy, crime, etc. What is common sense to you about software may not be common sense to someone with no IT knowledge, and vice versa with regards to, say, how cheese is manufactured.

The law adapts, sure, but it also tries to maintain order by being resistant to quick change. The fact that most of our legal system defaults to prior case law should say something about this.

That said, I am not an attorney. I just know using common sense seems like an incredibly bad basis for determining legality.

What I was saying is not that law is common sense. What I was saying is that in many cases, law tries to reach the same conclusions as common sense by other means. IE try to mimic common sense.

Absolutely, since it clearly has several legal uses that I can think of, and only one illegal one:

illegal:

- thieves could use it to go and steal those bikes

legal:

- bike owners could monitor the index and know they've left their bikes unlocked so they had better go and lock it

- law enforcement could monitor those bikes because they know they are at extra risk of being stolen

- law enforcement could use the index to take the bikes in to protective custody, to return them to their owners upon presentation of proof of ownership.

How do any of these even remotely relate to file sharing? I think the media industry has learned that once something has been torrented, there's no way to go lock it up again. That's kind of the point.

well, for one the pirate bay gives you a nice list of the infringers, you could simply go after them.

And if that is not feasible or legal that does not make the pirate bay illegal, it just means you have a real problem.

saying that you know where there is a bicycle standing without a lock, clearly that should be legal.

Do U.S. lawmakers know that (facilitating crime should be legal)? http://en.wikipedia.org/wiki/Accessory_(legal_term)

In some jurisdictions, criminal "facilitation" laws do not require that the primary crime be actually committed as a prerequisite for criminal liability. These include state statutes making it a crime to "provide" a person with "means or opportunity" to commit a crime, "believing it probable that he is rendering aid to a person who intends to commit a crime." [...]

The U.S. criminal code makes aiding and abetting a federal crime itself a crime [...]

The elements of aiding and abetting are, generally:

(1) guilty knowledge on the part of the accused ( the mens rea);

Exactly.

Driving a friend around town is perfectly legal.

Driving a friend around town who just robbed a bank is not.

Saying "I have a bomb" in a school play is perfectly legal.

Saying "I have a bomb" to a bank teller is not.

In some countries in Europe (at least in Spain) it isn't a crime to download music or movies, much less to provide links. Another question is if it's illegal (crimes are a specific kind of illegal act). In fact, it isn't illegal at all if there is no money involved. Copyright holders are compensated with a "private tax" on recording media, including SSD.

I don't know about Sweden or Denmark, but anyway I suggest not to jump to conclusions unless you know more about the laws in those countries.

Well, if sharing copyrighted content isn't illegal, then obviously nothing I said matters. Go ahead and do it in the light of day and post stories about your exploits to the internet.

I just find the argument "we weren't really doing anything illegal, we were just helping you do something illegal by getting you 90% of the way there; so we should be legal." to be tedious and unconvincing.

No, this is not about "freedom of speech".

Well, if sharing copyrighted content isn't illegal,..

It isn't in some countries. It's been proven in court many times.

In the US, downloading music , etc. is not a crime- it is a civil infringement. I think (not absolutely certain) that accessory laws in the US generally only apply to criminal acts, not civil infringements.

For a hyperbolic analogue, what % of death row inmates do you think are innocent? I'm guessing less than 1%. I find the concept of that 1% very disturbing though.

Google is in court because they're big and have money. They also make a good effort at removing illegal content. TPB doesn't, AFAIK. Seriously, it's nice to get free stuff but then why have any laws? May as well just take what you want from whoever has it.

thepiratebay isn't illegal in Sweden.

There's a reason power is divided into a legislative, judicial and executive branch in a democracy.

This is very clearly a case of the judicial branch being bent by the recording industry. Since TBP isn't illegal there should be no case. If the legislative branch sees a problem and changes the law it's a very different scenario.

Actually, there are no branches in a democracy- all decisions are made by a vote of the people. What you describe, my friend, is a Republic. But your point is still valid.

Sorry about that, my history and social sciences are a little rusty :-)

That is quite all right- confusing a Democracy with a Republic is a common misconception, one which I feel obliged to correct as often as possible.

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