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net.wars: Survival of the piratest

What with one thing and another, we didn't get around to documenting the brief vanishment, a few weeks ago, of The Pirate Bay, one of the leading torrent index sites. Based in Sweden, The Pirate Bay has a kind of McMurphy thing going, in that it seems to keep surviving while the other sites around it are chewed up by the system (we note that the eDonkey site Sharereactor's trial begins today..

So the other week when it went down, everyone kind of held their breath. Probably not least the fine people (and sometime employers) at Wired News, who had just a little while previously run a piece about The Pirate Bay's in-the-MPAA's-face resilience. Is the curse of Wired News death by legal action? The Pirate Bay itself ran a page on its site saying it would be back in a couple of days, but you hardly knew whether to believe that – it's what they all say in their first flush of defiance. (The five stages of P2P site closure: denial, defiance, settlement, redirection, and someone else starting up somewhere else.) But sure enough, a couple of days later, back it was. At this point, you'd never know it was gone except for the news stories.

The Pirate Bay has another unusual characteristic: it's loosely associated with a political party whose platform is to change the copyright laws to make sure that file-sharing is and remains legal in its home country. We could use more of this. I'm sure if you asked around the Net you'd find a grand consensus that file-sharing should be legal. I'm sure you'd also find plenty of people prepared to make electron-splitting arguments about whether posting a torrent is a copyright violation (the torrent is not the copyrighted material, just a pointer to same), or whether an indexing site (pointers to the pointers) is a copyright violation, and so on into the reflections of the boy on a bottle holding a bottle with a picture of a boy on a bottle holding a bottle…

Sure, you can pile up the layers of abstraction. But in the end, although there is absolutely no question that file-sharing technology has significant non-infringing uses and should not be made illegal in and of itself, a site that has a search engine with a category for "TV shows" basically knows that some of the material it enables users to find is going to violate someone's copyright. On the other hand, this is the nature of search engines, and no one is proposing to take down Google for copyright violations (despite some complaints). The only way you could limit the material search engines found to material that is either authorized or public domain would be to wrap everything in metadata. Good luck getting the entire planet to agree with and then accurately use your system.

But here's the thing. The MPAA has been on the attack for probably a year now (and the RIAA has been at it for more like seven years), and what is the upshot? Some sites have vanished – Lokitorrent, Grokster, Napster 1.0, Suprnova. Some of the closed sites have reinvented themselves either as legal services (Napster 2.0) or as replacement sites doing exactly the same thing as the old one. But the bottom line question the **AAs should be asking themselves is: have these actions made coyprighted material any less available through file-sharing or made file-sharing any less popular?

The answer is no.

The RIAA is apparently in denial about this.

But the answer is still no: over the last year file-sharing is up by 12.4 percent according to the P2P tracking firm Big Champagne (or ask any ISP).

More stuff comes online every day, and not only more stuff but more kinds of stuff. It's long been true that almost any broadcast show could be found online in a day or two. But six months ago you'd have been hard pressed to find a tennis match online. Maybe one or two. Now, if you miss a final or semifinal or it isn't broadcast near you, there's a reasonable chance you'll be able to download it in a day or two. And not just recent matches: people are beginning to post their favorite classic matches, too. And no, they're not all Kournikova.

Obscure movies you couldn't find a year ago are turning up (sometimes because between then and now they've been released on DVD). There are a few things that were listed on some of the more interesting edonkey sites that I can honestly say I haven't been able to find since those sites vanished a year or two ago. But those were almost entirely material that is not commercially available – such as 1960s American TV comedies – not material that you could perfectly well buy. So the only material they've succeeded in getting offline is stuff that the industry is either unable or unwilling to sell for profit. Some days, ya gotta love the logic of the War on Files. Tags: file sharing, RIAA, music piracy