2009: No Honor
How The Pirate Bay’s Selfish Actions Played Into Big Content’s (and Not Your) Hands

On November 17, 2009, legendary BitTorrent site The Pirate Bay all but closed out its year with a stunning yet confusing announcement: Effective immediately, the Swedish tracker (henceforth referred to as TPB) would shut down, distributing torrents instead through the use of so-called “magnet links” that would be processed on BitTorrent clients through the distributed hash table (DHT) and peer exchange (PEX) systems. The magnet links are already in place on TPB's website. Further, TPB is plotting with other public trackers to follow in its footsteps, basically making public BitTorrent sites trackerless in the near future. On its blog, the crew of TPB remark that it's “the end of an era, but the era is no longer up2date.”

Unfortunately, this grand gesture to decentralize public BitTorrent access may be another significant blunder that plays into the hands of its rivals, the Big Content organizations MPAA and RIAA, and marks a pattern of self-interest that has surfaced in the long year. Questions lurk as to whether TPB is beginning to lose its way after a prolonged struggle with Big Content. After a year filled with drama that is worthy of an Oscar-nominated screenplay (assuming a studio would find it ironic enough to produce the film), TPB's two selfish mistakes, along with its loss at Spectrial, may have put Big Content on the offensive. Now, without honor, the chances of Big Content's success of controlling the internet are much higher.

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- Selling Out Doesn't Always Work

Spectrial, the nickname for the trial against three of TPB's founding members and a business associate (so named due to the defense's argument that the trial was little more than a farce, a spectacle), ended on April 17 with a guilty verdict on all four defendants. While a devastating setback, the members of TPB remained determined. As reported after the initial verdict, founder Peter Sunde (a.k.a. brokep) was only surprised at the prospect of jail time, and they would “come back and get the epic win.” While initial appeals have been rejected, an appeals court trial will be heard in the middle of next year. Meanwhile, the site remained online.

However, something far more disruptive happened that had shaken TPB's base and brought unfortunate implications: On June 30, a Swedish advertising company with the bizarre name of Global Gaming Factory X had announced intentions to buy TPB for 60 million Swedish Krona (approximately $8.5 million). What were the ultimate intentions for this acquisition? According to GGF's CEO Hans Pandeya, the company would like to “introduce models which entail that content providers and copyright owners get paid for their work.” It would also introduce a scaled pay system, which would force heavy users to pay a monthly fee.

The uproar was instantaneous. While eight years seems like a century in the age of the internet, many had not forgotten Napster's similar traversal of capitulation, acquisition, and legalization back in 2001. While “Napster 2.0” retains existence as a subscription service, it has been reduced to obscurity due to its unprofitable revenue model being outshone by the iTunes Music Store, only to appear now and again when other companies buy it. TPB's fate would seem to be similar. Also, there were concerns whether the acquisition would cause user data to be sold or even given out to Big Content to sue end-users. These fears were not completely assuaged by GGF. Further, the thought that it would seek acquisition offers so soon after being defeated in court begged the question of whether the Spectrial 4 were desperate. Finally, the very notion that something so anti-capitalist and anti-commercial would become the very thing it was fighting against became a moral event horizon that TPB crossed. Hundreds of users publicly requested their user names deleted, either in protest or as a security measure.

The acquisition offer did the one thing Big Content has tried for many years to achieve: Shake the faith of file-sharers, music lovers, and copyleftists alike, and scare the hell out of them. It created discord amongst them, since beyond the now-shutdown Mininova and the pressured isoHunt, there were few if any significant public trackers left. They felt little comfort in the major private trackers too, since most trackers have oppressive rules involving data ratios and uploadable material. It was a tense summer, with further lawsuits made, and the tracker itself being down for several hours on August 24 after one of TPB's ISPs were ordered to shut down access by the Swedish courts. Eventually, the letter of intent to buy TPB expired, and the deal for now seems dead. But already, Big Content saw a big gain from TPB by weakening the morale of file-sharers around the world.

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- Giving the End-User Incentive… To Be Disconnected

When the November 17 shutdown occurred, the reaction was subdued. This was partly due to TPB still hosting torrent files. It wasn't using its own tracker, however. It was using one called OpenBitTorrent, a non-hosting tracker and recent upstart that quickly gained popularity after a TPB user uploaded a near-complete backup of TPB's torrent files prior to the August 24 downtime. The site intends to gradually move to only magnet links sometime in the foreseeable future. This move is part of a larger, united strategy to decentralize BitTorrent, at least publicly. It is seen there that it would ensure the survival of the BitTorrent protocol. It is also significant because it ensures the existence of TPB and other BitTorrent sites.

But problems with this strategy are either tedious at best or catastrophic at worst. The immediate problem with such a move is being able to actually use magnet links. The nature of magnet links is such that they are actual hyperlinks rather than files, so it can't be loaded onto your computer like a standard torrent. Rather, the link must either be entered manually into the BitTorrent client or have the client integrate with the web browser to automatically “fetch” magnet links. Of course, this is assuming that your client supports magnet links to begin with: There remains a large number of BitTorrent clients that do not support magnet links, and among those that do, most require the user to manually enter the magnet link. Further, when the sites switch to simply hosting magnet links, all they will see is basic data, with no information regarding not only the actual content, but of the peers holding the content. While this makes it easy to have a large number of peers supporting a single file, it also makes it hard to find out whether or not a BitTorrent-shared file is active, let alone with a large number of peers supporting it, without having to use the magnet link first.

There is a far more devastating problem, however, and that comes from the purpose of this decentralization method. TPB is arguing, essentially, that how BitTorrent works -- that is, how users get their files -- is now in their own hands. This also means that any legal burdens are also in the hands of the user. Big Content could not have received a larger boon out of its arch rivals. By forcing the users themselves to take responsibility for any committed piracy, TPB inadvertently strengthened the arguments of RIAA's primary (and MPAA's secondary) anti-piracy strategy of targeting individual users. By decentralizing BitTorrent publicly, with users all but running the ship, the piracy “problem” is now focused primarily on them, with the only solution being to stop them in any way possible. Yet, the recent method of suing users has spectacularly failed on a PR level, forcing the industry to scale back and eventually kill the strategy.

Enter: The Anti-Counterfeiting Trade Agreement, or ACTA treaty. First reported in last year's “The War On Copyright™” (TMT Feature), the treaty in discussions between developed nations, has gone from being a mere possibility to a threatening reality. Recent leaks from discussions on the treaty have painted a dire picture: The Obama administration, fronted by Vice President Joe Biden (who has repeatedly made pro-copyright speeches in the past year), have been attempting to implement Big Content's “wish list” in the treaty. The most destructive item from this list is the implementation of graduated response measures against users. Graduated response, also known as “Three Strikes,” would give at first a warning to users suspected of piracy, then either employing bandwidth throttling or temporary disconnection if that fails. The third strike would lead to a complete disconnection from the internet for the user, likely to be placed in a blacklist to prevent them from signing up for a different service. Furthermore, the “safe harbors” that ISPs have to prevent them from being sued by Big Content for aiding piracy would be changed to force ISPs to monitor user activity for piracy.

The Pirate Bay's plan to decentralize would indeed keep the heat off itself, as while the magnet links lead to the data in the torrent, the site would not have any files pertaining to what's on any particular torrent. However, if ACTA were enacted, the results would be more devastating than maintaining the status quo and trying to avoid being shutdown by force: Once users, even households, start getting disconnected completely for accessing places like TPB, other users will start scrambling, likely leaving the service for good. The decline in userbase will lead to a decline in ad revenue (the primary source of income for TPB), causing a downward spiral that will likely shut down the website in a matter of a year or so due not to the perseverance of Big Content, but because it cannot afford to pay the bills.

The worst part of the treaty though is the event of it being signed: Ratifying the treaty would mean that it must be implemented into federal law. The nature of the treaty would mean it would subvert not only the debate and implementation of net neutrality regulations by the Federal Communications Commission, but also the United States Constitution and the American public in ways that would make the drafters of the PATRIOT Act and the torture memos envious. Unfortunately, the American public could not be more apathetic to the cause of file-sharers: With many Americans still suffering through the worst recession since World War II, their primary concerns are keeping their jobs (i.e., unemployment) and their health insurance. Honestly, it would be an insult to Americans to attempt to bring piracy to the forefront of Congressional debate when they're more concerned about getting food on the table, so it is reasonable to say that copyright is the least amongst their problems. (Note: This writer is not being paid to write this article. As of press time, he is currently seeking employment) As such, with relative public apathy combined with both the executive and legislative branches in Big Content's pocket (pro-copyright “reforms” in the past two decades often had overwhelming bipartisan congressional support), passing a treaty of this sort seems likely.

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- Another Uncertain Future

Despite all this, however, it is less certain what the future holds than before. Developments coming from the European Union in the past several months may cause an unfavorable compromise with, if not a stop to, Big Content's march to control the internet. A telecom reforms package, to be presented next month to the EU's members, includes language that protects file-sharers. The language, penned by the Swedish Pirate Party's Christian Engström (who was recently joined by Amelia Andersdotter in the European Parliament following the ratification of the Treaty of Lisbon), does not prevent the implementation of ACTA's more damning aspects, but it does enforce the right of due process and judicial review even in cases of graduated response, which will likely weaken the very concept itself.

Shortly after passing, the EU sent a warning to Spain, who was in the process of implementing laws similar to ACTA's wording, that passing such laws would be against the letter of the laws of the Union, not only in regards to the lack of judicial oversight, but that the disconnections themselves would be against the “rights and freedoms that have become part of Europe's values.” The EU's demonstration of power here may both play a role in next month's round of talks for ACTA and increase pressure against the Obama administration, including the UK government, whose unelected #2 Lord Mandelson has reportedly been pushed by Big Content to enact laws even stricter than the ACTA's current wording. Of course, the fact that the talks are taking place in Stockholm, headquarters of the Pirate Party, will certainly play a role.

There are signs, too, that ACTA may serve as an endgame for not only file-sharers, but Big Content itself. Just this past year, several international arms representing the RIAA and MPAA have been shutting down as a result of general failures against file-sharers. More importantly, though, many companies have moved on, independent of the legal arms of the RIAA and MPAA. Warner Music Group, whose head Edgar Bronfman has been a major supporter of digital content as of late, seeking other revenue models, such as video website profit-sharing and artist “360 deals,” to make up for the shortfall of continuously falling record sales. Other labels have begun to follow suit, with a major Hulu-like site for music videos, Vevo, in the works. In media, Viacom's chief lawyer has admitted that its lawsuits against file-sharers “felt like terrorism.” If ACTA fails to go through, or is in a severely weakened state by the time it is signed, Big Content may seek peace with file-sharers, having finally changed with the times.

As for TPB itself, its next two tests may help restore its reputation a bit, though not by much. The first, of course, is the transition to a trackerless BitTorrent, which is likely to happen in the near future. The second is the appeals court trial for the Spectrial 4, likely to occur in the middle of the year, whose timing with the upcoming parliamentary election will make it a major news topic in Sweden. Still, much of the actions TPB performed after Spectrial were not in the name of file-sharers, but rather the site itself. The site is becoming increasingly focused on its own survival, lacking the “honor” and good fight they put up against Big Content, and caring less about the needs and will of the very file-sharers who support them. Of course, as these mistakes have shown, losing their honor will lose them their backing, and that's how, to paraphrase Sunde, they will get the epic fail.

Photo: [Ross Angus]

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