I have been interested in the Pirate Bay trial that has been going on, but it has now taken on a whole new level of interest to me because they are releasing the actual arguments being utilized on each side. I was reading this article about the trial and read the following which kind of brought some questions to mind:

Roswall dropped several charges on the second day of the trial for the purpose of streamlining the case, Ars was told, which leaves contributory copyright infringement as the main charge. The Pirate Bay might not host content itself, but if its main use is as a middleman that arranges illegal peer-to-peer transfers, Roswall said that the site could be held responsible.

“A person who is holding someone’s coat while they assault someone else is complicit in the crime,” he said, according to Swedish paper The Local.

And Monique Wadsted, the lawyer for the movie industry, told the court that it was a basic point of Swedish law that one can’t just walk around with eyes closed when one knows that crimes are being committed.

Wadsted also claimed that The Pirate Bay was built for piracy, and she noted that site admins do in fact police the site for child pornography, inactive torrents, and misleading descriptions. Given that sort of control over the material, is it credible simply to see The Pirate Bay as a hand-off forum that allows all sorts of user postings for which it cannot be held liable?

The defense is continuing to claim that the European Union e-commerce directive passed in 2000 protects them from liability. The relevant part of the directive is Article 12, the “mere conduit” section, which says that a “service provider” is not liable for the information transmitted by its users.

The rule applies only to “service providers,” raising the question of whether The Pirate Bay qualifies, and it only applies when three conditions are met: the service provider must not 1) initiate the transfer, 2) select the receiver of the transfer, 3) modify the transfer in any way.

So what is it that I find interesting? All of it actually. What If someone wanted to start a service that helped drug dealers (not big pharma… the ones that are currently illegal) hook up with those that wanted to buy drugs. If they simply created a website that facilitated the two hooking up and took NO PROFITS from either party would the website be breaking the law? Would I be breaking the law if I DID get paid by advertisers? What if I took a cut of the transaction itself? The last one I think yes, but I’m not sure… the other two I lean towards “no”, but I’m not sure. IANAL – so what do I know? What if I didn’t know about the drug dealers? What if they were just using it to exchange illegal things and I didn’t know?

In the article the prosecuter claims “if [a website’s] main use is as a middleman that arranges illegal peer-to-peer transfers ” then it can be held liable for damages. I assume this <illegal peer-to-peer transfers> could be substituted to be anything that is <illegal>. Fine, what if it’s intended main use is as a chat room, but it just happens to provide a mechanism for pushers and buyers to find each other?

It seems kind of arbitrary for anyone other than the creator to define somethings “main use”. That’s like saying a car’s “main use” is to run over pedestrians just because it happens sometimes. Even if it happens a lot that is not it’s “main use”. It doesn’t really follow that I, the inventor or provider, can invent or provide a service for one use and that someone else call what I did illegal because the way some portion of society chooses to use it is in some other way than what I intended. My understanding is that is in general EXTREMELY difficult to provide “motive” or “intent”.

Is the service a “mere conduit” as defined? I don’t know. I’ve never used it. I make enough money to buy most of my own crap now, and I rarely listen to new music. I do hate for the Pirate Bay that they apparently did remove some material. At that point they actually might have changed their status from “mere conduit” to “data managers” or something like that.

Even for those not in Sweden this could set some huge precedent. I will have to check the American law for further clarification, but to be on the safe side I would say anyone wanting to create a website that allows people to get what they want (files, information, dates [think “dating”], whatever) should atleast make sure they meet the definition of “service provider”. The three requirements were (as listed in the article) that a service provider must:

1. NOT initiate the transfer
2. NOT select the receiver of the transfer
3. NOT modify the transfer in any way

Does (1) mean you cannot be the sender? Or does (1) mean you cannot send to a receiver that has not solicited it? If it is the former, then it seems that (3) means you cannot delete something posted by another user because the sender just uses your platform. If someone else initiates the transfer (ie. A user) and you delete it that would be viewed as a modification. If that is true then it would be in a providers best interest to ignore any Cease And Desist letters, subpoenas, whatever for fear of violating their status as a provider and thus opening themselves up to even more litigation. This is crazy hard to figure out what to do.

Also, the rules do not say that a provider cannot profit. So going back to my drug dealer example it would seem a “service provider” would be able to profit as long as they didn’t skim any of the “product” or any of the money from the buyer. I am guessing that an additional part of being legally NOT LIABLE as a service provider would require that the item being pushed throught the “conduit” is not illegal. Thus, actually setting up a meeting between a user and a pusher would likely be illegal. (What if the site just said “I can recommend a guy” and let them work it out from there? I don’t know.)

This is why “data law” is so much harder (and more interesting) than other types of legal issues. It’s a relatively young area with a lot of gray area. Add on to that the fact that platforms on which it is practiced is always changing and it makes for some very interesting and provactive conversation opportunities.