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File-Share This. Court Judgment Costs Music Downloader $675,000. Book Pirates Next?
One of the most Draconian suggestions for combating book piracy is to go after the people who download books from file-sharing sites. So far print and e-book publishers have refrained from doing so, mostly because it is bad public relations to sue customers. The music industry had no such scruples when, earlier in the decade, it went after music downloaders, taking some 30,000 of them to court. You have to be in extremis to do that. The music industry was in extremis.
Just about all of the cases except one were settled. (See Can You be Sued for Downloading a Book?) The one holdout was a fellow named Joel Tenenbaum, who opted not to accept a cheap settlement offer back in 2003, when he was accused of willfully infringing 30 songs by downloading and distributing them on fileshare website KaZaA. Last July a federal jury in Boston ordered him to pay $675,000 to various record companies - that's $22,500 per song.
"I'm thankful that it wasn't much bigger, that it wasn't millions," he said after the verdict. Well yes, but given that the average settlement was between $3,000 - $12,000, his statement was undoubtedly uttered through a clenched jaw and a stiff upper lip. His attorney says the penalty will bankrupt him.
The trial was a slam-dunk for the music industry. "Plaintiffs built their case with forensic evidence collected by MediaSentry, which showed that he was sharing over 800 songs from his computer on August 10, 2004," Sheffner says. "A subsequent examination of his computer showed that Tenenbaum had used a variety of different peer-to-peer programs, from Napster to KaZaA to AudioGalaxy to iMesh, to obtain music for free, starting in 1999. And he continued to infringe, even after his father warned him in 2002 that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008."
It's hard to quantify the effects on would-be file-sharers of the suits brought by the Recording Industry Association of America, but it's safe to assume that the same peer-to-peer network that shared music shared news of the lawsuits as well, and downloaders sought easier pickings.
Like e-books.
The effect on music uploaders, at least KaZaA, was dramatic. Under tremendous legal pressure, the company changed its name to Kazaa and went straight. If you visit their website you'll see a banner proclaiming "Kazaa is 100% legal and supported by" such record labels as Atlantic, Warner, Sony, EMI and Atlantic.
If book publishers were willing to drop their misgivings about public relations, you might one day see a similar banner hoisted by a book pirate listing Random House, Simon & Schuster, Macmillan, Hachette, Penguin and HarperCollins as supporters.
"I've been robbed!" is a cry heard with growing frequency as authors discover that their books are being sold or given away on any one of countless pirate websites. To make things worse, these pirates work in the open, flagrantly touting their wares and thumbing their nose at legitimate copyright owners and their legal representatives.
Many of the perpetrators operate far beyond the reach of any laws and understand too well that few copyright owners are willing to spend time or money to bring them to justice. Stephen King stated it as well as anyone: “The question is, how much time and energy do I want to spend chasing these guys,” he said in an email reported on Teleread. “And to what end? My sense is that most of them live in basements floored with carpeting remnants, living on Funions and discount beer.” (It's a wonderful image but not necessarily an accurate one, as we recently reported).
Although piracy is rampant, victims are not completely without recourse. Every major legitimate Internet service provider has a procedure for reporting incidents of piracy perpetrated on their sites and redressing offenses. Reputable ISPs fear liability if they enable infringements. Using threats of terminating service, they will pressure culprits to take down illegal material - at least, when they know about it. All too often, however, they do not know they are hosting an infringement until the infringee brings it to their attention.
You would think that as soon as that happens the ISP would hasten to yank the pirated material off its website. But, as those who have complained to their carriers have discovered, it's not that easy, because the service provider has no way of knowing whether or not the complaint is valid. You have to prove that you are the true copyright owner and have a valid claim of infringement. The victim, in other words, has to demonstrate that he or she is in truth the victim. Here is where injury is compounded by insult.
Anyone who's ever been abused and then told that he or she was "asking for it" will appreciate how offensive it is for an author to be asked to provide proof of authorship. But if we put our lawyer hat on we will realize that it's necessary. Those who review claims have no way of distinguishing the robber from the robbed without some ID and documentation. Thus, when you click on a website's "takedown" link to request removal of your stolen book, try to keep your cool when you are informed that "Under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability."
We recently had reason to ask Scribd to remove a work by our client that had been posted on its site by a third party. We were furnished with a link to its takedown procedure such as this one. It took us only a few minutes to fill out and within 24 hours our request was heeded and the file removed. I am told that Scribd has been cooperative about such complaints. Once it receives and investigates one and confirms that an infringement has occurred, Scribd creates a file documenting the true copyright owner so that future attempts at illegal uploads will be flagged if not summarily rejected.
That's one win for the good guys. Unfortunately, the score is Bad Guys 1000- Good Guys 1. What it will take to level the playing field?
After reporting on a remarkable dialogue between blogger C. Max Magee and a book pirate we received a comment from a person named jap [sic] claiming to be a pirate too.
His posting elicited a host of comments from readers ranging from vituperative ("Pirate is too sexy a term. What you are is a petty thief") to respectful ("You have me intrigued, Jap. I would suggest you are not a typical pirate...") to grudging agreement ("In a world without pirating, a majority of people would just not buy the book. So yeah, I definitely think the impact is overrated (or over-agonized about.")
From his cover of anonymity jap responded to many of these comments and amplified on his original contention that "You have your morality and I have mine." Though we deplore piracy and are reluctant to offer a forum for its practitioners, we happen to think that it's sometimes better to listen to our adversaries than ignore them, however diabolical their reasoning may seem. This is especially true when they offer cogent suggestions about where we should be focusing our efforts to deal with piracy.
I invited "jap" to write an article for us but he declined. However, in the hopes that we can benefit from his observations, below are a few that we have gleaned from his communications. We will do our best to accept his airy reassurance: "Don't worry: the book business is not in danger."
Richard Curtis ********************************** *You have your morality and I have mine. It is perfectly okay for me to download books (or movies btw). It was also okay to copy or print books for everybody before 1710 (when the first copyright law was passed), or buying that "unauthorized by author" book...
*Probably you are thinking just now "but it is unlawful!!" Is it necessary to explain that law and moral[ity] are not the same thing?
*Morality aside, it is probably of your interest to know that we the ebook pirates do buy books. I understand you are worried for your business but don't worry: the book business is not in danger.
*I have never read most of the books I have downloaded. One of the downloads was a file containing several thousands of books. I have also bought several of the books I previously downloaded and read. Other books I did read I would never buy them. There are also books that I did read and I will buy as soon as I find them in a bookstore. I have also bought books that I know are easy to find and download. In fact buying books is a great pleasure for me.
*Why do many people pirate? I think the answer is different for each person. In my case, I think and I feel that that Internet is a great tool to get books, tons of books. It is the greatest library and the greatest bookstore at same time.
*DRM is a Bad Idea. It decreases sales, and believe me, it has never stopped pirates.
*There is a difference between stealing and downloading. If I steal a printed book at Best Buy, Best Buy becomes poorer. If I download a Dan Brown's book, Dan Brown does not become poorer.
*Part of my money went to Dan Brown's pockets. If you are interested in business, instead of your morality, the question is why many people go to library, and download books AND buy books. For centuries books have been bought by the very same people that go to libraries.
*I am a typical pirate. Most pirates never upload works, neither sell them, just download. Also most pirates buy content in a way or other. I for instance download movies but go to movie theatres. In fact many pirates are high spending people. And many music pirates are buying CDs, the real problem of CD market is that CD is becoming obsolete. Digital sales (iTunes and alikes) are speedily increasing. Hulu is not yet available in my country but I am willing to try it as soon as possible,
*Do you really think a guy who is scanning a book and uploading it is trying to avoid buying it at Fictionwise? That's nonsense.
*How is not paying for a book in a library wrong? How is downloading for free a 1922 book (public domain) right but a 1923 book wrong?
*Until 1978 copyright term was a maximum of 56 years since the work was first published. Nowadays is 70 years since author's death. If I download a 1950 book, is that wrong or right?
*The above terms are for United States. If I live in a country where a 1989 book is in public domain, is it wrong to download it?
*Morality? Copyright is (sometimes) useful, not moral.
*Btw I prefer to buy O'Reilly ebooks, they are not DRM'd.
*It is not possible to protect copyright. You can fight for-profit piracy because you can always follow the money and because any seller (lawful or not) needs to offer his product to public. You cannot successfully fight not-for-profit piracy because it is possible to do it so privately as desired. 10 years of RIAA prosecution did get nothing.
*However may be I can be useful for your business. I am not just a pirate, I am also a customer. Sometimes I pirate books, sometimes I buy them. Obviously, if you get to maximize the times I buy then you are increasing your sales.
*As I said DRM is a Bad Idea. When people buy ebooks, they want to do things like read that book on any present and future device. So many people break the DRM (it is easy) but breaking the DRM is unlawful, so your customers have paid to be outlaws. This is not the kind of thing that discourage piracy.
*Everytime I have bought a DRMed book I broke the DRM for the above reason and I did feel fooled because I paid but I was out of law. Just imagine which is the effect on your law abiding customers. They get a product that is worse than what I get when I pirate. Do you want to reduce piracy? Sell your books sans DRM.
*My best hint for you: don't obsess with piracy, focus on selling.
*How did I read this article? It is not because it is an article about piracy, but because it is an article of this blog, and I usually read this blog because it is a good blog about the book world.
We Have Met the Enemy and He is The Real Caterpillar
He's ripped off hundreds of books.
He can rip yours off in five minutes. It's so easy even a caveman can do it.
He painstakingly proofreads the books he steals.
He has ethical and moral standards. And a conscience...of sorts.
Though piracy's toll is in the billions of dollars, he thinks the crime is overrated.
But he admits it's a crime.
That's a thumbnail profile of a book pirate. I've condensed it from an astounding interview with one conducted by C. Max Magee on his website "The Millions".
After pondering the phenomenon of book piracy, a crime estimated to drain over $3 billion annually from legitimate copyright owners, Magee decided the best way to understand it was to ask a practitioner. "Who are the people downloading these books? How are they doing it and where is it happening? And, perhaps most critical for the publishing industry, why are people deciding to download books and why now? I decided to find out. After a few hours of searching – stalled by a number dead links and password protected sites – I found, on an online forum focused on sharing books via BitTorrent, someone willing to talk."
The perpetrator's handle is "The Real Caterpillar" and, as is so often the case, he is far from a noble Robin Hood. "He lives in the Midwest," writes Magee, "he’s in his mid-30s and is a computer programmer by trade. By some measures, he’s the publishing industry’s ideal customer, an avid reader who buys dozens of books a year and enthusiastically recommends his favorites to friends. But he’s also uploaded hundreds of books to file sharing sites and he’s downloaded thousands."
Here are a few revelations in his own words:
I generally only upload content that I have scanned, with some exceptions. I have been out of the book scene for a while, concentrating on rare and out of print movies instead of books because it is much easier to rip a movie from VHS or DVD than to scan and proof a book
I do not pretend that uploading or downloading unpurchased electronic books is morally correct, but I do think it is more of a grey area than some of your readers may
Just because someone downloads a file, it does not mean they would have bought the product I think this is the key fact that many people in the music industry ignore – a download does not translate to a lost sale
In truth, I think it is clear that morally, the act of pirating a product is, in fact, the moral equivalent of stealing…however, I feel the impact of e-piracy is overrated, at least in terms of ebooks
I’ve spent anywhere from 5 to 40 hours proofing the OCR output
And, finally: "In truth, I think it is clear that morally, the act of pirating a product is, in fact, the moral equivalent of stealing… although that nagging question of what the person who has been stolen from is missing still lingers."
Two persons mentioned by Caterpillar as having been stolen from are Mark Helprin and Harlan Ellison. Both have published privacy or anti-piracy statements on their websites. You may read Helprin's here but it says in part: "You agree to comply with all copyright laws worldwide in your use of this site and to prevent any unauthorized copying of the materials." Ellison's is an all-caps fist-shaking no-prisoners Jeremiad which you may read in its entirety here. Here's a taste: A HOST OF SELF-SERVING INDIVIDUALS SEEM TO THINK THAT THEY CAN ALLOW THE DISSEMINATION OF WRITERS’ WORK ON THE INTERNET WITHOUT AUTHORIZATION, AND WITHOUT PAYMENT, UNDER THE BANNER OF “FAIR USE” OR THE IDIOT SLOGAN “INFORMATION MUST BE FREE.” A WRITER’S WORK IS NOT INFORMATION: IT IS OUR CREATIVE PROPERTY, OUR LIVELIHOOD AND OUR FAMILIES’ ANNUITY. WHY SHOULD ANY ARTIST, OF ANY KIND, CONTINUE CREATING NEW WORK, EKING OUT AN EXISTENCE IN PURSUIT OF A CAREER, FOLLOWING THE MUSE, WHEN LITTLE INTERNET THIEVES, RODENTS WITHOUT ETHIC OR UNDERSTANDING, STEAL AND STEAL AND STEAL, CONVENIENCING THEMSELVES AND “SCREW THE AUTHOR”? WHAT WE’RE LOOKING AT IS THE DEATH OF THE PROFESSIONAL WRITER!
Caterpillar laughs at them. "One thing that will definitely not change anyone’s mind or inspire them to stop," he says, "are polemics from people like Mark Helprin and Harlan Ellison – attitudes like that ensure that all of their works are available online all of the time."
For the full flavor of Magee's interview read Confessions of a Book Pirate in its entirety here.
We are Harlan Ellison's literary agents. Our e-book company is publisher of some thirty of his books. Though we cannot express ourselves as colorfully as he, we support his position completely. His work and property, the work and property of countless other authors, our own labor and investment and that of all legitimate, reputable publishers worldwide are being stolen. Those who file-share copyrighted books are receiving stolen property. We ask those who take and those who receive to consider whether there is any difference between having your literary property robbed and your purse stolen. For one victim's answer, read Are Pirate-site Downloaders Better Than Muggers, Pickpockets and Shoplifters? This Victim Doesn't Think So. Richard Curtis
The following release was emailed by Hachette Book Group to literary agents and other publishing industry professionals this afternoon. It is a followup to a tough-talking release issued less than a month ago. We reprint it in its entirety. For information about Attributor, click here.
Last month we contacted you, Hachette Book Group authors and their agents, regarding our position on online book piracy. We’re pleased to announce that HBG has engaged Attributor, a leading anti-piracy protection service, to monitor the web for unauthorized copies of our authors’ titles. Please see announcement below for more details. If you have any questions, please email us at piracy@hbgusa.com.
***************************
June 17, 2009 – Hachette Book Group has engaged Attributor, a leading anti-piracy protection service, to monitor the web for instances of unlawful use of its authors’ books and content.
The rapid growth in digital availability of books has resulted in a dramatic increase in pirated editions on file sharing websites that allow users to upload, share and download content of all kinds, free of charge. While some of the content appearing on these sites is lawful and user-created, an alarming number of unauthorized copies of copyrighted book titles are uploaded and shared for free.
Attributor’s web-crawling tool checks document hosting sites, linksites, and social media and social networking sites, quickly identifying unauthorized copies. Attributor’s monitoring service will enable Hachette Book Group to proactively find unlawful uses of content and have infringing material taken down when necessary.
“Attributor is an essential resource in achieving HBG’s commitment to combating online book piracy and protecting our authors’ work,” said David Young, Chairman and CEO of Hachette Book Group. “With our lawyers and legal assistants spending a significant amount of time checking sites for pirated content, it was clear that we needed to automate and augment our monitoring, while keeping our staff very involved in the process. This automation will dramatically increase our reach and effectiveness.”
Hachette Book Group is a leading trade publisher based in New York and a division of Hachette Livre, the second-largest publisher in the world. Hachette Book Group publishes under the divisions of Little, Brown and Company, Little, Brown Books for Young Readers, Grand Central Publishing, FaithWords, Center Street, Orbit, and Hachette Digital.
This may contain confidential material. If you are not an intended recipient, please notify the sender, delete immediately, and understand that no disclosure or reliance on the information herein is permitted. Hachette Book Group, Inc. may monitor email to and from our network.
Swedish Pirate's Booty: A Seat in Europe's Parliament
This one's going to blow your minds, folks.
BBC News reports that Sweden's Pirate Party, campaigning on a platform of reforming copyright and patent laws, has won a seat in the European Union's Parliament with 7.1% of the vote.
As we wrote in April, four men involved in the Pirate Bay file-sharing website were sentenced to a year in jail and ordered to pay about $4.5 million in damages. Richard Falkvinge's Pirate Party seized on the high profile suit to rally supporters to a victory in EU parliamentary elections. "Last night, we gained political credibility," Falkvinge gloated as his bloc of one began negotiations with other EU parties for political support and credibility. "People were not taken in by the establishment and we got political trust from the citizens. "
It's hard to know what the citizens of Europe trust about the principles on which the Pirate Party bases its quest for power. "Many people just don't see illegal file-sharing as a crime, however hard the media industries try to persuade the public that it's just as bad as shoplifting," writes BBC technology correspondent Rory Cellan-Jones. Falkvinge enunciated the piracy position succinctly: "The establishment is trying to prevent control of knowledge and culture slipping from their grasp."
Well, now, in a development that will delight freemongers, the Pirate Party has joined the establishment. Read about it in Swedish pirates capture EU seat.
Aarrr! Pirates Forced To Walk The Plank Thanks To Latest Swedish Court Ruling
The other shoe dropped for the Pirate Bay today (news here, and for the first act, see The Pirate Bay: Standing Up In Court For a Generation of Blackbeards). The four co-defendants were each found guilty of being accessories to copyright infringement in a Swedish court. The courts documents say that the Pirate Bay co-founders helped promote theft and so they've each been sentenced to 1 year in prison and fined $3.5 million ($14m total). If the judgment stands, maybe the next files they'll be looking to share in secret will be in a cake.
Sweden had already been strengthening its reputation for being hard on piracy since they recently began requesting that local internet service providers log all the IP addresses of computers involved in file sharing starting at the beginning of this month. Consequently, Swedish internet traffic has fallen by over 30% (see this BBC article). If something similar were to be enacted in the U.S., it could be decried as further infringement on our right to privacy and it wouldn't be tolerated well at all.
Much is going to be made about this Swedish court decision and the forthcoming appeals in the short term, but it's hard to predict if the outcome is really going to deliver much of a blow to file sharing in general until the stigma of copyright transgressions is something that's educated effectively to scoffing young users.
The Pirate Bay is akin to a fleet of off-shore gambling boats floating in international waters. Even while the main defendants are caught up in Swedish courts, the operations can and probably will continue under the supervision of other affiliated groups. And it's not like the Navy can escort our copyrighted materials. So, while this news is fresh validation for the media rights holders, it's still not the end of the battle.
The Pirate Bay: Standing Up In Court For A Generation Of Blackbeards
Perhaps the most significant issue emerging in 21st century publishing is the tension between copyright protection and a general sense of entitlement expressed in the motto, "Information Wants To Be Free." Though we've tried to take a balanced view, it's hard to be neutral in the face of blatant, institutionalized piracy. As the legal and moral issues come to a head in a trial that has just commenced, E-Reads' Michael Gaudet analyzes the cynical and contemptuous justifications given by the operators of one website trafficking in copyrighted work.Unnamed and unindicted in the Swedish proceedings are, in Michael's words, "millions of tempted, anonymous Internet users in homes around the world." Would one of them happen to be you?
- Richard Curtis
This week in Sweden, the people behind the infamous website 'The Pirate Bay' are going to trial again for facilitating copyright infringement among file sharers. It isn't the first time Sweden has tried to take them down on behalf of plaintiffs like Warner Bros and 20th Century Fox. But this international group has proven to be a lot more slippery than past violation targets like Napster in the United States.
The defendants have launched a full blown new media campaign they call "#Spectrial" to promote their defense, speak about their motivations, and mock the proceedings. After the first day at trial, the prosecution decided that half of the charges probably wouldn't stand up against The Pirate Bay (reported by the UK Register) and the defendants began to boast more loudly that their movement won't be stopped (“EPIC WINNING LOL,” was what one of them commented on Twitter).
Even though The Pirate Bay doesn't distribute any illegal files itself, its website is essentially an enormous pirate map that lists millions of user-generated shared files, so that visitors from all over the world can quickly find music, movies, pictures, and e-book texts that their internet peers are sharing. Most of the listed files are ripped from purchased media, and in some cases they are leaked material that has yet to be made available at retail.
The Pirate Bay Makes No Apologies For Promoting Theft
The Pirate Bay's advocacy for unrestricted file sharing is one of the most confounding issues for modern publishers with digital distribution. Evangelists for piracy appeal for protection by evoking moral outrage at the injustice of governments policing private communication and hindering fair use. And they raise some difficult questions: does DRM curb our most basic liberties to communicate and creatively manipulate new ideas? Is copyright unlawful? Is copyright infringement fair retribution for inefficient corporate distribution practices? Should governments keep all internet traffic private? A grassroots movement to protect the opportunity to share pirated files says the answer to all of the above is an overwhelming "yes."
All the defendants (Fredrik Neij, Gottfrid Svartholm Warg, Peter Sunde and Carl Lundström) sincerely believe they've done no wrong in ignoring all the requests from copyright holders to prevent the copyright abuse rampant among the Pirate Bay users (see their page of dozens of spurned "takedown" notices and Pirate Bay retorts - "Legal Threats Against The Pirate Bay").
When asked if they felt like "defendants, or defenders of technology,” Peter Sunde replied: "I think it is something in between actually. We have a personal liability for this, we have a personal risk which has some impact on our feelings. But definitely it’s not defending the technology, it’s more like defending the idea of the technology and that’s probably the most important thing in this case - the political aspect of letting the technology be free and not controlled by an entity which doesn’t like technology.” (sic, via TorrentFreak)
A screen grab of the "Top 100 Audio Files" at The Pirate Bay (click for larger version)
If you're relatively unfamiliar with The Pirate Bay, keep in mind that it's a short but important part of the file-sharing wheel using a technology derived from BitTorrent software. BitTorrent, Inc. is the San Francisco-based company that helped develop the technology to assist everyday users in distributing files more efficiently, and while they now have partnerships with many of the plaintiffs, BitTorrent and the similar companies designing software based on BitTorrent have no control over how The Pirate Bay operates.
As More People Share A Seed, A Torrent Gets Faster
When users want to share a file from their computer, they create a "torrent", which is a small proxy file that is "seeded" to the internet, allowing anonymous users to find and download the master file. The benefit is that download speeds typically increase when many users are sharing the same file. If you download without sharing, you're identified by the system as a leecher (to encourage reciprocity). The Pirate Bay servers are what is known as a torrent tracker, a website where torrent seeds are listed by anonymous users like classified ads. Visitors can sort through pages of organized listings for seeds of the latest television shows, albums, and movies that users dare to share. A quick glance at today's "Top 100" listings showed that the most popular movie to download at that moment was a pirated version of The Day The Earth Stood Still (2008), with over 16,000 people actively sharing the file at any given moment, meaning that the whole film could likely be downloaded in less than half an hour.
Even though The Pirate Bay is the most famous destination, other popular torrent tracker sites exist, frequently below the radar of Google and other internet search engines because they list files that break copyright laws.
Keeping It Off The Record
With a name like "The Pirate Bay," no one believes the group's intentions were entirely legitimate to demonstrate freedoms. The Pirate Bay was designed to harbor pirate traffic safely from government authorities. Individual torrents communicate across the users' computers, not over The Pirate Bay servers, which makes the technology so popular with anonymous users anxious to avoid obvious digital trails that could turn up on court seized computers. Anonymous tracker websites are usually expensive to maintain, because the visiting traffic requires remote servers and extensive bandwidth that can cost a small fortune each month to keep online. The Pirate Bay sells advertising space on its website to offset these costs, however it's unknown what their revenue really is.
“We know that about 80% of all the traffic on the internet is torrent related. About half of these 80% are our traffic. Therefor, 40% of all internet traffic is passing through The Pirate Bay." (sic) - Peter Sunde
If that's truly the case, then it's safe to assume they've had the opportunity to capitalize on their traffic, benefiting them more than covering basic infrastructure costs, which is why MGM, Microsoft, and the others feel they will be compensated for the requested $14 million in damages by The Pirate Bay with this latest trial. The defendants insist they haven't become rich and they won't be able to pay any possible court ordered payments - another reason they believe the whole case against them is misguided.
"It is legal to offer a service that can be used in both a legal and illegal way, according to Swedish law," said their lawyer, Per Samuelsson. (The Local)
The effort to shut down The Pirate Bay website and stem the flow of illegal material is unlikely to happen with this court case (or ever, because of their server fail safes - Wired, 2006). The Pirate Bay has been dodging legal bullets for many years by disrespecting lawsuits, hiding its practices, and cleverly documenting that it is not actually ever in possession of the offending material. As difficult as it is to prosecute individuals who are caught with illegally obtained files, it's actually much more complex to argue that the network technology itself is partially liable, especially when the technology is constantly evolving. It's much like trying to shut down the entire English language so that individuals can't utter offensive (or proprietary) words, especially when the individuals are using Morse code.
But the underbelly of this incredible defense of technology is that the primary use of The Pirate Bay is to traffic valuable media for free without the consent of copyright owners and to obfuscate the thieves' trails. The prosecutors are hoping to make it clear that The Pirate Bay's intentions are malicious, and eventually someone will succeed.
Theft Prevention Vs. Freedom On The Internet
The current trade-off for a marketplace that employs copyright is that some usages will be unfairly prohibited and some theft is to be expected, but the marketplace is broader because of the overall financial incentive to content creators. If the courts should ever decide that an individual's right to privately communicate over the internet, even if it's to share stolen material, is worth more to society than copyright protection and Draconian preventative measures, most digital media would be rendered worthless to retailers and there would be a dangerous upheaval for most industries. Luckily for publishers, the file sharing crisis isn't seen by authorities as the "freedom" case The Pirate Bay wants it to be. But nervous industries are still trying to placate disgruntled internet users by finding acceptable common ground, like cheaper, DRM-free MP3 sales, to keep their content from being further devalued by theft.
Companies that are slow at adapting to new market demands to ease theft prevention are facing the worst of the backlash from consumers. Many of the anonymous users of The Pirate Bay are also quick to complain that they can't afford the high prices of the latest entertainment media and software tools, or that they can't buy it in the formats they want (high bit-rate audio files, DivX, etc.). They also feel that "free" acquisition contributes valuable mind share and publicity for companies, which turns into revenue in the future; the popularity of a hit album in file sharing circles might mean more long-term sales because the number of satisfied listeners increases (although the correlation is a dubious one outside of the most exceptional scenarios, such as Radiohead's release of In Rainbows). Some file sharers gloat how they enjoy "sticking it to the man" as retribution. And more and more are arguing that copyright itself is an unfair hegemonic practice that has evolved into a monster (see Richard Stallman's "Misinterpreting Copyright"). This attitude hasn't diminished any in the 8 years since the court rulings that shut down Napster. But it's unclear how many people tacitly understand that these arguments are all being used in defense of negligence to pay what content creators have asked for their work.
Ultimately, The Pirate Bay is quickly becoming more than just another famous example of how the internet offers temptations to transgress social taboos and ignore local authority. Its enormous scale indicates that it has become the latest spearhead of a generation's full-on war against copyrights and preventions against theft. And, what's worse is that today's court battles can't represent the best defense when the real fight takes place daily in the minds of millions of tempted, anonymous internet users in homes around the world.
One of the most Draconian suggestions for combating book piracy is to go after the people who download books from file-sharing sites. So far print and e-book publishers have refrained from doing so, mostly because it is bad public relations to sue customers. The music industry had no such scruples when, earlier in the decade, it went after music downloaders, taking some 30,000 of them to court. You have to be in extremis to do that. The music industry was in extremis.
The other shoe dropped for the Pirate Bay today (news 
