MUSIC PIRACY: Pirates' fate rests on legal interpretation.

Pirate Bay defence hinges on proving its "library indexing" intentions

By Ben Cardew

Industry lawyers say that the judge in The Pirate Bay case will now have to decide whether the high-profile site is merely a passive library of links to copyright material or whether it actively encourages the illegal sharing of such files, after the trial ended last week.

Simon Baggs, a partner at media lawyer Wiggin LLP, compares the trial to the 2005 Kazaa case, in which an Australian court deemed that network illegal and cited that it actively promoted the trading of illegal files. "On the one hand you have the view of rights owners that a site such as Pirate Bay, which goes about the process of promoting its ability to give access to unlicensed content, is itself infringing," he says. "Whereas The Pirate Bay's argument is that they are no more than a library or index site like Google.

"The closest analogy is the Kazaa case, against [owner] Sharman Networks. The court then determined that there is a clear line between innocent parties, who may have no control over what they do - for example Google's search engine that can't know about or control all the content it links to - and sites that are far more active in their activity and do know about the infringing nature of the content and can prevent access to it.

"Sharman shows that you can be on the wrong side of the line, even if you seek to argue that you are just like Google."

And Baggs explains The Pirate Bay is "the clearest example of the wrong side of the line". He adds, "Pirate Bay has the ability to remove the content, ...