Following the messy death of Napster in 2001, the continued rise of file-sharing services took many by surprise. It took very little time for users to adapt to other sharing techniques and before long, services such as Kazaa, eD2K and BitTorrent were the hottest property on the net, gathering a momentum that would prove difficult, if not impossible to stop.
Dozens of notable BitTorrent sites have emerged since things really began to take off in 2002/2003, and literally thousands of lesser known private communities have flourished. But in terms of sheer volume of torrents, users and mainstream awareness, a trio of sites have stood head and shoulders above the rest.
By scale and exposure, The Pirate Bay, Mininova and isoHunt became the three most prominent BitTorrent sites in the latter half of the decade, serving billions of torrents to multiple millions of BitTorrent users.
Due to this massive and unprecedented level of interest, it became increasingly clear – the movie and music industries, just as they did with dozens of sites and services before them, would move to crush or suffocate them into submission. 2009 became a painful year for all three of them.
The Pirate Bay
On April 17th 2009, after being hounded continuously by the combined might of the movie and music industries, the four defendants in The Pirate Bay trial were eventually found guilty.
While the court said that it was the users of The Pirate Bay that committed the first infringements by sharing copyright files, it went on to dismiss most of the technical details, and judged the case on intent. It was declared that the intention of the defendants was to facilitate the sharing of copyrighted works.
Categorizing the infringements as ’severe’, the court said the team of four were well aware that copyrighted material was being shared using The Pirate Bay and that they made it easy for the users and assisted the infringements. The lack of a ‘notice and takedown’ certainly did not help the defense.
The four defendants were sentenced to one year in prison and a fines of $905,000 each. The case will be appealed.
The crushing verdict did not close the site, however, despite further legal attacks on its bandwidth infrastructure and bans forbidding the founders from operating the site.
Indeed, with adaptation, the site remains alive and fully operational today, proving that in The Pirate Bay’s case, suffering pain is not a terminal condition.
After operating for almost five full years, the BitTorrent giant Mininova also succumbed to relentless entertainment industry in 2009, deleting over a million torrent files and shutting down the majority of its website.
Mininova was left with little choice, being forced into these drastic measures following a negative verdict in their court battle with the local anti-piracy outfit BREIN in the summer.
The Dutch court told Mininova that it must remove all infringing torrent files from its index on pain of huge fines, but as this proved technically unfeasible, the site’s owners took the decision to remove all torrents uploaded by regular users, many of which were not infringing any copyrights at all. This proved disastrous to the site. As a force to be reckoned with, Mininova has been taken back to the stone age.
In 2006, several Hollywood studios filed a complaint about then US-based site, isoHunt. In common with claims against The Pirate Bay and Mininova, the studios stated that the site’s owner was guilty of profiting from, and inducing, copyright infringement.
Just 8 days ago, on December 21st 2009, a US federal court in California ruled that isoHunt was indeed guilty of inducing copyright infringement, stating that the site’s operators had engaged in “purposeful, culpable expression and conduct, aimed at promoting infringing uses of the websites.”
Since the circumstances of the case were so similar to earlier ones involving Napster and Grokster, the judge decided there was no need to have a full trial and instead granted a summary judgment against isoHunt.
No damages awards against the site have yet been announced and isoHunt remains fully operational at the moment, pending an appeal. In common with The Pirate Bay, isoHunt has not yet succumbed to the pain of its court defeat, despite overwhelming odds.
Lessons to be learned and the future of torrent sites
While Mininova is almost certainly out for good, The Pirate Bay and isoHunt remain active, despite their losses. Nevertheless, there are plenty of lessons to be learned from the court defeats of all three sites. Although some may believe that the negative verdicts point to the illegality of torrent sites, that is not the full picture.
In all three court defeats – notably in three distinct jurisdictions (Sweden, The Netherlands and United States) – indexed content aside, none of them stated that torrent sites are illegal. However, fingers were pointed firmly at the operators and their conduct when running their sites.
Being prepared to filter out fakes and malware from sites but not having a ‘notice and takedown’ system for copyright holders can prove fatal. But in the cases of Mininova and isoHunt, who both operated such systems and even co-operated with copyright owners, participating in discussions about copyright infringement on their forums can undo all the hard work.
In future, if site owners are to reduce liability, they will have to remain a lot more detached from their operations than they have been previously. The lessons to be learned are many, a few of which are detailed here.
Already TorrentFreak is informed that next-generation torrent sites are in development, meaning that 2010 will prove yet another interesting year.