For years, even decades, I've been hearing that prisons in Sweden are utopian. These reports always come from die-hard socialists promoting a socialist vision. A new Guardian story about the experience of one of the Pirate Bay founders, Sunde, tells a different story. He's saying things like prisoners are "deprived of their humanity."
The Guardian story doesn't dig into the larger issue, but it remains the heart of the matter: is facilitation of file sharing a crime? Governments say it is, but the Internet generation, at least the current version of that, says not. It is a crime to download copyrighted material without paying for it, as all but the most foolish would agree, but what about facilitation? When jewel thieves are arrested, does the corner hardware store get indicted for selling the tools used to break into vaults? Does Ford get indicted for making the car used in the getaway? Strangely enough, individual downloaders -- the folks who are most obviously breaking the law -- are no longer prosecuted. The RIAA in particular announced that they are no longer going after individuals. In other words, the authorities have stopped going after jewel thieves, just the people making available the tools of the trade.
The other super-high-profile case is Kim Dotcom in New Zealand, who remains free on bail as the US government attempts to build a case against him. The main thrust of the FBI's argument is that Dotcom knew people were using his filesharing / hosting site for illegal purposes, and even encouraged it. If this was a case involving jewel thieves, the FBI is saying Ford custom-made a car, knowingly, for the purpose of escaping the scene of a crime. Once again, the authorities are going after a facilitator, not those who are clear lawbreakers. It's a steep learning curve for pioneers who want to facilitate file sharing.
While on house arrest, Dotcom started a new service that is encrypted to the point where he and other company officers can't see what is being stored. Good idea, but it may work against him during his current legal problems. Why make this version of storage when, as he claims, the other version was perfectly legal?
Dotcom has talked about Safe Harbor, the concept that facilitators aren't responsible for misuse on the part of individual users of an online service. Google used this successfully with YouTube, but there is a major difference: Kim Dotcom didn't initiate relationships with copyright holders to issue warnings and takedowns. Most fans of YouTube are familiar with videos disappearing on copyright grounds. I've lost a couple myself -- once the entire video, and once the audio (I have more than a million views on my most popular channel). I believe there is a legal gray area with Google. They're allowed to operate as long as they make a reasonable attempt to police copyright violations, which are initiated by the copyright holders. Dotcom didn't do any of this, to my knowledge.
Government strategy to ignore individual lawbreakers and go after larger players has been tried in another industry, at least in the U.S.. Gun manufacturers have been sued / prosecuted for gun violence. In those cases, advertising from manufacturers was used as evidence -- some of the ads seem to indicate the manufacturers knew their products would be appealing to gangs and would be used for violence. In the case of Kim Dotcom, the FBI is holding up emails seeming to show Dotcom knew and reveled in the fact his file sharing service was being used illegally.
Gun manufacturers successfully defended themselves against the legal actions. The Pirate Bay founders failed, and are all in prison (except the last one, who is now in the legal process in Sweden). Kim Dotcom has not yet had his trial.
The main question in my mind is, What is really happening here, and why? I believe the RIAA and the U.S. government backed away from going after individuals because it was unpopular with the public, as most downloaders are just ordinary college students, etc., and also because individuals don't have deep pockets. The government is swimming upstream to bigger targets with more assets and a greater ability to pay big fines. The added benefit for government is that the public doesn't get nearly as upset when a large corporation is sued compared to an ordinary citizen.
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