These Robin Hoods are no heroes

(This article originally appeared on february 24th in Dutch newspaper NRC Next)

Swedish pirate website for illegal music, films and software deserves to stand trial

The court case that started in Sweden last week against The Pirate Bay revealed some interesting points. The Pirate Bay is a search engine specialised in tracking down illegally uploaded music, TV shows, films and software. The Pirate Bay\'s four administrators have no qualms about advertising the fact that their search engine deals primarily in illegal, copyrighted material. In point of fact, they feel people should have the right to share and use copyrighted material free of charge. They see copyright law as an archaic legal construct that has no place in the 21^st century. And the cash they are raking in by selling ad space on their website just happens to be a welcome bonus.

The Pirate Bay\'s views are meeting with favourable response on the internet, particularly from young people. The recently published \'Youth & Music Survey 2009\' shows that more than 60 percent of young people feel that music should be free.According to the Pirate Bay, the fact that the internet makes free and unlimited file-sharing possible gives consumers the right to do so. In their opinion, the copyright-based restrictions the entertainment industry imposes on consumers impede innovation. It is not surprising that fans think of the four Pirate Bay proprietors as modern-day Robin Hoods: they steal from the rich and give to the poor. The entertainment industry is regarded as the Big Bad in this scenario.

But does this new technological reality automatically mean there is such a thing as \'the right to share\'? And if so, is this situation desirable or tenable in the long run? I think not.

First, it is not proper to disrespect other people\'s intellectual property. If you think entertainment products are not worthy of your cash, then by all means do not buy them, but please refrain from making use of them nonetheless behind the backs of their creators and copyright owners. Furthermore, we should not only question this new \'free culture\' on moral grounds, but on economic grounds as well. If less and less people are willing to pay for cultural expressions and entertainment products, we might well end up with a seriously depleted cultural treasure chest.

Copyright law gives creators exclusive rights to exploit their works. Without legal protection, creators do not have the opportunity to earn back their time, efforts and investments. In effect, copyright law encourages creators to keep making products that are of value to society. Even though open-source projects such as Linux and Wikipedia prove that strict interpretations of copyright law are not always necessary, not all entertainment products and cultural expressions lend themselves to a similar approach.

The first open-source films capable of meeting professional production standards have yet to be made. Making films, computer games and software is a costly and risky business. If investments can no longer be recouped, there is no reason for film studios and software developers to invest in making new products.

And yes, to some degree the entertainment industry is culpable of creating the free culture of today. Lack of innovation within the industry is driving many consumers towards illegal alternatives that are not only free, but more user-friendly as well. If the entertainment industry is to win back these consumers, innovations in the field of distribution and pricing are absolutely necessary. But the most important thing is this. Consumers need to realise that there is no such thing as a free lunch on the internet, or else The Pirate Bay will continue to have free reign.  

Bart W. Schermer is a partner in consultancy firm Considerati and a lecturer in Internet Law at Leiden University.