Last week's Backspin column on the United States government's attempts to extradite Richard O'Dwyer, a British citizen, to the U.S. to be prosecuted for "criminal copyright violation" for providing a website, TVShack.net (since shuttered by the U.S. Immigration and Customs Enforcement or ICE), that was an index of sites that hosted pirated television shows and movies got some great feedback.
A few readers argued that because O'Dwyer intentionally linked to pirated resources and made money from doing so he was guilty of something. Reader "johne37179" posted online:
"What is missed here is that the fence who disclaims all knowledge that he is selling stolen goods is still guilty as an accomplice after the fact. You can't reasonably expect to protect yourself if you don't take some reasonable steps to prevent being used as a conduit for stolen materials. Your protections may be inadequate, but at least you are not a willing partner in an illegal transfer. No one reasonably thinks that claiming naiveté to the likelihood of illegal traffic on your site should protect the facilitator."
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While I see what johne37179's getting at, equating O'Dwyer with a fence is a weak argument at best. A fence is an "individual who knowingly buys stolen property for later resale, sometimes in a legitimate market. The fence thus acts as a middleman between thieves and the eventual buyers of stolen goods."
O'Dwyer was most definitely not a middleman in the sense of mediating transactions; he merely pointed in the direction of the stolen content without asking for payment for the pointing and didn't make money from the content; he only made money from selling advertising that was completely independent of the pirated material.
Several readers brought up the fact that because O'Dwyer knew that what he was doing was facilitating piracy, he was being unethical. I agree, he was indeed behaving unethically but no one goes to jail for not having ethics, they go to jail for the results of their lack of ethics.
So, were the results of O'Dwyer's lack of ethics enabling piracy? That's a tricky question. Obviously there's an argument that O'Dwyer was making it easy for people to find pirated content, but think about it: He wasn't actually encouraging piracy, he wasn't paying anyone to commit piracy, and he wasn't acting as a middleman for pirated content. He was just one of many entities providing a list of links ... along with the likes of Google, Bing and Yahoo.
Now, you might think the big search engines aren't knowingly and intentionally enabling access to pirated content, but the reality is that they do know they index pirated content and for them to argue, as they do, "what can we do, there's so much stuff we can't be expected to filter out the bad boys," is simply them asking to not be held accountable.
If you want to see that the major search engines make finding pirated content ridiculously easy just go to Google and search for downloads of the recent movie "Prometheus" excluding the trailers and anything from YouTube (try http://bit.ly/LY4hjY). When I did this I got 13.3 million results, and on the first page every single result linked to pirated content! How hard was that? I didn't even break a sweat.
For any of the search engines to find and remove indexed links to the majority of pirated content sites would be, presumably, to a greater or lesser extent, hard to do and therefore very expensive (as well as sending the search engines headlong into a legal minefield) ... but that's what is at the heart of the matter: money.
Given that both O'Dwyer and Google knowingly index links to sites carrying pirated material and both make money by showing ads, why would Google not be liable while O'Dwyer is?
To prosecute one but not the other would be decidedly unethical if what they are both most definitely doing -- providing links to sites that offer pirated content to make money -- is considered to be a crime. Just because you're one of the biggest and richest companies in the world doesn't absolve you of responsibility if what you're doing is, per se, considered criminal.
One of the first responses on the column was online from reader "Jerry13" who summed up the problem that underlies the whole case:
"This is yet another example of the MPAA/RIAA getting DOJ/ICE to violate the US Constitution and act as their illegal enforcer. [It's] like the Mafia getting the FBI to act as their strong arms in the protection racket. / So far several US appellate courts have ruled that linking is NOT a copyright violation. This is like the Megaupload case -- an example of malicious prosecution. / Copyright is in urgent need of reform. A good free paper is 'The Case for Copyright Reform.'"
The introduction to "The Case for Copyright Reform" argues: "It is impossible to enforce the ban against non-commercial file sharing without infringing on fundamental human rights. As long as there are ways for citizens to communicate in private, they will be used to share copyrighted materials. The only way to even try to limit file sharing is to remove the right to private communication. In the last decade, this is the direction that copyright enforcement legislation has moved in, under pressure from big business lobbyists who see their monopolies under threat. We need to reverse this trend to safeguard fundamental rights."
So there we have it: If O'Dwyer is guilty so is Google, Bing, Yahoo, and every other search engine that doesn't actively search for and remove links they have indexed to sites offering pirated content. And, as a consequence, a guilty verdict on any or all of the parties will signal the end of a number of fundamental human rights. We ignore this issue at our peril.