This article operates on the premise that the defendants are not guilty. But can someone explain how/why creating a site like the Pirate Bay that encourages or at least tolerates piracy is not a crime. I ask in all seriousness.
I see the article mostly talking about the actions of those involved in the case and not the defendants. The actions performed, for example by Jim Keyzer, is criminal. The actions of the defendants, however one feel about it, doesn't excuse criminal conducts by people employed by the justice department.
However, I will try to answer the question on why creating an indexing site called the piate bay should not be illegal.
1) A crime need to first have happened, and then linked to an individual before prosecution. Its the basic idea of all justice system, and without it, justice don't work. You end up with "justice" that say "well, you are the son of So and So, and thus you are going to commit a crime sooner or later". In this case, its "well, someone somewhere is likely encourage by the site's name, so lets throw the creators in jail for that someone somewhere".
2) The pirate bay is a tool with a name. Its like having a crowbar named "heist". A name should not be enough to distinguish a criminal factory producing tools from an illegal factory. An search index, however named, should not be deemed legal liable for its users just because then name is more suggestive than "Google".
So would owning a site called childporn.com and allowing people to post direct links to download child pornography without any attempt to stop it also not be a crime? Again, I'm being serious that I really dont know the answer. These are the actual issues at play. Can one really free themselves of legal responsibility by just saying we don't host or post the files ourselves?
That I can't say. Ask a lawyer. Most probably not, depending.
2. should it be legal right now
Yes, yes it should. That's the entire point behind "free speech" - once you start drawing lines, shit happens. And the problem isn't with child porn per se, the problem is with the horrific acts that produce it and the mentality of the people who enjoy it, but the image itself should not be in any way illegal. Think of scenes of gruesome manslaughter. There are people who get sexual satisfaction from seeing bloody dismembered corpses. Even so, those images, unsettling as they are to a mentally healthy person, aren't illegal.
Is Google committing a crime if it indexes a CP site? Are you committing a crime if somebody links to CP in your blog's comments? Of course not. Having a link to something is not a crime.
Because Google and you are not setting out explicitly to build a set of links to copyrighted material against the wishes of the copyright holder. It's all about intent. If I go to a high-street store called "Kitchen Goods" and buy a knife, that store's fine. If I go to a store called "Jay's back-alley shivs" run out of the inside breast of his raincoat between 02:00 and 04:00, he's probably not fine.
The law recognises intent in most situations, and the Pirate Bay exists to provide access to expensive-to-create content without compensating the people who made it. Hence, they have problems (and justifiably so).
Actually, in regard to the Appeals Court, its the majority usages of the site that count. If your blog's comments is mostly used for illegal activity, you are guilty of facilitating the crime by having said blog. Intent was not mentioned by the Appeals Court to have any baring on the matter.
This is how they said Google was not guilty, but the pirate bay was (they mentioned Google specifically in the question and answer).
I think BrB 23:4 is relevant. Aiding a criminal act is in itself a crime.
So the argument of "they're not distributing content themselves" is invalid. The argument should be about the legality of file sharing, property and ownership.
I think that is a very slippery argument when it comes to (magnet) links, and the Internet. I can tell you where you can buy drugs or prostitutes in the city where I live. If I do, am I "aiding" you in committing a crime? If a newspaper reports the same thing, are they "facilitating" a crime?
