Pirates at Bay

-- XinpingZhu - 15 Apr 2009

Two recent events remind me of the events happened on Mignonette years ago. One is the ongoing Pirate Bay trial in Sweden. Here the Swedish government wants to take a stance on international copyright enforcements under the pressure from the US and big media companies. The obvious targets are the four brazen operators of the Pirate Bay website. Similarly as in the Stephens and Dudley trial, this case has became a public relation duel between the defendants and the entertainment industry. In 2007, over 43% of the people in Sweden participating in a survey said they plan to download music during that year. It is clear that a big percentage of public is sympathizing with the defendants. There is even a political party dedicated to legalize peer-to-peer sharing. But law seems to be on the side of the government. The government is accusing that the website is assisting in making available copyrighted material. Most legal observers predict that the government will win the case.

However, it is unlikely the prosecutions of four scrappy entrepreneurs will do much to deter the Swedes to refrain from downloading movies or music online. Even if Pirate Bay is taken down, there are at least a few equally popular peer-to-peer file index portals available. Thus, the only victory the government and the entertainment company can claim is a symbolic one. So I predict that even if the four men are convicted, they will be treated similarly like Stephens and Dudley. They will serve a short sentence and that conviction will not carry the stigma a criminal conviction usually carries.

This case is also juxtaposing the custom of the World Wild Web and the law of the copyright. The custom of the web is a freewheeling one, practiced by the hackers and “pirates” surfing online. There is no file that is too sacred to be posted online. Everyone is for himself. The potential of getting caught for doings some unsavory conduct is slim due to the anonymity. On the other hand, the law of copyright is harsher. It was created to censor speech. Now the copyright law has been a favorite tool by the big media companies to prevent people to experiment with new form of entertainments. Obviously the Swedish government has no choice but to stand on the side of the copyright law. Maybe the online pirates will lose this round of battle for now.

This leads me to consider the second event which happened on the high sea. This event unfolded off the Horn of Africa. President Obama ordered Navy Seals to kill three African pirates who kidnapped a brave American captain from Vermont. The country was joyous hearing that on Easter a true American hero was rescued. Similar to the Stephens and Dudley trial, there are two potential issues of law here too, Necessity and Mistake of Fact. If I was to represent the fourth accused pirate, the Necessity defense is high on my agenda. Somalia is a failed state, largely due to the meddling of the neighboring states and the non-action of the international community. In Somalia, there are no Christians who are getting slaughtered by Muslims. In a time when Darfur is not mentioned on the leading newspaper in the world, Somalia is understandably absent from the radar screen. My hypothetical client has no other possible means to earn a living but to resort to piracy on the high sea. Another defense is mistake of fact. My client obviously didn't know that the target ship is an American one. After all, the ship is a Danish ship and my client will not have the requisite education to distinguish an American flagged ship from a Ukrainian flagged ship. Assuming piracy is a specific intent crime, my client made the genuine and reasonable mistake of hijacking this particular ship rather than the thousands of ships who are not staffed with American citizens. How foolish! But does he deserve to be imprisoned for life for this under 18 USC 1653? No. By the way, my client is claiming he is only 16, almost the same age as Richard Parker. Now he is going to be engorged by the complex US and international legal system. Is the US going to try him of piracy and incarcerate him for life? Then, he may be better off to be eaten.