Module 9: Activism

Learning objective

Case Study #1: The Swedish Pirate Party

Challenged Law

On July 1, 2005, Swedish Parliament, the Riksdag, amended its copyright law to comply with a 2004 European Union directive requiring all member nations to ban downloads of copyrighted material absent the rights-holder’s consent. Before the end of the year, a Swedish court had already doled out the country’s first conviction and fine for an illegal download.

Local Factors

The new anti-downloading regime was particularly vulnerable to Swedish counter-mobilization. Neither U.S. business interests nor the supranational body they pressured into tightening copyright law accounted for Sweden’s culture or legal norms.

The new law lacked local legitimacy, and Swedes were encouraged to organize against it because (1) the Swedish government was an early adopter of public high speed broadband, (2) Swedes were culturally predisposed to understand the property right as a dispensable tool for public good rather than a natural right of the holder, and (3) an “ad hoc” public think tank named Piratebyran (or “Piracy Bureau”) had been publicly contesting copyright protection in Sweden since 2003.

Founding the Pirate Party

On New Years Day of 2006, just months after the first file-sharing prosecution, an IT entrepreneur named Rickard Falkvinge formed Piratpartiet, the Swedish Pirate Party.

Neither Falkvinge nor his co-founders had any formal political experience when they made the decision to start the party. They did know that the party needed 2,000 signatures to formally register with the Swedish Election Authority, Valmyndigheten, so they hosted a website for citizens to publicly declare their membership and then reached out in person to collect physical signatures.

Once formally registered, the party recruited candidates for the Riksdag elections in September, drafted a party platform, fundraised, and built local organizations in both urban and rural areas throughout Sweden.

Drafting the Pirate Party's Platform

The Pirate Party articulated its copyright policy goals as part of a larger effort to expand freedom of access to culture and protect fundamental rights.

The Party issues its platform in numbered versions. Since Feburary 2006, the platform has featured three core principles: fundamental Copyright reform, abolition of Patents, and government respect for personal privacy.

Under the subheading "Free Our Culture," the Pirate Party declares three detailed policy aims: to reduce copyright protection for any work to five years after its publication, to exempt all derivative works from copyright protection, and to narrowly limit specific exceptions for this general rule to those granted by explicit statutory enactment.

The current edition, titled "Pirate Party Declaration of Principles 3.2," describes an ongoing movement to clear legal obstacles from the path of "the emerging information society."

Version 3.2 also announces the Party's open stance toward partnering with any political alliance to achieve its strategic objectives: "Our goal is to use a tie breaker position in parliament as leverage."

The Pirate Bay

The Motion Picture Association of America, and its local affiliate the APB, were undeterred.

American rights-holders had spent considerable resources shutting down U.S. file sharing services like Napster, Grokster, Morpheus, and Bittorrent tracker search engines (which allowed one computer to download a copyrighted work more efficiently by connecting it to multiple other computers, each tasked with transferring a small piece of the original file) like Suprnova, Elite Torrents, TorrentSpy, and eDonkey.

As the largest and most infamous Bittorent tracker search engine, the Pirate Bay (designed by a former member of the Piratbyran) was the last standing symbol of unified, international copyright defiance, and it was headquartered in Sweden. The Pirate Bay was designed by Gottfrig Svartholm, a former member of the Piratebyran think tank.

Shutting down the Pirate Bay was rather uncomplicated, as the July 1, 2005 EU Directive was already on the books, and the Riksdag’s implementing legislation was as well. If Sweden refused to enforce its intellectual property laws against The Pirate Bay, the U.S. was empowered to lodge a World Trade Organization dispute resolution proceeding and bring punitive trade sanctions until Sweden complied.

The prospect of U.S. sanctions for Sweden, being a small country dependent on international trade, were sufficient to secure the government's compliance. Furthermore, prospect was strengthened to strong probability when the U.S. Motion Picture Association of America contacted and directly pressured the Swedish Ministry of Justice to act.

On May 31, 2006, Sweden's government capitulated and granted domestic police a search warrant to raid the Pirate Bay's local facilities and seize its file servers.

September 2006 Riksdag Elections

The clampdown provoked domestic street protests and international media attention. The Pirate Party’s membership shot up by the thousands, especially after the Pirate Bay resurfaced in the Netherlands under the DNS "hey.mpaa.and.apb.bite.my.shiny.metal.ass.thepiratebay.org." To be clear, the Pirate Party has no formal connection to the Pirate Bay or to the Pirate Bureau think tank, but the public perceived the three as substantially linked.

The evidence suggests that the underage, non-voting population represented the primary constituency of this meteoric rise. Swedish schools regularly hold mock elections, and the Pirate Party took approximately 40 percent of the student mock vote. The Pirate Party decided to invest its resources and political capital in the votes these members would eventually represent. The party organized “Young Pirates” student groups. The boost has given the Pirate Party the third largest membership in the country.

Unfortunately, the voting age population in 2006 was less inclined to support the Pirate Party than raw membership statistics suggested. All Swedish citizens can be party members, though they cannot vote until they are 18 years old. Unlike the student contingent, voting age Swedes were hesitant to support the Pirate Party at the cost of prioritizing one of the ruling parties.

Compounding that effect was a July 2006 article in the daily paper revealed The Pirate Bay was profiting substantially through advertising revenue. This seemed out of step with the public service ethos The Pirate Bay's leaders had deployed to justify risking the country's reputation on their venture. Though the Pirate Party has no formal connection to the Pirate Bay or to the Pirate Bureau think tank, the voting public perceived the three as substantially linked. Again, although the Pirate Party has no formal connection to the Pirate Bay, the public perceived the them as interconnected.

When the ballots were cast, Piratpartiet earned less than one percent of the vote and therefore failed to qualify for a seat in the Riksdag in 2006.

June 2009 European Parliament Elections

The Swedish Pirate Party was more successful securing seats in the supranational body which U.S. businesses had originally deployed to change European copyright law in 2004.

Turnout for the 2009 elections were relatively paltry. The Pirate Party surged as support for its competitors dwindled. It earned more than seven percent of the Swedish vote, most of which it picked up from Sweden's Left Party.

Present Day

If the Pirate Party makes enough of a showing to gain Riksdag representation after this year's elections on September 19th, its non-partisan stance gives it the flexibilty either to bring the Red-Green voting bloc to power or increase the narrow majority currently enjoyed by the existing ruling bloc.

Still, even before the polls close in 2010, we know that the Pirate Party has started to effect a lasting change. All of Sweden's major left wing parties voice public support for liberalizing copyright penalties for private individuals who download for non-commercial personal use.

Case Study #2: "Click Wrap" Licenses and the Uniform Commercial Code

Present Day

Lessons

Contributors

This module was created by Dmitriy Tishyevich. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Colin Maclay, Andrew Moshirnia, and Chris Peterson.

Home

Introduction

Course Materials:

• Module 1: Copyright and the Public Domain
• Module 2: The International Framework
• Module 3: The Scope of Copyright Law
• Module 4: Rights, Exceptions, and Limitations
• Module 5: Managing Rights
• Module 6: Creative Approaches and Alternatives
• Module 7: Enforcement
• Module 8: Traditional Knowledge
• Module 9: Activism
• Glossary

The Rotisserie