During the Kosovo war in 1999, a lot of Americans got a chuckle out of the story--probably apocryphal--about Yugoslav soldiers storming into a Belgrade news agency and demanding that the journalists hand over the Internet. What was funny was the way the soldiers sort of got it. They understood that the Internet had changed warfare. They just didn't understand how completely.
We may be in a similar position today. While the cutting edge of web development is still in Silicon Valley, the rules and customs of Internet behavior are being shaped elsewhere. In Western European countries, which mostly have higher rates of broadband subscribership than the United States, a new idea of property is evolving--the idea that anything you can manage to download for free, by hook or by crook, is yours. Congress's annual "Special 301 Report" on piracy used to focus on Russia, China, and Southeast Asia. This year's report placed on its list of problem countries Finland, Norway, and Italy. It noted that Spain is a place where pirating music and movies over the Internet is "widely perceived as an acceptable cultural phenomenon, and the situation is exacerbated by a government policy that has essentially decriminalized illicit [peer-to-peer] file sharing."
In the European elections in early June, a fifth of Swedes under the age of 30 voted for a party set up to defend copyright infringement and illegal Internet downloading. The Pirate party got 7 percent of the country's total votes and a seat in the European parliament in Strasbourg for its lead candidate, the former software engineer Christian Engström. (The Swedes aren't the only people rallying to defend, rather than defeat, illegal downloading--a German Pirate party got 5 percent of the vote in one Berlin district.)
Who the heck are these people? Some have cast the Swedish pirates as extremists. Their big bankroller, the Wasabröd cracker heir Carl Lundström, backed the populist and xenophobic New Democracy party in the early 1990s. In an election that saw racist parties take seats in England and Eastern Europe, extremism is an easy word to throw around. But the Pirate agenda is very narrow, and the Stockholm daily Dagens Nyheter is right to call them an antidote to traditional kinds of extremism. The Pirates polled 10.5 percent among men, 1.5 percent among women. That probably means they are lapping up disaffiliated young males, depriving hardline parties like the Sweden Democrats of their base.
In a way, the Pirates have a lot more business running for the European parliament than Sweden's establishment parties do. For the old political class in virtually all Western European countries, Strasbourg is a sinecure--a place to send party hacks who have lost their seats in their respective national parliaments but still have the itch to pontificate and are willing to travel. The Pirates, by contrast, actually have EU-based business they want to transact.
Various EU intellectual-property directives permit law enforcement to demand the web addresses of those who illegally download materials. A whole activist network has arisen in Sweden to call for an end to such enforcement. In 2003, a forum called the "Pirate Bureau" was opened by downloaders. Two years later that forum turned into Pirate Bay, a "torrent indexing website" that facilitates pirating. In 2006, the Pirate party was founded. Then, this spring, a Swedish judge, responding to a complaint by the International Federation of the Phonographic Industry, sentenced four principals of Pirate Bay to a year in jail for abetting the distribution of copyrighted content, and fined the site $3.6 million. (The site will remain online pending an appeal.) By the eve of the European elections, the Pirate party's membership had tripled, thanks to publicity from the case.
Pirate Bay and the Pirate party call the decision a sham. According to their highly legalistic reading of the technicalities of Internet law, they are above prosecution. There are a couple reasons why. First, when a U.S. court shut down the file-sharing site Napster for copyright infringement in 2001, the problem it cited was that Napster kept actual music files on its central file server. Not only was this illegal--it was unnecessary. Files can be left on individual users' computers and then accessed as needed through a peer-to-peer networking system such as BitTorrent. No central server needs to be involved. There is, however, an obstacle--figuring out where to find all these copiable files. You need something like Pirate Bay, which is a "BitTorrent tracker" or "torrent indexing site." It does not break into anybody's house. It just gives you the address of a rich man who leaves the door unlocked.
That such activity should not be prosecutable is the second part of the Pirates' defense. EU statutes hold Internet Service Providers and search engines blameless for the actions of the people who circulate on and sell things through them. Its rules parallel Section 230 of the 1996 Communications Decency Act in the United States. If Google links to someone who libels or defames you, you can't sue Google. If someone sells you a bad car on Yahoo, it is not Yahoo's fault. Since you can find BitTorrent streams on Google, Pirate Bay is only doing what Google is doing. The Swedish court rejected this claim.
To be fair, the Pirates' desire to get free stuff is part of a much larger agenda. Alas, the parts that don't involve getting free stuff are not terribly coherent. According to the Pirate Party Declaration of Principles, "Ideas, knowledge and information are by nature non-exclusive and their common value lies in their inherent ability to be shared and spread." Most people would agree with that. But the Pirates seem unable to tell the difference between an idea and a good. Debate and consumption thus become indistinguishable. Nor do the Pirates accord property rights any role in the creation of goods. They want to cut copyright protection to five years and overturn patent law. "Patents have many damaging effects," the manifesto continues. "Pharmaceutical patents are responsible for human deaths in diseases they could have afforded medication for." But this is to treat penicillin and chloroquine as if they grew on trees. They don't. People invest in research because medicines can be patented. In a similar way, the Pirates treat the Internet as if it existed in a state of nature, and as if copyright were merely an obstacle set up by a bunch of meanies to keep us from plucking its fruits.
The Internet is an evolving human creation. It is a cultural phenomenon, a set of behaviors. What etiquette and what law prevail there will depend on how we transfer our old common-sense understandings from the physical world into cyberspace. The right analogies will be hard to find. The Pirates hold it a self-evident truth that regulators should not be looking at what people are downloading, legally or illegally. "Just as it is prohibited to read someone else's mail today, it shall be forbidden to read or access email." Two can play at that metaphor game, though. What if the right analogy for regulating piracy is our existing laws on mail fraud or weapons smuggling? Or what if Al Gore was right to call the Internet an "information superhighway"? In that case, you will need to be identifiable via some form of "license plate" to do anything--even if you're just driving to Borders to buy a CD.
There is an element of nationalism in the Pirates' movement. The vast majority of the cultural patents infringed come from the United States. Until you can name a living Swedish film director, it would seem a safe bet that most Swedes perceive the downside of eroding patent protection as minimal. In August 2004, a lawyer for DreamWorks wrote to Pirate Bay to complain of the illegal downloading of Shrek 2. A spokesman for Pirate Bay responded with a brief note that ran, in part:
As you may or may not be aware, Sweden is not a state in the United States of America. Sweden is a country in northern Europe. Unless you figured it out by now, US law does not apply here. For your information, no Swedish law is being violated. It is the opinion of us and our lawyers that you are . . . morons, and that you should please go sodomize yourself with retractable batons.
You can say the Pirates stand for privacy. You can also say they stand for taking other people's property without paying for it. At the heart of the pro-piracy movement is the powerful but pedestrian force of consumerism. Piracy is a $55-billion-a-year business, and CD sales are half of what they were a decade ago. In the privacy of a ballot box, 7 percent of Swedes voted as if they were answering a referendum question: Does the new House of Heroes CD belong to Warner Brothers or to me? (Oh! To me? Goody!) In place of old-style populism, the Pirates offer a confused, cyber-anarchistic argument that virtual property is virtual theft. It is a style of radicalism less interested in helping workers seize the means of production than in helping shoppers seize the means of consumption.
Christopher Caldwell is a senior editor at THE WEEKLY STANDARD. His Reflections on the Revolution in Europe: Immigration, Islam, and the West will be published by Doubleday in July.