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Bayfiles – The Jolly Roger at Half Mast?

September 7, 2011

The Pirate Bay has been thrown into the limelight a number of times, not least following a legal battle over copyright infringement which resulted in jail sentences for the four site operators in April 2009 (though at the time of writing, the website is still operational). Recently two of its founders announced their decision to establish a more legitimate file-sharing service, BayFiles.

The pair founded the Pirate Bay back in 2003, and the site quickly became infamous as a place to find and illegally download copyrighted content including music and movies. The site relied on BitTorrent, a protocol making it possible for thousands of users to share the burden of distributing files, and meaning that the Pirate Bay did not need to host any copyrighted material itself. Instead it simply offered a search facility allowing users to find out what content was being shared, and where to get it.

In contrast, Bayfiles aims to provide users with faster downloads and increased reliability through the HTTP protocol. HTTP is used when retrieving webpages and the vast majority of other material found by typical users on the world wide web. It involves downloading files straight from a server. So, unlike with the Pirate Bay, BayFiles intends to directly host the files being shared. An oft cited argument against alleged infringement of services like the Pirate Bay is that they do not store or transmit infringing content; should Bayfiles be used by pirates this will not be the case, and it might seem therefore that there is an increased risk of liability for infringement. Out of the frying pan and into the fire perhaps?

Co-founder Fredrik Neij explains the choice of HTTP saying ‘BitTorrent is increasingly throttled or even filtered by ISPs, HTTP usually is not’. On the subject of copyright infringement, BayFiles have said that they will follow potential complaints and take down files that might infringe copyright when identified. They intend to comply with the Digital Millennium Copyright Act (DMCA) and have registered DMCA officers on board to handle complaints. Their terms of service explicitly provide that content which violates third party copyrights will not be accepted, and that they will terminate without notice and without recourse, accounts of holders who are repeat infringers of copyright. The site will log the IP addresses of uploaders, and disclose these if legally obliged to do so, but details of downloaders will not be retained.

A variety of similar services exist, such as MegaUpload and RapidShare, and perhaps through diligent compliance with copyright law, and prompt action in response to notices of infringement they continue to operate despite hosting a range of copyright content. That is not to say that they haven’t come under fire – as illustrated by actions in both the US and Germany.

The founders have described that their ultimate goal as making sharing effortless and efficient while maintaining privacy. They note:

‘Storage and transfers on Bayfiles also preserve users’ privacy. And another advantage is that users can be sure that content stays up, which is important for personal backups. It also guarantees that other personal files such as your MP3 collection are always accessible; so users are able to stream it live to any device.’

Admirable goals, copyright compliance and easy file sharing for all. Despite the founder’s aims, some remain skeptical that the site will avoid infringement. A lawyer with legal firm Cobbetts told the BBC “I suspect what they’re concentrating on is the idea that if it can be shown that they’re infringing or facilitating the infringement of an identifiable copyright work, they will comply with the requirement to notice and take down in time ….  So there will be a lot of infringement – but they are basically saying if you catch us we will cough’.

Nevertheless, the new venture is a far cry from a site which took a somewhat less positive view of the rights of copyright owners, and the work of their lawyers [see here].