The Pirate Bay has been described as “one of the most notorious and unapologetic facilitators of infringement in recent memory.” Operators of the site were convicted of copyright infringement in a Swedish court and when the Swedish Supreme Court refused to hear their appeal, they took their battle to the European Court of Human Rights, arguing their free speech rights were abridged. Their conviction was upheld (online copy of ruling courtesy of CopyHype) as “necessary in a democratic society.”

The Pirate Bay provides peer-to-peer file sharing and was founded in Sweden in 2003. In April, 2009, a District Court in Sweden found site administrators guilty of copyright infringement. TorrentFreak reports that: “The court said that the four defendants worked as a team, were aware that copyrighted material was being shared using The Pirate Bay and that they made it easy and assisted the infringements. It categorized the infringements as ‘severe’. The judge said that the users of The Pirate Bay committed the first offense by sharing files and the four assisted this.”

The accused received sentences of up to one year in prison as well as fines totaling more than $3 million and allocated among the four defendants. Two defendants, Peter Sunde and Frederick Neij, took their case to a Swedish appellate court, which reduced one of the party’s jail sentence to  four- to ten-months but increased the fines to more than $6 million. Defendants then sought to get the Swedish Supreme Court to review their case but the request was denied. In progressive Sweden, Sunde has publicly portrayed himself as a martyr for the cause of free speech, arguing his efforts merited his winning the Nobel Peace Prize.

In a final effort to avoid the penalties, Sunde and Neij appealed to the European Court of Human Rights, which has jurisdiction over cases involving interference or violation of human rights; Sunde and Neij asserted that their convictions abridged the right to free expression.

The European court, however, pointed out that, although people have the right to freedom of expression, “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The court’s analysis focused on whether the interference was a “necessity in a democratic society”, that is, does the the ability to share information outweigh the protection of copyrights? Here, the answer is a clear no. Copyrights are treated as property rights, so criminal enforcement of these rights may necessary for a state to uphold its affirmative duty to protect them.