The Pirate Bay — the controversial Swedish torrent tracker that keeps a huge index of movies, music and video game downloads — has been embroiled in a legal battle for several months over what essentially mounts to its own existence. Prosecutors acting on behalf of private media companies (the RIAA, MPAA, etc) accuse the site of soliciting the trade of copyrighted content, whilst Pirate Bay owners Gottfrid Svartholm and Fredrik Neij feel that as actual copyrighted data itself never touches their servers it is not their concern.

And, yes, The Pirate Bay should be done for wilful aiding and abetting of illegal activity.

Stay with me for a minute. I hope they don't, but they probably should be. The defence that goes "we don't host the content, we only tell you where to find it" is as much of a crock as is "I only sold him the gun and told him where his now-dead ex-wife lived." Whilst the practical legality of BitTorrent — a system by which end-users transfer content directly between themselves, with internet rendez-vous managed by a "tracker" like The Pirate Bay — is not yet black and white, the spirit of the law ought to quite clearly show that this website exists to solicit the trading of illegal files.

I want to stress that by saying this I am not making a claim that the trade of those files should be illegal. Whether it's morally right or wrong to download TV shows, movies and MP3s is a discussion that I see little point in getting into, so I'm not going to. But if it's immoral and illegal to send the latest episode of Heroes to your friend, the Pirate Bay ought to be at least partially responsible for facilitating that transaction.

Of course, there is a big difference between aiding illegal activity and criminal activity itself, which is a large part of the reason why a website called "The Pirate Bay" — which openly expresses pride in dodging the authorities and providing a copyrighted file trading platform — got away with it for so long.

I do wish the spirit rather the letter of the law were followed more in this age of teenage girls getting charged with the distribution of kiddie porn for texting nekkid body pics to their male companions. Still, the RIAA/MPAA treat the law literally in their anti-piracy cases, so it isn't an injustice that The Pirate Bay are too. In the most literal interpretation of the situation, TPB never even touches illegal content. It's not their problem, and it's not their crime. But in a perfect, alternate reality where the legal system actually makes sense, the defence shouldn't hold up and the prosecution should go after the blatant intent.

I was observing this same discussion in an IRC channel last week, and the guy with my views — person A — admitted that he himself downloads movies from the net. The person he was talking to — person B — found it hard to reconcile his statement that TPB should be prosecuted with his statement that he uses the service.

It turned out that person A essentially felt that if he were caught downloading and prosecuted for it, at least he wouldn't sit there moaning that it was an unfair law, or that file trading it shouldn't be illegal. He'd accept responsibility for what he knew was a morally grey area.

To those in the channel expressing dumbfoundedness at this apparent hypocrisy, he said that he'd never claimed to be a perfect being with a perfect morality system, and didn't believe that anyone could be. And that to sit on the other side of IRC and to judge that was more than very likely absurdly hypocritical.

In fairness morality can be a little warped on IRC, where online file sharing is practically a norm and it would be difficult to find someone ashamed of it. But the conversation still got me pondering on a real-world parallel.

On the street or in the media, there's this assumption that everyone's views on file sharing can be categorised as the difference between the laws that we believe are justified, and those that we believe are open to bending because they don't seem entirely fair or correct in the first place. But in practice, there's a middle ground where you can believe the law is justified but you break it anyway.

In general, human beings aren't perfect, following the letter of law to the exact extent that they agree with it. Everyone goes a few mph over the speed limit once in a while, or tries a few drugs at University just to see what it's like. Even if they agree with the traffic code or the drug laws, it happens.

I think a lot of commentators forget this and I don't know why. It mars stories like the Pirate Bay case and restricts the image of the human race to that of a collection of morally absolute individuals, utterly uncorruptible even in the face of temptation or an easier, if hooky, way of life.