File sharing, file sharing, file sharing. Whether it's college students by BitTorrent, schoolkids copying tracks off their friends during study hall — do they even still have study hall? — or grandmas making Glenn Miller mix tapes, file sharing seems to be everywhere. At least, that's the story the record industry is telling — to anyone who will listen — and the one they'll be telling a Swedish court starting this week, as the four founders of the Tracker di tutti Trackers, The Pirate Bay, go on trial in Stockholm.

News of Swedish authorities' intent to charge the four men first appeared this time last year. Ironically, the same week, the European Court of Justice — the European Union's highest court — issued a landmark ruling in favor of file sharers, holding that EU member states were not required to reveal the identities of file sharers in civil suits. Just a few months later, the anti-sharers got a taste of their own medicine, as The Pirate Bay slapped the International Federation of the Phonographic Industry with a hefty lawsuit over last February's short-lived block of the site by the Danish government, and were rumored to be considering a similar action against Swedish officials.

The ECJ's apparent leniency, nor the threat of lawsuits out the ying-yang, doesn't appear to have put much fear into the European record execs or the Swedish authorities, as they have pressed on with charges against the four men for "facilitating the distribution of copyrighted material." The charge itself couldn't better illustrate the slippery slope if it were covered in Crisco — where does "facilitating" end? Are the ISPs the next to be charged, for providing the connection over which the sharing took place? Will CD-R manufacturers find themselves in court, for providing blank burnable discs for copying whatever it is the kids are listening to these days? What about computer manufacturers? Will it only end when parents are being arrested for facilitation because they produced children who grew up to share files?

Hyperbole aside, the key legal issue in the case will be how the court views the role of The Pirate Bay in illegal file sharing. There is little argument that the site makes it easier for downloaders to find files — that's its purpose, after all — nor does anyone dispute that no copyrighted material actually passes through the site. Rather, the arguments will focus on whether or not simply indexing the location of materials, some of which are copyrighted, and making the index available for individuals to do with as they may is sufficient legal grounds to implicate the indexer in the downloader's copyright infringement. Counsel for the Pirate Bay Four contends that the site's indexing is legal under Swedish law, and appears poised to argue that his clients can't be held responsible for what someone else does with the information they provide. The IFPI's Swedish branch, however, appears to be planning to pin copyright infringement on the Bay directly: "The operators of Pirate Bay have violated those rights and, as the evidence in court will show, they did so to make substantial revenues for themselves." (Emphasis ours.)

It's obvious the International Federation of the Phonographic Industry and the Swedish government want to make a point, and have picked the biggest target they can find, but one has to wonder how much thought they've given to the precedent that will be set if they prevail. After all, isn't a torrent tracker fundamentally no different than a library catalog — except that libraries don't just index copyrighted content: they house it, give it out to anyone who wants it for free, and in many cases, provide the technology in-house to violate copyright. Of course, there's little merit to the suggestion that libraries provide copy machines in order to encourage copyright violation, but when it comes to industry reps and they're attorneys, mens rea doesn't seem to have a lot to do with it. Here's hoping the Swedish courts — or the ECJ on appeal — nip this one in the bud.
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Justin Ryan is News Editor for LinuxJournal.com.
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