Pirate Bay, the notorious file-sharing site that has been in the crosshairs of entertainment lawyers for the better part of the last decade, has been down for several days now, fuelling speculation that it may finally have been forced to walk the plank.
But legal analysts say that even if this hugely popular site goes under, legal and logistical hurdles make it difficult to stop the broader phenomenon of illegal downloading.
"You could shut down Pirate Bay permanently and someone's going to jump up to take its place," says Allen Mendelsohn, an internet law specialist in Montreal.
In fact, in recent days there has been a spate of stories popping up claiming that one site or another has resurrected the Pirate Bay mantle.
Earlier this week, Swedish police raided a Stockholm office of Pirate Bay and confiscated equipment. A statement by Swedish police said it was "in connection with violations of copyright law."
A "torrent tracker" that provides links to free downloads of movies, music, video games and software, Pirate Bay has been a lightning rod of controversy in the debate over copyright infringement since its launch in 2003. It has also withstood numerous legal challenges.
In 2004, the Motion Picture Association of America (MPAA) filed a criminal complaint in Sweden to shut down a number of torrent tracker sites based in that country. A number of sites did go under, but not Pirate Bay.
In 2006, Swedish police confiscated Pirate Bay servers from the website's office. The site went down for three days, but eventually returned.
In 2009, three of Pirate Bay's founders received one-year prison sentences and a nearly $3 million US fine for assistance to copyright infringement. But even that was not enough to stop its operation.
Elusive technology
Jeremy de Beer, a law professor at the University of Ottawa, says many countries have comprehensive laws when it comes to copyright infringement, but it's difficult to enforce them across geographical borders.
Hans Fredrik Lennart Neij, a co-founder of Pirate Bay, was arrested in Thailand in November for trying to cross into the country from neighbouring Laos. (Chaiwat Subprasom/Reuters)
It is a problem that applies not only to copyright infringement but also to issues such as offshore tax accounts, he says.
"People will move their servers or their investment accounts in order to take advantage of favourable legal climates," says de Beer. "That's an intractable problem."
Another hurdle is the fact that the technology that powers Pirate Bay and its many imitators makes it easy to elude authorities.
Back in the late 1990s, when Napster was creating headaches for the music industry, each downloadable file was distributed in whole, meaning that authorities could identify the physical location of the originating user.
The technology associated with sites such as BitTorrent changed the game significantly.
Now when you download a show or music file, it's actually been assembled from many smaller pieces distributed across a network of thousands of users across the globe.
Technology news site TorrentFreak says BitTorrent has become "a mainstream file-sharing mechanism which is fast, efficient and difficult to stop."
The underlying technology makes it easy, from an operational standpoint, to create mirror sites if the main site is shut down, which has happened repeatedly with Pirate Bay, including this week. (Pirate Bay bills itself as "the galaxy's most resilient BitTorrent site.")
"Anyone who's relatively internet savvy knows that there are hundreds of other sites, maybe not quite as good as Pirate Bay or as comprehensive, but certainly that have the same functionality," says Mendelsohn.
The risk of criminalizing consumers
These significant challenges have not deterred the entertainment industry from trying to recoup lost revenues.
But de Beer says copyright holders have largely pulled back from prosecuting individual downloaders, a tactic that has given the film and music industries a reputation as bullies.
In the long run, "trying to portray the huge numbers of people who use these websites as criminals, and to morally shame them into complying with copyright laws is unlikely to succeed," says de Beer.
Ariel Katz, a law professor and Innovation Chair of Electronic Commerce at the University of Toronto, believes that humans will always engage in "illicit activity."
He says that one possible way to curb illegal downloading is to reframe the conversation around it.
Rather than seeing illegal downloading as the problem, maybe it's a "symptom" of a larger problem, which could be that entertainment producers are charging too much for their content, he says.
One way to solve that is for entertainment companies to make their content available cheaply and legally, which is the case with burgeoning streaming services such as Netflix and Shomi.
Katz says this has already had a palpable effect.
In 2011, Netflix surpassed BitTorrent in terms of bandwidth use, prompting Wired magazine to write that "for perhaps the first time in the internet's history, the largest percentage of the net's traffic is content that is paid for."
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