Toying with funny math to downplay Canada’s role as a piracy haven

Several weeks ago TorrentFreak published its Top 25 Most Popular Torrent Sites of 2009. In a blog commenting on the rankings, I pointed out that out of the top 25, 7 of them are located or have connections to Canada and that of the top 10, 4 are located or have connections to Canada. I also pointed out that this meant that Canada, alone, is home to more than 25% of the world’s public English language unauthorized bitTorrent sites and 40% of the leading ones are in Canada.

Prof. Geist responded to my blog with a blog in which he said I “toyed with funny math” “sometimes relying on hosting to determine location, other times using site registration and then combining the two metrics to inflate the Canadian position”. However, my blog was clear that my rankings were based on sites that are “located or have connections to Canada”. As the SOCAN Tariff 22 case established, Canadian copyright law applies whenever there is a real and substantial connection between acts of infringement and Canada. It was therefore completely appropriate in determining Canada’s place in the nefarious bitTorrent rankings to assess a site’s relation to Canada using more than one metric.

Prof. Geist then went on to assert that the Netherlands really leads the world and that Canada comes in second.  Prof. Geist himself, however, is toying with funny math in coming to this conclusion. Leaving aside that he includes Mininova in his count, even though it has modified its service ostensibly to avoid facilitating the distribution of infringing files, his analysis depends entirely on number of hosts operating in any jurisdiction.

What is more important in the analysis, however, is the size of the operations of the relevant sites measured by daily visits. Using this metric, 4 of the top 10 are hosted in Canada and when the daily visits are examined, Canada dominates contributing to worldwide illicit file sharing. (The numbers become even clearer when one removes Mininova and Pirate Bay from the count.)

Prof. Geist then goes on to assert that “the rankings actually demonstrate how little digital copyright reform seems to matter”.  However, copyright laws are very important in determining where a site locates and how it can be forced to shut down.  The operators of Canadian sites that facilitate digital piracy themselves often tout Canada as a state with lax copyright laws that enable their sites to be legally used here or to stay in operation here.

Further, appropriately calibrated copyright laws can be used to shut down sites that induce or materially contribute to infringement. For example, Prof. Giest cites the Netherlands as the number 1 country for harbouring bitTorrent sites. However, Mininova was recently forced to cease indexing torrents related to infringing files in that country because of effective copyright laws. He cites Sweden as the number 3 country. However, Pirate Bay was also ordered shut down in that country and will likely have to cease operations in several months. Prof. Geist also cites the U.S. as the number 4 country, naming much smaller sites than those which have the most site visits. However, the US’s laws have been resilient enough to deal with piracy facilitated by Napster, Aimster, and Grokster (among others) and as of last week, a precedent was established in the Isohunt case holding that unauthorized bitTorrent operators can be liable for inducing copyright infringement.

In the end, whether Canada is in first or second place as the world’s greatest contributor to world wide digital piracy is really irrelevant. We shouldn’t be anywhere near the top and should be embarrassed being in either first or second place. Further, we should be looking to rehabilitate our image by implementing law reforms that bring Canada up to international standards and not trying minimize our problems and denying that laws make no difference.

Note, an earlier version of this post contained quotations from various sites in which the site operators held out Canada as a state with lax copyright laws that enable their sites to be legally used here or to stay in operation here. A reader had contended that there might be divergences between the quotes and the current sites. To the extent this is the case, it is because the sites have changed; the original quotes were all accurate, despite the herculean efforts to try and paint them otherwise.