With The Pirate Bay now using a .SE domain name in an attempt to avoid US authorities seizing control of its domain, the Swedish registry .se has put out a statement explaining the situation for the file sharing sites current preferred domain name.Back in February The Pirate Bay switched from using a .ORG domain to .SE following US government agencies seizing a number of .COM domains that were being used for selling counterfeit goods and other activities. Operation In Our Sites has been operated by the US Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI)-led National Intellectual Property Rights Coordination Center (IPR Center). Through the operation, the US government had seized 769 domain names as of July 2012.The statement from .se is below:Will .SE shut down thepiratebay.se?When the Supreme Court of Sweden decided in February not to examine the court of appeal’s ruling in the protracted trial against The Pirate Bay (TPB), the file-sharing site was relocated from .org to .se. .SE has not been issued a formal court order to take action based on the ruling. However, we receive many questions about how we would react if the situation were to come to a head, which I would now like to address.So far, .SE has not taken any actions following the ruling against TPB since we do not consider ourselves obligated to do so based on the contents of the ruling. Nor is it possible to answer hypothetical questions regarding how we would respond if we were to receive a formal order. Our actions would largely be determined by the contents of the order and the issuing party. Accordingly, we will assess the situation on a case-by-case basis if such an order is issued.
Generally speaking, what actions can .SE take against a domain name registrant?We always have the right to take action based on a ruling against us pertaining to a specific domain name. Under Item 6 of our user agreement, we also have the right to deactivate and deregister a domain in the event that the domain itself or the manner in which it is used constitutes an obvious infraction against Swedish law. This provision is formulated in such a way as to enable us to take action in obvious cases – for example, in the distribution of child pornography or agitation against a national or ethnic group.However, this is a right not an obligation, and such action would only be taken after a decision is made by .SE’s Board of Directors. Such a decision has never before been made.We believe that the judicial authorities should determine whether or not it is appropriate to take action against a particular domain name registrant. Unless we have been ordered to do so, there is a risk that we could call the validity of the legal process into question by taking action before a ruling is passed.However, on a couple of occasions, we have deactivated a domain when suspicions of identity theft were raised and the domain in question had been used for what is known as phishing.What actions could the court order us to take?Naturally, we cannot know for certain, but a few possibilities are that the court could order the domain name to be deregistered, the name server to be removed or the domain name to be forfeited (seized) or placed on .SE’s block list.
Three ways to block a domainTPB is currently blocked in several countries. However, the methods used to block a domain are all relatively easy to circumvent and thus essentially ineffective. Three main methods exist. To illustrate these methods, we have chosen to compare them with various ways of breaking into a shoe store located in a shopping mall.1. Block the IP addressThis method is used, for example, by the Chinese state to limit its citizens’ access to websites deemed to be objectionable by the regime. The IP addresses of these sites are compiled in a list and no traffic is permitted to access them. However, it is relatively easy for the owner of the website to move it to another IP address, thereby circumventing the block.Users can also bypass a blocked IP address using an anonymity service, such as Tor, but this requires a relatively high level of technical ability.Blocking an IP address can be compared to blocking the entrance to a shoe store. While a determined customer would undoubtedly be able to enter through an emergency exit at the back of the store, most would assume the store was closed and shop elsewhere.2. Block or shut down the domain nameIt is possible to block a domain name by contacting either .SE, which can deregister the domain name, or the name server operator – usually a web hosting company – which is responsible for keeping track of the IP address or addresses associated with the domain name. However, the domain may still be accessible through the address.Removing a domain name can be compared to taking down the signs hanging outside the shoe store. Although this would make it more difficult for customers to find the store, it would still be there and any customers who were able to find it would be able to continue buying shoes there.3. Seize the serverWhen the Swedish police cracked down on web hosting company PRQ, PRQ’s servers were seized. However, it did not take long before The Pirate Bay was up and running again, since the contents of the servers had been copied in several other locations.In the physical world, this can be compared to closing the shoe store and confiscating the shoes, but the parallels end there. Since it is not possible to make back-up copies of physical products, such as shoes, it would be much more difficult for the storekeeper to resume operations.
The domain is not the problemWe believe the problem in this type of situation is not the domain, but rather its contents. The domain name itself is not an accomplice in act of copyright infringement and if thepiratebay.se, for example, were to be shut down, the site would almost certainly reopen under another top-level domain.