The Bartleby defense

In Herman Melville’s 1853 classic Bartleby the Scrivener, the narrator, an elderly lawyer, recounts the story of “the strangest man” he has ever met, the clerk (scrivener), Bartleby. Bartleby answers a help-wanted ad and is hired, but grows ever-more inert at work, answering each request from his employer with the passive reply, “I would prefer not to.” Eventually the lawyer discovers Bartleby is living at the office.

Although he will not work he will not leave, yet he exercises some strange power over his employer who cannot bring himself to fire him. Eventually the lawyer moves his office to a new location, hoping to rid himself of Bartleby, only to discover from the new tenants that Bartleby still refuses to leave, haunting the hallways of the old office even after they evict him.

I thought of Bartleby as I was reading Nate Anderson’s lovely write up of the fourth day of the Pirate Bay trial for Ars Technica, which recounts the testimony of two of the four defendants, Fredrik Neij and Gottfrid Svartholm Warg:

Fredrik Neij was questioned by lawyers who tried to paint him as the point man for The Pirate Bay operations. Peter Danowsky, who represents the music business, pointed out that Neij owned The Pirate Bay’s domain and then showed him a contract he had signed saying that he would oversee operations for the site. Neij’s response? “But I didn’t read it.”

Neij was also asked about a speech he gave back in 2006 in which he said that the site had received many threatening letters over the years from copyright owners. Lawyers tried to use the speech to show that Pirate Bay admins were aware the site hosted links to copyrighted content. Neij’s response? “I just read the text which someone at the Pirate Bureau had written.” (Neij says he’s dyslexic and has difficult writing his own material.)

When asked about his view of the law as it related to copyrights, Neij said that he doesn’t worry much about the law, doesn’t care about the ideology behind (some) file-swapping, and does what he does because it’s fun to run a large site.

Next up was Warg:

The prosecutor kept trying to pin him down on who ran the site, how it was organized, and who paid for (and received the revenue from) site operations. Warg kept insisting that the project wasn’t a “top-down” business, but that interested users volunteered time and effort to make different pieces of it work. The prosecution appeared not to believe this and continued asking questions to tease out the relationships between everyone involved. Warg continued to insist it was a “loose project”—even the moderators who took down material that didn’t match its stated description were volunteers.

Like Melville’s narrator, the prosecutor and plaintiffs lawyers seem to go slightly mad in the face of Warg’s and Neij’s passive non-responses and the odd inertia of the Pirate Bay phenomenon. Who is in charge? No one is in charge. Who makes the decisions? We don’t make decisions. What about contracts? We don’t care what they say, they have no meaning to us. Who is responsible for taking down material? No one is responsible, people just do. Who is in charge of the money? We don’t do it for money.

It left Peter Danowsky of IFPI sputtering, “This [case] is about a purposeful crime on a grand scale with significant income as a result.”

Can a Bartleby defense really work? Could they really get away with it simply by not individually making any decisions significant enough to rise to the level of legal culpability? I have no idea. But if they do then the media companies really are staring into the abyss.

In the end, it should be noted, the new tenants have Bartleby arrested and he is sent to jail. Melville’s narrator finds him there and bribes a jailer to see that the passive clerk is well fed and taken care of. Sometime later, however, Bartleby dies  of starvation in his prison cell, having “preferred not to” eat his food.

Whether there’s a lesson there for the Pirate Bay defendants I couldn’t say.