This article operates on the premise that the defendants are not guilty. But can someone explain how/why creating a site like the Pirate Bay that encourages or at least tolerates piracy is not a crime. I ask in all seriousness.
However, I will try to answer the question on why creating an indexing site called the piate bay should not be illegal.
1) A crime need to first have happened, and then linked to an individual before prosecution. Its the basic idea of all justice system, and without it, justice don't work. You end up with "justice" that say "well, you are the son of So and So, and thus you are going to commit a crime sooner or later". In this case, its "well, someone somewhere is likely encourage by the site's name, so lets throw the creators in jail for that someone somewhere".
2) The pirate bay is a tool with a name. Its like having a crowbar named "heist". A name should not be enough to distinguish a criminal factory producing tools from an illegal factory. An search index, however named, should not be deemed legal liable for its users just because then name is more suggestive than "Google".
The pirate bay did not host nor distribute any pirated files. So where's the crime?
The law recognises intent in most situations, and the Pirate Bay exists to provide access to expensive-to-create content without compensating the people who made it. Hence, they have problems (and justifiably so).
This is how they said Google was not guilty, but the pirate bay was (they mentioned Google specifically in the question and answer).
1. is it legal right now
That I can't say. Ask a lawyer. Most probably not, depending.
2. should it be legal right now
Yes, yes it should. That's the entire point behind "free speech" - once you start drawing lines, shit happens. And the problem isn't with child porn per se, the problem is with the horrific acts that produce it and the mentality of the people who enjoy it, but the image itself should not be in any way illegal. Think of scenes of gruesome manslaughter. There are people who get sexual satisfaction from seeing bloody dismembered corpses. Even so, those images, unsettling as they are to a mentally healthy person, aren't illegal.
The act of living in a society involves the drawing of lines and without those lines you don't have a society.
The difficult question has always been where to draw the line?
So the argument of "they're not distributing content themselves" is invalid. The argument should be about the legality of file sharing, property and ownership.