Legal issues with BitTorrent
||This section may require copy editing for grammar, style, cohesion, tone, or spelling. (February 2014)|
The use of the BitTorrent protocol for unauthorized sharing of copyrighted content has led to a variety of novel legal issues. While the technology and related platforms are perfectly legal, law enforcement and prosecutorial agencies worldwide are developing new tactics and increasingly pursuing ways to address this avenue of infringement. Notably, the use of BitTorrent in connection with copyrighted material may make the issuer of the BitTorrent file, link or metadata liable as an infringing party under the copyright laws of various governments. Similarly, the use of BitTorrent to procure illegal materials could potentially make end users liable as an accomplice under various laws.
In general, a BitTorrent file can be seen as a hyperlink. However, it can also be a very specific instruction of how to obtain something on the internet. BitTorrent files may also transmit or include illegal or copyrighted content. Court decisions in various nations have in fact deemed some BitTorrent files illegal.
Complicating the legal analysis are jurisdictional issues that are common when nation states attempt to regulate any activity on the Internet. BitTorrent files and links can be accessed in different geographic locations and legal jurisdictions. Thus, it is possible to host a BitTorrent file in geographic jurisdictions where it is legal and others where it is illegal. Therefore, the same link, file or data may be actionable in some places, but not actionable in others at the same time. This analysis applies to various other sharing technologies & platforms.
- 1 Copyright enforcement
- 2 Actions by copyright holders to curtail BitTorrent usage
- 3 Settlements
- 4 Evidence for piracy's contribution to sales
- 5 Patent infringement
- 6 See also
- 7 References
- 8 External links
Numerous law enforcement raids and legal actions have led to the closure of several BitTorrent related websites since 2004. The legal theories vary from country to country. BitTorrent metafiles do not store copyrighted data. Accused parties have argued that BitTorrent trackers are legal even if sharing the data in question would be considered a violation of copyright. Despite these arguments, there has been tremendous legal pressure, usually on behalf of the MPAA, RIAA and similar organizations around the world, to shut down BitTorrent trackers.
In December 2004, Finnish police raided a major BitTorrent site, Finreactor. Seven system administrators and four others were ordered to pay hundreds of thousands of euros in damages. The defendants appealed the case all the way to the Supreme Court of Finland, but did not succeed in getting the verdict overturned. Two other defendants were acquitted by reason of being underage at the time, but they are being held liable for legal fees and compensation for illegal distribution ranging up to 60,000 euros. The court set their fine at 10% of the retail price of products distributed.
Hong Kong: Individual actions
On 24 October 2005, a 38-year-old Hong Kong BitTorrent user Chan Nai-ming (陳乃明), using the handle 古惑天皇 meaning The Master of Cunning, (the magistrate referred to him as Big Crook) allegedly distributed the three movies Daredevil, Red Planet and Miss Congeniality in violation of copyright, by uploading a torrent file to a newsgroup. He was convicted of breaching the copyright ordinance, Chapter 528 of Hong Kong law. The magistrate remarked that Chan's act caused significant damage to the interest of copyright holders. He was released on bail for HK$5,000, awaiting a sentencing hearing, though the magistrate himself admitted the difficulty of determining how he should be sentenced due to the lack of precedent for such a case. On 7 November 2005, he was sentenced to jail for three months but was immediately granted bail pending an appeal to the High Court. The appeal was dismissed by the Court of First Instance on 12 December 2006 and Chan was jailed immediately. On 3 January 2007, he was bailed pending appeal to the Court of Final Appeal on 9 May 2007.
Singapore: Odex actions against users
Anime distributor Odex has been actively tracking down and sending legal threats against individual BitTorrent users in Singapore since 2007. These Internet users have allegedly downloaded fansubbed anime via the BitTorrent network. Court orders have required ISPs to reveal subscribers' personal information. This has led to cease-and-desist letters from Odex to users that have led to out-of-court settlements for at least S$3,000 (US$2,000) per person. One person who received such a letter was only 9 years old. These actions were considered controversial by the local anime community and have attracted criticisms towards the company, as they are seen by fans as heavy-handed.
In December 2004, Suprnova.org, one of the most popular early BitTorrent sites, closed purportedly due to the pressure felt by Andre Preston, aka Sloncek, the founder and administrator of the site. In December 2004, Sloncek revealed that the Suprnova computer servers had in fact been confiscated by Slovenian authorities.
Sweden: Pirate Bay
The Pirate Bay torrent website, formed by a Swedish anti-copyright group, is notorious for the "legal threats" section of its website in which letters and replies on the subject of alleged copyright infringements are publicly displayed. On 31 May 2006, The Pirate Bay's servers in Sweden were raided by Swedish police on allegations by the MPAA of copyright infringement. The Pirate Bay was back online in less than 72 hours, and returned to Sweden, accompanied by public and media backlash against the Swedish Government's actions. A film, Steal This Film (Stockholm, Summer 2006), relating to these incidents has been produced. On 17 April 2009, as a result of the trial following the 2006 raid, the site's four co-founders were sentenced to one year of jail time each and to collectively pay 30 million SEK in damages to rights owners. All the defendants appealed the decision, although two have since served their sentences. In 2012, to minimize legal exposure and save computer resources, The Pirate Bay entirely switched to providing plaintext magnet links instead of traditional torrent files. As the most popular and well-known facilitator of content piracy, The Pirate Bay continues to shift between different hosting facilities and domain registrars in the face of legal prosecution and shutdown threats.
United States: 2005–present
Soon after the closure of Suprnova, civil and criminal actions in the United States began to increase.
In 2006, Edward Webber (known as "lowkee"), webmaster of LokiTorrent, was ordered by a U.S. court to pay a fine and supply the MPAA with server logs (the IP addresses of visitors). Webber began a fundraising campaign to pay legal fees in actions brought by the MPAA. Webber raised approximately US$45,000 through a PayPal-based donation system. Following the agreement, the MPAA changed the LokiTorrent website to display a message intended to discourage filesharers from downloading illegal content.
On 25 May 2005, the popular BitTorrent website EliteTorrents.org was shut down by the United States Federal Bureau of Investigation and Immigration and Customs Enforcement. At first it was thought that a malicious hacker had gained control of the website, but it was soon discovered that the website had been taken over by U.S. government officials. Ten search warrants relating to members of the website were executed.
Six administrators of the EliteTorrents.org website pleaded guilty to conspiracy to commit criminal copyright infringement and criminal copyright infringement of a pre-commercial release work. Punishments handed out included jail time, house arrest, and fines. Jail sentences were issued to some defendants as unlike many other file sharing cases involving individuals, criminal law (not just civil law) was involved – specifically, the Family Entertainment and Copyright Act.
In June 2006, the popular website Newnova.org, a replicate of Supernova, was also closed.
On 29 May 2007, a U.S. federal judge ordered TorrentSpy, a torrent website, to begin monitoring its users' activities and to submit these logs to the Motion Picture Association of America. TorrentSpy ultimately removed access for US visitors rather than operate in an "uncertain legal environment." In the face of destruction of evidence charges and a $111 million legal judgement, TorrentSpy voluntarily shut down the website and filed bankruptcy proceedings in 2008, although appeals continued through 2009.
On December 21, 2009 a federal district court found the founder of isoHunt guilty of inducing copyright infringement. The ruling was upheld on appeal in Columbia Pictures Industries, Inc. v. Fung in March 2013 and the site finally shut down in October 2013.
Actions by copyright holders to curtail BitTorrent usage
Copyright owners have undertaken a variety of tactics and strategies to try to curtail BT transmittal of their intellectual property. In 2005 HBO began "poisoning" torrents of its show Rome, by providing bad chunks of data to clients. Then in 2007, HBO sent numerous cease and desist letters to the Internet Service Providers of BitTorrent users. Many users have reported receiving letters from their ISP's that threatened to cut off their internet service if the alleged infringement continues. HBO, unlike the RIAA, has not been reported to have filed suit against anyone for sharing files as of April 2007.
Beginning in early 2010, the US Copyright Group, acting on behalf of several independent movie makers, has obtained the IP addresses of BitTorrent users allegedly downloading specific movies. The group then sued these users, in order to obtain subpoenas forcing ISPs to reveal the users' true identities. The group then sent out settlement offers in the $1,000–$3,000 range. About 16,200 lawsuits were filed between March and September 2010.
In 2011, United States courts began determining the legality of suits brought against hundreds or thousands of BitTorrent users. Nearly simultaneously, a suit against 5,000 IP addresses was dismissed. A smaller suit, Pacific Century International, Ltd. v. Does against 100 ISPs, has also been dismissed.
In October 2011, John Wiley and Sons brought suit against 27 New York "John Does" for pirating books from the For Dummies series. According to TorrentFreak, Wiley is thus "the first book publisher to take this kind of action".
A number of other notable search engines have also voluntarily self-censored restrictively licensed content from their results, or have become "content distribution"-only search engines. In the case of Mininova, it announced that it would only allow for freely licensed content (especially free content distributed by its author under a Creative Commons license) to be indexed after November 2009, resulting in the immediate removal of a majority portion of Mininova's search returns from view or use.
Evidence for piracy's contribution to sales
There is some evidence that suggests that piracy through BitTorrent does not necessarily mean the loss of all sales in all instances.
The actual story is probably a bit more nuanced. There’s plenty to suggest, for instance, that HBO doesn’t necessarily lose business when someone pirates "Game of Thrones" -- in all likelihood, that person would never subscribe to the network, anyway.—Caitlin Dewey, The Washington Post
"If you go around the world, I think you're right, that 'Game of Thrones' is the most pirated show in the world," he said. "Now that's better than an Emmy."
Bewkes further commented that he did not consider the piracy to result in the loss of subscriptions to HBO, rather: "Our experience is, it all leads to more penetration, more paying subs and more health for HBO." The show is the most pirated TV show, and "the show’s first season was the best-selling TV DVD of 2012."
|This section requires expansion. (October 2011)|
- Note, 40 Colum. J.L. & Soc. Probs. 1 (2006–2007) Secondary Liability for Copyright Infringement: BitTorrent as a Vehicle for Establishing a New Copyright Definition for Staple Articles of Commerce; Helton, Matthew. Heinonline.org. Retrieved on 11 May 2013.
- "Legal threats". The Pirate Bay. Retrieved 9 May 2006.
- Cullen, Drew (14 December 2004). "Finnish police raid BitTorrent site". The Register. Retrieved 9 May 2006.
- "Police swoop closes down Finland’s largest file download site". Helsingin Sanomat. 16 December 2004. Retrieved 9 May 2006.
- "Finreactor to pay extensive compensation for piracy". Helsinki Times. 30 June 2010. Retrieved 10 October 2010.
- "Underage Finnish BitTorrent admins fined $60,000 each". TorrentFreak. 26 October 2006. Retrieved 8 November 2006.
- "Peer-to-peer infringer convicted". Hong Kong Information Services Department. 24 October 2005. Archived from the original on 30 September 2007. Retrieved 15 April 2007.
- Bradsher, Keith (7 November 2005). "In Hong Kong, a Jail Sentence for Online File-Sharing". New York Times. Retrieved 15 April 2007.
- "HK Man Arrested for Sharing Films with BitTorrent". Xinhua/CriEnglish.com. 29 April 2009. Retrieved 29 April 2009.
- 分段上載電影 侵權無業漢被拘 (in Chinese). Mingpao/Sina. 29 April 2009. Retrieved 29 April 2009.
- "Parents get shock letter", Liew Hanqing, The New Paper, 2 August 2007
- Kicking kids for profit?, Michael Tan, CNet Asia, 16 August 2007
- Anime firm boss gets online death threats, Chua Hian Hou, The Straits Times, 16 August 2007, p. 4
- "Supernova.org: Two Years Since the Shutdown". TorrentFreak. 19 December 2006. Retrieved 20 May 2007.
- "The Piratebay is Down: Raided by the Swedish Police". TorrentFreak. 31 May 2006. Retrieved 20 May 2007.
- "Piratebay Back Up". TorrentFreak. 3 June 2006. Retrieved 20 May 2007.
- Steal This Film (Stockholm, Summer 2006) website. Retrieved 22 April 2007.
- Kiss, Jemima (2009-04-17). "The Pirate Bay Trial: Guilty Verdict". The Guardian. Retrieved 4 April 2015.
- Van Der Sar, Ernesto. "The Pirate Bay Will Stop Serving Torrents". Torrent Freak. Retrieved 4 April 2015.
- Van Der Sar, Ernesto. "The Pirate Bay Turns Ten Years Old: The History". Torrent Freak.
- Borland, John (10 February 2005). "Court: Hollywood gets P2P giant's server logs". CNET News.com. Archived from the original on 3 September 2006. Retrieved 15 April 2007.
- "LokiTorrent Shut Down". Slashdot.org. 11 February 2005. Retrieved 15 April 2007.
- Poulsen, Kevin (26 May 2005). "U.S. Jacks Torrent Site". Wired News. Retrieved 21 April 2007.
- "6th EliteTorrents Star-Wars Pre-Release Guilty Plea". TorrentFreak. 2 May 2007. Retrieved 20 May 2007.
- "Dramatic BitTorrent Site Shutdowns of the Decade". TorrentFreak. 31 December 2009. Retrieved 10 October 2010.
- EliteTorrents Admin gets 18 month sentence. Afterdawn.com (10 September 2008). Retrieved on 11 May 2013.
- Van Der Sar, Ernesto. "Bye Newnova (update: welcome back!)". Torrent Freak. Retrieved 4 April 2015.
- Ernesto, Van Der Sar. "TorrentSpy Blocks Searches From US Visitors". Torrent Freak. Retrieved 4 April 2015.
- Sandoval, Greg (Feb 4, 2009). "TorrentSpy renews legal campaign against MPAA". CNET. Retrieved 4 April 2015.
- Torkington, Nat (4 October 2005). "HBO Attacking BitTorrent". O'Reilly.com. Retrieved 22 April 2007.
- Henderson, Maryanne (21 March 2006). "Safenet (for HBO) Letter to Charter Communications - Part 2.jpg". Tallinn Wordpress. Retrieved 22 April 2007.
- "Bomb threat as US Copyright Group sues 2,000 more file-swappers". Ars Technica. 1 October 2010.
- "Judge Decimates BitTorrent Lawsuit With Common Sense Ruling". Torrent Freak. 9 July 2011.
- Milliot, Jim. (1 November 2011) Wiley Goes After Bit Torrent Pirates. Publishersweekly.com. Retrieved on 11 May 2013.
- Major Book Publisher Files Mass-BitTorrent Lawsuit. TorrentFreak (31 October 2011). Retrieved on 11 May 2013.
- Dewey, Caitlin (9 August 2013). "‘Game of Thrones’ exec says piracy is ‘better than an Emmy.’ He has a point.". The Switch. The Washington Post. Retrieved 19 June 2015.
- Adi, Robertson (8 August 2013). "High 'Game of Thrones' piracy is 'better than an Emmy,' says Time Warner CEO". The Verge. Vox Media. Retrieved 19 June 2015.
- Kravets, David (16 Jun 2015). "Game of Thrones season finale breaks BitTorrent swarm record". ars technica. Condé Nast.
- Redmond, Scott D. "Media file distribution with adaptive transmission protocols" U.S. Patent 7,301,944, Issue date: 27 November 2007.
- Ernesto. "μTorrent/BitTorrent Sued For Patent Infringement". TorrentFreak, 19 June 2011. Accessed 20 June 2011.
- Michal Czerniawski, Responsibility of BitTorrent Search Engines for Copyright Infringements, at SSRN (December 2009)