Are Copyright Holders Seeding Own Files To Find, Sue Downloaders?

from the a-bit-of-a-twist dept

Thu, Aug 27th 2009 9:58am — Mike Masnick

Last year, we talked about some language in a contract being used by a company that was supposedly trying to help copyright holders track down content being shared online, for the purpose of sending out threatening "pre-settlement" letters. The contract appeared to indicate that the copyright holders were giving the tracking company permission to put their works on file sharing programs, for the sake of "catching" people downloading the content:

To achieve the purpose outlined in clause 1, LICENSOR grants DIGIPROTECT the exclusive right to make the movies listed in Appendix 1 worldwide available to the public via remote computer networks, so-called peer-2-peer and internet file sharing networks such as e-Donkey, Kazaa, Bitorrent, etc. for the duration of this agreement

This seemed highly questionable. Considering that this was in association with a law firm that had been known to send out a large number of these pre-settlement demand letters, but never filed a lawsuit, one could make an argument that the companies had worked out quite a system: purposely put your own content online, watch who downloads it, then send threatening letter demanding payment. Of course, there were denials all around, and people insisted that this sort of language was really only necessary so the tracking company could download the content themselves.

And yet... Michael Scott points us to a lawsuit in Germany that indicates someone may be using this very trick. It's unclear from the writeup if this is the same company (probably not), but a guy who's been accused not just of copyright infringement, but a criminal charge of distributing pornography, is claiming this is what happened to him. His explanation is rather compelling. He claims that he was using a modded version of file sharing software that did not allow upload capability. In doing so, it means that he never distributed anything (which might make the "distribution" charge pretty hard to prove). But, of course, if he never shared anything, then how would his IP address get flagged? The only real option is that whoever he downloaded it from provided the IP address back to the copyright holder -- or was the copyright holder itself.

Of course... if that's the case, one could make a pretty strong argument that the content itself was also authorized, since it was put up on the file sharing network by the copyright holder. And, on top of all this, the guy claims that the files he downloaded had misleading titles, and he didn't intend to download pornography. Whether or not you believe any of that (or his intentions), it certainly suggests that at least some content owners may be putting their own content up in order to catch downloaders and hit them with lawsuits or settlement letters. It's difficult to see how that's legal.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, germany, seeding

43 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

william (profile), 27 Aug 2009 @ 9:35am

entrapment
would this quality for entrapment?
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 10:04am

Re: entrapment
Entrapment is if the police do it.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 10:20am

well, if they are distributing it on torrent sites, isn't that giving the people permission to download?

It is like with youtube, post up something from a TV show and it can be taken down, but if the company does it itself it is fully authorized....
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 10:21am

Re: Re: entrapment
perhaps that would be criminal entrapment and this would be civil entrapment.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 10:21am

Re: Re: Re: entrapment
civil entrapment, I just realized that sounds like an oxymoron.
[ link to this | view in thread ]
Marcus Carab (profile), 27 Aug 2009 @ 10:22am

The part where he says he didn't intend to download pornography is a little frightening too. Imagine content creators were not just putting up their material, but actually putting up pornography falsely titled as their material along with it, to double-punish anyone they catch downloading...
[ link to this | view in thread ]
Dark Helmet (profile), 27 Aug 2009 @ 10:43am

Re:
"but actually putting up pornography falsely titled as their material along with it"

But I thought double_fishhook_rearslam.avi, backside_plow.avi, and reverse_cowgirl.avi were simply outdoorsman instructional videos...
[ link to this | view in thread ]
Dharma, 27 Aug 2009 @ 10:43am

The litigant's name is Daniel Finger. I think that's pretty damned funny.

On a serious note, it is scary to consider the idea that a content owner might deliberately hide pornography labeled as something else, just to get the downloader prosecuted criminally. I've decided there is no value in downloading movies.
[ link to this | view in thread ]
Kazi, 27 Aug 2009 @ 10:56am

Re:
If you downloaded something that wasn't that something wouldn't that mean you didn't download that something meaning you can't be prosecuted for copyright infringement on that something since you never infringed the copyrights on the something?

Something is wrong. Terribly worng.
[ link to this | view in thread ]
Erik (profile), 27 Aug 2009 @ 11:03am

Isn't this old news?

I could've sworn I remember hearing about these sort of techniques in the old Napster, Kazaa, pre-torrent p2p days.
[ link to this | view in thread ]
Greg, 27 Aug 2009 @ 11:06am

Re: Re:
....or something
[ link to this | view in thread ]
Dan, 27 Aug 2009 @ 11:19am

I am sure that companies must be doing something like this because I used to download movies all the time. then only whenever my roommate would download a new hbo title we would get our internet blocked by our provider.
[ link to this | view in thread ]
John (profile), 27 Aug 2009 @ 11:26am

How does this work?
The've send C&D letters to printers, so anything is possible from that end.

If the distribution aspect of the copyright law is what these people are supposedly breaching, then it makes no difference whether or not the content was authorized, because at the end of the day, copyright owners are allowed to distribute.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 11:26am

Is it anything different from the police running a hooker sting operation? Or any different from the postal authorities order "obscene" material from another state, just to create a case of interstate transport of obscenity?

Just because the file is online doesn't give you express permission to download it.
[ link to this | view in thread ]
Yakko Warner, 27 Aug 2009 @ 11:26am

Confused
So if the company distributes pornography or some "phone home" malware under a different name, and some unsuspecting user downloads it, who's the bad guy again?

And are they using the very definition of P2P file sharing to get people in trouble? It sounds like they're putting their own content online, which is fine (they own it; it's their right), and user 1 downloads it (again, fine), but then user 2 goes to download it, and because of the way P2P works, user 2 gets the file from user 1 (or bits from user 1 and bits from the company), and the company slams user 1 for "unauthorized distribution"? The only defense is to have a modified P2P client that doesn't behave in the traditional P2P manner, downloading only and not redistributing like a good P2P client should?

Did I follow that right?
[ link to this | view in thread ]
Dark Helmet (profile), 27 Aug 2009 @ 11:32am

Re:
"Is it anything different from the police running a hooker sting operation?"

....uh, yeah, a HUGE difference. One involves the police/authorities. One does not.

"Or any different from the postal authorities order "obscene" material from another state, just to create a case of interstate transport of obscenity?"

See? That time you even SAID authority...

"Just because the file is online doesn't give you express permission to download it."

Which isn't the problem. The problem is that you have a profit-seeking private firm trying to fish for litigants, THEN contacting the authorities. How do you not see the problem with that?
[ link to this | view in thread ]
Sneeje (profile), 27 Aug 2009 @ 11:34am

Re: Re:
+1!
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 11:34am

Re:
Yes it is different. Companies are not police officers. Also since they are the copyright holders and they are distributing their legal copy then it is legal for them to do so and legal for all parties obtaining it.

It's like saying no one is allowed to record a TV Show then hunt down people that recorded the TV show after showing it on TV.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 27 Aug 2009 @ 11:40am

Re:
"Just because the file is online doesn't give you express permission to download it."

Er, if the actual company (or their appointed representative) is putting the file online, it's a reasonable assumption.

Otherwise, I could sue you AND have you criminally prosecuted if, say, you watched one of my youtube videos (since your computer downloads it to enable you to view it.) Hey, I didn't give you express permission, did I?
[ link to this | view in thread ]
CStrube (profile), 27 Aug 2009 @ 11:44am

Re:
Just because the file is online doesn't give you express permission to download it.

Sorry, but wrong. If it's online and pubically accessible, you certainly have a right to download it. How else could a remote machine view the file except via downloading?

What you don't have the right to do legally is to upload that file to some other remote location. That's the issue. To think of it as a book or a movie under copyright. You're allowed to make a copy into your brian of the copyrighted material, but you're not allowed to export that copy for someone else to share.
[ link to this | view in thread ]
Logo, 27 Aug 2009 @ 11:57am

This seems to me like the digital equivalent of handing out a free DVD to someone in a store then busting them for copyright infringement when they walk out of the store with it.

"and he didn't intend to download pornography"

Well that casts some doubt on his whole story but I hope he's telling the truth. I've been arguing to people for a long time now that you can't get in trouble for downloading content given the way P2P works. If you download from a pirate there's no real way for the copyright holders to know unless they are intercepting packets (or your ISP is). If you download from the copyright holder then it's a legitimate distribution. You don't have the right to re-distribute the work but that's a different issue if you are ONLY downloading.
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 12:01pm

Re:
"This seems to me like the digital equivalent of handing out a free DVD to someone in a store then busting them for copyright infringement when they walk out of the store with it."

Wrong. If you give someone a free DVD, it's end of discussion. But nobody is GIVING anyone anything. They have to come in and take it. It's a very big difference.

I am suspecting that the entire model is to track down file sharers further down the line, not the immediate downloaders.
[ link to this | view in thread ]
Trails, 27 Aug 2009 @ 12:02pm

If the rights holder puts it/agrees to put it online
then it should be permissable to share it. They obviously know that once the genie is out of the bottle, so to speak, there's no putting it back in.

Implicit agreement to allow file sharers to distribute the content, imo.
[ link to this | view in thread ]
Logo, 27 Aug 2009 @ 12:27pm

Re: Re:
It's not a big difference. They ARE giving it away by publicly sharing it. There's no difference between accessing the file through the P2P software and going up to a counter and grabbing the DVD they'd be handing you.

There's no legitimate reason to have software up on P2P unless you are intending for people to consume it. Expecting people to know that you've put something up on P2P but that they don't have the right to consume it is ludicrous. How could any user reasonably distinguish between the two cases?
[ link to this | view in thread ]
Richard, 27 Aug 2009 @ 12:42pm

Re: Re: Re:
So if the P2P software has a Eula that says

"By putting something on line you grant all other users of the network the right to share it freely and furthermore you assert that you have the right to do so" then this tactic is dead in the water isn't it...
[ link to this | view in thread ]
Designerfx (profile), 27 Aug 2009 @ 12:51pm

been done since the start
just the companies allowed it, thus it's not infringement even though it absolutely is entrapment.

Remember those companies that just renamed themselves, aka mediasentry? How do you suppose mediasentry monitored the torrent without getting sued for infringement?

duh.
[ link to this | view in thread ]
Jrosen (profile), 27 Aug 2009 @ 1:07pm

Actually
Not so hard to just name something what it's not. IE: labeling a porn .avi file as anything you care to. Given, I don't know the names of the files the guy downloaded, but it's hardly hard to rename hotsex.avi -> Feelgoodmovie.avi

As for all that p2p stuff. I haven't used much of it in a while. yahoo, msn, skype, etc all work pretty well for many things if you just know people
[ link to this | view in thread ]
hegemon13, 27 Aug 2009 @ 1:09pm

Re: entrapment
Nope, but it would negate any lawsuit. Once DIGIPROTECT has been granted the right to distribute the film by the copyright holder, the distributed copy can not reasonably be considered "unauthorized." I know there was one case several years back that was thrown out of court for this very reason, but it did not involve an RIAA label. If the copyright holder distributes their own material, it cannot be considered unauthorized. That would be like a coffee shop offering free coffee, then pressing shoplifting charges against all takers by saying, "Well, it wasn't REALLY free."
[ link to this | view in thread ]
asdf, 27 Aug 2009 @ 1:12pm

I had this happen to a couple friends in college. game developers purposely put their files online and tracked them. They would then send threatening letters to the school. The school would then force the studen to pay the fines.
[ link to this | view in thread ]
NullOp, 27 Aug 2009 @ 1:13pm

Fix
I think a lot of the controversy goes away if you simply limit copyrights to 20 years, no renewal, no exceptions and add the codicil stating if a producer puts a product in the "file sharing basket" as bait, then it nullifies the copyright then and there.
[ link to this | view in thread ]
Chronno S. Trigger (profile), 27 Aug 2009 @ 1:17pm

Re:
I've seen that. In the torrenting world we call them spammers.
[ link to this | view in thread ]
Simon, 27 Aug 2009 @ 1:32pm

How much do you have to download to be guilty?
Wouldn't some of the file come from peers rather than the original seeder? In that cases how much do you have to download from the seed in order to be considered an infringer?

For this to stand up in court, I would think you'd need to run the tracker itself (not just seed a file) and modify the code so that peers aren't aware of each other.
[ link to this | view in thread ]
Chronno S. Trigger (profile), 27 Aug 2009 @ 1:37pm

Re: Re:
Didn't a court case state that "making available" is not infringement? So, if they just made it available then it's not an open invite.

Now, once they knowingly upload the .torrent file or update the tracker then I would qualify it as an open invitation to download. Since these people are using how P2P works to track down users then they must know how P2P works. They must know that a tracker needs updated. They must know that they are openly sharing files.

So I submit that making available is not an open invitation but intentionally putting it out there where every one can see is an open invitation.

It's like leaving your front door open is not an open invitation to take the sound system but putting it out by the curb is.
[ link to this | view in thread ]
TheStupidOne, 27 Aug 2009 @ 1:48pm

If I were to be used for sharing files ...
My defense would be quite simple

1) I downloaded it from the P2P where it was freely shared by who I thought was the copyright owner or authorized distributor
2) Because of how P2P works I understood that I should also share the material to further the wishes of the copyright owner to reduce the bandwidth required by the owner
3) At any point if I had been made aware the the content was in fact not authorized I would had not shared and not downloaded

Ignorance of the law is not a defense, but ignorance of the facts is. Unless I am explicitly told otherwise I have no way of knowing that the content is not authorized unless I was the person to initially upload it.
[ link to this | view in thread ]
Dark Helmet (profile), 27 Aug 2009 @ 2:59pm

Re: If I were to be used for sharing files ...
And the Typo Of The Week goes to.......TheStupidOne, for:

"•If I were to be used for sharing files ..."

For those of you unaware, Typo of the Week awards are given to anyone who accidentally is MORE correct due to a typo than they would have been otherwise.

So congrats, TheStupidOne, you're our winner. You will receive no points, and may God have mercy on your soul...
[ link to this | view in thread ]
Anonymous Coward, 27 Aug 2009 @ 3:32pm

Re: If I were to be used for sharing files ...
"Ignorance of the law is not a defense, but ignorance of the facts is. Unless I am explicitly told otherwise I have no way of knowing that the content is not authorized unless I was the person to initially upload it."

Sorry, but that is "fail". Effectively, the question is this: "Based on the copyright of the item, do I have the rights?" The answer is no. If you don't have the rights, it doesn't matter if you got it from P2P or bought it at a flea market, you still don't have the rights.

P2P transfers don't suddenly magically allow you to ignore copyright law, as much as the people here would like you to think.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 27 Aug 2009 @ 3:46pm

Re: Re: If I were to be used for sharing files ...
"Effectively, the question is this: "Based on the copyright of the item, do I have the rights?" The answer is no."

Actually, the answer is 'maybe.' But thanks for playing.
[ link to this | view in thread ]
Richard, 27 Aug 2009 @ 4:10pm

Re: Re: If I were to be used for sharing files ...
Neither you ignorance nor the true copyright status of the file would determine it. In reality the tests would be

1) Did you believe that you were authorized to download/share the material.

2) Was that belief reasonable given the circumstances.

So if you went to a site with the URL "www.warnermusic.com" and found a page that said "free downloads" then you would not be liable even if it turned out that the site was spoofed and no legal authorization existed.

Likewise if an official distributor mistakenly (or even wilfully) distributes something he has no rights to that does not create a liability for the customers.

Similarly if you download something from Utube - or any other site where a takedown system operates - it is a reasonable assumption that anything that is available is OK to view/download - even if it isn't and subsequently gets taken down.

However if you just find it on a p2p torrent site then unless you are able to produce evidence to support your belief that the policy of the monopoly concessionee is to distribute freely you could be liable for infringement.
[ link to this | view in thread ]
PPNSteve, 27 Aug 2009 @ 8:51pm

This really a no-brainer.. the AUTHORIZED copyright holder or his agent has offered a file or files on a known peer to peer site with full knowledge of how a p2p tracker/site works, is indeed offering it freely. you have just as much right to get and seed said file as the copyright holder does, IMO.

They offered freely, you take it freely and even, quite nicely, help them out with their distribution bandwidth too.

they just shot yet another foot if they think this will stand up in any court anywhere. (BTW, aren't they out of feet yet?)
[ link to this | view in thread ]
dudericious, 28 Aug 2009 @ 3:29am

Permission to redistribute.
If a copyright holder places their file on P2P ...
It's reasonable to assume that they wanted you to redistribute that file ...
It is well defined how P2P works ...
If you make your material available for download there then you intend for everyone on that network to redistribute.
[ link to this | view in thread ]
Skwhirlly, 28 Aug 2009 @ 3:32am

First of all, if a work is copyrighted, it's your job to research what is considered 'authorized' use of that work.

Usually distribution requires a license. Given the nature of P2P, there is NO WAY to know who you are downloading this work from. If there are restrictions on distribution (which is a given if it's a copyrighted work) or you have express legal permission to distribute it, then you have to assume you do NOT have a right to redistribute it, regardless of who is doing the supplying.
[ link to this | view in thread ]
The Infamous Joe (profile), 28 Aug 2009 @ 8:59am

Re: Re: Re: If I were to be used for sharing files ...
So, we really need someone with the last name "Legal" to start his own torrent site called "LegalTorrents.com" and then there'd be a case?

How much does a name change cost again? :)
[ link to this | view in thread ]
Zeromancer, 10 Feb 2018 @ 10:56pm

Re: Copyright Holder Shady Practices
This is definitely happening. How else would someone be able to snoop on a fully encrypted stream where no re-seeding was taking place? Perhaps a class action lawsuit is the answer.
[ link to this | view in thread ]