If You Only Share A Tiny Bit Of A File Via BitTorrent, Is It Still Copyright Infringement?
from the depends-on-who-you-talk-to dept
We've mentioned the ongoing lawsuit against ISP iiNet in Australia a few times. Basically, the movie studios are pissed off at iiNet because it didn't do much in response to letters that were sent concerning IP addresses of those that the studios believed were sharing unauthorized works. As iiNet noted, however, it didn't see why it was involved in any of this:They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.The trial has been going on recently, and while I haven't been following the details that closely (figure it's worth waiting for the verdict), there was one interesting tidbit. As the company had suggested earlier, it's arguing that sharing a file via BitTorrent is arguably not copyright infringement at all. That's because of the way BitTorrent works, in breaking up any file into tiny components and sharing the individual pieces. A key element of copyright law is looking at how much of the content is shared. Down in Australia, they have a "fair dealing" exception to copyright law that appears to allow for copying small portions of a work, and some precedent of short video clips not being considered infringing.
While I would be quite surprised if this argument worked (even if it may be technically correct, it's so rare that judges pay attention to the technical aspects when it comes to copyright), I'm a bit surprised we haven't seen this argued elsewhere as well. Of course, if it does actually work, it will only turn the focus back towards the question of whether or not "making available" violates the distribution right of copyright, since that would cover what BitTorrent users were doing, if they offered up any unauthorized content (even if they actually shared only a tiny fraction).
![Hide This Hide this](https://ii.techdirt.com/s/t/i/topclose.png)
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: australia, bittorrent, copyright, fair use
Companies: afact, iinet
Reader Comments
Subscribe: RSS
View by: Time | Thread
Nah...
And I'm actually very thankful we haven't. If our ideas are meritorious, we shouldn't have to rely on odd technicalities like that. While technically they might be right, functionally it makes no difference and the results are the same. I'd rather work to get bad IP laws changed than have folks try to circumvent them via petty technicalities (unless of course my limited technical expertise is misevaluating this argument somewhere).
While I understand those that break bad laws, breaking bad laws isn't really how you get them changed. What you have to do is convince people that your message is just. I'd rather they use the laws of economics to convince the Court, and more importantly the citizenry, to alter or rethink the laws already on the books than just thumb their noses at the studios saying, "because you fucked up writing the law a little bit, you can't touch us! Nah nah nah!"
Because the truth is that if left unopposed by a critical mass of public retribution, they'll simply get the law rewritten in their favor. Meanwhile this ISP just comes off sounding like a petty 'tard....
[ link to this | view in chronology ]
Re: Nah...
[ link to this | view in chronology ]
Re: Nah...
The law is technical and there is nothing wrong or immoral about holding enforcement of are laws to the letter of the law.
So if sharing minuscule bits of data is not covered under copyright law, it should therefore not be illegal under copyright law. We're all in huge trouble when a chosen few in our country get to enforce laws that have never been written.
[ link to this | view in chronology ]
Re: Re: Nah...
Ooops, I meant our laws...
[ link to this | view in chronology ]
Re: Re: Nah...
That's all well and good, but the key to any law is its purpose. We see examples aplenty on the opposite side of this issue following the letter of the law rather than its intent (patent law comes to mind, going through the steps required for patent law that have nothing to do with promoting the progress...). What it boils down to is that we aren't really in a war of ideas with the sentences written in the law, but rather what they stand for and the theories and assumptions upon which they are based. Change those theories and assumptions, and in effect you change the law in a way no technicality can.
"We're all in huge trouble when a chosen few in our country get to enforce laws that have never been written."
Agreed, but how do we effectively affect change to that respect? The simple truth is that people cannot be governed without their consent. Sometimes that consent is a reluctance to rise against an oppressive regime, but death and violence is always an option, so on some level a governed people must always consent to be governed. That means the way you affect true change is to change the minds of the people. I'm just not sure that playing the technicality card does that job effectively....
[ link to this | view in chronology ]
Re: Re: Re: Nah...
Maybe you're not getting what I'm saying, or maybe you simply don't care, but technicalities do matter. You seem to think that we should allow our government to take any action it wants, regardless of any written law, merely to serve some stated purpose.
Let's say for example that it's a felony to have 50 or more grams of cocaine. Let's assume that someone is charged because he had 49.9 grams. Under your theory, because the stated purpose of eliminate cocaine use is served, the guy should get a felony. I wholeheartedly disagree.
We should enforce laws only as written and we should not allow our government to act arbitrarily without legal authority merely to achieve some stated purpose.
[ link to this | view in chronology ]
Re: Re: Re: Re: Nah...
Okay, try to follow along with me here since you seem to want to paint a picture of ME not listening: I NEVER said that technicalities simply don't matter. What I'm trying to convey is my sense of where our priorities should be and the effect that certain defenses have in the public eye, which is FAR more important in enacting good legislation than any court. Unfortunately the entire public isn't as well informed as you and I when it comes to the nuances of this stuff. What they're going to see/read/hear is that some people got some infringing files and one of the defense arguments was that several people were only sharing small bits of the files so it's okay. The average person is going to see that as it is: a technicality. The end result is STILL that someone illegaly received an infringing file. In fact, because the end result is the same, the public will actually be innoculated to sensible technical arguments that may have even more merit in the future because of the attempt to use this one.
"You seem to think that we should allow our government to take any action it wants"
You've responded to my comments in the past, so I know you know what I'm about, so please excuse me while I laugh my ass off at the notion that I'm in favor of our American government doing pretty much anything at all....
"Let's say for example that it's a felony to have 50 or more grams of cocaine. Let's assume that someone is charged because he had 49.9 grams. Under your theory, because the stated purpose of eliminate cocaine use is served, the guy should get a felony. I wholeheartedly disagree."
Incomplete analogy. The better way to look at it, IMO, is take your 50 gram requirement for felony status and put 10 people in a warehouse packaging up sevearl pieces of 60 grams of cocaine. When the DEA busts the place, they're ALL going to jail for felony trafficking. In your analogy, felony status to an insufficient gramage of cocaine is not something supported by ANYTHING I said...
"We should enforce laws only as written and we should not allow our government to act arbitrarily without legal authority merely to achieve some stated purpose."
We're talking about two entirely different things. You keep wanting to talk about how we're enforcing our current laws and holding the govt.'s feet to the fire, and I want to focus on how we get those laws off the books completely, rendering enforcement moot....
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Nah...
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Nah...
[ link to this | view in chronology ]
Re: Re: Re: Re: Nah...
IMA .... you are arguing civil vs common law ... this is the US guess which one we follow.
[ link to this | view in chronology ]
Re: Re: Re: Nah...
Considering that the real purpose of many laws is to enrich lawyers and benefit special interest groups, are you sure that's what you want?
[ link to this | view in chronology ]
I have books on a shelf
[ link to this | view in chronology ]
I've been saying this for years. Sure, the very first person who posts a file on bittorrent uploads the entire file, but everyone is able to get the entire file without uploading the entire file.
In fact, for most bittorrent users, they upload significantly less than they upload.
And here's the deal, are those bits of data that are being shared/uploaded even worthy of being considered infringement?
What I mean is that the data you share/upload is not sequential. Out of a three minute song, you're not sharing/uploading 30 sequential seconds of it, but nearly random bits and pieces of it. Heck, you're not even sharing individual notes or beats.
And even if you do somehow upload the entire song, you're not uploading it to a single person. You're uploading extremely small pieces, less than notes or beats, to numerous people. Once again, should that be considered infringement?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
In fact, for most bittorrent users, they upload significantly less than they download.
My correction in bold
You're uploading extremely small pieces, less than notes or beats, to numerous people. Once again, should that be considered infringement?
Has the RIAA focused on Kazaa/Limewire uploaders for that reason? With bittorrent, haven't they gone after trackers and supernodes for linking to infringing files instead? I may be misinformed on who their targets have been, and with what arguements.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
I think it's like having an empty beer keg out when the nosy neighbor comes over. When they see the empty beer keg, they say "A-Hah! I knew it!" in a pejorative fashion as if it's some amazing revelation, that you have an empty keg, that at one time or another was filled with beer.
Where's the crime?
[ link to this | view in chronology ]
true...but
after all, BT is based on sharing.
[ link to this | view in chronology ]
Re: true...but
But to reiterate my earlier point. Even if you share twice as much of the song/video that you've downloaded, chances are that you shared that data to possibly hundreds of people.
Is each portion of non-sequential data you're shared to individuals worthy of copyright protection? Maybe it will in the future, but I don't see how it is under the law now.
But as Mike says, most judges would never understand this.
[ link to this | view in chronology ]
Re: Re: true...but
Thankfully, copyright will be rendered obsolete within the coming decade.
[ link to this | view in chronology ]
Re: Re: Re: true...but
There were people in the early 1970's who used to say that about the drugs laws, too. It was wishful thinking; things actually went the opposite way.
[ link to this | view in chronology ]
Re: Re: Re: Re: true...but
I blame the internet.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: true...but
Try that in Texas and tell me how "legal" you find it to be.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: true...but
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: true...but
Indeed, and no one said otherwise. But if you think "medical marijuana" is legal to sell in retail stores in Texas, then I suggest you go there and try it. Then let us know what you think about those Texas prisons, dude.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: true...but
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: true...but
And we'll all be zipping around in flying Jetson cars and time travel will be a reality.
Time to put the pipe down, dude.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: true...but
Things change. Whether you want them to or not.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: true...but
[ link to this | view in chronology ]
Good news
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
intent
[ link to this | view in chronology ]
Re: intent
[ link to this | view in chronology ]
Re: intent
Now that's said and done, I find the technicality in question hilarious.
[ link to this | view in chronology ]
Re: Re: intent
[ link to this | view in chronology ]
Re: Re: intent
That's just a technicality.
[ link to this | view in chronology ]
Re: Re: Re: intent
MURDER!
[ link to this | view in chronology ]
Re: intent
[ link to this | view in chronology ]
Computer Says No
Can they evolve their business model? Computer Says "No".
http://www.youtube.com/watch?v=HcHxiw9QIfc
[ link to this | view in chronology ]
Re: Computer Says No
I just spent 3 hours watching amatuer videos on youtube. None of which was created by Hollywood. That's 3 hours not spent watching "professional" fare.
And the young people! By god, that's all they do, is watch youtube.
[ link to this | view in chronology ]
Irrelevant
[ link to this | view in chronology ]
Re: Irrelevant
How can you murder an appendage?
[ link to this | view in chronology ]
Re: Re: Irrelevant
It's not alive any more, is it?
In fact, any assault involving bodily harm probably results in the death of at least one cell. So, using the record industry's reasoning, assault with bodily harm should be treated the same as murder (even if it didn't result in the death of the entire body).
[ link to this | view in chronology ]
Re: Irrelevant
[ link to this | view in chronology ]
Death by a thousand stab wounds. In theory, everyone who stabbed him is as guilty as any other.
[ link to this | view in chronology ]
Re:
What proves the intent and conspiracy of the uploader? Is it the way the software being used is designed? Is it the name of the file? Is it the downstream users final action of compiling the file that proves it?
[ link to this | view in chronology ]
Re: Re:
Effectively, everyone involved in a file transfer is part of the conspiracy to move it. Either you requested the illegal file (let's call it "popularmovie.dvix.rip"), and all the people who provided it knowingly put a file that they know they don't have the rights to on the internet. If you get 1 million pieces from 1 million different people, the conspiracy is still there, just very wide.
The intent on making a file available is to let others take it (why else would anyone "share" a file?). The conspiracy is to work with a network of others to make it possible, and to assure that everyone gets the parts they need.
It's not a difficult concept.
[ link to this | view in chronology ]
Re: Re: Re:
These things are criminal for a reason. If that means we send our children to jail then so be it.
It's the only way we can save our future from the evils of illegal sharing.
[ link to this | view in chronology ]
Re:
By the gods! Could there be anything worse? What if they were downloading Steamboat Willie? I can see how they're guilty. Copyright infringement is worse than . . .
MURDER!
[ link to this | view in chronology ]
Numbers
[ link to this | view in chronology ]
Re: Numbers
[ link to this | view in chronology ]
Re: Re: Numbers
Because in the very near future we will begin to deal with the Infinite Storage Paradox.
But you keep on trucking, thinking that our shared culture isn't at all free. You'll excuse me while I go recite some Shakespeare. For free.
Copyright that lasts for centuries is asinine.
[ link to this | view in chronology ]
I love the digital age.... nothing can be sacred.
The math involved with the XOR swap is detailed elsewhere, so look it up if this sounds confusing.
The point, though, is that the (possibly illegal) original file is garbled in the first XOR, to where the transmitted file is essentially garbage, along with the control file, which is random digits... neither of these should be infringing on anything legal.
I completely understand why this is not convincing evidence that trying to protect 'IP' rights in the digital age is useless and irrelevant, but I do wonder about the damage that could be done from protecting against it.
A little vague, I know... but hear me out. What if I XOR'd legal copies of 2 programs together? Both programs would be the key to unlocking the other. Who owns the key? Is the key illegal?
hope I get some responses.
Thanks.
[ link to this | view in chronology ]
Re: I love the digital age.... nothing can be sacred.
[ link to this | view in chronology ]
Re: Re: I love the digital age.... nothing can be sacred.
[ link to this | view in chronology ]
Re: Re: Re: I love the digital age.... nothing can be sacred.
[ link to this | view in chronology ]
Re: Re: Re: Re: I love the digital age.... nothing can be sacred.
[ link to this | view in chronology ]
Re: Re: Re: Re: I love the digital age.... nothing can be sacred.
Yes the Chaordic overloards are coming!!
Bow to them for they are your salvation in this age of IP darkness.
Worship them for they will smite the Chaos that is the UK's Digital Economy Bill.
Pray to them for they will Pull Light from the Darkness that is ACTA.
Sacrifice the virginity of the daughters of upper management RIAA to them for the loss of their innocence will bring about an new era of enlightenment.
ALL HAIL THE MIGHTY LORDS OF THE CHAORDIC ORDER!!!
... a wee bit over the top me thinks ... Big Ole GRIN
[ link to this | view in chronology ]
Re: I love the digital age.... nothing can be sacred.
To spice the discussion up, look up "Similarity Enhanced Transfer", a new technique (that bittorrent has yet to implement, afaik) that takes advantage of the fact that repeated patters of data may appear in completely unrelated files. By downloading bits that look the same from all available sources, you can get more seeds for each file.
For instance, you have two files, an illegal mp3 and a linux distro. These two files have some parts that appear the same (talking about sequences of bytes).
If I want to download the linux distro, my download software may automatically receive some data from users sharing the illegal mp3. So, am I downloading an illegal mp3?
Conversely, if I want to download the mp3, the software may download things from people who are sharing the linux distro. Are they sharing the illegal mp3?
[ link to this | view in chronology ]
Re: Re: I love the digital age.... nothing can be sacred.
Right, and that's the part that takes place in a (for the time being *sigh*) protected space--the individual's local machine. At which point you've reached the limits of what you can monitor without unlawfully intruding. So until the transfer is complete, there's no way to know what it is, and after the transfer is complete there's no way for anyone but the local user with physical access to the machine to know what it is.
[ link to this | view in chronology ]
Re: I love the digital age.... nothing can be sacred.
Trying to find a technical "tricky" way around makes it even more clear that you are trying to avoid being caught.
[ link to this | view in chronology ]
Re: Re: I love the digital age.... nothing can be sacred.
[ link to this | view in chronology ]
Re: Re: Re: I love the digital age.... nothing can be sacred.
Off to primary school their kid, have a nice day.
[ link to this | view in chronology ]
Re: Re: Re: Re: I love the digital age.... nothing can be sacred.
It's really starting to get fucking creepy.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: I love the digital age.... nothing can be sacred.
My his "daddy" didn't hug him when he was younger?
[ link to this | view in chronology ]
Intent?
If I buy some fertiliser and some diesel, I am not a terrorist unless i) I make a bomb or ii) It can be shown that I intend to make a bomb!
I think the missing part in the music uploading / downloading question is the intent...
Next question.. If something is automated then can you show intent? For example if my P2P software automatically shares my music folder - can it be said trhat I intended to share my legally ripped CD's?
[ link to this | view in chronology ]
Re: Intent?
Sure, I could use TNT or a stick of dynamite but what if I used to be a chemical engineer, hypothetically speaking.
Everyone infringes copyright everyday, even when you think you're not, the chances are, well, hate to break it to you:
You're a terrorist, trying to destroy someone's property, intellectual property. And God have mercy upon us all.
[ link to this | view in chronology ]
to the judge(s)
[ link to this | view in chronology ]
Re: to the judge(s)
Great analogy!
[ link to this | view in chronology ]
Re: Re: to the judge(s)
P2P is much more akin to the public square.
And now you know I'm right.
[ link to this | view in chronology ]
Re: Re: Re: to the judge(s)
[ link to this | view in chronology ]
Re: to the judge(s)
If you think that it's like a library, then you have certainly OD'ed on the techdirt koolaid.
[ link to this | view in chronology ]
Re: Re: to the judge(s)
Are we also letting thieves out of jail?!?
[ link to this | view in chronology ]
Re: Re: to the judge(s)
Not even. But of course industry trolls love to go around saying stuff like that.
[ link to this | view in chronology ]
Re: Re: Re: to the judge(s)
I wonder why that is?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]