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

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

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.

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Comments on “Are Copyright Holders Seeding Own Files To Find, Sue Downloaders?”

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43 Comments
hegemon13 says:

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.”

Anonymous Coward says:

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.

Dark Helmet (profile) says:

Re: 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?

Anonymous Coward says:

Re: 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.

ChurchHatesTucker (profile) says:

Re: 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?

CStrube (profile) says:

Re: 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.

Chronno S. Trigger (profile) says:

Re: 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.

Yakko Warner says:

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?

Logo says:

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.

Anonymous Coward says:

Re: 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.

Logo says:

Re: 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?

Jrosen (profile) says:

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

Simon says:

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.

TheStupidOne says:

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.

Dark Helmet (profile) says:

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…

Anonymous Coward says:

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.

Richard says:

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.

PPNSteve (profile) says:

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?)

Skwhirlly says:

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.

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