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).
Filed Under: australia, bittorrent, copyright, fair use
Companies: afact, iinet
Comments on “If You Only Share A Tiny Bit Of A File Via BitTorrent, Is It Still Copyright Infringement?”
Nah...
“I’m a bit surprised we haven’t seen this argued elsewhere as well.”
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….
Re: Nah...
This sums up exactly how I feel about the whole “psycho-acoustic simulation” thing too.
Re: Nah...
“If our ideas are meritorious, we shouldn’t have to rely on odd technicalities…“
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.
Re: Re: Nah...
“…are laws…“
Ooops, I meant our laws…
Re: 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.”
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….
Re: Re: Re: Nah...
“I’m just not sure that playing the technicality card does that job effectively“
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.
Re: Re: Re:2 Nah...
“Maybe you’re not getting what I’m saying, or maybe you simply don’t care, but technicalities do matter.”
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….
Re: Re: Re:3 Nah...
Actually I think the analogy would be: ten people each packaging up five grams of cocaine, but they all get charged with a felony for the 50g total.
Re: Re: Re:4 Nah...
Oh wait now that I re-read your comment, I see that’s what you meant.
Re: Re: Re:2 Nah...
“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.”
IMA …. you are arguing civil vs common law … this is the US guess which one we follow.
Re: Re: Re: Nah...
That’s all well and good, but the key to any law is its purpose.
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?
Re: I have books on a shelf
For anyone who comes by. I’m just Making available the books on my shelf.
I’m a bit surprised we haven’t seen this argued elsewhere as well
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?
Re: Re:
This would be an interesting argument to bring up in court: Ask the RIAA to show what the defendant actually uploaded. Not the generalized whole song, but the actual bits. I wonder if trying to open/play that broken file would sway a jury…
Re: Re: Re:
Dude you just made me smile ….
Re: 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.
Re: Re: Re:
As far as I know, this is correct. The cases that have actually gone to trial in the US against individuals have been based on Kazaa usage. They’ve just taken this long to complete the trials. I believe the newer technology is also a part of the AAs’ decisions to shift responsibility (and liability when they turn out to be wrong, which will almost certainly happen) to ISPs. Even then, I’m not sure how they’d trace most of the activity or how they’d prove it (but I guess they’re arranging things so that they won’t have to).
What if you don’t have a full file or fileset? Is that still infringement if it’s still frankly, just “random data”? What about encrypted files that you don’t have the password to?
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?
true...but
this only works if you make sure your ratio remains below 1.00. i generally share to 2.00, and am occasionally the only seed for a few hours.
after all, BT is based on sharing.
Re: true...but
“i generally share to 2.00“
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.
Re: Re: true...but
It’s also weird to think that judges are usually really old and it will be decades before anyone growing up online is in a position of power who actually understand the internet.
Thankfully, copyright will be rendered obsolete within the coming decade.
Re: Re: Re: true...but
Thankfully, copyright will be rendered obsolete within the coming decade.
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.
Re: Re: Re:2 true...but
And now you can legally sell marijuana in California. Sure, you have to go to a doctor and say you can’t sleep but, for the most part, it is legal.
I blame the internet.
Re: Re: Re:3 true...but
And now you can legally sell marijuana in California. Sure, you have to go to a doctor and say you can’t sleep but, for the most part, it is legal.
Try that in Texas and tell me how “legal” you find it to be.
Re: Re: Re:4 true...but
I’m pretty sure they infringe upon copyright in Texas, dude.
Re: Re: Re:5 true...but
I’m pretty sure they infringe upon copyright in Texas, dude.
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.
Re: Re: Re:6 true...but
I bet within the next decade it’s legal to sell marijuana in Texas. Dude.
Re: Re: Re:7 true...but
I bet within the next decade it’s legal to sell marijuana in Texas. Dude.
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.
Re: Re: Re:8 true...but
No pipe involved. Just reading the winds. Hey, remember when segregation was a law?
Things change. Whether you want them to or not.
Re: Re: Re:9 true...but
Steers before queers!
Good news
The “Cats For Gold” Website is now up. http://www.catsforgold.com/
*Insert Stupid Analogy to Stealing Small Pieces of Cars Here*
Re: Re:
*insert stupid analogy to why copyright infringement != stealing of physical goods here*
intent
The intent of someone using bit torrent is to get free music or movies. The fact that they contribute ANYTHING to the upload pool should be enough to complete the offense of infringement.
Re: intent
Gee, how compelling. When you get your next speeding ticket, I think you should be arrested for vehicular homicide. After all, your intent was to drive dangerously.
Re: intent
Since we’re on the topic of technicalities I’m just going to point out the fact that bit torrent isn’t exclusively used just for “get(ting) free music or movies.” I’ve used it to get Linux distributions. Also, contributing “ANYTHING” to the upload isn’t enough to complete the offense of infringement seeing as I can seed a Linux distribution and be just fine.
Now that’s said and done, I find the technicality in question hilarious.
Re: Re: intent
A valid point. A Linux distribution is, in fact, the only thing I’ve used BitTorrent for.
Re: Re: intent
Since we’re on the topic of technicalities I’m just going to point out the fact that bit torrent isn’t exclusively used just for “get(ting) free music or movies.”
That’s just a technicality.
Re: Re: Re: intent
Kind of like how knives aren’t just used for . . .
MURDER!
Re: intent
Blizzard, the makers of World of Warcraft, uses bittorrent to, oh, you almost got me you trolling shill.
Computer Says No
I’m no attorney but things like selectively imposing laws just don’t sound good. However, the flip side of the argument – that the best defense lobbyists for Hollywood can come up with is “we need stronger copyright to remain competitive” – just makes me think of Sony Pictures in a footrace to the bottom of a fiery ravine.
Can they evolve their business model? Computer Says “No”.
http://www.youtube.com/watch?v=HcHxiw9QIfc
Re: Computer Says No
They need stronger copyright in order to render all that free competition useless.
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.
Irrelevant
The argument about whether or not a BitTorrent piece is copyright infringement is immaterial. The ISP’s original stand was that if the rights holder believes there has been a law broken then the police should deal with it should be the only argument. Unless the ISP has been deputized and can be the legal representative of the LAW, then there is no issue. By passing the complaint on to the police the ISP has fulfilled its legal responsibility of notifying the proper authorities that a crime may have been committed. The authorities can then take the appropriate steps to address the alleged crime.
Re: Irrelevant
The alleged crime being, “I didn’t murder anyone, at the most, I murdered their little toe.”
How can you murder an appendage?
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).
Re: Irrelevant
Sorry to muddy the waters further, but I really need to understand this. So the ISP has fulfilled a, and I quote, “legal responsibility of notifying the proper authorities that a crime may have been committed”? I wasn’t aware of any legal responsibility that involved reporting a possible crime. So I should have notified the police when the guy blew past me on the interstate and I was going the speed limit? If that’s the case, then we’re probably all guilty of failure to report a possible crime. Does this mean I should immediately turn myself in for prosecution?
The answer is yes, it is infringement, because of the INTENT and the CONSPIRACY to share.
Death by a thousand stab wounds. In theory, everyone who stabbed him is as guilty as any other.
Re: Re:
Aside from your facetious tone and absurd example, this does actually sound compelling to my laymen senses. Sharing a part of a file with another user through a program designed to compile the entire file could perhaps be construed as participating in a conspiracy to share and compile the entire file.
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?
Re: Re: Re:
Conspiracy to commit charges mostly just require that all parties acted towards a common criminal goal. The parties don’t even have to know each other.
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.
Re: Re: Re: Re:
We must teach our children that sharing is wrong. Especially sharing illegal files. If a million people borrowed, let’s call it “Popular Movie: The DVD” then it’s obvious that they are all guilty and should go to jail.
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.
Re: Re:
Guilty of copyright infringement?
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!
Numbers
In other news, binary numbers are subject to copyright. My advice is to turn those binary numbers into base10 and show the number in court and have them decide if that number is the sole property of the copyright holder.
Re: Numbers
Yeah! Movies are music are just binary numbers! Physical stuff is just atoms! EVERYTHING IZ FREE!
Re: Re: Numbers
No, not everything, just the copies. The digital copies.
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.
I love the digital age.... nothing can be sacred.
I saw a neat website about a year ago where you could upload a file, they would XOR it with a ‘control’ file of the same size (random 1’s and 0’s). Both could be transmitted to a third party, who could XOR the no longer recognizable first file with the ‘control’ file to get back to the original.
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.
Re: I love the digital age.... nothing can be sacred.
In the end the nerds will ultimately win. Or the internet will be completely rendered useless, and then everybody loses.
Re: Re: I love the digital age.... nothing can be sacred.
Ultimately the nerds will win and the internet will be rendered the most useful tool humanity has ever seen. The Internet is Chaordic. The order part is an growing set of rules for transfering and storing information. The Chaos part is the fact that disruptive technologies are constantly being developed. In the end no laws, no government, no amount of shouting, no amount of begging, and no amount of threats will change the fact that every speed bump placed will cause it to evolve. That evolution has already out paced the governments ability to legislate, corporations ability to adapt, and it will continue to do so.
Re: Re: Re: I love the digital age.... nothing can be sacred.
And I, for one, welcome our new Chaordic overlords.
Re: Re: Re:2 I love the digital age.... nothing can be sacred.
Yes the Chaordic overloards are coming, bow to them!!
Re: Re: Re:2 I love the digital age.... nothing can be sacred.
Okay let me try this again …
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
Re: I love the digital age.... nothing can be sacred.
Sending the encrypted files is fine. Receiving the encrypted files is fine. Decrypting the file, and thus making a copy, is where things get ugly, I would say.
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?
Re: Re: I love the digital age.... nothing can be sacred.
Decrypting the file, and thus making a copy, is where things get ugly, I would say.
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.
Re: I love the digital age.... nothing can be sacred.
It doesn’t matter how you garble it, mix it, or confuse it – your intent remains the same, to give someone something they should not have.
Trying to find a technical “tricky” way around makes it even more clear that you are trying to avoid being caught.
Re: Re: I love the digital age.... nothing can be sacred.
Garbled. Mixed. Confused. These are just three things that the copyright maximalist will feel in the future.
Re: Re: Re: I love the digital age.... nothing can be sacred.
…and you will feel your mommy spanking your 12 year old behind for being up late.
Off to primary school their kid, have a nice day.
Re: Re: Re:2 I love the digital age.... nothing can be sacred.
Why are you so infatuated with my mommy?
It’s really starting to get fucking creepy.
Re: Re: Re:3 I love the digital age.... nothing can be sacred.
I think it’s because copyright maximalists have a thing for authority figures.
My his “daddy” didn’t hug him when he was younger?
Intent?
Surely the infringement is not the uploading of essentially meaningless little bits of data, but in the reconstructing of it into something meaningful?
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?
Re: Intent?
And even in your example, what if I were using that fertilizer and diesel to make a bomb to blow up a large rock on my property?
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.
to the judge(s)
just think of p2p as the modern equivalent of the public library
Re: to the judge(s)
a “modern library” that doesn’t pay authors anything and doesn’t expect anything to be returned?
Great analogy!
Re: Re: to the judge(s)
You’re right.
P2P is much more akin to the public square.
And now you know I’m right.
Re: Re: Re: to the judge(s)
The pirates are modern-day pamphleteers! The difference being that they distrubute ALL the pamphlets.
Re: to the judge(s)
P2P is more like a guy with stolen photocopy machine and a truck full of stolen paper than a library.
If you think that it’s like a library, then you have certainly OD’ed on the techdirt koolaid.
Re: Re: to the judge(s)
P2P is so illegal that no one is bothering to shut it down?!? Why aren’t they shutting P2P down?
Are we also letting thieves out of jail?!?
Re: Re: to the judge(s)
P2P is more like a guy with stolen photocopy machine and a truck full of stolen paper than a library.
Not even. But of course industry trolls love to go around saying stuff like that.
Re: Re: Re: to the judge(s)
They do have a problem facing reality. Although they’ve had the past decade to do so.
I wonder why that is?
Yes. It’s still copyright infringement. Obviously.
Re: Re:
How so?