The art of writing is the art of discovering what you believe.
Gustave Flaubert

Saturday, 12 March 2011


A problem for copyright owners: a file-sharing protocol maintained by BitTorrent, Inc., and implemented in numerous widely-available clients – programs that manage downloads and uploads using the protocol – for a range of computer platforms. Also the trade name of software marketed by BitTorrent, Inc., and a registered trade mark for "Software for providing access to on-line directories, indices and searchable databases relating to a variety of information and data available on a global computer network", which gives a good impression of how it works.

A torrent, to use the generic expression, is the most popular form of peer-to-peer filesharing measured by the volume of material. The technology has been around since 2001, and since 2006 it has become the primary means of sharing music, video, software and digital books online. It is therefore seen as a threat by copyright owners, although like most technologies it has legitimate uses as well as illegal ones. Torrents work by downloading small bits of files from many different web sources at the same time, which means extremely high speeds may be attained. They are easy to use and generally free of charges.

When used to download copyright material without authorisation, torrent technology raises complicated legal problems because torrent sites do not handle copies of the downloaded files – it is argued that because they index torrrents available on the Internet they are analogous to search engines. In the US, the operator of the torrent site may be liable for inducing an infringement of copyright (for example in Columbia Pictures Industries, Inc. Et al v Gary Fung et al, 2:06-cv-05578-SVW-JC (C.D. Cal. Dec. 21, 2009)) and in Sweden the individuals behind Pirate Bay have been convicted of criminal offences and given custodial sentences.

In the UK, whether the activities of torrent sites might amount to authorising the commission of copyright infringements remains open to doubt as the latest statement of the law on authorising is CBS Songs v Amstrad [1988] 1 A.C. 1013 where the House of Lords took the view that merely placing a twin-deck, high-speed, tape-to-tape recorder on the market did not amount to “authorising”. In Twentieth Century Fox and others v Newzbin [2010] EWHC 608 (Ch) Kitchin J “rowed back” (as Jane Lambert put it) from the Amstrad decision (which of course remained binding on him) and held that a Usenet indexing site ‘is liable to the claimants for infringement of their copyrights because it has authorised the copying of the claimants' films; has procured and engaged with its premium members in a common design to copy the claimants' films; and has communicated the claimants' films to the public.’ The technologies used might be different, but the law might be applicable to both. Section 97A of the Copyright Designs and Patents Act 1988 gives the High Court the power to grant injunctions against internet service providers where they have actual knowledge of a third party using their services to commit a copyright infringement. That knowledge can be imparted to the ISP through a notice from the copyright owner.  

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