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).

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Entertainment Industry Wants More People To Know About OpenBitTorrent Tracker

from the for-what-reason? dept

The definition of insanity, the saying goes, is doing the same thing over and over again and expecting different results. For the past decade, the entertainment industry has sued one site or service after another that was used for unauthorized file sharing at some time. In every single case, the act of suing that site or service ended up only serving to massively increase attention and usage of those services. Suing Napster made Napster into the service to use. Ditto with Kazaa and Grokster. The Pirate Bay wasn't that big until Hollywood got Swedish authorities to raid the operations and confiscate the servers.

So, here we go again -- except this time it's even more ridiculous. Entertainment industry representatives have filed a lawsuit against the OpenBitTorrent tracker's hosting company (Update: noting that the lawsuit is against the hosting company), which is not a file sharing site or service at all. It's just an open tracker. Now, I recognize that folks in the entertainment industry aren't particularly knowledgeable about how technology works, but at some point, aren't they supposed to at least understand the basics? The tracker alone is not responsible for anything here -- and even more ridiculous is that the OpenBitTorrent guys (despite not being in the US) set up a DMCA-like process for taking down any info_hash if they want (which, by the way, was the reason the industry claimed it didn't sue Google -- because it took down links on request -- but now that OpenBitTorrent does the same thing, it's a problem?). Either way, with the rise of trackerless solutions means that even taking this site down won't much matter. Still, it makes you wonder what they're thinking over in the entertainment industry other than ways to increase their legal bills.

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Zombieland Director Goes After Fans, Doesn't Understand Popularity

from the treat-your-fans-right dept

Charles Vestal alerts us to the news that Zombieland writer/director Rhett Reese has apparently be using Twitter to shame people who were mentioning that they were watching unauthorized copies of Zombieland at home, declaring to each one: "You realize we do what we do for money, right? Same as you." This comes soon after we highlighted some directors and moviemakers have found success by embracing those who were downloading their movie, recognizing that it was leading to more sales.

And, in fact, at least some of the people that Reese called out complained that they had actually seen the film multiple times in the theater and planning to buy the official DVD once it came out as well. In other words, the reason the movie is downloaded so much is because people like it, and yes, they still are supporting the moviemakers.

So, what made Reese lash out at these fans? You guessed it. He claimed he had just watched the 60 Minutes episode on movie piracy -- the one that we debunked for being factually incorrect, and it resulted in him getting angry at these fans, without thinking through the fact that the download might not be a substitute. But, even after the fans told him they had seen the film multiple times in the theaters, he's complaining that this decreases the chances of a sequel getting made. Given the massive popularity of the film -- both in the theater and online -- that seems highly unlikely. As we've seen before, the popularity of a movie in unauthorized downloads closely correlates with its box office take in many instances. It's rarely a sign of "lost revenue," and quite often a good indicator of actual revenue. In fact, the details show that Zombieland has done amazingly well, already earning back much more than it cost. Reese has a strong and loyal fanbase who want to support him and a very successful movie on his hands. Rather than attacking them, he should look for ways to embrace them and give them more real reasons to buy.

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More Independent Film Makers Embrace News Of Their Film Being Pirated

from the good-exposure dept

Alan Gerow was the first of a few folks to send in the news that some independent filmmakers not only discovered that their film, Ink, had ended up being widely available via Bittorrent, but that they were quite happy about the exposure. Alan sends over the email that the filmmakers sent out:

Dear Fans and Friends,

Over the weekend something pretty extraordinary happened. Ink got ripped off. Someone bit torrented the movie (we knew this would happen) and they posted it on every pirate site out there. What we didn't expect was that within 24 hours Ink would blow up. Ink became the number 1 most downloaded movie on several sites having been downloaded somewhere between 150,000 to 200,000 times as far as we can tell. Knowing there's absolutely nothing we can do about it, we've embraced the piracy and are just happy Ink is getting unprecedented exposure.

As a result, Ink is now ranked #16 on IMDb's movie meter and is currently one of the top 20 most popular movies in the world.

This all started as a result of the completely underground buzz that you've each helped us create. We've had no distributor, no real advertising and yet the word of mouth that you've generated has made the film blow up as soon as it became available worldwide. So many of you came to see the movie multiple times, bringing friends and family and many of you have bought the DVD and Blu-ray from us. All of this built up and built up and suddenly it exploded.

We don't know exactly where this will all lead, but the exposure is unquestionably a positive thing.

Ink hits Netflix, Blockbuster, iTunes and many more tomorrow! Remember to get your signed copies, t-shirts and posters at the Ink Store.

Thank you so much for the constant love and support.

Jamin and Kiowa
Double Edge Films"

Again, we've seen this with other films as well, but it's always nice to see filmmakers who realize it doesn't make sense to freak out, but to look for ways to take advantage of this as a promotional opportunity.

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RIAA's Main Anti-Piracy Partner Appears Clueless About BitTorrent

from the fact-checking? dept

Earlier this year, the RIAA dumped its longterm anti-piracy partner MediaSentry and hired DtecNet instead. MediaSentry had lots of problems in terms of credibility, but it appears that DtecNet may be even worse. It recently came out with a report claiming that file sharing decreased massively after The Pirate Bay went down temporarily. Not surprisingly, this report is getting some press attention. The problem? The report appears to be based on a nearly comical misunderstanding of how BitTorrent works. TorrentFreak details numerous basic mistakes in the report, nearly all of which suggest the claims made by DtecNet have little, if anything, to do with reality. Considering that DtecNet is going to be leading the charge for the RIAA in any future lawsuits and various "three strikes" plans, the fact that it doesn't seem to understand how BitTorrent works suggests problems ahead.

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Label That Embraces BitTorrent Upset About Lawsuits Against Useful Services

from the shutting-down-the-tools dept

The freakbits guys have a nice interview up with Dutch indie record label Beep! Beep! that has all the music from all of its artists available via BitTorrent, with help from Mininova. In the interview, the guy from the label says that giving away music for free is no impediment to getting paid for it, as you're getting exposed to a much larger audience, many of whom are happy to pay for stuff. Two interesting points (though, neither is that surprising):

• They seem a bit frustrated that distributors shun them. Apparently plenty of distributors are worried that by giving away their music for free no one will buy. Of course, plenty of bands have seen the opposite is true, but some myths are hard to dispel.
• They're quite worried about the recent ruling demanding that Mininova block content, as it may harm their ability to get content out via Mininova:

  But now they have this new thing, where they are taking off all the illegal content on Mininova. For example if Universal comes in and says, "You have to take off this show" they do it immediately. And that is different between what the Pirate Bay does. It's a shame because I'm afraid it might be the end of Mininova.
  
  Pirate Bay provides everything, so why go to Mininova when you can already get everything from the Pirate Bay. Even if the Pirate Bay will be shut down then there will always be another torrent site, someone will come along and fill the gap.

It's an interesting point that I hadn't really thought much about. As the entertainment industry keeps trying to wac that mole, it's really quite annoying for those who legitimately embraced these tools for distribution, as they're forced to move around as well.

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Movie Makers Use 'Fake' Piracy Numbers To Score Distribution Deal

from the well,-good-for-them? dept

The NY Times recently had a blog post noting that the makers of an $850,000 romantic comedy called X's and O's were thrilled that their movie was widely shared on file sharing networks, because the attention it got helped land them a big DVD distribution deal, and potentially a television deal, helped along by the attention received from that file sharing. Of course, there's just one little problem. The FreakBits guys noticed that the number of downloads the movies' creators are citing are almost certainly false. Apparently some sites post fake download numbers as a part of their advertising, and the movie makers used those fake numbers. But... it seemed to get them attention to get more deals, so more power to them. No matter what, it suggests that (once again) obscurity is a much bigger problem than piracy.

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Judge In IsoHunt Case Tells MPAA It Needs To Actually Prove Infringement By US Residents

from the well,-that's-a-first dept

This is a first. In the trial that the movie studios have brought against torrent search engine Isohunt, the judge has pushed back on the MPAA's claims, noting that it has failed to show any evidence of actual infringement by US users. In the past, groups like the MPAA and the RIAA have been able to get by without ever proving real infringement, but just by suggesting it must be happening. So this is quite a surprise. It makes the Isohunt case one to watch more seriously. The company may still lose the lawsuit, but at least the judge seems to want to see actual evidence, rather than having Hollywood execs insisting that these sites are killing their business just because they say so.

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Asus The Latest To Recognize That BitTorrent Is Quite Useful

from the it-ain't-evil dept

To hear some in the entertainment industry tell the story, you'd think that BitTorrent was an evil technology designed with no redeeming value whatsoever. But, of course, there are tons of legitimate uses for it in a more efficient and economic way to distribute files by spreading the burden out. It's great for Linux distributions, for example. And now it's nice to see more and more companies recognizing that there's value in using BitTorrent technology to their advantage. Apparently, the latest is computer maker Asus, which is using BitTorrent for many software downloads. As the article points out, this is hardly revolutionary, but it is nice to see large corporations recognizing the usefulness of the technology.

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Pirate Bay's Plans Too Clever By Half: Arbitrage Consumer Bandwidth

from the this-looks-like-a-mess dept

There's a bunch of news coming out about the sale of The Pirate Bay to GGF, though it's still not making very much sense, I'm still wondering if the deal will really happen. However, it appears that GGF has started working with Wayne Ross, who ran Grokster and Mashboxx, in an attempt to get him to negotiate with the labels. In an interview, he more or less reveals GGF's plans for The Pirate Bay.

Basically, you'll have to pay to leech, but the more resources you "contribute" to the system, the less you'll have to pay, and if you contribute enough resources/bandwidth, then you might actually make some money. Then, on top of that, they believe that some content providers/ISPs will pay for offloading their bandwidth. That explains some of the earlier statements made by GGF. In theory, the idea is that it makes everyone happy. Those who pay for bandwidth on hosting content can pay a lot less. Users who contribute bandwidth end up getting free content (or potentially even making some money). And, of course, the content owners get paid.

Except... that idyllic picture starts to break down when you start to run through the details. The second the paywall goes up, an awful lot of users will abandon The Pirate Bay for friendlier non-barrier-happy sites. That takes away pretty much the entire advantage of The Pirate Bay to make this work. Even the appeal of potentially making money probably won't attract enough users. Second problem? There's no way the economics works out nicely on this one. We've already seen the sort of ridiculous rates that the RIAA wants to charge for individual streams/downloads of music. Put those numbers into this model and start doing the math... and start laughing. There's no way that much money comes into the system. None.

Finally, it leaves out an important party who clearly will not like this setup at all -- even if all the rest of it works: consumer ISPs. The real "ingenious" part of the plan appears to be that some content hosters/service providers are effectively pushing bandwidth costs away from themselves, and dumping them on retail ISPs, who offer flat-rate connections. So the real "costs" are hidden in the typical flat-rate plans of ISPs.

It's effectively a sneaky arbitrage play, whereby The Pirate Bay tries to aggregate all the unused flat-rate ISP bandwidth, and wholesale it to others, paying copyright holders in cash, and downloaders in free/cheap content. But the ISPs whose bandwidth is getting used don't get paid, meaning they're more likely to push back even more against unlimited connection plans. I just can't see how this works.

Oh, right, in the meantime, it's not clear the recording industry has any interest in playing along. They're already demanding that cash from the sale go to them, rather than the founders. Of course, that's a bit misguided, since the founders no longer own The Pirate Bay, having handed the ownership over to others in 2006. So they won't be getting any of the money from the sale. The recording industry basically says it doesn't believe that to be true, and will use the sale as evidence that the founders should pay up. Thus, it's difficult to see them rushing out to embrace this already questionable arbitrage play.

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Entertainment Industry Pushes To Make Mininova Useless

from the it's-a-search-engine dept

Mininova, the latest BitTorrent search engine to raise the ire of the entertainment industry is currently engaged in a court battle with BREIN, an anti-piracy organization, in the Netherlands. Apparently, BREIN is making a variety of highly questionable demands of Mininova, including that it be responsible for installing filters to block certain content (at Mininova's own expense) and that it stop indexing torrents from trackers that allow public uploads. In other words: even if Mininova is considered a search engine, the industry hopes that it can set the rules of what can and cannot be searched. Hopefully the court sees through these arguments. Separately, the article appears to report that BREIN made false statements, including the idea that famed BitTorrent uploader aXXO had been given "VIP" status on the site. The only problem? Mininova offers no such thing. So which is more unethical? Creating a search engine for certain types of files, some of which may be infringing? Or lying in court?

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Record Labels Continue Their Attack On Spanish File Sharing Programmers

from the just-can't-stop dept

We've seen a series of efforts by the big four major record labels to shut down file search engines and software in Spain, despite the fact that such systems have been ruled legal in the country in the past. In one case, they were able to get one guy to cop a guilty plea and get jail time, because he couldn't afford to fight the charges. The latest such story is actually getting covered by the Associated Press, as the big four record labels are going after yet another programmer who created some file sharing apps, trying to charge him with "unfair competition" and demanding $17.5 million. Part of his defense is that Spain has a music levy on blank media, and thus it should be legal for anyone to download (other cases in Spain have ruled that personal downloading isn't a violation) -- and, thus, not a violation to create tools for such downloads. It'll come as not much of a surprise, that the record labels disagree. They'd prefer to get their piracy tax and shut down any attempts to share music at the same time.

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Recording Industry Tries To Shut Down Search Engine In Spain Without Allowing It To Defend Itself

from the fairness-not-needed dept

Last month, we wrote about how the recording industry was able to pressure the operator of a BitTorrent search engine into pleading guilty despite not actually having broken the law. The site in question didn't host any infringing files, but merely linked to a variety of files. Previous lawsuits had shown that, in Spain, merely linking is not infringement. But with the cost of a huge court case, the operator found it cheaper to just settle. Emboldened by this, it appears the industry is going after other sites as well, despite the earlier court rulings finding such sites legal. TorrentFreak notes that in one case, against the search engine Agujero.com, the local recording industry reps demanded an immediate injunction against the site, without even allowing the site's operators to give its side. Luckily, the judge did not fall for this, and after a hearing in which both sides presented their position, is allowing the site to continue operating while the trial continues, noting that shutting down the site: "might cause irreparable prejudice to the defendant." It's good to see another reasonable ruling, though troubling that the recording industry tried to push for an immediate injunction.

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Indie Record Label Sponsors isoHunt BitTorrent Tracker Site

from the more-labels-that-get-it dept

While the major record labels keep insisting that BitTorrent and tracker sites are somehow evil and need to be shut down, more and more indie artists and labels are recognizing that they actually are quite useful promotion and distribution platforms. We've pointed to some in the past, but the latest is a label called Honor Roll Music, which is promoting one of its popular acts by buying ads on isoHunt, the popular BitTorrent site. The ad links to a torrent file so people can easily download the music of the band, Awesome New Republic. Of course, if the major record labels had their way, these creative promotion techniques wouldn't be allowed. Sometimes when we talk about innovative business models, defenders of the old system say that those are fine, but there's no reason to change copyright or stop these lawsuits because those models still work. Yet, this shows how that's not true at all. If the entertainment industry successfully shuts down these sites, it precludes these types of models and promotions. Once again, we see how this is really all about stomping out innovation rather than any legal issue.

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Comedian Louis CK Gets BitTorrent Content Removed By Asking Nicely

from the please,-thank-you dept

A reader, who prefers to go by the name Angry Young Man, points us to an interesting set of comments on a torrent of a recent stand up comedy performance by the comedian Louis CK, where it appears the comedian himself showed up on Mininova and asked nicely for the content to be removed, even explaining his reasoning:

HI. I'm Louis CK. Can you please take this down? This show is a work in progress and was not intended to be passed around the internet. I have absolutely no problem, personally, with file sharing, and if you take everythign I have on the market on DVD, CD, and put it up for free downloading, I don't care. But this is an artistic and personal request. Please take this torrent down. thanks.

Following that, the guy who uploaded the torrent complied:

Sorry Mr. CK, I have taken down the direct downloads and asked Mininova and ViPeers to remove the torrent. I thought you would have preferred the reverse, your live concerts in ****ty audio quality would be ok, especially for what you said about NBC taking down your Late Night appearance, and your high quality DVDs and stuff wouldn't be ok since you need ***** for that stuff. I sincerely apologize for the torrent and the misunderstanding.

And people say that those putting up torrent files don't respect artists?

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Filmmaker Releases Film Via All Torrent Sites, Says Pay If You Like It

from the piracy,-huh? dept

It looks like yet another filmmaker has realized that obscurity is a much bigger threat than piracy. Matthew Krum lets us know that the makers of the movie BLANK have decided to release the movie on all torrent sites, while also offering up a DVD version and a donation offering on their site. While I'm not a huge fan of give it away and pray business models, you have to like the attitude these filmmakers have:

No one should have to pay for a film they did not like. No one should be denied the right to enjoy the art of film.

And they actually are offering additional benefits for those who pay: access to the same group as they make their next film, allowing them to see the behind-the-scenes filmmaking process in action:

Basically the consumer pays what they think the film was worth to them. They will also have the option to sign up for a newsletter for our next film. In this newsletter there will be a username and password to a web forum so they can follow us through pre production, production and post production of our next film, a cool bonus for those who wish to follow the filmmaking journey from beginning to end first hand.

On top of that, the filmmakers seem to have convinced their whole crew to buy into this process:

The thing that makes this film unique is that it is a co-op based concept where are the entire cast and crew worked on a deferred percentage of the films gross. In other words, the cast and crew own a percentage of the films gross, so the profits are not going to Hollywood executives but instead into the pockets of the filmmakers themselves. Again the objective is to use profits from this film to make another movie and release it in the same manner.

It doesn't look like my type of movie, but if you like these types of movies, go check it out. It's great that they're releasing the movie this way, though I still think they could put in place a few more incentives to get people to actually pay for additional benefits -- similar to what many musicians are doing these days. But, at the very least, this is a great start.

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Government-Owned Norwegian TV Station Launches BitTorrent Tracker

from the legitimate-uses... dept

As some entertainment industry folks continue to insist that BitTorrent tracker search engines have no redeeming value, we keep hearing more and more stories of content providers willingly and eagerly putting up their own torrent trackers, knowing that it's an incredibly efficient means of distributing their content. In the past, we've seen TV networks in Australia and Canada do this with individual shows, and now TorrentFreak is reporting that the government-owned Norwegian Broadcasting (NRK) has set up a BitTorrent tracker for distributing a bunch of its shows, noting that: "This type of distribution is reliable, cheap and popular with our audience." Indeed. Not only that, but by running its own tracker, NRK realizes: "we will get better statistics and gather important data about how this technology works." Even better, it plans to share some of that data for others to learn from as well.

The shows will be DRM-free, and it's looking to employ a Creative Commons license on the content "to allow full freedom for our audience." Definitely nice to see someone not going down the same well-trodden road of self-defeat:

"It is important for us to start experimenting with new distribution methods. We don't want to do like the music industry. Running around thinking that people will keep driving down to a record store when they can have the content delivered with the push of a button at home."

If only some others in the entertainment industry would recognize the same thing.

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TV Network 'Leaks' Its Own Shows On BitTorrent

from the catch-up-television dept

To be honest, I've never quite understood why TV networks and TV producers were so freaked out about online file sharing. After all, they already made their content free to view via television -- and adding more ways to see that content should only increase the value of the shows. That's especially true for shows that people want to stay up on and not miss. The more ways people can see it, the better, because it keeps them engaged and coming back for more. And, after some initial false starts, we are seeing some of that with things like Hulu. But, unfortunately, Hulu is still quite closed off and limiting (regional limitations, streaming -- rather than downloads, and some content disappears).

Others, however, seem to be grasping the value of making the content more widely available. A reader using the name PCVirus, sends in the news that down in Australia the TV network Nine Network has been leaking full, high quality downloads of the show Underbelly 2 via BitTorrent, right after the show airs. The network folks note that they see it as "catch-up television"; making sure that fans don't miss an episode. Not only that, but they encourage fans to share the show via whatever file sharing system they like. The only questionable thing, though, is the claim that the content will "stop working once the season finishes airing." Not quite sure how that works, but even that seems pretty lame. They're doing that because they're afraid it might cut into DVD sales, but as we've seen over and over again, if you give people a reason to actually buy the physical product, plenty of people will. So, make the DVDs include tons of extras -- and maybe some other types of benefits (opportunity to appear on the show?) and fans will buy.

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A Record Label That Embraces BitTorrent

from the good-for-them dept

While the major record labels still insist that BitTorrent and any sort of file sharing is evil and needs to be wiped out, it's great to see some indie record labels fully embracing how BitTorrent is actually a much cheaper and much more efficient distribution and marketing tool. Take, for example, Open Your Eyes Records, who not only embraces BitTorrent, but has now teamed up with one BitTorrent tracker, What.cd, to distribute all new tracks that way. Even though for many readers here this doesn't need to be repeated, this is (once again) more evidence that BitTorrent and BitTorrent trackers have plenty of legitimate purposes -- and the efforts to shut them down completely are quite short sighted.

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Australian Filtering Boss: Turning Off Blog And Comments

from the but-listening...-we-swear... dept

With the story earlier this week about Australia's Broadband Minister, Stephen Conroy, considering adding BitTorrent filtering to the country's ISP filtering/censorship program, it was notable that Conroy said he was paying close attention to the commentary about the program online -- including various blogs and social network systems like Twitter. That was actually a small glimmer of hope mixed in with the ridiculous policy -- but it appears that Conroy has decided he'd really rather not listen to the conversation on his own blog. While that post about BitTorrent filtering got a lot of attention, it also got a ton of comments, and now Conroy and his team are turning off their blog and closing down the comments. Way to communicate with the people...

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