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What seems weird to me is that in this case, the copyright owner himself (or someone acting on his behalf) uploads the video to a torrent site. How is that not

What seems weird to me is that in this case, the copyright owner himself (or someone acting on his behalf) uploads the video to a torrent site. How is that not "granting permission" to whoever subsequently download the video? Seems like an easy defense would be having the site add a small section about that in their TOS.

vmception 6y ago
Downloading isn't copyright infringement, uploading is, because you are sharing something without the authorization of the copyright holder. Torrent sites frequently track uploads and kick users off that don't upload, so it would be tricky for their Terms of Service to make an exception that works for their network and also tries to ensnare these honeypots. And regarding downloading or acquiring or even purchasing: it has never been up to the consumer to know who has the authorization (license) to distribute a work. We just assume Walmart/Target/Netflix/Amazon etc has the rights to sell us whatever we consume. It isn't our problem.
- Wowfunhappy 6y ago
  Torrents seed automatically. If I purposefully make my own film available as a torrent (I could be an indie filmmaker with limited funds for bandwidth), shouldn't seeding be understood as implicitly allowed?
  - vmception 6y ago
    We don’t currently have a regulatory regime that matches this very sensible idea. We have a regime that is ripe for abuse by these honeypots.
- freeflight 6y ago
  > Downloading isn't copyright infringement, uploading is, because you are sharing something without the authorization of the copyright holder. That much is true, but when it's the rights holder that's uploading the content, then it's not copyright infringement because they chose to upload it to be shared, while actually having the proper rights to do so. With DDL hosters there's quite a few that put in the ToS how by uploading a file that publicly accessible for download, you confirm that you have the right to do so, as these services usually do have a ToS as they are mostly run by legit companies. While with a decentralized p2p network, as bittorrent is, there's really no way to enforce a system wide ToS. > Torrent sites frequently track uploads and kick users off that don't upload Not "sites" do that, but communities centered around trackers do that to ensure that there's actually enough upload bandwidth and not just a bunch of leechers that only download but never contribute with their upload bandwidth.
  - vmception 6y ago
    I understand the sentiment and I agree with that I don’t see any regulatory framework or statute or case law that matches it You can’t assume the rights holder is giving tacit consent to non-license holders to share. You can assume they are mitigating bandwidth constraints using the bittorrent protocols. Assuming the other seeders are pirates like “you” is the bad assumption here. Relying on autoseeding software to distort the legal reality is the bad assumption here (someone else mentioned this).
    - washadjeffmad 6y ago
      How does one reconcile the existence of the private torrent feature, then?
      - vmception 6y ago
        A protocol can be used for anything. With torrents there is no one organization that has control over a proprietary piracy tool. That is how you reconcile it. If you are sharing things you dont have a license from the creator or another license holder to share, it is copyright infringement. If you are sharing things you have that authorization from then it is not.
- behringer 6y ago
  Downloading is copyright infringement if the uploader did not have the rights to give it to you. Just because it's not common for the rights holder to sue you as a downloader does not make it legal.
  - vmception 6y ago
    That’s an interesting concept can you (or anyone passing by) share a corroborating source to support that?
    - deleted 6y ago
      [deleted]
- glandium 6y ago
  > Downloading isn't copyright infringement Note this isn't universally true. For instance, download is copyright infringement in Japan. https://en.m.wikipedia.org/wiki/File_sharing_in_Japan https://en.m.wikipedia.org/wiki/File_sharing_in_Japan
unishark 6y ago
I think it's basically a blackmail scheme. Yeah you have a case if they sued you, but you'd be embarrassed by the public accusation of downloading porn so you settle. Or failing that, it's still just extortion by suing people frivolously, which again, people would settle to get out of.
jlgaddis 6y ago
There was a similar article on TorrentFreak a week ago about a copyright owner who filed a lawsuit against YouTube over repeated copyright violations. It seems they slipped up and made a little mistake, though! > YouTube Class Action: Same IP Address Used to Upload ‘Pirate’ Movies & File DMCA Notices [0] -- [0]: https://news.ycombinator.com/item?id=25498376 https://news.ycombinator.com/item?id=25498376
- 93po 6y ago
  How do you know whether or not they were simply using the same VPN?
  - jlgaddis 6y ago
    I RTFA.
colejohnson66 6y ago
> How is that not "granting permission" to whoever subsequently download the video? Legally, it’s complicated. If I upload code to GitHub with no license attached, it is technically “all rights reserved.” As in, you have no right to use it at all. If someone has no way of finding out their legal right to use my code, they aren’t allowed to. Same with YouTube: if I make a movie and put it on YT, that’s not an implicit license for you to copy elsewhere. Logically, it being on a torrent website, you would think it would be different because seeding is a thing, but the law says otherwise. The problem is that the law doesn’t make a distinction between “seeding” and “distribution”. They’re one and the same. Disclaimer: IANAL
- emilecantin 6y ago
  What if Github added a default license in their TOS? Language like "If you don't explicitly add a license to your repo, we assume you meant MIT". I think that'd clarify that gray area. In that same vein, a torrent site could have something like this on their upload page: "By adding this torrent to the tracker, you certify that you have the rights to distribute the file, and you hereby grant permission to distribute the file to every user of the site." I don't think Hansmeier could pull off his stunt anymore, as he just granted permission to everyone to do what he was trying to catch them doing.
  - colejohnson66 6y ago
    I’d be interesting in how a term like that on GitHub would work. There’s a reason that you have to check a box when agreeing to the TOS; it’s you staying an affirmative to consenting. Implied consent isn’t held up in the courts as well. Something like an affirmative checkbox on torrent trackers would be a better thing, but it would only prevent situations like Prenda (which are rare).
    - emilecantin 6y ago
      It'd put the onus on the original uploaders; all downloaders / seeders would (in theory) be able to point to this clause and say "see, I thought I was authorized to do that. Go after [original uploader] instead". Rights-holders already go after them; this would have the effect of protecting everyone else. At least, that's my theory (but IANAL).
staticautomatic 6y ago
There are so-called affirmative defenses along these lines, like equitable estoppel, but the thing about affirmative defenses is that you don’t really get to wield them until you’re damn near trial, which means they don’t save you much money even if they work.

vmception 6y ago

Downloading isn't copyright infringement, uploading is, because you are sharing something without the authorization of the copyright holder. Torrent sites frequently track uploads and kick users off that don't upload, so it would be tricky for their Terms of Service to make an exception that works for their network and also tries to ensnare these honeypots. And regarding downloading or acquiring or even purchasing: it has never been up to the consumer to know who has the authorization (license) to distribute a work. We just assume Walmart/Target/Netflix/Amazon etc has the rights to sell us whatever we consume. It isn't our problem.

Wowfunhappy 6y ago
Torrents seed automatically. If I purposefully make my own film available as a torrent (I could be an indie filmmaker with limited funds for bandwidth), shouldn't seeding be understood as implicitly allowed?
- vmception 6y ago
  We don’t currently have a regulatory regime that matches this very sensible idea. We have a regime that is ripe for abuse by these honeypots.
freeflight 6y ago
> Downloading isn't copyright infringement, uploading is, because you are sharing something without the authorization of the copyright holder. That much is true, but when it's the rights holder that's uploading the content, then it's not copyright infringement because they chose to upload it to be shared, while actually having the proper rights to do so. With DDL hosters there's quite a few that put in the ToS how by uploading a file that publicly accessible for download, you confirm that you have the right to do so, as these services usually do have a ToS as they are mostly run by legit companies. While with a decentralized p2p network, as bittorrent is, there's really no way to enforce a system wide ToS. > Torrent sites frequently track uploads and kick users off that don't upload Not "sites" do that, but communities centered around trackers do that to ensure that there's actually enough upload bandwidth and not just a bunch of leechers that only download but never contribute with their upload bandwidth.
- vmception 6y ago
  I understand the sentiment and I agree with that I don’t see any regulatory framework or statute or case law that matches it You can’t assume the rights holder is giving tacit consent to non-license holders to share. You can assume they are mitigating bandwidth constraints using the bittorrent protocols. Assuming the other seeders are pirates like “you” is the bad assumption here. Relying on autoseeding software to distort the legal reality is the bad assumption here (someone else mentioned this).
  - washadjeffmad 6y ago
    How does one reconcile the existence of the private torrent feature, then?
    - vmception 6y ago
      A protocol can be used for anything. With torrents there is no one organization that has control over a proprietary piracy tool. That is how you reconcile it. If you are sharing things you dont have a license from the creator or another license holder to share, it is copyright infringement. If you are sharing things you have that authorization from then it is not.
behringer 6y ago
Downloading is copyright infringement if the uploader did not have the rights to give it to you. Just because it's not common for the rights holder to sue you as a downloader does not make it legal.
- vmception 6y ago
  That’s an interesting concept can you (or anyone passing by) share a corroborating source to support that?
  - deleted 6y ago
    [deleted]
glandium 6y ago
> Downloading isn't copyright infringement Note this isn't universally true. For instance, download is copyright infringement in Japan. https://en.m.wikipedia.org/wiki/File_sharing_in_Japan https://en.m.wikipedia.org/wiki/File_sharing_in_Japan

unishark 6y ago

I think it's basically a blackmail scheme. Yeah you have a case if they sued you, but you'd be embarrassed by the public accusation of downloading porn so you settle. Or failing that, it's still just extortion by suing people frivolously, which again, people would settle to get out of.

jlgaddis 6y ago

There was a similar article on TorrentFreak a week ago about a copyright owner who filed a lawsuit against YouTube over repeated copyright violations. It seems they slipped up and made a little mistake, though! > YouTube Class Action: Same IP Address Used to Upload ‘Pirate’ Movies & File DMCA Notices [0] -- [0]: https://news.ycombinator.com/item?id=25498376 https://news.ycombinator.com/item?id=25498376

93po 6y ago
How do you know whether or not they were simply using the same VPN?
- jlgaddis 6y ago
  I RTFA.

colejohnson66 6y ago

> How is that not "granting permission" to whoever subsequently download the video? Legally, it’s complicated. If I upload code to GitHub with no license attached, it is technically “all rights reserved.” As in, you have no right to use it at all. If someone has no way of finding out their legal right to use my code, they aren’t allowed to. Same with YouTube: if I make a movie and put it on YT, that’s not an implicit license for you to copy elsewhere. Logically, it being on a torrent website, you would think it would be different because seeding is a thing, but the law says otherwise. The problem is that the law doesn’t make a distinction between “seeding” and “distribution”. They’re one and the same. Disclaimer: IANAL

emilecantin 6y ago
What if Github added a default license in their TOS? Language like "If you don't explicitly add a license to your repo, we assume you meant MIT". I think that'd clarify that gray area. In that same vein, a torrent site could have something like this on their upload page: "By adding this torrent to the tracker, you certify that you have the rights to distribute the file, and you hereby grant permission to distribute the file to every user of the site." I don't think Hansmeier could pull off his stunt anymore, as he just granted permission to everyone to do what he was trying to catch them doing.
- colejohnson66 6y ago
  I’d be interesting in how a term like that on GitHub would work. There’s a reason that you have to check a box when agreeing to the TOS; it’s you staying an affirmative to consenting. Implied consent isn’t held up in the courts as well. Something like an affirmative checkbox on torrent trackers would be a better thing, but it would only prevent situations like Prenda (which are rare).
  - emilecantin 6y ago
    It'd put the onus on the original uploaders; all downloaders / seeders would (in theory) be able to point to this clause and say "see, I thought I was authorized to do that. Go after [original uploader] instead". Rights-holders already go after them; this would have the effect of protecting everyone else. At least, that's my theory (but IANAL).

staticautomatic 6y ago

There are so-called affirmative defenses along these lines, like equitable estoppel, but the thing about affirmative defenses is that you don’t really get to wield them until you’re damn near trial, which means they don’t save you much money even if they work.