22.04.2020
Author: Michał Chojnacki - Lawyer, Joanna Bogdańska - Attorney at law, Partner
Computer technology, in particular the Internet, revolutionized human life, it is a fact. The changes did not bypass the copyright area. New ways of transferring data have become an opportunity for the authors, they have the possibility to make their works widely known on an unprecedented scale, which at the same time increased their profits. This has also become a threat, since copyright infringement has also increased significantly in the form of computer piracy.
This concept is widely known, about twenty years ago, when the Internet was still in its early stages, bazaars were main source of illegal copies of works protected by copyright, the scale of this phenomenon was alarming. Along with the increase in network transmission capabilities, the bazaars were replaced by websites offering the possibility of downloading photos, videos, music or computer games without paying for them and without the consent of the authors, and combating this type of practice has become much more difficult.
It is almost impossible to fight the websites that offer access to the files (in Torrent form). These sites operate in an information cloud and their data are located on hundreds of different servers around the world, in way, that often even service providers do not know what exactly is on their servers, so it is impossible to remove them from the network. An additional difficulty is the way data is shared.
Basically, most of these types of sites only offer the aforementioned Torrents – in plain language files containing information about where to download a particular work. However, this is not just a download like downloading a form from e.g. a government site. Downloading is done using a peer-to-peer (P2P) network. In standard download cases, there are at least two parties, there is a server that sends files and there is a client that downloads these files. However, in the case of P2P networks, each user in addition to downloading the work, simultaneously shares with other network members that part of files that he has already downloaded. Thus, once again, it is not possible to completely disable the illegal availability of a given work, because it would require cooperation and coordination of authorities activities of many different countries, and not everywhere copyright law is as respected as in the European Union.
This whole situation does not mean, that everyone who uses this form will remain unpunished. A single user of the network can still bear criminal or civil liability for their actions. However, what exactly is it illegal in using Peer-to-Peer networks? In general, P2P networks themselves are not illegal, everyone can, e.g. take their vacation photos and use this network to share with family or friends. The word share is the key to understanding when the illegality of action starts.
Using simple example of music CDs, even if we buy it legally in the store, our right to use it is limited by the license under which it was sold to us. Most of this type of disc does not allow the possibility of free sharing with others. However, if we use the peer-to-peer network to share its content with others, there may be a license violation and in this way we may be criminally or civilly liable.
People more familiar with the functioning of P2P networks know ways to block the possibility of sending to others parts of an already downloaded work. Does it mean that they do not violated the law? There is a dispute in this matter in the doctrine, but the prevailing opinion is that blocking the possibility of sending files does not change the case. Whenever you start downloading using such a network, you need to send a small amount of data to other users, even when sending the rest of the work is blocked, without this the download process cannot be started. According to opinion of followers of this opinion, even such a small amount of sharing can be considered a copyright infringement.
On the other hand, there are voices that sharing a few kilobytes of data, if they do not constitute the whole work, has negligible social harm and should not be punished. Due to the specificity of the P2P network, each case should, be considered individually and the courts have not developed a uniform rule in this aspect, which is why almost every use of the P2P network in this way is subject to the risk of legal liability, even despite the use of such techniques.
In accordance with copyright law, everyone has the option of using individual copies of a work, for their private needs, without the author's consent and without payment. The group of people who, as part of such private use, is extended to include family and persons in close social relationship. Using an example, if we have a book, we can give it to brother or friend, so they can read without infringing copyright law. We can do the same when we have an electronic book, we can send it to someone via the Internet, including P2P networks. If the file shared by Torrent is available only to people who are included in the catalogue of persons authorized for private use, there is no infringement of copyright, even if such sharing is done via a peer-to-peer network.
However, the feature of these networks is the fact that we usually don't know other users, even if the work is made initially available to entitled ones, but if somehow someone outside of the catalogue of entitled persons, will gain access to the work, there is a violation of copyright law, so using this method for such purposes is risky, but from the legal point of view possible.
The risk of copyright law infringement and distribution of protected works without consent are up to 3 years of imprisonment, not to mention any financial claims. Although computer piracy is still a serious problem, authorities are increasingly catching those using these methods. Therefore, it is extremely important to know the functioning of technologies and their relation with the law, because as you know, the ignorance of breaking the law does not exclude the possibility of suffering the consequences, which is why it is not worth risking.
