The Split (or How The Law Can Learn To Stop Modern Piracy And Illegal Downloads)

Rebecca Giblin, in her seminal book Code Wars, proposes that a major fault of the current US Intellectual Property legal landscape is the several physical world assumptions that it makes, the most significant one being the presumption that “everybody is bound by physical world rules”. She argues that if “certain things were infeasible, impossible, or impractical in the physical world, it was assumed […] that they would be infeasible, impossible, or impractical full stop”. This article aims to posit that the tort of authorization in UK law – the key law preventing online piracy – makes similar presumptions which hampers its success in mitigating online piracy.

Firstly, what follows is a sketch of the modern practice of piracy illustrating how any liability is avoided due to its current decentralised nature.

The tort of authorization requires “a grant or purported grant [that the defendant is conferring] the right to do the act complained of”. In the Napster-age, this was a solid legal barrier, as Napster was both the source and conveyer of copyrighted material. However, with the modern decentralized P2P system (where information is transmitted directly between clients rather than through a central server), BitTorrent software solely acts as a tool, rightfully available for the third party to use in any way he so desires. Thus, it can be said that the ‘software manufacturer does not “sanction, approve, or countenance” the third party infringement’ in the same way that American equivalents would say that ‘the defendant does not have “actual knowledge of the third party infringement at the time it is being contributed”, or the “right or ability to supervise” the third party infringement’.

Furthermore, the tort of authorization under a modern application makes the presumption that the role of the infringing system is analogous with that of a courier by imposing liability not on the actual transfer of the copyrighted material, but rather on the illegitimate claim to the right to transfer the copyrighted material. This is possibly due to the fact that the P2P system is “capable of both infringing and ‘substantial noninfringing’ uses”. Although this analogy may be accurate for BitTorrent clients, as the technology’s design means that it is impossible to determine if BitTorrent Inc, the corporation responsible for the open source code that is the basis for BitTorrent client software, has ‘authorised’ any specific third party infringement, it is clear that BitTorrent Inc has no power to prevent third party infringement at the time that it occurs.

This analogy of the courier becomes problematic with regards to the online databases through which peers find available pirated media, and effectively other ‘peers’ distributing that file. If uTorrent (a leading BitTorrent client) is a ‘courier’, PirateBay and Kat.ph are more akin to ‘Amazon’ or ‘eBay’ – the website where the copyrighted material is found in the first place. As these piratical websites do not ever initiate, supervise, or even come in contact with the data packets being transferred, they therefore cannot be reasonably considered to be ‘couriers’ and consequently also escape liability under the Tort of Authorisation.
Essentially there are two key parties in modern piracy and this segregation of duties means that the transfer of pirated material can happen without either actually initiating, supervising, or purporting to have the right to the pirated material.

In the recent case of Dramatico, the courts, acknowledged this ‘split’ in the contemporary decentralised p2p system, holding that that, due to the reasons above, the operators of PirateBay (and by extension similar websites) infringe the copyrights of claimants in the United Kingdom in spite of the fact that the involvement of these piratical online indexes is prior to any transfer actually happening and involves no contact with the infringing copy. This judgment is likely of little substantive effect though as policing such online databases would prove near impossible. Although these databases are accessible globally, they operate from servers which could be based anywhere in the world. For instance, the servers for PirateBay are located in Sweden, Belgium, and Russia. This, in itself, would pose significant jurisdictional issues.

Conversely, this judgment could be seen as indicative of the law evolving in the right direction. Prior to Dramatico, film piracy was treated as a unified, rather than the fragmented activity that it currently is. In acknowledging ‘The Split’, the judgment in Dramatico suggests that the law is finally catching up to the reality of modern piracy. ‘The Split’ results in two distinct foci for the law to have – the indices and the software. It is fair to suggest that the law has been too focussed on the indices, attempting to tackle it with the blunted Tort of Authorisation, rather than on BitTorrent clients. This may in fact suggest that the cause of the laws inefficacy may be something much simpler and elemental than the Giblin’s physical-world limitations – the law could have the wrong focus.

But why does the law focus on the indices as opposed to the software facilitating piracy? It may be because online indices like PirateBay may seem to be easier targets – evidenced by the fact that there were more than 150 million client installations worldwide in 2007 as opposed to the total tally of 93 indices blocked under the Digital Economy Act 2010 since the first restrictions started in 2012. However proxy websites are notoriously easy to establish and jurisdictional issues hamper any conclusive victory against piracy. Another possible argument could be that fighting against PirateBay makes for good political rhetoric. PirateBay, Kat.ph, and other online indices are the ‘faces’ of piracy. For instance, Kat.ph is the 66^th most visited website on the Internet. One could go so far as to say that these online indices are in fact representative of the practice as a whole, and this is the reason why they have endured the brunt of the law’s focus. But any success against these would be very unlikely and uneconomical. This is well illustrated by the vast resources expended by Sweden and the MPAA in the aforementioned tango with PirateBay.

If the law is to enjoy any actual success in its goal to mitigate piratical action it needs to realign its focus from the indices to the actual software. This would require stark departures from the Amstrad judgment and a dereliance on the Tort of Authorisation. Although this may be seen as unlikely to happen, it is not impossible. Similar departures from House of Lords’ judgments to create new forms of liability have happened in the past, for instance with R v Gold & Schifreen and the consequent Computer Misuse Act 1990. Many obstacles may still be faced if the law is reformed to refocus its efforts against BitTorrent clients and BitTorrent Inc. itself. For instance, hypothetically, if any liability could be imposed against BitTorrent Inc., or the creators of clients based on BitTorrent code, the low barriers to market entry could make such liability difficult to enforce. This will not necessarily mean that any such reform would be devoid of merit though as there may still be a substantial nominal deterrent effect.

Feature Image by clurr