Author: Preslav Baldzhiev
The spread of all kinds of products has taken on new dimensions with the digitalization and creation of the Internet. Thanks to this achievement of technology, people are more and more free to access and get acquainted with various arrays of information (files), which arrays are increasingly accessible through torrent files uploaded to torrent sites. Despite this possibility, attention should be paid to published files and their intellectual property rights.
What is the Torrent system?
The torrent system is based on the bit-torrent protocol and works on the principle of peer-to-peer – the computers of individual users connect to each other to exchange information. This bit-torrent protocol is read and applied in action by a special program (bit-client), which opens a torrent-file (it will be discussed in the next paragraph). This bit-client is the connection between the computers of individual users who exchange information with each other. An important feature of the torrent system is that individual users do not download or upload data from one place, but from each other. This is possible because the torrent system breaks the file into separate but equal pieces – each piece is transferred by a different user who has already received the same part of the file. The torrent system can be illustrated with an example: Office of a tour operator (Torrent system), which offers customers different excursion offers (individual end users who have already received a piece of the file) to the same place file).
What is a torrent file?
The torrent file is a small digital file (several kilobytes) with a torrent extension. The torrent file itself does not contain an array of information that will be downloaded, but information about where the array in question can be downloaded. The easiest way to illustrate this is with an example – imagine a catalog (torrent file), which lists all the places (individual users) from which a product can be found (the array of information in question).
What is the problem with torrent sites?
Torrent sites are an opportunity for easier file sharing. The problem with them is not related to data transfer, but to the data and files that individual users transfer. Most often, this peer-to-peer system is used to transfer large files (several gigabytes), and in most cases such files are objects of intellectual property (movies, books, music, albums, etc.).
Internet piracy and torrent sites
The ability to quickly transfer large files is not the only reason that makes the torrent system a suitable place for the development of Internet piracy. As mentioned above, the torrent file does not contain the relevant array of information (in this case an object of intellectual property), but only data from where individual parts of it can be obtained. This means that torrent sites which are Service Providers within the meaning of Directive 2000/31 do not offer intellectual property.
In addition, Article 12 of Directive 2000/31 states that “the service provider is not liable for the information transmitted , on condition that the provider:
- Does not initiate the transmission;
- Does not select the receiver of the transmission; and
- Does not select or modify the information contained in the transmission.”
Particular attention must also be paid to Article 15 of that Directive, according to which “Member states shall not impose a general obligation on providers… to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity”.
Considering all this, it is logical to conclude that the European legislation is currently in an intermediate state, which rather does not prohibit, but does not explicitly allow the operation and development of torrent sites. At the same time, the responsibility should fall on individual users of the Torrent system.
Internet piracy and the Individual user
At first glance, the most endangered to bear some responsibility is the individual user of the Torrent system, as he/she provides for download another’s intellectual property. But before making such a conclusion, it is appropriate to trace the whole mechanism by which a pirated version of a film, music, game, etc. is created.
Every creation of a pirated copy begins with finding an original version of a product (most often such product has protections and can be used by one user). The legal version is “cracked” (if it is a product in the form of an executable file with an extension exe.) – cracking creates a new executable file that allows the user to remove protections of the product. Some of the most popular programs such as Microsoft Office, Adobe Photoshop, and even operating systems such as Windows are subject to crack.
Giving this example, it is appropriate to draw attention to the Institute of First Sale, according to which if a product is purchased or provided by the holder of the intellectual property right, that holder loses his subsequent rights to distribute and reproduce the provided product. As mentioned in one of the previous articles, in the absence of this principle, any subsequent sale must be in favour of the first right holder.
It is necessary to pay attention to the behaviour of individual users – most of the people involved in the torrent system provide and use the received files for non-commercial purposes, which means that the individual user does not seek a financial gain. Similarities can be found with libraries that buy books from a particular publisher and for symbolic prices or provide them completely free of charge to their members (an important feature of and libraries is that they are registered as non-profit legal entities).
The case is similar with the Bulgarian site Chitanka (My Library), which provides completely free scanned digital copies of literary works – according to their spokesperson, the activity of the website is based on Article 24, para. 1, item 9 of the Copyright and Related Rights Act (CRRA), which reads: “No permission from the author and no compensation shall be due in the case ofreproduction of already published works by generally accessible libraries, research and educational institutions, museums, and archives for educational purposes or to ensure the preservation of the work inasmuch as such action is not undertaken for profit”.
At present, individual users can easily be classified as protected because case C-276/06 mentions that the Service Provider, such as the Torrent Site within the meaning of Directive 2000/31, is not obliged to disclose personal data in order to support the protection of copyright and related rights in civil proceedings (in the case, one party insisted on obtaining information about the identity and address of users who use a peer-to-peer system).
Both sides of the Internet Piracy
Like any serious problem, a group of people who support it and a group of people who reject it have formed around Internet piracy.
The supporters of this type of free file transfer point out that by their actions they support the distribution of the product – they advertise it and allow a large number of users to get to know the product itself and to assess its advantages and disadvantages. Based on these understandings, most people who take advantage of Internet piracy believe that they are the basis of economic growth for developers and publishers, because in this way they provide new users who would buy not only the original end product, but also a fan-articles related to it and help to find defects in the product and solve them. These examples can be analogous to trying on clothes – anyone can go to a particular store and try on a certain garment to see if it fits them well.
Such a theory, however, remains controversial for most software products, as almost every original version offers a free trial in which the user can learn about the capabilities of the program.
The group that rejects Internet piracy is most often formed by the publishers and developers of the final product (object of intellectual property). According to them, such dissemination of arrays of information has a serious impact on profits, and sometimes even on the reputation of the publishers and developers themselves – this means that all the problems created by the pirated version are not related to the user who made the pirated product available, and with publishers and developers. An example of such an understanding can be found when buying a garment from a store that is not official for the fashion brand – if the garment breaks, it would be considered a defect that is the fault of the brand itself and not the store (although it is not official and may provide counterfeit goods).
From all the above, it seems that there is no single opinion about torrent sites and their users. For the most part, countries have not banned, but not allowed, the use of the torrent system – the most striking examples of exceptions are the United States and Germany, where individual users are punished, but not providers. This vacuum in the legislation of most countries is also the reason why more and more people are turning their attention to a well-functioning system, for which there is no common opinion on whether it is used for legitimate purposes.
This material prepared by Preslav Baldzhiev aims to provide more information about torrent sites and Intellectual property. It does not constitute a legal opinion and cannot be interpreted as individual consultation on any concrete facts or circumstances. The advice of a specialist should be obtained for specific questions and situations. For more information on the above-mentioned issues and individual consultations, please contact the team of the law firm of Krasimira Kadieva at 00359 882 308 670 or make an inquiry using the contact form of the website. Since 2017 Preslav Baldzhiev is a law student at Sofia University “St. Kliment Ohridski “, having previously graduated from the High School of mathematics and natural science “Acad. Nicola Obreshkov” in Burgas. In February 2020 he took a course for industrial property representatives at the Patent Office of the Republic of Bulgaria in the field of trademarks, geographical indications, and industrial designs. He is interested in intellectual property, personal data protection, commercial and law on obligations and contracts and also regularly attends conferences, practical courses, seminars, and webinars.