The Swarm, The Cloud and The Real Person Copyright Exemption

The recent Australian decision in Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 was more than satisfactory to most of the users and Internet Service Providers. In summary, the Australian Federal Court ruled that an Internet Service Provider is not liable for its users’ copyright infringement as it does not encourage or authorise such downloads. iiNet was sought in court for enabling BitTorrent traffic and not barring its users from sharing files.

While the 200 page decision is more than interesting, one should note that the court had more than a challenge when needed to explain how BitTorrent actually infringes copyright. Copyright law has a requirement that the copying be of a substantial part of the work (s. 14, Australian Copyright Act). Therefore, a BitTorrent client, which provides small chunks of a file does not provide, copy or make available a substantial part, as any of the parts transferred may be irrelevant and insatisfactory in regards to copyright infringement (see more about BitTorrent at Stephen Knox, Diarmaid O’Cearuil, Nicola Scott Holland and Ljiljana Skrba, BitTorrent).

For example, sampling, such as in Girl Talk’s videos may sometimes be considered fair use, at least by the artist and it does not, at most times, sample a substantial part of the original work. BitTorrent, at least here, creates a material challenge to explain how a particular user copies a substantial part, as a user does not actually create a substantial copy. However, the court went on, and explain, in a rather meticulous way, how it sees BitTorrent as creating a copy of a substantial part of the work:

The Court finds that it is the wrong approach to focus on each individual piece of the file transmitted within the swarm as an individual example of an ‘electronic transmission’. The BitTorrent system does not exist outside of the aggregate effect of those transmissions, since a person seeks the whole of the file, not a piece of it. In short, BitTorrent is not the individual transmissions, it is the swarm. (…) The correct approach is to view the swarm as an entity in itself. The ‘electronic transmission’ act occurs between the iiNet user/peer and the swarm, not between each individual peer. One-on-one communications between peers is the technical process by which the data is transferred, but that does not mean that such level of detail is necessarily what the communication right in s 86(c) focuses upon.

Viewing the swarm as a copy of a work is an interesting initiative. It sits side-by-side with the legal problems which cloud computing may face, but the swarm is not an entity, it does not have a right for expression nor does it have an understanding of fair use, it cannot use legal defenses (such as the doctrine of first sale) in creating such copies and cannot be sanctioned monetarily. So who could be sought after?

Theoretically, let’s see a swarm for a popular .torrent, such as a movie: while some users may pirate content (according to a recent dubious study, the some is 99%), we can acknowledge that at least some of the people sharing a file have a good reason to do so. We can assume that at least a small portion actually bought the content and are downloading this copy as it is more comfortable to use on their computer (due to DRM restrictions, let’s say), some are actually selling their legal copy to a friend and using a private p2p .torrent to convey the first sale doctrine (Like Vernor v. Autodesk), some are conveying a copy as a fair use right, to create a derivative work in a research or for personal study of the work, and some are creating a digital archive or researching network behaviour.

Seeking out legal action against a swarm is problematic. You do not have an actual person which infringes, but a computer connected to a network; this computer could have been configured to automatically download content, for example, download automatically any popular movie using The Pirate Bay’s top 100, such download does not contain any human intervention and therefore is not an  act of infringement, as infringement has to be done by a real person.

Now, let’s assume that the person actually views the movie. At least the Israeli and US Copyright Acts do not contain a provision prohibiting use, just copying. So, theoretically, such automated mean may be exempt from copyright infringement for personal use. In this very improbable case, no copyright infringement occurs in the swarm, and the swarm may be a copy, but not a copyright infringement.

2 thoughts on “The Swarm, The Cloud and The Real Person Copyright Exemption

  1. Judging from the opinion quoted above, I think the court did a good job of interpreting bittorrent technology and dressing it in legal terms. For far too long, lawyers have wasted time trying to determine how many unauthorized “copies” of a protected work may have been produced inside a computer without a human being ever having seen said copies (much less enjoyed them). The mere ability of a machine to produce a tangible copy (such as a printout) at the press of a button does not in itself constitute another “copy”.

    I want to draw an analogy between the Internet (not just the cables and computers, but its human population as well) and the radiowave medium, the “ether”. Radio transmitters send out information in all directions, and multiple receivers pick up those transmissions. Some receivers act as relays, and begin sending out recordings of the original transmissions, with or without modifications. Sometimes there is atmospheric interference disturbing or even interrupting the reception, but it seldom lasts long enough to actually prevent communication. Simply tune in to a different carrier frequency.

    Where the Internet is built by individual human beings and corporations together, the ether is created and maintained by nature. Radio signals travel through the air, through vacuum, through walls and even through our human bodies with relative ease, although with varying loss of power. We can block radio signals by means of a Faraday’s cage, but normally they will travel without human assistance.

    Although technically very different from the Internet, the ether shares its legal properties of being a non-person, neither a human nor a corporation. You cannot sue “the Internet” any more than you can sue “the ether”. But can you sue the individuals who help building the Internet? Not any more than you can sue the person who allows radio signals to travel through his house or through his own body, I’d say. And that holds true even if you somehow manage to demonstrate that the radio signals from one particular unauthorized broadcast of a song protected by copyright travelled through his house on their way to an identified non-paying recipient (who confessed). Yes, he (the “relaying” house owner) could have interfered with that signal, but he didn’t. Is he liable?

    Now, in the real world of radio you can of course sue the broadcaster, the person operating the original transmitter, if you can find him, which may be possible thanks to the directional nature of electromagnetic waves. Can you do that on the Internet? Well, you can track down an IP address, but that may merely be a relay station among thousands. The digital data as such doesn’t come stamped with a point of origin, and should you somehow manage to trace a particular data set via successive relays to an appearant “source”, you may find that this “source” is no more involved in the infringement than any of the relays. Perhaps the only person who actually provided a copy of the work in its entirety turns out to be – the author and copyright holder himself.

    You can sue the radio broadcaster, not merely because he is a natural or legal person involved with the transmission, but because he is the only person with that distinction. When pretty much everybody and their little brother, plus the dog and the kitchen sink, is physically taking part in the transmission process, singling out just one of them to make an example of him doesn’t seem fair.

    In my opinion, the swarm doesn’t constitute a “copy”, since it lacks physical form. It may however constitute a “performance”, available in the air for some time. Just like an unauthorized copy, an unauthorized performance may in turn constitute infringement of the author’s rights, but you still have to find the guy to collect the money.

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