The Conundrum of Torrent and Intellectual Property – A Critical Study
August 24, 2022
In order to analyze the complex relationship between torrent sites and Intellectual Property, it becomes imperative to first separately comprehend the meaning of certain words and phrases relevant to the same.
The word Torrenting in layman’s terms is a peer-to-peer file-sharing technology. It does not depend on the conventional single server method for downloading data. Instead, it essentially divides the data into sub-parts of packets that get distributed amongst the participating users. Through the specific file transfer protocol of BitTorrent, the users or peers download as well as upload (also known as leech and seed) the packets simultaneously by providing their personal bandwidth.
This creates a network or a file swarm of users who are involved in the torrenting process. The aforementioned packets then get re-combined in the file swarm such that the full file is accessible. Thus, torrent websites act as the mechanism through which users can discover and avail of the torrent files created.
The phrase Intellectual property can be described as non-physical property that is the product of original thought. The World Intellectual Property Organisation (WIPO) has defined the same as the creations of the mind, such as inventions; literary and artistic works; designs; symbols, names, and images used in commerce.
Copyright – Rights of creators over tangible literary and artistic works.
Trademark – A sign, tagline, logo design, etc. that allows a company to distinguish itself from its competitors.
Patent– Grant of some exclusive rights for inventions or discoveries (mostly technological).
Geographical Indication – A sign that indicates the geography or the territorial origin of a product due to which the product has a reputation or some specific characteristics.
Trade Secrets – Proprietary and confidential information of a company.
Industrial Design – Legal protection that is about the ornamental aspects of a product.
Legal Analysis of Torrent Sites
The root of ethics and economics lies in the fact that if a corporation is creating a product available in some form of a data file (for instance: a movie, a television show, a song, a video game, a book, etc.) by investing its time, money and energy; that product has to be duly purchased by its customers for the overall venture to be financially successful.
If the customers use a mechanism through which they can illegally pirate that data to avoid payment of monetary compensation, the corporation undergoes an immense and wholly unjust financial loss. Their invention is essentially stolen and disseminated amongst the general public without their consent. Herein lies one important feature of the dilemma between torrent sites and intellectual property. Though the act of torrenting itself is perfectly legal, situations arise where the users knowingly or unknowingly access data that is copyrighted by the original company.
This is precisely why the Indian Government in the year 2016 decided to be stern about the violation of piracy and copyright infringement. The Department of Technology issued a statement and blocked certain popular torrent websites like TorrentLinks, BitTorrent, TorrentDownloads, LimeTorrents, etc. If any individual tried to access the same, the following warning would pop up on their screen:
This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting, or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to Sections 63, 63-A, 65, and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of up to Rs. 3,00,000/-. Any person aggrieved by any such blocking of this URL may contact at firstname.lastname@example.org who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance.
In 2019 as well, the Delhi High Court banned multiple torrenting sites which violated the copyright of film production companies such as Twentieth Century Fox and UTV Software Communication Ltd. in a landmark case law. According to the order passed by Justice Manmohan in the same, torrent websites fall under the category of rogue websites and must be dealt with appropriately.
Website blocking must be reasonable and proportional to the facts and circumstances of the infringement. Furthermore, it suggested to the Department of Telecommunication (DoT) as well as the Ministry of Electronics and Information Technology (MEITY) to come up with a policy for a graduated response scheme. Here, the individuals who access pirated content can be notified of the same by Internet Service Providers, and if they do not refrain from continuing such actions, they may be fined.
Torrenting and Internet Safety
Another issue in regards to torrenting sites is safety and internet privacy. A person’s Internet Protocol (IP) address, general location, Domain Name System (DNS), etc. may be leaked while they are torrenting any file. This affects their basic right to privacy. Furthermore, it allows for the risks of malware and potential cybercrime. The technique used by skilled users to overcome these issues is known as a Virtual Private Network (VPN). This is nothing but an encrypted connection over the Internet from a device to a network.
It could be useful in terms of torrenting as it hides internet activity from an internet service provider (ISP). This is because an ISP in general has the authority to share information regarding copyright infringement violations with the original company. Thus, when a person uses a VPN, they may be able to avoid potential lawsuits. However, a VPN does not guarantee 100% protection against the same. Thus, the act of torrenting is still highly dangerous if not done properly by a person possessing apt technical and legal knowledge.
The Dilemma between Torrent Sites and Intellectual Property
An interesting suggestion meant to solve the quandary of torrenting and intellectual property is the creation of liability towards the providers of the BitTorrent software. The theory proposes that a new clause must be added to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) defining minimum liability standards for the same. The liability would be in the form of monetary or other specific relief provided that the providers of the BitTorrent software had knowledge about the likeliness of the infringement and contributed towards the same directly or indirectly.
Another possible solution could be the execution of the 8 modest proposals suggested by Peter K. Yu which are as follows:
Mass Licensing: This is defined as a standard form used or to be used in multiple transactions where the sale or license of the particular information is directed to the general public through retail or similar distribution under substantially the same terms for the same information if the license is acquired or received by an end-user under terms consistent with that general distribution and (A) the information is not customized or otherwise specially prepared for the particular licensee; and (B) there is no opportunity for the licensee to negotiate terms other than price, quantity, and standard options.
Compulsory Licensing: Here, the government would impose a fee on peer-to-peer file-sharing technologies. This fee would get fairly divided amongst the artists and companies involved.
Voluntary Collective Licensing: The concept of this is that several artists and companies join together to make a collecting society without government intervention. It will distribute its content through peer-to-peer file-sharing technology for a subscription fee in return. The money collected would then be divided amongst society.
Voluntary Contribution: In this model, the artists and companies ask the consumers to provide monetary compensation for their creative works in the form of ransom, tipping, and the honor system.
Technological Protection: This envisages constant technological development, upgrades in the software, stringent security measures, etc. to ensure that the creative work is not easily pirated.
Copyright Law Revision: This asks for a complete rewriting and overhaul of the copyright laws such that it is easier to understand and focuses on the public interest.
Alternative Dispute Resolution Proceeding: This proposal requests the creation of a quick and efficient alternative dispute resolution system that enables copyright owners to get compensation against the people who abuse the peer-to-peer file-sharing system.
Alternative Compensation: This suggests that the copyright system itself should be abolished. The alternative models prescribed are patronage, ancillary service, and home production.
There is constant progress and evolution in the field of technology. New inventions are often developed by brilliant minds to minimize the difficulties of humankind and to make life simpler. Torrent is an archetype of the same as it was initially introduced to make file transferring and downloading easier, cheaper, and faster by using a peer-to-peer system instead of a central file downloading system.
However, conflicts arise when this technology is misused by the general public and loopholes are unethically and immorally exploited. This is when the concept of intellectual property rights comes into the picture. As the act of torrenting is most commonly done to download entertainment files such as movies, television shows, video games, etc; the creators of the same lose money that they rightfully deserve.
Torrenting can also have a detrimental effect on a person’s privacy, security, and online safety. This is because it can leak their private information and potentially leave them vulnerable to hacking, malware, and other cybercrimes. Though a Virtual Private Network might mitigate these issues to a certain extent, they still do not resolve them completely. Thus, it becomes imperative to seek other recommendations or guidelines such as the compulsion of liability towards the providers of the BitTorrent software or the theory of the eight modest proposals. This must be duly considered and implemented by the national as well as international governments.