News - Game Pirates check your post! UK publishers sending out 25,000 letters demandi

[aidanjt]

However you can only download from a seed by actually telling your computer to find and download said files.

Its not like they are placing the illegal software on a server and seeing what happens, you have to have actualy downloaded a torrent file and run it with the intention of obtaining an illegal copy of what ever it is you are after.

Yes, and the torrent file sits where?.. On a server, if they upload a torrent file they are implicitly offering the protected media to the public. And client intent is irrelevant after that.

Like I said, in order for them to do it on the level, they can only connect to an existing swarm and cripple their upload.

If they create their own swarm, then it's entrapment.

[aidanjt]

There needs to be a better way of doing this and they only 100% fool proof way I can see is to have a device physically attached to the suspects line (like a phone tap)

++

This is a good idea actually, as long as it's handled by the police with authorisation from a Judge who's knowledgable about the issue.

[Jay]

It sounds to me like this is a case of circumsantial evidence being presented as fact to a Judge who may not know exactly what he is looking at.

Same here.

Some people will cough up the money, others will just laugh and carry on. I hope people see their "mistake" and stop downloading / uploading but the people who really need to be taken down will never be caught becasue they are always one step ahead.

To me it doesn't really seem worth it.

[TheBloodyNine]

Yes, and the torrent file sits where?.. On a server, if they upload a torrent file they are implicitly offering the protected media to the public. And client intent is irrelevant after that.

Like I said, in order for them to do it on the level, they can only connect to an existing swarm and cripple their upload.

If they create their own swarm, then it's entrapment.

However if it works as I suspect, and this is subject to my own interaption.

Example

Codemasters contact investigators ask them to find people downloading/uploading DiRT

Investigators go to torrent site and download torrent (freely availible before investigators are even involved) with permision from Codies so it legal.

Investigators then complete download, and seed.

Pirate downloads same torrent from torrent site and begins illegal download, computer searchs for seed and contects to investigators computer.

Investigators log connections.

There is no explicit advertising, there is no entrapment, there is nothing illegal in their actions.

They are acting like a honey trap, like if your missus thinks you are cheating, she sticks some hot girl in your loacal and waits for you to try it on.

[aidanjt]

However if it works as I suspect, and this is subject to my own interaption.

Example

Codemasters contact investigators ask them to find people downloading/uploading DiRT

Investigators go to torrent site and download torrent (freely availible before investigators are even involved) with permision from Codies so it legal.

Investigators then complete download, and seed.

Pirate downloads same torrent from torrent site and begins illegal download, computer searchs for seed and contects to investigators computer.

Investigators log connections.

There is no explicit advertising, there is no entrapment, there is nothing illegal in their actions.

Yes, in that case (as long as 'seeding' throws out bogus fragments), it is very much on the level, as I was talking about. But creating their own torrent and posting it on a tracker would be entrapment. That's why Judges need to be properly trained to deal with these matters, subtile differences in technologies can make all the difference in legality.

They are acting like a honey trap, like if your missus thinks you are cheating, she sticks some hot girl in your loacal and waits for you to try it on.

Not quite a honeypot, but almost.

[Saracen]

No, but a better anaology to seeding your own copyright material would be to leaving all your doors and windows wide open with a sign post in your front garden saying "Please enter my home and help yourself to any of my stuff that interests you", then removing the sign post and reporting a burglary. That would be entrapment.

Again, not a valid example, and not a good analogy.

Making material available on the web does NOT infer any right to copy it other than within the copyright act's provisions or any permissions granted by the rights holder. If I write an article and put it on a website, you can reasonably infer that you can visit and read it, and that any temporary copies created in browser caches would be okay. But you can't download it, and use it on your website, or sell it to someone else.

In the same way, leaving your window open is not an invitation to burglary. A company is not committing any offence by downloading their own material, or by having P2P trackers identify it, any more than I am if I leave my window open. Nor are they falsely reporting a crime, as you would be in your analogy.

If you do what you suggested, Aidan, the crime is not when people take you at your word and take whatever they feel like. No crime has been committed, because what they took they took with your blessing. In the same way, if a games company puts material up for download and gives permission, it's not a copyright offence precisely because they gave permission. It would be, if they then reported it as a crime.

In the same way, people taking your goods as per your analogy are not committing an offence. You, however, would be when you reported it. If the games companies had done the equivalent to your analogy of putting a sign up inviting people to take the goods, they could not later complain about copyright being infringed, because they had granted permission.

Putting material on a website, or on a P2P tracker, does NOT confer any form of copyright permission. Copyright rights cannot be assumed implicitly, because work is on a site, or a P2P tracker. They have to be explicitly granted. And the onus is on the person using a work to ensure they are doing so with permission. If I put an article or photo or musical work of mine on the web, I don't need to do ANYTHING to have copyright, and you have NO right to use it unless that use comes under a fair dealing exemption, or you have permission.

Of course, if it gets into a dispute over copyright, I would have to prove I own the copyright, and thus copyright notices, symbols, explicit statement statements of reservation of rights all help on the evidential side, but in theory, copyright exists in an original work by virtue of the act of creation and, until it runs out, it's for the user to ensure they have permission before they use. And that includes making a copy from a P2P source.

[Saracen]

Yes, and the torrent file sits where?.. On a server, if they upload a torrent file they are implicitly offering the protected media to the public. And client intent is irrelevant after that.

Like I said, in order for them to do it on the level, they can only connect to an existing swarm and cripple their upload.

If they create their own swarm, then it's entrapment.

You're wrong, I'm afraid. They are not implicitly offering anything, and certainly aren't granting any rights, and more than my open window is an implicit offer to a burglar. It might be a temptation, but only if he has the intent and acts on it.

[aidanjt]

Again, not a valid example, and not a good analogy.

Making material available on the web does NOT infer any right to copy it other than within the copyright act's provisions or any permissions granted by the rights holder. If I write an article and put it on a website, you can reasonably infer that you can visit and read it, and that any temporary copies created in browser caches would be okay. But you can't download it, and use it on your website, or sell it to someone else.

In the same way, leaving your window open is not an invitation to burglary. A company is not committing any offence by downloading their own material, or by having P2P trackers identify it, any more than I am if I leave my window open. Nor are they falsely reporting a crime, as you would be in your analogy.

If you do what you suggested, Aidan, the crime is not when people take you at your word and take whatever they feel like. No crime has been committed, because what they took they took with your blessing. In the same way, if a games company puts material up for download and gives permission, it's not a copyright offence precisely because they gave permission. It would be, if they then reported it as a crime.

In the same way, people taking your goods as per your analogy are not committing an offence. You, however, would be when you reported it. If the games companies had done the equivalent to your analogy of putting a sign up inviting people to take the goods, they could not later complain about copyright being infringed, because they had granted permission.

Putting material on a website, or on a P2P tracker, does NOT confer any form of copyright permission. Copyright rights cannot be assumed implicitly, because work is on a site, or a P2P tracker. They have to be explicitly granted. And the onus is on the person using a work to ensure they are doing so with permission. If I put an article or photo or musical work of mine on the web, I don't need to do ANYTHING to have copyright, and you have NO right to use it unless that use comes under a fair dealing exemption, or you have permission.

Of course, if it gets into a dispute over copyright, I would have to prove I own the copyright, and thus copyright notices, symbols, explicit statement statements of reservation of rights all help on the evidential side, but in theory, copyright exists in an original work by virtue of the act of creation and, until it runs out, it's for the user to ensure they have permission before they use. And that includes making a copy from a P2P source.

By your view, everyone who downloads anything from the internet is breaking the law, since nobody recieves explicit permission to get anything (even webpages are copyright protectable), in reality, this is not the case. Implicity offering material is very much enough to have license to read the material (but not redistribute it, of course).

[Saracen]

++

This is a good idea actually, as long as it's handled by the police with authorisation from a Judge who's knowledgable about the issue.

In the way in which this action is being taken, it is not a criminal investigation and is not a police matter. Copyright infringement can be criminal, but not in the context of these letters or court actions. It's a civil dispute and the police aren't involved.

[Jay]

Well then if you ignore it what is the worst that can happen?

[Saracen]

By your view, everyone who downloads anything from the internet is breaking the law, since nobody recieves explicit permission to get anything (even webpages are copyright protectable), in reality, this is not the case. Implicity offering material is very much enough to have license to read the material (but not redistribute it, of course).

No, that's not at all what I said.

Any sensible website defines what you can and can't do. Hexus, for instance, explicitly makes clear that all rights are reserved, and that as part of the T&C, "The content of the pages of this website is for your general information and use only."

The BBC state

All copyright, trade marks, design rights, patents and other intellectual property rights (registered and unregistered) in and on bbc.co.uk and all content (including all applications) located on the site shall remain vested in the BBC or its licensors (which includes other users). You may not copy, reproduce, republish, disassemble, decompile, reverse engineer, download, post, broadcast, transmit, make available to the public, or otherwise use bbc.co.uk content in any way except for your own personal, non-commercial use. You also agree not to adapt, alter or create a derivative work from any bbc.co.uk content except for your own personal, non-commercial use. Any other use of bbc.co.uk content requires the prior written permission of the BBC.

Thus, in both cases, permitted usages are defined, and all other usages not permitted.

And yes, if a website doesn't explicitly give you permission even to read, then technically, you'd be infringing copyright by doing so. However, we're talking about civil breaches of copyright law, and only a limited range of options are available for breaches of civil law on copyright. Essentially, they are :-

- damages for losses suffered
- injunctions to prevent further breaches
- seizure orders of infringing copies.

In the case of reading a website, it's hard to see how infringing copies could be seized, though I guess it's conceivable that if you copied and printed, or hosted files elsewhere, it's possible. You could certainly be injuncted against further breaches, though in practice I can't see the point. And, how could anyone establish the extent of losses they;'d incurred by you reading a webpage?

So while technically someone might be able to take court action for reading a webpage, in practice, it's a farce. But if you reuse that material and someone loses out as a result .... that's very different. A company used some of my copyright work without permission in Australia .... and I wasn't the only one it happened to. The fact that they did not have the rights to do this and that they had breached copyright was pointed out, and a settlement figure was agreed. I banked the cheque on that one, Aidan, so I have some direct experience of what I'm talking about here.

[Rosaline]

Copyright law is a strange thing.

One thing most people fail to realise that is that you can never escape copyright. There is actually no provisions under copyright law to 'give up' your rights, only to enable more open leasing (with an allowance for reviewing this).

When content is offered online, there is typically an implied licence to the audience to download and view the content. This implied licence extends only to the viewing, not to manipulation, redistribution, re-licensing or so on. I don't have the court references to hand, but I know that under case law, this has been shown to be the case. An artist may reasonably expect their work to remain their own and only licensed for viewing purposes, and does not need to explicitly state that they reserve all rights and grant only such a licence.

If a company which has made a limited licensed product searches online for illegally distributed copies and downloads a copy, no offence has been committed. The company, as the original licence holder, may grant itself (or the researcher performing this investigation) the right to undertake this activity with their own material.

Where a company attempts to locate file-sharers by downloading a torrrent and also uploading from it, there is a question regarding the nature of what is happening. I would presume that in the majority of cases, only the broadcasted other peers would be recorded and no upload would take place. However when uploads do take place under the knowledge of the company, it implies the granting of a licence to those who receive the uploads. Companies may attempt to get around this via claiming that they are licensing only those segments which they upload, however it remains to be seen if this approach would survive in court.

However, I have to stress again that in most cases, I doubt that the investigators would be foolish enough to actively distribute to the peer network themselves.

The internet and peer to peer systems have vastly complicated modern copyright law. No longer is there a clear distinction between those who copy (and hence break the licensing terms of the copyrighted material) and those who receive the results. It has also eliminated an expectation of profit-making from the sale of illegally copied goods.

Some people earlier in this thread have mentioned second hand copies as 'proof of game ownership' (and hence that a licence to the material was granted). However it really needs to be mentioned that second hand games are unlikely to protect anyone, as they are a grey market. Under the licensing terms of most games, you pay for a non-transferable license to install and use the software on typically a single machine. Generally, a blind eye is turned to this grey market, as it helps to ensure that gamers can buy the latest releases (by selling off their old games), and the status of such EULAs has not been properly tested in any court. However I would strongly advise avoiding this line of defence, since the EULA makes clear that no further licenses will be granted after the first purchase to any subsequent owner.

[Saracen]

Well then if you ignore it what is the worst that can happen?

Ignore what? The warning letters?

If so, the worst is that you get sued. In the case in the article that started this debate, One lady did ignore a warning and did get sued. She ended up having an award of some £6000 against her, and £10,000 in the other side's costs. So it cost her £16,000. And, of course, the hassle and stress of fighting the court case .... and losing.

But, unless what you've done is criminal, it won't involve the police, won't involve prosecution or the criminal courts, and won't involve jail of fines.

Copyright infringement can be a criminal offence, but the type of thing we're talking about here isn't. The most obvious way to turn it criminal is to infringe copyright in the course of a business. It isn't the only way, but the most obvious.

[kalniel]

Under the licensing terms of most games, you pay for a non-transferable license to install and use the software on typically a single machine. Generally, a blind eye is turned to this grey market, as it helps to ensure that gamers can buy the latest releases (by selling off their old games), and the status of such EULAs has not been properly tested in any court. However I would strongly advise avoiding this line of defence, since the EULA makes clear that no further licenses will be granted after the first purchase to any subsequent owner.

I'm not sure that the non-transferability clause of a EULA has been tested, but the legal status of a game EULA has been tested and found to be binding, in the case of Davidson & Associates (that's Blizzard to the rest of us) vs Internet Gateway for example.

[Jay]

its a very grey area and it seems that civil action can weaken some of your rights. If this is so then the only way to prove that your are innocent is to get them to prove, without doubt that you are guilty and that would be VERY hard to do, maybe even impossible.

Its strange, on one side I 100% agree with this as people who are downloading in this way need to be stopped, but on the other some people will be tarred by the same brush and that is unfair. In my eyes you should never accuse anyone of anything unless you are 100% sure ALL the people you accuse are actually guilty and in this case I doubt that it is possible to be 100% sure.

Now I know some people will think "if you haven't done anything why worry if you get a letter?" but thats not the point, the point is that some people (most people) are not as wise to the technical side of this subject and a letter like this would worry them. My mum is 62 and she uses wireless internet, if she got a letter like this it would worry her and it could be as simple as a cloned modem or some one could have found her wireless password. If she ended up in court could she defend herself, could anyone defend her? I doubt it and she would probably have to pay the fine.

Witch hunting if you ask me.

[kalniel]

I agree presumption of innocence is the preffered take, but I don't think lack of being guarenteed 100% sure in every case should prevent steps being taken to reduce piracy.

If I were wrongly accused then I might not like it, but it's easy enough to prove innocence (just hand my computer over and say 'have a look'). Of course I shouldn't *have* to, but then publishers shouldn't *have* to deal with piracy either. It would be just one more inconvienience that pirates force on decent users, which is why I have little respect for them and think it's quite sad that they even exist among Hexus' otherwise intelligent reader base.