Dear Lifehacker, The other day my friend started downloading a torrent of Game Of Thrones on my home computer. I discovered this a few minutes into the download and quickly deleted it. Can I still be fined? Technically I didn’t download anything. Concernedly yours, Half Pirate.
This is a somewhat complex question to answer, because in essence it relates to ongoing legal matters, and there’s not a whole lot of precedent in play. As always, if you did end up with any kind of threatened legal action, it would be wise to consult a lawyer first and foremost.
That out of the way, the prevailing legal winds suggest that it’s entirely likely that you could be fined were action taken against you even though you haven’t downloaded an entire copy of an episode. It’s quite likely that were an action taken against you, the ruling in the Dallas Buyers Club LLC case would be cited as precedent. There, the ISPs argued that because only slivers of a film were downloaded, copyright infringement could not be proved, but Justice Perram took a different view. He stated that
I am comfortably satisfied that the downloading of a sliver of the film from a single IP address provides strong circumstantial evidence that the end-user was infringing the copyright in the film. It certainly provides enough evidence on a preliminary discovery application. The applicants do not need to establish even a prima facie case of infringement for that purpose.
This of course relates to the issue of preliminary discovery currently at the heart of the Dallas Buyers Club case, however, Perram’s other comments do indicate a willingness to read copyright law as stating that even partial infringement, which a partially completed torrent would almost certainly qualify as, is still copyright infringement and something that could be pursued.
I therefore accept the submission made by the ISPs that the individual ISP addresses which Maverik Monitor detected making the film available for downloading from the identified IP addresses reveal only a download of a very small sliver of the film. I reject the ISPs’ argument that it is not sufficiently shown that the end-users infringed the film’s copyright because no ‘substantial’ copying occurred. I do so, in short, because that is not the question to be asked, which is instead whether the end-user has made the film available on the internet.
So what can you do if you do get chased down by HBO?
You could always get your friend to front up to court, cap in hand to admit to the crime, although that feels unlikely. You may be rescued by the new industry code of conduct that’s on the table right now that could only lead to a single information notice being sent to you if this is indeed your first infringement.
You could also keep your own neck off the line by more closely monitoring your home network activity with a tool such as Smoothwall. That won’t stop torrenting, but it’ll make it easier for you to identify a machine and perhaps a user if the copyright police do come knocking.
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