Don’t Download That Bro, You’re Going to Get Busted!

One of the most enduring questions in the history of online file-sharing asks whether something bad will come from downloading and/or sharing a particular product. Will the the recording and movie industries come knocking? Will the police or even the FBI take an interest? Are the evil bottom-feeding trolls watching my torrents? It's a complex area, but one that's fairly easily understood.

sparrowEver since the very first file-sharing lawsuits (or at least threats of them) raised their heads in the last decade, people have wondered if they might become the next victim. Many carried on oblivious and haven’t had a single problem, but others wonder if there is some kind of magic formula to staying out of trouble.

A decade on and what we are faced with is a constantly developing picture, one that’s complicated by varied jurisdictions and legal frameworks plus rightsholders with diverse sensitivities and attitudes as to how the ‘problem’ might be solved. We’re not going to attempt a detailed worldwide sweep today, but before moving onto the situation in the United States let’s first consider two countries in Europe with extremely different approaches to the issue.

In Switzerland, file-sharers can literally go nuts and pretty much download whatever they like. The overwhelming odds are that no-one is going to do anything, since monitoring file-sharers in Switzerland is banned.

Summary: Free-for-all.

In Germany the situation is very different. Internet subscribers can be held liable for almost everything that goes on via their connections, a situation which has attracted hundreds of thousands of troll lawsuits, not only from bottom-feeding opportunist purveyors of third-grade media, but also the major record labels too.

Summary: Consider everything dangerous and connected to a potential pay-up-or-else letter.

Somewhere between these two countries is the UK, where there is the occasional troll lawsuit, but only against those who have shared porn manufactured by a single producer. Personal file-sharing is being monitored by the major labels and movie studios for intelligence purposes, but no-one ever gets punished for doing so. ‘Strike’ warnings will probably go out in the next few years, but nothing is imminent.

Summary: Overwhelmingly unlikely to get sued or busted for anything – movies, TV shows or music (mainstream or otherwise) – but file-sharers are definitely being watched.

The Netherlands offers a different position again. Downloading movies, books and music for personal use is legal, but downloading software isn’t. Adding to this complexity, file-sharers are not allowed to upload anything, which means that sharing copyrighted material via BitTorrent is outlawed. Troll lawsuits have not arrived in The Netherlands yet, but copyright watchdog BREIN has threatened to go after file-sharers if downloading movies and music isn’t outlawed.

Summary: Downloading movies and music is legal, sharing copyrighted material isn’t. Overwhelmingly unlikely to get sued or sued for anything, but this may change in the future.

As widely reported, France and New Zealand are “three strike” zones. Major music, movie and TV show rightsholders are heavily monitoring P2P networks for infringements and sending out warnings to file-sharers. In New Zealand the movie companies feel the process is too expensive for them and are currently sitting on the sidelines, but residents of both countries should be aware that on P2P networks such as BitTorrent they are definitely being watched.

Summary: Chances of being monitored sharing mainstream products are higher than they’ve ever been, but the warning system means that file-sharers will get a heads-up or two before the proverbial hits the fan. At a few hundred NZ dollars punishments are not particularly punitive but whether they offer a sort of perverse ‘value for money’ or not depends on how much people download.

Of course the big one that most readers will be interested in is the United States, and it’s the country with the most complex situation. The risks and punishments are loosely split across product vendor lines.

First off, DMCA notices. Although mainly sent to sites to have content removed, these are also sent out by the major movie, TV show and record labels as a warning to Internet subscribers caught sharing their products. They should be taken seriously, but in the real world are largely toothless. It’s a heads-up that an activity has been monitored but as the particular download has probably long since completed, most people can simply ignore them. At this point it’s still unclear, but it seems likely that DMCA notices sent to individual Internet subscribers will now be replaced by alerts under the so-called “strikes” mechanism.

This six-stage warning system is being used by the major recording labels and the members of the MPAA. These companies’ products dominate the music charts, movie theaters, rental stores and TV channels, so when looking at music or video featuring the world’s biggest stars, chances are those products are being monitored as part of six strikes.

Without going into the politics of whether the strikes project is fair, what it does provide is a warning mechanism. People can get caught sharing mainstream media many times before they face even the possibility of some kind of legal action. People shouldn’t be complacent though as that still might happen for the most persistent of offenders.

Six-strikes also removes most of the concern that a petty file-sharer will have his door kicked in by the authorities at 5am in the morning, but that’s still a possibility if the individual is involved in providing content to a well-run file-sharing release group or site. If people involved in this kind of activity aren’t already presuming they’re being watched, they should be.

But of course, the burning question is which content is being monitored? Which TV shows, which movies, which music albums? In the absence of any central source of information that question can only be answered accurately by rightsholders, but let’s try to solve this puzzle with what we do know.

For a moment let’s presume that the removal of links to illicit online content shares the same motivation as the monitoring of end users for the purposes of warning them. Google receives millions of takedowns every month and lists these in its Transparency Report, so a trawl through that database will show which content rightsholders want to protect. That’s not exactly a two minute job though, but there is an easier way.

To find out if a rightsholder is actively enforcing its rights by sending takedowns, simply search Google for any content followed by the word ‘torrent’. (Tip: “Game of Thrones” + torrent illustrates this perfectly)

Once the results appear, scroll down to the bottom of the page and see if listings have been removed and replaced with a line saying that the takedown notice can be found on Chilling Effects. The notices can be checked for a date to see if the monitoring is current or historical, i.e whether rightsholders used to be interested or still are. It’s not a guaranteed or fully comprehensive method of discovering what’s being monitored, but it should give a general idea.

While people might complain about ‘six strikes’, it is much, much better than the digital disease that spread to the U.S. from Europe in recent years – the detestable copyright trolls and their horrendous lawsuits. These people scan file-sharing networks for infringements and do not give out ANY warnings whatsoever before demanding huge sums of money to make supposed lawsuits go away.

Sadly, with these people the Google technique doesn’t work at all. These companies overwhelmingly make zero effort to take any content down since it’s in their interests for it to stay up – more content, more people to sue and receive settlements from.

Fortunately though (with a few notable exceptions – Hurt Locker, The Expendables), their content tends to flow massively from one direction so can be more easily avoided. It’s become evident that trolls love porn and as a result have targeted as many as 300,000 people in the United States in recent years. Amazingly and thanks to a frankly herculean effort, a list of movies recently monitored by trolls is available here. It’s not a complete database, neither can it predict which titles will be targeted in the future, but it’s somewhat of an eye-opener.

Conclusion

To pick a slightly unpleasant analogy, asking about the risks associated with downloading copyright material is a bit like wondering whether the guy or girl in the bar tonight is likely to result in a ‘good time’, or whether that will be followed up by call from the local clinic. We all know there are people who throw caution to the wind and ‘partner up’ whenever they can, take no precautions and come out just fine. Equally, there are those who slip up just once and end up paying the price.

Just like in the ‘real world’ it’s possible to reduce the risks to almost zero by using some sort of protection. Otherwise the outcome will always be unpredictable, but at least within the parameters detailed above.

So….do you feel lucky?

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