I think it's basically a blackmail scheme. Yeah you have a case if they sued you, but you'd be embarrassed by the public accusation of downloading porn so you settle. Or failing that, it's still just extortion by suing people frivolously, which again, people would settle to get out of.
> How is that not "granting permission" to whoever subsequently download the video?
Legally, it’s complicated. If I upload code to GitHub with no license attached, it is technically “all rights reserved.” As in, you have no right to use it at all. If someone has no way of finding out their legal right to use my code, they aren’t allowed to. Same with YouTube: if I make a movie and put it on YT, that’s not an implicit license for you to copy elsewhere.
Logically, it being on a torrent website, you would think it would be different because seeding is a thing, but the law says otherwise.
The problem is that the law doesn’t make a distinction between “seeding” and “distribution”. They’re one and the same.
What if Github added a default license in their TOS? Language like "If you don't explicitly add a license to your repo, we assume you meant MIT". I think that'd clarify that gray area.
In that same vein, a torrent site could have something like this on their upload page: "By adding this torrent to the tracker, you certify that you have the rights to distribute the file, and you hereby grant permission to distribute the file to every user of the site." I don't think Hansmeier could pull off his stunt anymore, as he just granted permission to everyone to do what he was trying to catch them doing.
Note: Youtube has similar terms (the Youtube license) granting all users the rights to reproduce AND modify all videos. Now I wonder if you can do information laundering. i.e. "I was granted permission by Youtube" to appeal a DMCA.
I’d be interesting in how a term like that on GitHub would work. There’s a reason that you have to check a box when agreeing to the TOS; it’s you staying an affirmative to consenting. Implied consent isn’t held up in the courts as well.
Something like an affirmative checkbox on torrent trackers would be a better thing, but it would only prevent situations like Prenda (which are rare).
It'd put the onus on the original uploaders; all downloaders / seeders would (in theory) be able to point to this clause and say "see, I thought I was authorized to do that. Go after [original uploader] instead".
Rights-holders already go after them; this would have the effect of protecting everyone else. At least, that's my theory (but IANAL).
Downloading isn't copyright infringement, uploading is, because you are sharing something without the authorization of the copyright holder. Torrent sites frequently track uploads and kick users off that don't upload, so it would be tricky for their Terms of Service to make an exception that works for their network and also tries to ensnare these honeypots.
And regarding downloading or acquiring or even purchasing: it has never been up to the consumer to know who has the authorization (license) to distribute a work. We just assume Walmart/Target/Netflix/Amazon etc has the rights to sell us whatever we consume. It isn't our problem.
> Downloading isn't copyright infringement, uploading is, because you are sharing something without the authorization of the copyright holder.
That much is true, but when it's the rights holder that's uploading the content, then it's not copyright infringement because they chose to upload it to be shared, while actually having the proper rights to do so.
With DDL hosters there's quite a few that put in the ToS how by uploading a file that publicly accessible for download, you confirm that you have the right to do so, as these services usually do have a ToS as they are mostly run by legit companies.
While with a decentralized p2p network, as bittorrent is, there's really no way to enforce a system wide ToS.
> Torrent sites frequently track uploads and kick users off that don't upload
Not "sites" do that, but communities centered around trackers do that to ensure that there's actually enough upload bandwidth and not just a bunch of leechers that only download but never contribute with their upload bandwidth.
I don’t see any regulatory framework or statute or case law that matches it
You can’t assume the rights holder is giving tacit consent to non-license holders to share. You can assume they are mitigating bandwidth constraints using the bittorrent protocols. Assuming the other seeders are pirates like “you” is the bad assumption here. Relying on autoseeding software to distort the legal reality is the bad assumption here (someone else mentioned this).
A protocol can be used for anything. With torrents there is no one organization that has control over a proprietary piracy tool.
That is how you reconcile it.
If you are sharing things you dont have a license from the creator or another license holder to share, it is copyright infringement. If you are sharing things you have that authorization from then it is not.
Torrents seed automatically. If I purposefully make my own film available as a torrent (I could be an indie filmmaker with limited funds for bandwidth), shouldn't seeding be understood as implicitly allowed?
Downloading is copyright infringement if the uploader did not have the rights to give it to you. Just because it's not common for the rights holder to sue you as a downloader does not make it legal.
There are so-called affirmative defenses along these lines, like equitable estoppel, but the thing about affirmative defenses is that you don’t really get to wield them until you’re damn near trial, which means they don’t save you much money even if they work.
Holy shit. I remember reading about the Prenda Law saga on Popehat[0] awhile back, but I had no idea that these guys had actually been convicted. 14 years in prison for one and 5 years for another!
OP here. When I first saw that headline on Torrentfreak, and before even clicking on that link, I immediately thought "Prenda!" so I'm glad you linked to Ken White's excellent running commentary at Popehat on the long, sorry saga. Prenda Law was also covered well by Mike Masnick at Techdirt over the years: https://www.techdirt.com/articles/20150606/07053031246/team-... and also on the dearly departed Groklaw. A search here at HN yields a good amount of Prenda Law submissions from over the years.
I don't know if "remorse" factored into his original sentencing, but if it did, I imagine that could now be called into question, given his attempt to repeat the same offense while in jail...
I'm a little confused. I understand you can sue people for redistributing your work/content. But how can you put up your content for free and then sue people for only downloading it? Was the guy with the Venezuela IP also redistributing it?
Uploading would have been a crime. Downloading is a civil case. Personally, my defense would be that my computer only sent an industry-standard request to the server, and it's the server's fault for sending me a copy of the data.
According to the article, he used a representative to make the video available. I don't really see a problem with it being possible to own copyrights and file legal actions from prison; if it weren't possible, that would be a problem.
Prison should prevent a criminal from continuing to victimize the general public. When that fails, restrictions on the prisoner should be increased until it does.
In this man's case, he should probably be forbidden from ever owning the copyright to anything again. Anything he utters with his own mouth should go straight into the public domain. That would put an end to this horse shit from him.
It sounds like we need to point out to you yet again that Paul Hansmeier is not in jail for victimizing the public. He's in jail for lying to a judge. The legal system approves of his behavior toward the public.
Given that he has never victimized the public, worry about whether he "continues to victimize the public" is obviously misplaced.
Yet somebody convicted on hacking related charges, or sex offenses involving the Internet, can have their access to Internet, computers and gaming consoles revoked even when on probation [0].
His rights regarding copyright should be taken from him. This is no different from a convicted murderer no longer having the right to own a gun. Allowing this man to continue to sue people is a travesty of justice.
You're providing an excellent illustration of why I don't understand popular coverage of the Prenda case.
Paul Hansmeier isn't in jail for abusing copyright, or for doing anything the courts thought was wrong relating to copyright. He's in jail for misrepresenting facts to the court. The entire case against Prenda was that they represented to the court that they were agents of the copyright owner, when in fact they were the copyright owner themselves. There was nothing, legally, wrong with their suit.
And yet everyone seems to think of the Prenda case as a victory against copyright trolling. It is no such thing! Why would Hansmeier lose rights to own copyrights, when he didn't do anything wrong with the copyrights he had?
The minor point here is that what he's suing for has no connection to his misbehavior. If lying to the court in a copyright lawsuit doesn't bar him from suing for libel, there's no reason for it to bar him from suing for copyright infringement.
The major point is that malfeasance in a lawsuit can't get you barred from the courts, for the obvious reason that people can still commit crimes against you even if you once misrepresented yourself in court.
The constitution gives us the right to the courts, and he should be allowed to keep that right. When he’s served his debt to society, his rights should be restored. That’s the point of the justice system. His reputation is already ruined, we don’t need to be vengeful with our punishments.
I don't give a damn about his reputation. The point of the legal system is to protect the innocent, not ruin the reputations of the guilty. He continues to use the legal system to victimize people, and this should not be allowed. Strip him of his right to sue anybody over copyright. Leave intact his right to sue the government to restore his other rights. To this man, courts are a weapon used to extort people. Allowing a criminal like him to keep his weapon is moronic.
Again. You’re angry and asking for vengeance. The legal system isn’t for that. Constitutional rights should never be able to be removed.
Can you imagine if we allowed someone’s entire right to the courts be removed? In that instance, you wouldn’t even be able to challenge your lack of rights. That’s not right. But by advocating for no access to the courts in one instance, there will be people advocating for more. So we draw the line somewhere and say your right to the courts can’t be taken away.
I’m also ignoring how you’re ignoring the actual reality of the Prenda scandal. It wasn’t over copyright infringements lawsuits. It was about lying to the court. Sure, they filed frivolous lawsuits, but that wasn’t why they were arrested.
You can be treated as a nuisance by the court, if you demonstrate a tendency to file meritless suits, but Hansmeier didn't do that either. He was sent to prison for lying to the court; the merits of his copyright suit don't enter into it.
And again, even if you're formally a nuisance, you can't be barred from the courts. That would be a travesty of justice. You just get your suits viewed more prejudicially.
When owning copyrights and filing legal actions from prison was what got you into prison, it starts looking less like exercising normal commercial rights, and more like 'running a criminal enterprise from prison'.
It's much like a mob boss, who keeps running his empire from prison. This is generally frowned upon by our correctional system, and can be resolved by monitoring mail, revoking visitation privileges, and punitive stints in solitary.
How is that not "granting permission" to whoever subsequently download the video?
Seems like an easy defense would be having the site add a small section about that in their TOS.