In light of the current Dallas Buyers Club LLC’s action against netizens here and other parts of the world, I thought for a few moments about the possible explanations innocent people could come up to defend themselves. Then, I began to wonder if perhaps the concept of copyright and piracy is, to some extent, a little flawed with respect to the Internet.
Let me first say I’m not a lawyer. I am not capable of giving legal advice. You should find a lawyer if you need legal assistance. What I write here is entirely my thoughts on the matter, and they could be just entirely wrong.
To be found guilty of a misdeed, I’ve always believed that there must be some direct evidence to point to a specific person, or organisation, that had committed that act. Circumstantial evidence can perhaps be considered if it supports only one logical conclusion.
For example, if a dead body was found beside you, you could not simply be accused and convicted of murder. However, if it can be shown that you entered a room with another person, who was alive, and a while later, with no one else entering or leaving the room, you were found with the dead body inside, then you could be reasonably suspected of committing murder. No need for direct evidence, the circumstantial evidence can lead to only one logical conclusion. Of course, for purpose of this argument, let’s assume that there are other evidence that the other person had died a gruesome death consistent with a murder.
The case that Samuel Seow Law Corporation has, in representing the owners of Dallas Buyers Club, is that an IP address was (I’m assuming) involved in a BitTorrent sharing of the infringing material, and that this IP address according to ISP records was used by a certain subscriber. You could not reasonably infer that the subscriber was responsible for the infringing activity, unless of course, and this I’m not aware is the case, the laws of Singapore makes it so.
There are so many easy excuses to deflect the accusation.
- My dog stepped on the keyboard, he probably started the download.
- There was a trojan in my PC, it has been doing all sorts of weird things without my knowledge.
There can also be technical challenges to the accuracy of the evidence. For example, I believe the ISP’s DHCP logs were used to find the subscriber. Is the DHCP log accurate? What if someone had hijacked another person’s IP address? Just like there is no end to the lame excuses, there is also no end to possible technical reasons. Your Wi-Fi could have been hijacked, for example. The state-of-the-art WPA2-PSK is also easily crackable if your password isn’t sufficiently strong. There’s also the problem that ISPs are going around setting up crappy security in people’s houses.
But alright, all that aside, the purpose of this post is really to ask about how, fundamentally, is an activity on the Internet considered to be infringing. Copyright in the physical world seems to be reasonably well understood. At least most of the time. You copy a book, that’s wrong. But the circumstances in the online world seem to beg for different set of rules, or if not a better understanding of how the rules apply online.
In the online world, you are led to believe that clicking on a movie download, like that of Dallas Buyers Club, amounts to copyright infringement. I want to ask, why?
There are so many clickable links on the Internet. There are links to go to webpages, there are links to go to YouTube videos, and there are links to BitTorrent downloads. Is it my duty to ascertain the right to view a link before clicking on the link? But wait a minute, shouldn’t I have to click the link first to view the content, to then figure out if indeed I had the right to view the content?
Can I put up a webpage on the Internet, and then on the webpage, put a message to say it is illegal for you to read the contents? (And on the web server, I log your IP address to start the ball rolling on sending out some threatening legal letters.)
In this case of Dallas Buyers Club, could one claim that he or she clicked on the link to download the movie, but had absolutely no idea what the movie was, let alone that it was copyrighted and that he or she had not been permitted to obtain the movie in that manner? To be honest, I’ve not even heard of the movie.
The fact that a content is published on the Internet seems to give reasonable assumption that it is public viewable, and that one doesn’t need to check for permission to read. If you go to the Straits Times website, you of course assume that all the pages which you can access are indeed right for you to access. If the Straits Times didn’t want you accessing the webpage, they should just block you, require login, or do whatever it takes to enforce their right.
Now, one possible argument is that the owners of Dallas Buyers Club did not give you a link to download the movie. You discovered the link on the 3rd party site which had no right to do so. Then, go after that 3rd party site? I mean, do you expect Internet users to do the checking? Am I supposed to check that, oh dear, the link on this one website goes to a different website, I better not click on that? How do I use Google Search then, since the search results obviously would link to pages outside of Google Search?
The clicking on web links, in the physical world, is akin to walking down the street and coming across some intellectual property. If you walk past a magazine shop, perhaps you may browse or buy a magazine. You assume that it is legal for you to browse and/or buy the magazine, shady shop notwithstanding. Had it turned out that the shop was really selling illegal magazine copies, it seems the copyright owner should go after the shop, not their customers? The customers had good faith that the magazines were legit!
Another argument, but this is really an unfair technicality, at least to non-tech-savvy users, is that by using BitTorrent, you are also sharing the content you have downloaded. In some sense, you are sharing content illegally. So if you don’t yet know, when you download stuff via BitTorrent, you also share out the contents to others who want them. This is redistribution, and in the real world, like taking a book and making a photocopy of it to pass around. Yeah, that’s bad. But this is how BitTorrent works. In fact, many things on the Internet work by making copies. For example, web proxy servers will cache content, to send to another user who happens to request the same content. That’s redistribution.
I think, whenever end-users are concerned, it’s usually not the case that they are hunted down because of webpage visits or YouTube video consumption. It often seems to be related to file-sharing protocols, like BitTorrent.
Can BitTorrent be presumed to be used for illegitimate activities? I.e. could a copyright owner say that, hey, since you use BitTorrent, surely you are up to no good? No. BitTorrent can be used for many legitimate purposes. I’ve downloaded my copy of CentOS (the community version of Red Hat Enterprise Linux) via BitTorrent. Saying BitTorrent is bad is like saying guns are bad.
A BitTorrent link is still a link. It’s like any other clickable link from a webpage. Some could send you to iTunes, or launch other apps. It may not be fair to presume an ordinary Internet user should or has to distinguish between them. Further, my point is also that it is unfair to expect end-users be responsible to determine the legitimacy of a BitTorrent download.
It seems the owners of Dallas Buyers Club has had some success in U.S. courts. It’s a bit disappointing, but I don’t know the facts of the case, and perhaps in those instances, they did have more convincing evidence of the intellectual property theft taking place. I’m eager, as I’m sure many other people will be, to see how this will play out in Singapore.
For the record, intellectual property theft is wrong. I don’t condone illegal downloads. I’m not supportive of strong-handed speculative invoicing practices either. If you are a victim, check out The Speculative Invoicing Handbook. (More importantly, seek legal advice.)
Share your thoughts below.