BitTorrent and Copyright Infringement Liability Issues

What is BitTorrent?

BitTorrent refers to both a protocol and the company that developed and maintains the protocol. Initially developed in the early 2000s, the BitTorrent protocol is the most popular method for peer-to-peer file sharing. While estimates vary, BitTorrent Inc. claims that “Our protocols move as much as 40% of the world’s Internet traffic on a daily basis”, and it has over 150 million monthly users.

The BitTorrent protocol has been widely adopted because of its efficient method for sharing large files. Files are not shared in a one-to-one server-client relationship, but rather split into multiple pieces. Metadata for a file is stored in a separate torrent file, and other users with that torrent descriptor can use their BitTorrent client software to connect to any peers on the network (called a “swarm” in BitTorrent terminology) who share the descriptor and therefore have all or part of the file. As such, each user can both “leech” (download) and “seed” (upload) different pieces of the same file from a distributed set of peers. Security is provided by a cryptographic hash in the descriptor to allow for detection of modification of any individual piece of the original file.

BitTorrent Inc. not only maintains the protocol but also provides desktop software that serves as the protocol client, although there are a variety of other open- and closed-source clients available. Additionally, several companies have entered the market to act as indices and search engines for torrent descriptor files; the most popular and famous among these is The Pirate Bay. Thus, a user may search for a copyrighted movie through The Pirate Bay and use the BitTorrent protocol through an open-source client to download hundreds of pieces of a file from hundreds of users around the world.

BitTorrent’s liability for secondary copyright infringement

A recent ruling in March 2013 by the Ninth Circuit upheld the liability of a BitTorrent indexing website for violating secondary copyright infringement. The case was bought by Columbia Pictures Studios against Gary Fung, whose company owned several websites (,,, and that index and direct users to BitTorrent files that provide access to copyrighted content. The district court held that Fung and his company were secondarily liable for copyright infringement, and that Fung could not seek protection under ‘safe harbors’ of the DMCA due to his intentional infringement of copyrighted material.

Fung was liable for secondary copyright infringement because he induced users to violate copyright by encouraging them to upload torrents for copyrighted content, personally providing assistance to upload, locate, and assemble torrents for download, and posting featured list of torrents for copyrighted films on his website. This triggered the inducement liability ordered by the Supreme Court in MGM vs Grokster:

“[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” 545 U.S. at 936-37

Furthermore, Fung failed to use available filtering mechanisms to prevent infringement on his website and generated revenues almost exclusively through advertisements and the increased traffic on his website due to the availability of copyrighted content. The court ruled that Fung could not avail himself of the safe harbors for storage or for information location tools because of both his active encouragement of infringement activity on his website and the financial benefit he received from the infringement activity, despite having the ability to implement filters to prevent the infringement. These two reasons disqualified Fung from DMCA protections.

The Ninth Circuit held, “if one provides a service that could be used to infringe copyrights, with the manifested intent that the service actually be used in that manner, that person is liable for the infringement that occurs through the use of the service”. As such, the Grokster case remains a viable theory for holding defendants accountable.

Other copyright issues around BitTorrent and file sharing

While some copyright holders have pursued legal action against file-sharing software creators for secondary infringement, the Recording Industry Association of America (RIAA) also sued over 35,000 individuals for primary copyright infringement via file-sharing between 2003 and 2008. This was an expensive endeavor that ultimately did not generate big legal wins for the music industry due to their reliance on a tenuous “making available” theory of infringement, whereby the RIAA claimed individuals violated copyright simply by making copyrighted material available to others using file-sharing software. Several federal courts ultimately rejected this claim, most emphatically in the Arizona case Atlantic v. Howell, where the judge ruled that infringement of copyright-holders’ distribution rights requires actual distribution of copies of the work.

In late 2008 the RIAA changed its strategy and essentially stopped prosecuting users of file-sharing networks for primary copyright infringement. Instead, it partnered with Internet service providers (ISPs) to propose a “three strikes” program in which ISPs would warn customers accused of infringement up to three times before ultimately cutting off their Internet service. This system took years to develop and was ultimately implemented in early 2013 as a “six strikes” system enforced by five of the largest ISPs in conjunction with the RIAA, the Motion Picture Association of America (MPAA), and other copyright holders, under a new umbrella organization called the Center for Copyright Information (CCI). Alleged infringers may challenge a CCI Copyright Alert in arbitration by claiming one of a few preselected appeal grounds, including fair use.

No court has yet ruled on the legality of this new regime, but it raises some important legal and policy questions in the realm of copyright and beyond. For instance, the “six strikes” system’s presumption of guilt may in some cases contradict the ruling in Online Policy Group v. Diebold that a party may not claim infringement when it “should have known if it acted with reasonable care or diligence” that the claim is false. One of the CCI’s preselected appeal grounds—namely the “pre-1923 defense” that the work in question was published prior to 1923—certainly seems like reasonable information to obtain prior to making an infringement claim.

Perhaps more troubling are the privacy implications of ISPs snooping on their customers’ Internet traffic in order to uphold their obligations to the CCI. At the time the new system was implemented, the Electronic Frontier Foundation (EFF) noted significant concerns with the manner in which this monitoring may be carried out. Presumably ISPs have updated their terms of service and other privacy notices, if necessary, to avoid being charged by the Federal Trade Commission (FTC) with using deceptive practices. But the lack of customer input and potential abuse of this packet sniffing may eventually lead to further legal battles, so this will almost certainly not be the last we hear about policies to curb copyright infringement through file-sharing software.

by Pete Swigert, Sufia Siddiqui, and Jason Ost