Posted on Categories creative industry

Copyright trolling of peer-to-peer network users

It is easy to break copyright law when using torrents. Nonetheless, if a demand for payment arrives requesting discretionary amends for harm caused by distributing, say, a film without a licence, it must be read carefully and checked whether its sender is actually the rights holder, or just someone making a living from sending such letters.

Many internet users access platforms and services from which they download music or films. Some of those services operate in peer-to-peer (P2P) networks. Their essence involves the sharing of resources. Each user’s computer in a P2P network may operate both as a client and as a server. In simplified terms, this means that by downloading, say, a movie to a computer, the user automatically allows other network users to access it. Popular services that operate peer-to-peer include: BitTorrent, BitNova, ExtraTorrent and PirateBay. These sites hold movies, TV series, audiobooks, e-books, computer programs and games. Most of them may well involve copyright protected works[1].

A peer-to-peer network user may violate economic copyrights…

The rule is that the exclusive right to use and dispose of a work in all fields of exploitation and the right to remuneration for use of a work is vested in the owner of the economic copyrights (Article 17 CA). However, exceptions exist to this rule.

One of those is “permitted private use”, which allows use, under certain conditions and with the creator’s permission, of a work that has already been distributed[2]. Permitted private use allows, for example, a film to be downloaded from the web, watched, and then passed to a sister or a friend. However, in a peer-to-peer network, not only does the user automatically make the file available once it has been downloaded, but has no impact on who obtains access to it. Herein lies the problem. In this situation, it is difficult to accept that the user is sharing the work with people with whom that person is “in a personal relationship”. Only such people are covered by permitted private use. Therefore, such dissemination will violate the monopoly of the rights holder. It will not be possible to justify that it took place within the bounds of permitted private use. In addition, it must be remembered that permitted use does not apply to all works. It is completely disallowed, for example, for computer programs (Article 77 CA), including games and electronic databases (Article 23 par. 1 CA). This means that with regard to them we cannot claim that we are acting within permitted private use. This leads to the conclusion that distributing a work without permission in a peer-to-peer network may constitute a violation of copyright.

… and the rights holder may seek protection

In such cases, economic copyright holders can enjoy protection measures under both civil and penal law. Their deployment, even if at the same time, constitutes an exercise of the law. It must be emphasised that the specifics of the internet make full information about infringements and infringers difficult to secure. Often the only possible approach is to first launch criminal proceedings, in which it might be possible to identify the infringer, and then to take further actions against that party, such as a civil lawsuit.

IP rights trolling

Apart from the actions undertaken by rights holders for actual protection, unfortunately there are also others that pervert the enforcement of rights. One of them is the trolling of intellectual property rights. As a word, trolling does not have its own legal definition. It may be manifested by a variety of actions, such as abuse of intellectual property rights, the invoking of non-existent rights, or the invoking of rights by unauthorised parties. Trolling may involve various intellectual property rights.

The growth of the internet has resulted in an increase in the number of mass infringements committed on the net, including violations related to use of peer-to-peer networks. They have been accompanied by a rise in copyright trolling. This involves using copyright not for actual protection of rights, but to secure royalties and compensation for the use of works.

It must be stressed that, in itself, IP rights trolling is neither new nor exclusively associated with the internet. The first form of trolling identified and named in this way was patent trolling, which involves registering a number of patents, often on dubious grounds, usually without making any own inventive efforts and with no intention to create an invention, but to block competitors or pursue claims for compensation. Another known tactic is trademark trolling. This involves registering a number of trademarks, not to actually use them, but to block competition and prevent others from registering trademarks, and with the intention of offering to sell or license the trademark or claiming compensation.

Copyright trolling is the form used against peer-to-peer network users and it has particularly affected the internet community in the last few years.

The specific nature of copyright trolling of peer-to-peer network users in Poland

Copyright trolling often takes the form of a well thought out and planned business involving pseudo law firms or, unfortunately, even professional lawyers. In the Polish environment copyright trolling usually takes the following course (it has been described, among others, in a letter to the Supreme Bar Council and in a report on copyright trolling produced by the Modern Poland Foundation in cooperation with the Journal of Internet Users). A special (IT) firm identifies the IP addresses of computers that have made a particular file, such as a movie, available in the peer-to-peer network. This is actually relatively simple technically. The IP addresses are then forwarded to a quasi- or legitimate law firm. The firm then applies for prosecution under Article 116 CA[3]. The application does not mention any suspects, only the IP addresses of the computers. Law enforcement agencies then determine who has been assigned the computer IP addresses at issue. The actual detection of the perpetrators, i.e. the persons who actually provided access to the protected work and their punishment, is of little importance in the above scenario. The copyright troll has no intention of seeking protection in civil proceedings. The law enforcement agencies have only the role of a low cost tool for establishing the owners of the computer IP addresses. As an injured party, the copyright troll takes advantage of access to the criminal case files and obtains details of the internet subscribers. The troll then launches a mass mailing campaign of demands for payment.

What to look for if you receive a payment demand

A letter arrives demanding payment of a fixed amount as voluntary redress for the unauthorised distribution of a work over a peer-to-peer network. It mentions that the distribution involved a computer with a specific IP address. It should be stressed here that the demand is addressed to the subscriber of the internet. That person’s details have been identified by law enforcement agencies as a first step. Nonetheless, the internet subscriber cannot not be held as the person responsible for the infringement. But the demand relies on such an assumption. In peer-to-peer network infringements, the infringer is, though, the person who has actually provided the access to the copyrighted file. The internet subscriber cannot may be automatically ascribed liability, as one cannot exclude that another person may have illegally distributed the file while using that particular internet access. Nevertheless, the mass mailings of demands use bluntly the details of internet subscribers in pursuit of their objectives.

The letter asserts that the subscriber’s actions constitute an offence under Article 116 of CA. Some users may not even be aware of how a peer-to-peer network works, or even that they used it for any particular service. Unfortunately, once law enforcement agencies get involved in copyright trolling, this not only makes it easier to get hold of internet subscribers’ details, but also adds credibility to correspondence. This is so because the letters often refer to pending criminal proceedings. However, the related information is often inaccurate or even misleading and creates the impression that the proceedings are pending against the recipient, even though they are usually pending in “the matter” rather than “against a person”. Trolls also occasionally invoke long-discontinued criminal proceedings.

The demand mentions an amount of money that should be paid voluntarily, so that the matter may be closed and contains details enabling immediate payment. Often, a second, significantly higher amount is mentioned – frequently dozens or tens of times higher – with a warning that it will be pursued in proceedings, unless the first payment is made. The letter may also give a misleading impression that payment of the requested amount will end the criminal proceedings. Whereas, the copyright troll’s actual capacity to affect it may be very limited[4].

The demand has, sometimes, a threatening tone; occasionally it tries to induce a sense of shame or fear that compromising details might be revealed, such as the addressee making pornography available peer-to-peer. At times, it includes a threat of criminal prosecution or long-term police seizure of computer equipment with all of the associated inconvenience. Often, it is simply misleading as to the status of the case and the infringement.

Sometimes just the letter’s pure formalities may arouse attention, such as the name of sender (misleading the reader into believing that it is a law firm), or an enclosed document authorising actions on behalf of the copyright’s owner, or even its absence. Unfortunately, some demands give the appearance of a well-structured letter, given credibility by having been signed by a professional attorney.

The possible scale of copyright trolling in Poland

Copyright trolling began to be noted in various European countries and in the United States in 2007. Sporadic cases of copyright trolling have been noted in Poland since around 2014, but it was not until December 2016 that the first document was published entitled “Copyright trolling – a report”, showing the scale of the problem. The report certainly does not shed full light on the issue, but it does show its extent. Most of the issues that it describes relate precisely to peer-to-peer users. The report describes cases of trolling and methods used by the trolls. It also contains copies of demands sent in such matters. Of the copyright trolling cases presented in the report, the largest ones involved popular films being made available peer-to-peer, of which the majority were Polish productions. Some of the uncovered demands concerned materials that were not copyright protected, or whose copyrights had simply expired. The report shows that certain quasi-legal entities that send out payment demands intentionally secure rights to low-budget productions (such as pornographic films) to then send out payment demands for their sharing by users. The report states that copyright trolling, in its various forms, could have affected several hundred thousand people in Poland. The amount stated in payment demands is usually PLN 500 to several thousand. On average, about 20-30% of recipients pay after receiving a demand.

The peer-to-peer users’ problem with copyright trolling has been discussed at, among others, a meeting of the Commission for Digitisation, Innovation and New Technologies held on 14 December 2016 (full text of the proceedings available here). The Dziennik Internautów [Internet Users’ Daily] has given particularly strong support from the very beginning to the initiative to combat copyright trolling. Several foundations have also joined the campaign. Actions are also under way to present the issue to the professional bodies of adwokats and legal advisers. (It is worth reading, at least, the open letter to the Supreme Bar Council, which was issued by several foundations that support the fight against copyright trolling).

Legal aspects of copyright trolling

Copyright trolling should be considered harmful and detrimental to creatives, professional attorneys, state institutions and end users of the internet. The combatting of copyright trolling can take both a civil and a criminal dimension. If the recipient of a demand has paid the demanded amount, depending on the circumstances, it is possible to consider whether unjust enrichment has occurred and therefore claim the return of the undue payment (Article 410 of CC). Attempts could also be taken to demonstrate defectiveness in the statement of will (e.g. Articles 84, 86, 87 of CC), or even the invalidity of the legal action entered into with the troll (Article 58). Copyright trolling may also be viewed as an abuse of law, namely exercise of a right that is contrary to its socio-economic intent (Article 5 of CC). However, this last argument may only be used as a defence in any proceedings brought by a troll against a peer-to-peer network user, which is something that trolls always set out to avoid.

In some cases, copyright trolling could be regarded as fraud (Article 286 of CC) or attempted fraud (Article 286, in conjunction with Article 13 § 1 of CC). The methods that some trolls use could be deemed detrimental to the collective interests of consumers (Article 24 par. 2 of the Competition and Consumer Protection Act). Currently, the Office of Competition and Consumer Protection is conducting proceedings in a case concerning LEX SUPERIOR concerning misleading payment demands made by that quasi-law firm. Unfortunately, copyright trolling often involves professional attorneys, adwokats and legal advisers. In every case individual consideration should be given as to whether they may have violated the ethics or dignity of their profession, which could then lead to disciplinary liability.

Outlook for the future

It does not appear that copyright trolling of peer-to-peer users is likely to end in the near future, or even lessen. It will probably get worse. Certainly, more cases will get publicity. It is likely, though, that in the coming years, the players involved will move their activities into areas away from peer-to-peer networks.

In countering copyright trolling, it must not be forgotten that, despite its growing scale, it is still a marginal issue compared to copyright infringements on the internet. The vast majority of the actions taken by holders of rights and their attorneys have the objective of protecting the legitimate interests of the rights holders.

The combatting of copyright trolling should, on the one hand, take into account the rights of creatives, including the establishment of instruments enabling infringers[5] to be identified and of mechanisms that would ensure an effective fight against firms engaged professionally and on a mass scale in online piracy. On the other hand, it must also protect the rights of end users, often not fully aware of the liability for internet infringements. Education is equally important. In April 2016, an official communique appeared on the United Kingdom government’s website on how to respond to letters demanding payment for copyright infringement. Nonetheless, the instructions include, first and foremost, information on what constitutes copyright infringement and when it might occur on the internet. Such initiatives are worth following. In this respect, central administration (such as UOKiK), authorities (e.g. GIODO) and professional bodies of adwokats and legal advisers could take significant action. It might also be helpful to draw up guidelines for police for dealing with these types of issues, which would reduce the cases in which law enforcement agencies are used as tools.

Lena Marcinoska

1 Copyright and Related Rights Act of 4 February 1994, hereinafter referred to as CA.
2 Article 23 par. 1 and 2 of CA: Permitted private use allows free-of-charge private personal use, without seeking the creator’s permission, of a work that has already been disseminated. A work that has already been disseminated is one that has been made available to the public with its creator’s consent. Own personal use includes also use of individual copies of the work by persons who are in personal relations with the user, in particular in terms of kinship, affinity or friendship.
3 Article 116 of CA provides for penal liability for unlawful dissemination of a work: “Whoever distributes another party’s work without authorisation or contrary to its terms and conditions in the original form or in the form of an elaborated work, artistic performance, recording, videogram or broadcast, is subject to a fine, penalty of restriction of liberty or imprisonment for up to 2 years.” Article 2 of CA refers to a perpetrator who has made for himself or herself a permanent source of income from committing the above offence or criminal activity, or organises or directs it - envisages imprisonment for up to 3 years.
4 Article 12 § 1 and 3 of the Criminal Procedure Code of 6 June 1997; In cases of offences that are prosecuted upon application, the proceedings start ex-officio from the time when the application is submitted. The application may be withdrawn during preparatory proceedings with the prosecutor's consent, and in court proceedings with the court’s consent but only up to the start of the trial at the first hearing.
5 One solution postulated by the Supreme Bar Council is the introduction to the Civil Procedure Code of a “blind lawsuit”, namely one that does not specify the defendant together with a request for information that might lead to that party being identified.