Torrenting is a method of peer-to-peer file exchange that enables users to download and distribute large files, such as movies and TV series, efficiently. However, the use of torrenting to download copyright material without permission from the person or organisation who holds the copyright is against the law. It would effectively be classified as a form of white collar crime.
The following outlines the legal status of torrenting, including relevant liabilities under civil law as well as the various criminal offences that may apply.
This article is a guide on the law on torrenting. For tailored advice, get in touch with our criminal lawyers.
What is Torrenting?
Torrenting is an increasingly popular method of peer-to-peer file sharing. Unlike traditional downloading, where a file is obtained from a single source or server, torrenting involves multiple users (peers) sharing pieces of the file simultaneously.
When you download a file through torrenting, you’re not downloading the entire file from one location. Instead, the file is broken down into small pieces called “chunks.” These chunks are distributed across many users who already have the file or parts of it. The torrenting software (often called a torrent client) then assembles these chunks into the complete file on your device.
Whilst the use of torrenting software in South Auckland Manukau is not in itself illegal, given the effectiveness of such platforms for file sharing, they have become a popular means of ‘digital piracy’. Digital piracy refers to the illegal duplication, distribution, or utilisation of copyright protected material without the consent of the rights holder from illegal streaming sites.
Utilising torrenting software to commit digital piracy, also called torrent piracy, could give rise to legal liabilities. It is recommended to speak to white collar crime lawyers on this area of complex law.
Torrent Piracy and Copyright
In South Auckland Manukau, intellectual property rights are protected by the piracy laws in South Auckland Manukau under the Copyright Act 1968 (Cth). Copyright grants creators and owners of original content exclusive control over their work. The specific rights depend on the type of media.
For movies (outlined under section 86 of the Act), the copyright owner holds exclusive rights to:
- to make a copy of the film;
- to cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
- to communicate the film to the public.
For television shows (outlined under section 87 of the Act), the copyright owner holds exclusive rights:
- in the case of a television broadcast in so far as it consists of visual images–to make a cinematograph film of the broadcast, or a copy of such a film;
- in the case of a sound broadcast, or of a television broadcast in so far as it consists of sounds–to make a sound recording of the broadcast, or a copy of such a sound recording; and
- in the case of a television broadcast or of a sound broadcast–to re-broadcast it or communicate it to the public otherwise than by broadcasting it.
Piracy without consent is therefore illegal in South Auckland Manukau. Using someone else’s intellectual property without consent from the copyright owner(s) is illegal. For example, pirating movies, tv shows, video games without getting consent are illegal in South Auckland Manukau.
Civil Liability for Copyright Infringement
Any person who acts contrary to the rights of a copyright owner is liable to civil action (being sued) for copyright infringement.
This includes doing anything that a copyright owner has an exclusive right to do. Section 38 of the Act also outlines that copyright infringement will occur if a person:
- sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or
- by way of trade exhibits an article in public.
If someone successfully sues another for copyright infringement, they may be awarded damages (or financial compensation). In determining the appropriate remedy for copyright infringement section 115 of the Act states that the court will consider:
- the flagrancy of the infringement; and
- the need to deter similar infringements of copyright; and
- the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright; and
- whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analogous form into a digital or other electronic machine-readable form; and
- any benefit shown to have accrued to the defendant by reason of the infringement; and
- all other relevant matters.
Click here for more on the penalties for criminal offences.
The Penalties and Sentences for Illegal Torrenting in South Auckland Manukau
Is piracy illegal in South Auckland Manukau? Torrenting movies or TV-shows can result in criminal liability if copyright infringement occurs on a large scale for profit.
A number of criminal offences are outlined under the Copyright Act 1968 regarding the commercial dealing of copyrighted material, this includes:
- Infringing on copyright on a commercial scale under section 132AC(1) of the Act, where a ‘commercial scale’ refers to a substantial volume and value of copyright infringement.
- Making an infringing copy with the intention of selling, letting or otherwise obtaining a commercial advantage or profit under section 132AD of the Act.
- Selling or hiring an infringing copy under section 132AE of the Act.
- Offering an infringing copy for sale or hire under section 132AF of the Act.
- Distributing an infringing copy under section 132AI of the Act.
- Possessing an infringing copy with the intention to sell, let or otherwise offer or expose it to sale or hire under section 132AJ of the Act
The maximum penalty for the above offences is:
- A fine up to 550 penalty units ($172,150) or imprisonment for 5 years or both for a person, or a fine up to up to 2750 penalty units ($860,750) for a corporation, for an indictable offence.
- A fine up to 120 penalty units ($37,560) or imprisonment for 2 years or both for a person, or a fine up to 240 penalty units ($187,800) for a corporation, if prosecuted as a summary offence.
- A fine up to 60 penalty units ($18,780) if a person was not aware that they were dealing with copyright infringing material.
A number of defences to torrenting could apply for the offences above including:
- Fair dealing with the copyrighted work for research, study, criticism, review, parody, satire or reporting news.
- Temporary reproductions of works for the purposes of communication or technical uses.
- Dealing with the copyrighted material for educational, healthcare or other public purposes.
- Dealing with copyrighted material for use of libraries, archives and key cultural institutions;
- Dealing with copyrights material for law enforcement purposes.
Is Torrenting For Personal Use A crime?
Torrenting of copyrighted material for personal use could constitute copyright infringement, meaning an individual can be sued under the civil law by the copyright holder. A civil action could result in an award of damages (or financial compensation) which could be significant if several movies or tv-shows have been torrented by a person.
However, if torrenting is occurring on a small scale and not for commercial purposes, there are unlikely to be criminal offences that apply.
By Jarryd Bartle and Jimmy Singh.
Published on 02/09/2024
