Online copyright infringement, sometimes referred to as “online piracy”, involves downloading copies of creative material without the permission of the creator. The most infringed materials include movies, TV shows, music and video games. However, online piracy can extend to any sort of content including books, visual art, poetry and more.
The content is initially obtained by a “pirate” through bootlegging or ripping. The content is then sold at low prices or uploaded online so that other people can access it by streaming, downloading or torrenting.
Bootlegging
Before the streaming era, “bootlegging” was the most common form of online piracy. Bootlegging involves recording the protected content, thereby obtaining a copy that can be freely distributed or sold. For movies, a bootlegger will go to the cinema with a concealed camera and film the screen for the duration of the film. This can also be done on a television. For music, a bootlegger will play a song while recording it using a separate device or piece of software.
Although bootlegging is still a common way to create a copy of a film, “ripping” represents a greater risk to copyright holders.
Ripping
Ripping involves copying protected material using specialised software. This essentially makes a complete copy of the material without the loss of quality or accidental interruptions that comes from bootlegging.
Material may be ripped from a CD, a DVD, a streaming site, or a video game file. Ripping requires access to specialised software, so cannot be undertaken as easily as bootlegging.
It is not always obvious when you are accessing ripped content. One possible indicator is a watermark stating “not for reproduction”. These watermarks are typically included in content sent out to critics, editors, and other professionals before being released for sale.
Torrenting
“Torrenting” is the act of downloading files directly from other internet users’ devices. This means that files can be accessed without needing to first be uploaded to a central database. This process massively increases the ability for the public to share files. Through torrenting, files that have been pirated through bootlegging or ripping can be easily and covertly distributed online.
The process of torrenting begins with one individual uploading a file. Then, more online users download that file. As they download the file, they simultaneously share or “seed” the file from their own device to other downloaders. This makes it faster and more accessible for people to download that file. Essentially, the wider the file is distributed across the internet, the faster it is for users to download.
This means that every person downloading and sharing the file is to some degree facilitating the file sharing process.
How common is online piracy?
A 2021 report by the data company MUSO outlined the following trends in piracy worldwide:
- In 2021, there were 182 billion visits to “piracy websites”.
- Television is the most accessed type of copyrighted content.
- Copyright infringement is generally on the rise across all types of content.
- Music piracy has been on a steady decline for the last five years due to the proliferation of accessible streaming services.
Is online piracy a crime?
While government advertisements have claimed that “piracy is stealing”, online piracy is not classified as larceny under Australian criminal law. However, in certain circumstances, piracy is a different sort of criminal offence.
Division 5 of Part V of the Copyright Act 1968 (Cth) contains several offences relating to online piracy, criminalising the act as a form of copyright breach.
Most of these offences criminalise piracy that has been undertaken on a commercial scale and has a substantial prejudicial effect on the copyright holder. These offences therefore tend to target people who do the ripping and bootlegging, and then distribute the pirated material, rather than those who merely access the material online.
However, downloading pirated material online through torrenting may constitute a criminal offence under this division. Under sub-sections 132AC(2)-(3), it is an offence to commit conduct that results in copyright infringement that has a substantial prejudicial effect on the copyright holder and occurs on a commercial scale. Sub-section 132AC(3) makes this conduct an offence where the offender is negligent of the scale of the infringement.
While downloading pirated material through torrenting, if you are simultaneously “seeding” the material, you may be contributing to illegal copyright infringement by allowing the material to be more easily distributed across the internet. This may constitute a criminal offence under section 132AC(3) if it can be shown that:
- Your conduct has resulted in one or more copyright infringements,
- The piracy has a substantial prejudicial effect on the copyright holder,
- The piracy has occurred on a commercial scale, and
- You were negligent that the piracy occurred on a commercial scale.
Each of these elements must be proved by the prosecutor beyond a reasonable doubt.
What are the defences?
If you are charged with an online piracy offence under the Copyright Act there are many defences that could be available to you. These might include:
- That you did not access pirated material.
- That your conduct did not have a substantial prejudicial effect on the copyright holder because, for example, the holder is a major movie studio and your conduct only related to accessing a single copy of a commercially successful film.
- That the piracy occurred on a small scale.
Are there any other legal consequences?
Even if a copyright holder does not pursue criminal charges, they may pursue a civil claim. This might involve suing an online pirate for breach of copyright, and claiming payment for the loss of income.
So even if you think you might avoid criminal charges, you should still never engage in online piracy.
How can we help?
Nyman Gibson Miralis provides expert advice and representation to people charged with online piracy offences.
Contact us if you require assistance.
