The Ongoing Legal Battle Over Bit Torrent Gets More Interesting

Since the beginning of its existence, BitTorrent has been a lightning rod for controversy. Comcast choosing to slow down or “throttle” the service’s traffic was one of the first shots fired in the ongoing battle over Net Neutrality.

This is not just a problem here in the States. Canadian provider Rogers ”throttles more than any other internet provider in North America”. This issue is not going away. It speaks to many fundamental questions on the future of the internet, and also the future of video games. BitTorrent has exciting, perfectly legal applications. You can use it to quickly and easily transfer a homemade game to a friend, or share your own machinima. The downside is that, thanks to its ample capacity and dispersed load, pirates have thrived, distributing illegal versions of games for free. That bites into already precarious profits and reduces the incentive developers have to make the new games we love.

This profound problem got a new wrinkle when TorrentFreak recently claimed they traced BitTorrent downloads to the Recording Industry Association of America and US Department of Homeland Security. Using YouHaveDownloaded.com, TorrentFreak alleges they found that six unique IPs within the RIAA and more than 900 at DHS downloaded illegal materials from BitTorrent. TorrentFreak is undeniably partisan. The blogger who provided these claims uses an alias (presumably due to fears of reprisal). But, it is not hard to believe that employees at large organizations get copyrighted materials for free. To be fair, we don’t know why these files were downloaded or what was done with them. It’s possible it was for personal use as most coverage of this has implied, while it’s also possible it was downloaded as part of an investigation, which may have even been at the request of the rights holder. All we know is the files were likely downloaded by someone at those IP addresses.

There is no consensus on how to deal with the issue. RIAA abandoned the idea of suing individual downloaders long ago. Not so in Europe, where CD Projekt served settlement offers on Germans accused of pirating a copy of The Witcher 2. Others have chosen to focus on communities like the Pirate Bay in order to make a bigger dent in the infringement. Pirate Bay has been cited by supporters of the Stop Online Privacy Act as proof of how necessary the legislation is. (Legislation which, incidentally, may also ”break the internet.”)

TorrentFreak’s claim they have found foxes in the henhouse is interesting, it does not answer any questions. Is it embarrassing for the RIAA? Yes. Regardless of what the real reason may be here, the publicity’s implications have been negative in a pretty much universal manner. But, it does not solve the unresolved problem of how to confront the clash between copyright owners and the easy sharing the internet allows. Law of the Game will keep you updated of new developments as they become available.

Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.