copyright canada
Is downloading a torrent chunk copyright infringement?
<p>A torrent works by breaking a file into small chunks, each of which can be shared between peers. This speeds up downloads because peer A could be sharing chunk 1 with you while peer B could be sharing chunk 8 with you etc. (See <a href="https://en.wikipedia.org/wiki/BitTorrent" rel="noreferrer">BitTorrent</a> and <a href="https://en.wikipedia.org/wiki/Torrent_file" rel="noreferrer">Torrent file</a>.)</p>

<p>The torrent client would need to reconstruct the file in order for you to use it.</p>

<p>None of the chunks is useful on its own. Each is typically 1/1000th - 1/2000th of the entire video file. None is generally even viewable as video without adjacent chunks due to the type of video codecs in common use.</p>

<p>In Canada, is it copyright infringement to use a modified (say, self-written) torrent client that simply downloads the chunks and immediately discards them from memory upon receipt, <strong>never storing any chunk on disk, and never reproducing any portion of the original file larger than an individual torrent chunk, and doesn't host or otherwise make the chunk available to other users.</strong></p>

<p>Does the analysis change if you only download and immediately discard one of the chunks?</p>

<p>To simplify answers, let's assume that the fair dealing user right is not implicated.</p>

<p>In Canada, copyright means "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public..." (<a href="http://laws-lois.justice.gc.ca/eng/acts/c-42/page-4.html#h-4">Copyright Act §3(1)</a>).</p>

<p>This question asks whether the work or any substantial part of the work is reproduced when an individual torrent chunk (typically approximately 1/1500th of a file) is downloaded to volatile RAM and immediately discarded.<sup>1</sup></p>

<p>If not, is a substantial part of the work reproduced if the downloader-and-discarder repeats the activity on more of the torrent's chunks (each being discarded before downloading another torrent chunk)?</p>

<h3>Substantiality</h3>

<p>As quoted above from the Copyright Act, when reproducing only a portion of a work, the statute only prohibits reproduction of a "substantial part" of the work.</p>

<p>"[T]he Act does not protect every “particle” of an original work" (<em>Cinar Corporation v. Robinson, 2013 SCC 73</em>).</p>

<p>Substantiality is not measured by quantity. "Whether a part is substantial must be decided by its quality rather than its quantity" (<em>Ladbroke (Football), Ltd. v. William Hill (Football), Ltd., [1964]</em>).</p>

<h3>Copyright Board's substantiality decisions</h3>

<p>Is a small chunk of a torrent a substantial part?</p>

<p>The Copyright Board has looked to several signals in judging substantiality, one of which is whether "[the part] may be so closely identified to the work as to allow the reader to recognize the work" (<em><a href="http://www.cb-cda.gc.ca/unlocatable-introuvables/other-autre/1-b.pdf">License Application by Pointe-à-Callière, Montreal Museum of Archeology and History for the Reproduction of Quotations, Copyright Board of Canada [2004]</a></em>). In some video codecs, possessing 1/1500th of the encoded file would not allow playback such that the result would be recognizable as a portion of the original.</p>

<p>The Copyright Board has also held that in the case of XM satellite receivers, which hold "4 to 6 seconds of the Satellite Services' multiplex signal at all times in its random access memory (RAM)", that "the 4 to 6 second buffer fails to satisfy the substantiality requirement. It is not a substantial part of the protected work." (<a href="http://documents.jdsupra.com/c352bd69-76d6-4aaf-a25f-3f9b593d3388.pdf"><em>Collective Administration of Performing Rights and of
Communication Rights (Re) [2009]</em></a>).</p>

<p>If downloading and discarding one torrent chunk is not reproduction of a substantial part, does downloading and discarding multiple (even all) chunks become a reproduction of a substantial part of the work?</p>

<p>The Copyright Board has said, regarding the 4-6 second buffer in the XM satellite receiver (<em>ibid.</em>):</p>

<blockquote>
  <p>"The rolling 4 to 6 seconds of a musical work is not an aggregate of an entire work. At no time does a subscriber possess a series of 4 to 6 second clips which when taken together would constitute a substantial part of the work. It matters not that over time the totality of all works
  transmitted are reproduced. We are dealing with a rolling buffer and at no time can we line up all of the fragmented copies amounting to one complete copy of a musical work."</p>
</blockquote>

<h3>Discussion</h3>

<p>In my opinion, downloading a chunk of a torrent file to RAM and immediately discarding it is not reproduction of a work or a substantial part thereof. It is not copyright infringement. Repeating this activity for several torrent chunks of the same torrent file is likewise not copyright infringement.</p>

<p>The above analysis is dependent on assumptions regarding the type of file (a media file, encoded using a format that doesn't produce recognizable sub-portions<sup>2</sup>, split into approximately 1500 chunks).</p>

<p>Other types of files and torrents would not fall under this analysis and thus the hypothetical download-and-discard activity could still be infringement. Consider a 5 minute .wav file, split into a torrent having only 2 chunks. A 2.5 minute .wav chunk would be recognizable as a portion of the 5 minute original, and 2.5 minutes of a 5 minute work would be much more likely to be considered a substantial part.</p>

<h3>Notes</h3>

<p><sup>1. I know of no torrent client that behaves this way. It would have to be a custom-written torrent client designed specifically for this ostensibly useless task.</sup></p>

<p><sup>2. Although, I don't think the assumption of unrecognizable subportions is necessary, since the 4-6 second buffer in the XM Satellite receiver <em>was</em> recognizable.</sup></p>

<p>Yes, downloading a torrent chunk of a copyrighted work would likely, in most cases, constitute copyright infringement under Canadian law.</p>

<p>It isn't possible to download a torrent chunk, or anything else, without saving it. When you download something, you are creating a local copy of it. Whether that's on a disk drive or in volatile memory (and in fact it's almost always on a drive) doesn't make a difference; it's still a copy. Even if the software immediately clears it from memory without saving it to a conventional disk drive, the copy has been made.</p>

<p>Nor is it likely to matter that you're only copying a part of the whole. The legal threshold for the amount that must be copied to constitute infringement is low, especially in a case like a torrent, where you aren't adapting elements of a work, but simply copying a chunk of it wholesale. Of course, if you download multiple torrent chunks of the same torrent, even if you download them separately and don't combine them, the court will likely consider them together.</p>

<p>There may be defenses you can raise to a claim of copyright infringement, such as fair dealing, but those are going to depend on the totality of the circumstances--for example, were you doing an academic study on the use of BitTorrent for copyrightable materials, or were you just trolling for Game of Thrones episodes. But that's a more complicated question than the purely mechanical question at play here.</p>

<p>The answer by user248 provides references to the Canadian copyright legislation and authorities, but none are directly on point. Given the similarity between the Canadian and Australian legal systems, it is worth noting that this question has been directly addressed by the Federal Court of Australia, although it was only a preliminary decision.</p>
<p>In <em>Dallas Buyers Club LLC v iiNet Ltd</em> <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0317" rel="nofollow noreferrer">[2015] FCA 317</a>, some ISPs resisted an application for pre-action discovery of the identity of account holders associated with the IP addresses of BitTorrent users. Perram J found [28]–[30]:</p>
<blockquote>
<p>I therefore accept the submission made by the ISPs that the individual ISP addresses which Maverik Monitor detected making the film available for downloading from the identified IP addresses reveal only a download of a very small sliver of the film. I reject the ISPs’ argument that it is not sufficiently shown that the end-users infringed the film’s copyright because no ‘substantial’ copying occurred. I do so, in short, because that is not the question to be asked, which is instead whether the end-user has made the film available on the internet.</p>
<p>This follows from the prohibition in <a href="https://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s86.html" rel="nofollow noreferrer">s 86 of the <em>Copyright Act</em></a> on communicating the film to the public and the definition of ‘communicate’ in s 10 as including ‘make available online’ …</p>
<p>I am comfortably satisfied that the downloading of a sliver of the film from a single IP address provides strong circumstantial evidence that the end-user was infringing the copyright in the film. It certainly provides enough evidence on a preliminary discovery application … I do not regard as fanciful the proposition that end-users sharing movies on-line using  BitTorrent  are infringing the copyright in those movies. Indeed, if there is anything fanciful about this, it is the proposition that they are not.</p>
</blockquote>
<p>While the judge was willing in principle to provide the copyright holders with the account holders' information, the copyright holders <a href="https://www.abc.net.au/news/2016-02-12/dallas-buyers-club-case-abandoned-illegal-dowloads-pirate/7162180" rel="nofollow noreferrer">abandoned their case</a> after their proposed letters to account holders were rejected by the judge as an attempt at speculative invoicing: <em>Dallas Buyers Club LLC v iiNet Limited (No 5)</em> <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca1437" rel="nofollow noreferrer">[2015] FCA 1437</a>.</p>
