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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 BitTorrent and Torrent file.)

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

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.

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, 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.

Does the analysis change if you only download and immediately discard one of the chunks?

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

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    possible duplicate of Is it legal to download movies in Canada? – cpast Jun 9 '15 at 14:41
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    This question appears to be an intent to skirt the law and intend to assist someone else with breaking the law. So I am voting to close this as off topic. – Chad Jun 9 '15 at 15:41
  • You are right I do not know you and this is not a personal attack against you. It is the appearance of impropriety that this questions represents that is the problem. I think if you were to explain how this could happen with out the intent of the person would potentially be on the hook if they were arrested or persued in court for this action that would remove that problem. – Chad Jun 9 '15 at 16:14
  • I think if this site becomes bogged down with this type of question the site will die. – Chad Jun 9 '15 at 16:27
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    @Chad you are making a fuss out of nothing. I guess you don't understand what is being asked here. Try to. – o0'. Jun 10 '15 at 8:46
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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..." (Copyright Act §3(1)).

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.1

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)?

Substantiality

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.

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

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

Copyright Board's substantiality decisions

Is a small chunk of a torrent a substantial part?

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" (License Application by Pointe-à-Callière, Montreal Museum of Archeology and History for the Reproduction of Quotations, Copyright Board of Canada [2004]). 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.

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." (Collective Administration of Performing Rights and of Communication Rights (Re) [2009]).

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?

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

"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."

Discussion

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.

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-portions2, split into approximately 1500 chunks).

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.

Notes

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.

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

  • Suppose he writes such a torrent client and announces to the world that he uses it for educational purposes to download random copyrighted works (discarding the chunks to avoid infringement.) Then suppose he really does download and keep a whole work, and is sued by a copyright watchdog in the torrent monitoring his IP address and then subpoenaing his ISP. He then tells the court the work was never retained on his computer, and points to his prior announcement of his educational torrent client as evidence. Kind of like the "open Wifi defense". Don't know if the court would buy it though :-) – Jordan Rieger Jul 24 '15 at 19:54
  • @JordanRieger That is a different question. In your hypothetical, the user unquestionably actually infringed, and the remaining uncertainty is about burden of proof. I agree that it would be a difficult argument to make. My question (and answer) are whether the download-and-immediately-discard activity is infringement in the first place. – user248 Jul 24 '15 at 20:29
  • Yeah I understand, I wasn't really asking you to answer my hypothetical, just thinking out loud because some people had questioned the motivation behind the OP, and my hypothetical is one way it could be put to practical (if dubious) use. – Jordan Rieger Jul 24 '15 at 23:00
  • So if one was to create a torrent client that stored 4-6 seconds of video in memory, and discarded it when new data arrived, it would be legal - and I presume since the XM radio is also used to play the audio, playing the video/movie would be just as legal here, as long as only 4-6 seconds were stored in the buffer at any given time. – user2813274 Oct 6 '15 at 1:40
5

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

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.

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.

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.

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    I would like to add torrents are not illegal. The content you download using torrent could be illegal. There are many situations where torrent technology is used for legal use. Don't download copyrighted content. Having a torrent client is absolutely legal. Like having a knife is legal but placing that knife into the chest of another person is not legal. – Patrick W. McMahon Jun 9 '15 at 16:26
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    I've edited to reflect some of these comments. But no, it is not possible to download something without making a copy of it. If you don't make a copy, either in memory or on disk (and the courts won't care which), then you haven't downloaded it at all. – chapka Jun 9 '15 at 18:05
  • The substantiality test is mostly used in situations where you've copied elements of a story, but not the story word for word--the "my story also has a boy wizard and a magic train" cases. It's not really relevant to direct copying, where there's a much lower threshold. – chapka Jun 9 '15 at 18:11
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    I'm unconvinced: a single chunk usually can't be used to view part of the work: it can't be used at all. I would be very surprised if this wasn't taken into account. You aren't downloading "3 seconds of a movie", you are downloading some data that, without other data you didn't download, does absolutely nothing. Are you sure that this makes no difference at all? – o0'. Jun 10 '15 at 8:43
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    OK, fine, 'doesn't have to care if you watched it.' Whether or not HBO is actually litigous is beside the point. An argument like 'if you don't agree with me then you're a complete retard' is not usually the way to go about persuading judges who aren't technologists and are charged with hewing as close to precedent as is possible in adapting old law to new media. Being smug about using a clever algorithm to skirt the edges of copyright by creating chunks that aren't independently intelligible isn't likely to earn brownie points from a judicial perspective. – daffy Jul 23 '15 at 15:05

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