Warning Filesharing – the advantages and dangers

 

File sharing is the term for a wide range of networks for data exchange over the Internet. By using so-called file sharing networks, users and participants of an online platform have the possibility to access the files provided by other participants or to make the files of their own server freely accessible to other participants. In simple terms, files are distributed using appropriate software.

1. Technical digression

The technology itself is amazing. It allows all participants of a corresponding file-sharing exchange (computer program) to access an unlimited number of data and files made accessible by the other users or to copy them to their own server. Colloquially, these are therefore so-called file sharing networks. Selected files are made accessible to the participating users. The number of users is unlimited.

There are file sharing platforms with a limited number of users who are known to each other and who exchange and edit files for private or commercial purposes. In the same way, it is also possible to connect millions of users who are not known to each other personally in any way through an effective network such as a file sharing platform.

In principle there are two different technical solutions to distinguish: Client-Server-Networks and Peer-to-peer networks

So-called client-server networks differ essentially in that a certain end device of a user is used as a server from which certain files or services are made available. The advantage here is that the requested or provided file / service is accessible to all users at all times. An additional challenge, however, is the number of queries or requests for the same works. Therefore there are usually replicas in the network of the server to distribute the load of the requesting users accordingly.

The main difference to a peer-to-peer network is the fact that there is no central server. Thus all participating peers (computers) are equal. However, since there is no central control in this case, the participating peers may fail. It is not certain at what time and with what bandwidth the individual servers participate in the network. To bridge this problem it is therefore crucial that a sufficiently large number of peers participate in the network. Only if an equal number of peers is participating in the network is it guaranteed that sufficient files are available.

One of the first and probably best known peer-to-peer or file sharing networks was the original version of the music exchange platform. “Napster. After the shutdown of the hermaphroditic platform Napster, which consisted of a client-server and peer-to-peer network technology, many more versions of file-sharing services like Gnutella, eDonkey, and Shareaza, to name only a small part, were developed.

2. Areas of application of file sharing networks

The scope and benefits of filesharing networks are correspondingly broad and high, as works such as music, films and other files can be transferred to other peers within a very short time. From a technical point of view, however, the transfer is not a short-term use of the same file, as is the case with streaming, for example, but rather a transfer of the file stored on the external server to one’s own server. The process is therefore a copy or duplication of the original file.

A major disadvantage here is that from a technical point of view, users have no possibility to prevent or control that illegal content can be delimited accordingly.

Although the use of these network programs is completely legal in itself, each user is responsible for the works he or she distributes or downloads on the platform.

The most common form of file sharing programs are BitTorrent programs. These are used legally on the Internet to share the load when downloading large files at the same time. The use of file sharing networks is therefore not illegal in itself.

What is, however, legally problematic is the use of file sharing programs in connection with the distribution of legally protected works. By far the most common form of unlawful use is the distribution of copyright-protected works.

Most users are aware that a work such as a film, a series or a computer game is usually protected by copyright by the developer or owner. In particular, copyright law is designed to grant creators of creative works such as music, films, series, software, computer games, etc. an exclusive right to market their works commercially. In order to distribute or acquire the works protected by the author, a corresponding licence is required, which is also acquired or offered by the author.

Simple or well-known examples of this are the formerly used solid sound carriers such as CDs or cassettes. Another predestined example are software programs such as PC games or other applications which expressly refer to the licensing of the corresponding programs.

If the consent granted by the author in the form of a licence is missing, this is usually a violation of copyright.

File sharing networks thus contribute essentially to ‘internet piracy’. This term is comparable to the pirated copies of designer handbags and accessories of well-known brands such as Louis Vuitton, Gucci and others, which are also protected by trademark and copyright laws. Another well-known example is the pirated copies of CD and DVD burners used a few years ago, which seem to be quite old-fashioned.

As already noted, a key feature of file sharing services compared to the more common streaming services is that each upload or download generates a copy of the original work.

3. Prosecution of the illegal use of file sharing services

The main challenge in the prosecution of copyright infringements in connection with the use of file sharing programs is the collection and determination of the data tracked by the respective uploads and downloads on the respective file sharing platforms.

A decisive factor in the legal prosecution of copyright infringements on the Internet is therefore the logging of the files exchanged and the associated IP addresses of the subscriber. On the basis of these elaborate lists and logs of the file sharing platforms used, three essential factors for legal prosecution can be documented. On the basis of the file distributed – whether it is uploaded or downloaded – the IP address of the subscriber used for this purpose and finally the time of the offence in the form of date and time, the illegal distribution of copyright-protected works can be established or legally prosecuted.

As soon as a file appears in the list that is protected by copyright, the personal data of the connection owner can be determined by means of the IP address temporarily assigned by the telephone or Internet provider and the time of making it publicly accessible.

This technically complex process allows the copyright holders of the protected works to report the violation of their rights in almost all countries of the world. In principle, all rights holders can do this themselves, but in large companies such as Warner Brothers or Twentieth Century Fox, which manage several thousand films and other works in their own and third-party productions, it becomes complex and expensive to enforce legal claims against third parties. This requires considerable in-house resources that are not directly congruent with the actual business model.

Although a legal prosecution is possible in many countries, there are only a few where the effort is worthwhile in comparison to the income.

This discussion is of course very complex and, depending on the point of view taken, very biased.

One country that allows legal prosecution for many reasons, such as a strong understanding of values and the deeply rooted principle of a democratic constitutional state, is Germany.

In recent years, several hundred thousand copyright infringements have been pronounced or reported in Germany by specialized law firms in the form of file sharing and torrent warning(s).

4. Criminal prosecution by specialised law firms

A torrent warning is therefore the usual way in Germany a copyright infringement because of a public access or distribution is reported. The personal data of the persons concerned were found in accordance with the legal requirements and data protection regulations

applicable in Germany and were usually acquired by the mandated law firm so that the subscriber of the IP address found can be contacted.

There are many different opinions on the question of whether the determination of the data and connection owner is fair or lawful in a warning file sharing forum.

But what remains in the end is the real question how the allegations are actually dealt with? In any case, the competent local court states that it “has not checked whether the applicant is entitled to the application”.

In order to prove that the many posts about share online warnings in the relevant forums are correct, there are of course a number of technical sources of error which apply in individual cases or theoretically allow confusion of the IP address used. But the affected persons should be aware that the warning mania in Germany is a ‘mass business’. It is therefore technically and systemically impossible to check every single case that has been subject to a warning. The judges are anyway relatively overloaded with the already ongoing court proceedings in other legal areas. Furthermore, the Internet providers are not obliged to store the constantly newly assigned IP addresses.

So who should take the time to check this? A service provider who takes over this task could certainly earn well from this business model again!

5. Summary

Especially because of the high technical and legal complexity in dealing with file sharing warnings, it is very useful and advantageous to find a simple and efficient way to deal with the delivered warning. A 100 percent or zero percent solution will be very difficult or very unlikely to be found.

Especially if you are not aware of any fault or error, you should react responsibly and as openly as possible in order to ward off the claims demanded by the other party or to cool down financially.