In the spirit of educating, I've decided to produce a helpful little diagram which shows quite clearly who does what, and what with. I will of course point out here, and now, that I AM NOT LAWYER and this is not legal advice. (If you need legal advice, go find a competent lawyer, that specialises in this kind of work. Also, if you are a lawyer, don't hesitate to get in touch with any corrections)
|Direct copyright Infringement, an illustration.|
Click to enlarge
In this, we'll assume that the Original File, is an ISO image of some software, let's say Microsoft Windows, where there is no permission to distribute. Were it an ISO image of some software where there is permission to distribute (say a linux distribution) Any red on the diagram would be blue.
So, let's start with the 'Initial User'. This initial user takes his original file, and creates a torrent. This is the leftmost blue file. Now, despite claims to the contrary, at present, it is not any form of copyright infringement to create a torrent file, of any data. The torrent file is indeed a separate file, that is created FROM and is ABOUT the original data, but isn't actually the data itself, it's metadata, just like a review of a film or song; data about data.
Next, the torrent file is uploaded to a website. This is also not infringement. No copies of the original file have been made, so no infringement has occurred. This is what is overlooked (or flat-out ignored) most of the time. Torrent sites do not carry any infringing data on them, a point that the Pirate Bay crew made in some of their legal responses. The only thing they host are torrent files - metadata files, just like IMDB contains metadata about TV episodes and films - and as such, no infringement has happened.
So now the torrent file is downloaded. The diagram shows it going to three 'peers', or regular users. Two of the users load the file into their torrent client and start transfering data between them, data that has been sent to the swarm from the initial peer (the one we started with). These data transfers ARE infringing, and so finally we've found the infringing act.
However, notice that the third peer that has downloaded the torrent is blue, why is that? Well, downloading the torrent file itself is not an infingement, as has already been discussed. That peer has not involved itself in the sharing of the copyrighted data with the other peers. Instead, it may want the torrent file for another purpose, such as pass it on to another person, hosting it itself, or using it to check data the peer already has (bittorrent is designed with built-in error checking), so since no copy has been made, no infringement has happened.
Also, notice that of the 3 peers downloading data from the initial 'start' peer, only two downloaded the torrent file from the site. That's because there's a way to share without needing a torrent file, or even a a torrent site. The method is called a 'magnet link', and I did a video explaining it about a year ago. In short though, a simple link, which can be shortened, can be used in place of the torrent site. Click the link, and it's loaded straight into the client, with the torrent file then pulled from peers, followed by the data.
So, what have we learnt?
The only place that actual (direct, or primary) infringement happens is between actual peers. Torrent sites do not actively infringe copyright themselves (although some may have a case for secondary infringement, or the dubious 'conspiracy to commit copyright infringement' charges a la Oink)
Downloading the torrent file itself is not infringement, nor is making a torrent file, or distributing said torrent file. The data in all these cases are metadata files, and not the copyrighted data itself.The torrent site itself has no way of knowing what the person will do with the torrent, and if it's going to end up being used to infringe, or if it'll be used in a way that is fair use, or in a way that's completely legal. That's down to the end user, and torrent files can be used in all these ways (and more)
It's also clear that a lot of people get mixed up when it comes to what is directly infringing copyright, and what isn't. Some do it deliberately (industry groups, researchers and lawyers trying to make money from prosecutions for instance), while some are not up to speed on the technologies and their nuances (law enforcement, for instance).
I hope this guide has helped clear up a few misunderstandings, and made clear just where infringements happen.
If you have any ideas or requests for some aspect in this field that you would like explained in a simple way, please, leave a comment or get in touch.