Is downloading protected works illegal?

Ah ah ah! ! I like these "catchy titles"!

But in law, I think it's a very, very, ... interesting question.

So here are some elements of answer (even if everyone suspects it, the answer is "the download is bad").

To give substance to the description, consider that we have downloaded the latest Clint Eastwood film on the networks " bittorrent "(Of course purely hypothetical situation).

Chapter 1. Possible prohibitions

Section 1.1. Prohibitions related to "counterfeiting"

So let's look for the word " forgery "In the code of intellectual property (by restricting course to the" first part: the literary and artistic property "of its legislative part, ie articles L111-1 to L343-7).

We find only 2 relevant articles: Article L335-2 and Article L335-3.

For example, the infringement of the property of the authors or of their rights is called counterfeiting. only in the following cases :

  • With regard to writing, musical compositions, drawings, paintings or any other production, printed or engraved in whole or in part:
    • editing,
    • export,
    • import.
  • Concerning the works of the spirit:
    • the reproduction,
    • the representation,
    • dissemination, by whatever means.
  • Regarding software:
    • permanent or temporary reproduction,
    • the translation, adaptation, arrangement or any other modification and the reproduction of the resulting software,
    • the placing on the market, including rental, of the copy or copies of a software by any method.
  • Regarding cinematographic or audiovisual works
    • total or partial capture in cinemas.

I draw your attention to the fact that it is possible to belong to several categories ... Thus, a book belongs to the first and second category.

Note that the penalty for infringement can be up to 3 years imprisonment and 300,000 € fine.

Section 1.2. Prohibitions related to copyright infringement

There are "illegal actions" without these being, stricto sensu, counterfeits ... Thus, theArticle L122-4 provides that:

all representation or reproduction integral or partial without the consent of the author or his successors or assigns is unlawful. It is the same for the translation, theadaptation or the transformation, thearrangement or reproduction by any art or process.

So a priori, no criminal penalties but the damages do not seem excluded.

Chapter 2. The legal basis of the ban on downloading

From what I have just explained, there are only a limited number of cases that can justify the ban.

  • Diffusion,
  • The representation,
  • The reproduction.

Section 2.1. Counterfeiting by diffusion?

At first sight, the download of a film (or its storage) is not an act of diffusion.

Nevertheless, you should know that the principle of peer-to-peer networks is the fact that when you download, you also make available what you download to the rest of the world. Indeed, this is the principle of the peer-to-peer community: You are allowed to download (Linux distributions of course) and you must allow others to use your bandwidth to retrieve the file too.

Thus, you realize a diffusion when you use networks like Bittorrent or Kazaa 🙁

Of course, if you download on so-called "direct" download sites (MegaUpload, or others), the situation is different and no diffusion is carried out.

Section 2.2. Counterfeiting by representation?

The representation is defined at theArticle 122-2 of the intellectual property code:

Representation is the communication of the work to the public by any process, including:

  • 1 ° By public recitation, lyric performance, dramatic performance, public presentation, public screening and transmission in a public place of the televised work;
  • 2 ° By broadcasting.

Broadcasting refers to the broadcasting by any telecommunication process of sounds, images, documents, data and messages of any kind. Is likened to a representation the emission of a work to a satellite.

You did not make a public presentation ... and you did not televise this movie to friends (be careful, the term " broadcasting Must, in my opinion, be understood as " streaming")?

Section 2.3. An infringement by reproduction?

We are not out of the hostel ... do a little sketch to explain the problem.Reproduction, of course, but where?

When a person (Computer 2) uploads a file on the Internet, he is actually talking to another computer (Computer 1) and asking him to provide him with a copy of the original file. Thus Computer 1 copies the constituent "bits" of the original file and transmits them on the Internet. Finally, Computer 2 receives these "bits" and copies them to its hard disk ...

So let's see if you follow: "Who reproduces? ».

Some say that reproduction is done by the person who requires the copy, ie Computer 2. There are not many arguments to support this approach but it poses the following problem: how the copyist was able to copy to copy the work if it never had the work in his hands? Others say (and this seems to be a majority movement within the national council of intellectual property: see Appendix 3 of the notice n ° 2005-2) that the copy can be carried out only by the person who holds the Work and therefore Computer 1.

Unfortunately, I do not agree with these approaches because, I think, there is confusion of definition. If generally, the term "reproduction" is understood as a "copy", theArticle L122-3 gives its own definition:

Reproduction consists in the material fixation of the work by any process that makes it possible to communicate it to the public in an indirect way.

It can be carried out in particular by printing, drawing, engraving, photography, molding and any process of graphic and plastic arts, mechanical, cinematographic or magnetic recording.

For architectural works, reproduction also involves the repeated execution of a plan or a typical project.

Thus, reproduction is the act of fixation on persistent medium and not the act of copying.

Chapter 3. Conclusion

All that has just been said previously seems to mean by rebound that downloading is not illegal. It's the illegal copy record on his hard drive that is ... To push the cap a step further, it would seem that a person watching a movie in "streaming" can not be sentenced for forgery ... strange, right?

6 Comments:

  1. Hello,
    I came across this article and found it very interesting.

    However I would have liked to have your opinion on a case a little different.
    The status of DDL link directories.

    Recently directors of a SEO site of links of DDL were arrested for Counterfeit.

    Can one really qualify and condemn this site / directors of counterfeiting by diffusion or representation / counterfeit by edition or reproduction of a work of the mind?

    A SEO site of links of DDL is only a google specialized non? (we also find the same links)
    - The links are referenced by Internet users lambdas
    - The site does not host anything (except links)
    - He does not sell anything (remuneration by advertising)
    - links of referenced storage platforms are not illegal (Megaupload / free.fr / fileserve)

    cordially

    Will

    • Hello and thank you for the comment!
      In fact, you raise a delicate question: who is responsible for the content of a site?
      1 / I advise you before reading the article on the distinction between host and publisher because I think it's the interesting legal distinction here!
      2 / After this reading, you will understand that if the administrator makes an editorial choice, it becomes publisher and not hosting content (even if this content is external). He will not be able to say then that he did not know that the links pointed to illegal content (since it is precisely he who created these links)
      3 / Of course, it does not host files. Nevertheless, the legislator invented a nice concept: complicity. Thus, providing links can be considered as a complicity in counterfeiting by means (CA Aix en Provence March 10, 2004)

      Basically, if a person creates links knowingly knowing that they are pointing to illegal content, he may have problems.

      I hope I have been clear 🙂

      • Thank you for this feedback,
        However I speak well of "referencing" that is to say that the administrator proposes an empty structure, and it is to the surfer to fill the site by proposing links (yes the community side is in vogue).
        This kind of site brings closer to the directory of links or a search engine.
        We could accuse these sites to "encourage" the creation of these links and therefore the dissemination of works, yet there is only a simple search on google to report or find the real pool (google is really your friend).
        So who is guilty?
        To think about it ... nobody (except if one takes me a laws of behind fagots)

        • Ok (but I do not think I have been so off topic that ...) if we talk about community sites, the person who owns the site is a web host => So he will have to remove any illegal content (so links likely to be considered as acts of complicity) if a person so requests.
          But beware ! If the site is called "station-divx" or "download-mp3" (name chosen of course), one must question the real "innocence" of the owner of the site ... does it incite not to disseminate links to illegal content?
          In short, we must look at each case!

  2. It's been too long since I left SedLex alone!
    Here I am with my little questions:

    I quote the article above:
    "You did not make a public presentation ... and you did not televise this movie to friends (be careful, the term" broadcast "must, in my opinion, be understood as" streaming ")? "

    My questions :
    What about a broadcast to a group of friends, if I put a video projector at home and that I enjoy 10, 20, 50, 100 people?

    Worse, and here I ask a vicious question: What if I ask my friends to bring a dinner / drink "against" the projection, is this "compensation"? Does this change anything?

    • Hi Julian
      I think that the case that you quote approaches the exception of private copy already treated on this blog.
      Similarly, for a diffusion "against" meal, I must look if you do it in the usual way, if the number of your friends is reasonable ... In short basically if this behavior does not shock! The limit is of course blurred between the illegality here and the legality!

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