I downloaded Game of Thrones, am I in trouble?
11am, Monday 15 April 2019 marks the release of Season 8 of Game of Thrones in Australia. Australians are renowned worldwide as pirates of digital content to such an extent that in 2013 the US Ambassador to Australia requested Australians stop torrenting (peer to peer sharing) Game of Thrones.
Leading up to the release of the previous seasons, there was a lot of talk in the media regarding digital piracy, streaming, torrenting, and the potential legal consequences. This leads to a lot of confusion and misinformation regarding digital piracy in Australia. In this article, we’ll explore some of the basic concepts, and set out the legal status and potential consequences for pirating Game of Thrones.
Can I go to prison for digital piracy?
Digital piracy in Australia is often referred to as being ‘illegal’. However, streaming or torrenting Game of Thrones is not a criminal offence. You will not be criminally charged, convicted or sentenced for downloading or sharing Game of Thrones.
Why is it ‘illegal’?
When an individual streams or downloads a torrent of a TV show or movie, they are downloading (and in many cases uploading) digital content that a company or individual owns and usually distributes for a fee. The individual or organisation which owns the media content are known as the copyright owners. The act of downloading and uploading copyrighted material you do not own is called copyright infringement, and while it is not a criminal offence, it is an infringement on the right of the owner.
In Australia, the right to distribute Game of Thrones on a weekly basis is solely owned by Foxtel (who purchased that right from HBO). If you can wait until the end of the season, then you may be able to watch through Google Play or iTunes, but otherwise Foxtel is your only option to watch Game of Thrones without infringing copyright.
When you download/upload an episode of Game of Thrones, you are infringing on Foxtel’s enforceable legal right to distribute Game of Thrones.
What are the potential consequences for copyright infringement?
If you have downloaded a TV show or movie, via torrent or otherwise, the owner of the material has several options to legally enforce their digital rights. The first is to send you a letter of demand. The letter will explain the specifics of the copyright infringement and how the owner would like the situation to be remedied. In some cases, this may involve payment of a nominal invoice or fine. After the letter has been sent, if the matter has not been resolved to the satisfaction of the copyright owner, then Court proceedings may follow.
Will this happen to me?
In short, yes it could, but it hasn’t happened to Australians en masse yet.
The current trend in the law (see the Copyright Amendment (Online Infringement) Bill 2018) has been to have ISP’s block torrenting websites. This means individuals can no longer access websites which host links to the torrents. This is a game of ‘cat and mouse’ as new websites can pop up easily and take some time to be blocked.
Another option is for the copyright owner to send you a letter of demand requesting you pay a nominal fee. This came to light in the case of Dallas Buyers Club v iiNet. In that case, the Federal Court held the speculative invoices Dallas Buyers Club LLC and its parent company Voltage Pictures LLC intended to send were impermissible. This was because they included fees for:
The cost of a copy of the film;
A substantial one-off licence fee for each infringer on the basis they were engaged in the widespread distribution of the film;
A claim for additional damages; and
A claim for damages arising from the amount of money it had cost Dallas Buyers Club LLC to obtain each infringer’s name.
The Court considered the third and fourth points were untenable. Dallas Buyers Club LLC did not appeal the decision. This decision meant the copyright owner in that matter could not issue their specific speculative invoices. The decision does not rule out speculative invoicing altogether.
The final option would be for the copyright owner to commence legal proceedings directly against you for money the owner considers the infringement has cost them. While we’re not aware of this occurring in Australia, it is not an impossibility. If this happens you will need legal advice and representation.
Wrapping up
While there is certainly an argument that can be made that digital content, particularly Game of Thrones is difficult or overly expensive to access in Australia, we strongly recommend not illegally streaming, downloading or uploading copyrighted material. If you do, you are exposing yourself to the risk that the copyright owner could have a cause of action against you.
If you have any questions, or have received a letter of demand, we strongly recommend you seek legal advice.
Please note: the information in this article is general in nature. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.
