Can you torrent something if it's no longer available?

[quincy]

If you torrent something, you are not only downloading, you are distributing to others. This is where they get you and what they charge you for.

Legally, just the act of downloading a single work is infringement and can cost the downloader thousands, whether the copyrighted work is distributed to others or not.

There are many infringement suits against single-work infringers in the courts right now, where the copyright holders are seeking the maximum statutory damages allowed under the law. This means the copyright holder could be awarded $30,000 against the infringer of a single work (when the infringement cannot be proved willful or intentional), and up to $150,000 for a single work (if the infringement can be proved intentional and willful).

Unauthorized distributors of copyrighted works are generally considered intentional or willful infringers. If the distribution of copyrighted works is extensive and a substantial amount of money is involved, the infringer not only faces civil actions where statutory damages can be awarded but also the Department of Justice can choose to file criminal charges. If convicted, the infringer faces not only hefty fines but also jail time.

 

[justalayman]

Thanks for the replies. I've decided not to torrent the show as it sounds like it could potentially be far too much trouble for what it's worth.

So for the most part, one should just avoid from obtaining any TV show or movie from anywhere other than the official source (or a source that everyone knows is legitimate such as Netflix)?

justalayman - I don't really understand your analogy. If someone downloads a TV episode, the rights holder still has the episode. If you steal my car, I no longer have a car. So wouldn't the correct analogy be for you to bring a cloning device into my garage, clone my car, and then "steal" the cloned copy while leaving the original car in the garage? If this were the case, you could go right ahead, I wouldn't mind
(that being said, I do understand that my personal opinion doesn't affect the legality of the situation; I only ask this because I would like to better understand why the law is what it is)

the rights (copyrights) are what is owned and those rights are analogous to the car in your garage. While copyrights are intangible, they are none the less something that is owned, just like your car. You are mistakenly thinking the physical creation is what is protected but the rights to control the physical creation are what are actually protected.

 

[ryan_hunter]

justalayman - thanks, that makes sense now.

quincy - out of curiosity, how did they come up with those numbers? I could understand someone being fined for the amount of money that was actually lost, but fining them $30k for downloading a couple of TV shows seems a bit ridiculous. It's almost like someone vandalizing an old $500 Buick, and then a judge telling the vandal that rather than simply paying for the damages, he is now responsible for replacing it with a Rolls Royce. Is there a logical basis for this?

 

[quincy]

justalayman - thanks, that makes sense now.

quincy - out of curiosity, how did they come up with those numbers? I could understand someone being fined for the amount of money that was actually lost, but fining them $30k for downloading a couple of TV shows seems a bit ridiculous. It's almost like someone vandalizing an old $500 Buick, and then a judge telling the vandal that rather than simply paying for the damages, he is now responsible for replacing it with a Rolls Royce. Is there a logical basis for this?

First, the US Constitution requires protection of original and creative works and that was why the Copyright Act was created. The statutory damages were arrived at as all statutory damages are for all laws - through discussion and debate and finally agreement.

The statutory damages that a copyright holder is eligible to collect from an infringer when the copyrighted work is registered with the US Copyright Office are amounts meant not only to compensate the copyright holder for the injury suffered as a result of the infringement but also to punish the infringer for infringing on the rights of the copyright holder and to deter others who might otherwise think to infringe.

Infringement is not a legal avenue a person can take to acquire a copyrighted work, which is why an infringer cannot expect to pay the copyright holder just the retail price of the movie after stealing the movie. This is no different than a shoplifter who will be charged more for the pack of gum he steals from a store than he would have had to pay if he purchased it from the store owner.

Here is what one court had to say about what needs to be considered when awarding damages in an infringement case:
"... [E]xpenses saved and profits gained by the defendants in connection with the infringements, revenues lost by the plaintiffs as a result of the defendants' conduct, and the infringer's state of mind, that is, whether willful, knowing, or merely innocent. Moreover, the Court should consider the purposes of the Copyright Act, including restitution to prevent unjust enrichment, reparation of injury, and deterrence of further wrongful conduct by the defendants and others."

The award of damages in a copyright infringement suit is not a perfect art and sometimes the damages awarded seem out of proportion to the act of infringement committed. But courts and juries are given a great deal of discretion (within the statutory limits) when setting the award - which means, after weighing all facts and factors, one copyright holder could be awarded the minimum of $750 per infringed work while another copyright holder could be awarded $30,000 per infringed work.