Recently the American TV program Prison Break has quietly begun to gain more and more popularity in China. This can be attributed to the subtitle teams that have provided a timely and quality translation, and to BT download, which has led to a fast circulation of the program on the Internet. Foreign media organizations have mainly focused their attention on the social function of the Chinese subtitle teams in cultural exchange, while their domestic counterparts have primarily focused on the impact or challenges that the Internet poses to traditional media. Both have failed to consider the function of BitTorrent or BT technology and the intellectual property issues involved as Prison Break has become popular in such a brief time in China. This paper analyzes the intellectual property issues mostly by means of the technical principles of BT.
    BT enables sharing in a way of “direct selling”. It features faster downloading speeds when more users download, and users upload during the process of downloading. Therefore, the civil relationship in BT download should include the legal status and liability of up loaders, down loaders and BT websites. Unavoidably this issue involves the possible infringement of copyright by BT software developers and the legitimacy of BT software.
I. Legal Status of BT users
    According to BT’s technical principle, BT users provide uploading when they download files for swapping and also upload when they download. This conduct should be analyzed in order to determine whether BT users have infringed upon any copyright. Technically the conduct involves temporary copying. “Temporary Copying” refers to the process where a work from outside a computer enters into the RAM of a computer and stays there until it disappears in RAM because the computer is shut down or rebooted, or any follow-up information enters the RAM. Does temporary copying constitute an infringement upon the reproduction right? Or does it violate the existing laws and regulations in China?
    During enactment of the Rules for the Implementation of the Copyright Law, someone recommended adding a provision on temporary copying and extending the provisions on technical measures and rights management information to the entire copyrights protection. However, the recommendations were not ultimately enacted because they exceeded the regulatory limits. The prohibition of temporary copying is difficult to stop due to online use by end users, as it is infeasible to prohibit its non-commercial use. Internationally contentious disputes exist with respect to the prohibition of temporary copying. During the formulation of the WIPO (World Intellectual Property Organization) Internet Treaties, developing countries, including China, expressly opposed the prohibition. Because no agreement could be reached, the Internet Treaties did not stipulate the prohibition of temporary copying. Also, it was not appropriate to do so because no copyright laws had provided for temporary copying. However, the above fact does not mean that temporary copying is legal; it constitutes an infringement once it breaks through certain limits. 
    Specifically, in order to determine whether temporary copying is a violation of copyright laws, it is essential to determine whether the copying is necessary for the enjoyment of a given work. If it is necessary, it cannot be determined to constitute infringement. For example, playing a movie or running a software product does not infringe upon the right to copying or reproduction. However, it is not necessary for the buyer’s enjoyment to play a movie that he bought legally on the Internet for the public so that others can enjoy it. Moreover, the uploading conduct of BT users can hardly be regarded as constituting an enjoyment of a given work. Even if it is free of charge, it still constitutes an infringement to the copying right because such a means of reproduction is unnecessary for the enjoyment of a work. Some audiovisual works often contain a warning that “this program is restricted to family use” or the like. When a consumer buys and plays an audiovisual work, it does not constitute infringement as long as the use does not exceed the relevant limits, even if the consumer invites friends to enjoy the work, which also realizes the value of the work. However, it would be an unnecessary means of enjoyment for the buyer to transmit the work across the Internet so that others can obtain a copy. Whether any profit is involved is not a necessary requirement for copyright infringement.
     Moreover, can BT users make a defense to a cause of action in a pleading, claiming that they did not know that they offer uploading during the process of downloading? There is no denying that many BT users do not know anything about the technical principle of BitTorrent technology. To determine whether the conduct of BT users is legal, we need to analyze the type of fault involved in copyright infringement. Although the Copyright Law is unclear, the Interpretation of Several Issues in the Application of Laws in Hearing Computer Network-related Copyright Disputes by the Supreme People’s Court provides a clear doctrine of the liability fixation. According to Article 4 of the Interpretation, “any network service provider which, through the network, has participated in the copyright infringement by others or abetted or assisted others in infringing any copyright shall be investigated, together with the other persons or the direct infringers, of contributory infringement liabilities by the People's Court in accordance with Article 130 of the General Principles of Civil Law. ” According to Article 5 of the Interpretation, “if any network service provider which provides content services fails to remove the infringing content and eliminates the consequence of infringement after having been fully aware of the infringing conducts of the network users or having received warnings with sufficient evidentiary support from copyright holders, such network service provider shall be investigated, together with the network users, of contributory infringement liabilities by the People’s Court in accordance with Article 130 of the General Principles of Civil Law. ” From the above analysis, the doctrine of liability for wrongs is adopted to determine whether the network service provider’s conduct constitutes infringement. The doctrine should prevail in the case of direct infringers whose intent to infringe is more obvious. Can BT users be determined to be wrongdoers since they do not know that in the process of downloading they are offering uploading to others? As is known to BT software users, a client needs to first install BT download and the user instructions or user agreement will explain the general characteristics and technical features of BT software. Once users install and use BT software they are deemed to accept the agreement. Whether users have actually read the user agreement does not influence the validity and effectiveness of the agreement. Users cannot use the excuse that they did not know that they did anything wrong once they download and install the BT software.
    Finally can BT users claim a reasonable defense that their use of others’ works is for personal use, study, research or enjoyment? BT users often reference the liability exception clause contained in the Copyright Law. However, in the opinion of this author, the conduct of BT users does not comply with the clause because: (1) BT users upload seeds to websites to face unspecific subjects and due to the unspecific subjects, the uploading conduct is incompatible with the personal use liability exception in the law; (2) both the Copyright Law and the Provisions on Protection of Network Communication Right have granted owners the right to communicate information on networks and have provided that it constitutes infringement to communicate others’ works to the public through information networks. As BT users upload and download from the Internet, a downloader is also an up loader. The downloader is unspecific, and so is the up loader. This is in concordance with the behavioral features of communication to the public.
II. Legal status of BT websites
    The existing BT websites fall into two categories: the dedicated BT download websites which classify seeds and provide a search function to facilitate downloading, and are also known as BT portals; and the BBSs which contain links and downloads of seeds, and are also known as vertical BT websites.
    To categorize BT websites as above means to analyze any wrongdoing of specific types of websites in the process of BT downloading. The websites in category one cannot be determined as wrong solely on the account that they provide a space for seeds, but can be found to be wrong by analyzing the nature of classification that they have done on seeds. It is sufficient to assume that the websites are subjectively wrong if they should have known about the illegal source of the works under the classification and continue to assist the netizens in uploading and downloading the surely infringing works. For the websites in category two, the release of seeds depends on the uploading of users and the automatic management program of their computers. The computer system runs automatically without active manual interference and the automatic copying by the system is not equivalent to user-initiated copying. Moreover, users shall be responsible for the information released according to the Management Provisions Concerning Electronic Bulletin Services on the Internet in China.
III. Legitimacy of BT Software Developers and BT Software
    For the issue of legitimacy, the United States has had a relevant case. In 2004, in the case of Motion Picture Association of America (MPAA) vs.Grokster and StreamCast Networks (the developer of Morpheus) and musiccity.com, the United States Court of Appeals for the Ninth Circuit concluded that the defendant was not liable for users who employed the defendant’s services in illegally copying or sharing music and movies. The reasons are mainly that: the peer-to-peer file-sharing technology at issue was not simply engineered to communicate contents. The technology has numerous other uses, significantly reducing the distribution costs of the public domain and permissively shared art and speech, as well as reducing the centralized control of that distribution. Therefore, BT software itself cannot be held as illegitimate on the grounds that it is used by others to transfer infringing files, unless it can be proven that the BT software developers develop the software solely for the purpose of infringement.
    In fact, the court decision is an application of the “technology neutral” doctrine in the judicial practice. Mostly the doctrine has been established in legislation in the Internet domain around the world. It means that laws do not address specific technologies but should reserve a fair amount of space for technological advances, because any one individual does not control technology development and technological progress is always ahead of legal advancement. Laws should be maintained consistently, while technology changes frequently. For the contradiction or conflict between law and technology, legislators should insist on the “technology neutral” doctrine in legislation and not regulate specific techniques.
    However, the above does not exclude cases in which BT software is illegal. For example, BT software that can hide IP addresses was developed recently, so that users can escape from liability. It can be assumed that the developer developed the program solely for infringing purposes, with no regard as to whether the program is for the developer’s personal use. Only the form of liability is different. If the software is offered to others, the developer is indirectly liable for assistance in infringement; the developer is directly liable for infringement if the software is for its own use.
Zhao Zhanling is a specially invited researcher at IP Center of China University of Political Science and Law.