Would you pay $5,000 to get a jump on the fifth season of Game of Thrones? You might not have a choice if you get caught downloading the first four episodes, which leaked ahead of the season premiere.
“$5,000 dollars for watching Game of Thrones is really not a good deal – that really is the worse case scenario,” Gil Zvulony, a Toronto-based Internet lawyer, told Yahoo Canada. “But I highly doubt a court would ever award the maximum amount of money for simply downloading a movie, it’s like sending someone to jail for jaywalking.”
Even still, $5,000 – or ostensibly 5,000 Gold Dragons in Game of Thrones’ Westeros currency (we couldn’t find the Canadian dollar to Gold Dragon exchange rate) – is a fair chunk of change for downloading in Canada. But it’s less than the maximum $20,000 per infringement that could be awarded prior to the 2012 amendments to Canada’s copyright law.
“They didn’t want to have an absurd result where you had somebody downloading a $10 movie and having to pay $100,000 in damages,” says Zvulony nodding to a case in the U.S. where a woman was sued $1.9 million for downloading 24 songs. “That’s an absurd result and it shocked ordinary people.”
The recent amendments cap the damages for copyright infringement at $5,000 for all infringements in a lawsuit.
“They can pursue the infringer for actual damages, if they can prove as a result of your downloading they lost x amount of dollars,” he says. “But that’s a really difficult, tricky and rather expensive way of proving damages, the movie studio is going to have to show their books, they’re going to have to show their revenues and expenses and then try to tease out how much each download cost them.”
Ultimately, the amendments to copyright lean in the favour of non-commercial downloaders.
“The cap on damages in non-commercial cases creates pretty strong disincentive for suing,” says Michael Geist, Canada Research Chair in Internet and e-commerce law at the University of Ottawa.
What’s more likely, he says, is the copyright holder sends a string of stern letters to the downloader via their Internet Service Provider. Since Internet providers don’t disclose their subscriber’s personal information, they act as a buffer between the downloader and the copyright holder. Any allegations of infringement by a rights holder are sent to an anonymous user.
“Most of what we’re seeing is to use the notice system to threaten potential lawsuits, in hopes of scaring people into settling,” he says.
To actually table a lawsuit against a downloader, they would have to go through the arduous process of obtaining a court order to get the ISP to usurp the privacy laws and disclose the Internet user’s identity.
If they won that case, they’d have to serve the bewildered illegal Game of Thrones binger with a lawsuit, take them to court and provide evidence that they own the works and the downloader stole them and convince the jury they are worthy of paying damages for the infraction.
Jail-time, is highly unlikely.
“Practically speaking I don’t know anyone who’s gone to jail for copyright infringement,” adds Zvulony. “To get jail time, you’d need to be running the biggest pirating studio in North America and there’s no stopping you because you just continue to pay the fines and do it anyways – in that case the judge might be convinced to put them in jail for six months maximum.”
As for Game of Throne downloaders, there’s yet to be any lawsuits or jail-time dished out for the leak, which originated from a group of media approved by HBO to review the first four episodes in advance. But Twitter threatened to terminate the accounts of users streaming the show through Periscope, the social media giant’s new streaming app.
Zvulony admits that the new streaming phenomenon has created an additional headache for the industry, pointing to Popcorn Time, a platform like Netflix, which scours the net indexing download files and letting users stream pirated T.V. and films without downloading.
“It’s very popular and the software itself has all sorts of different versions so it’s hard to stop the software and in streaming you don’t keep copies so it might be a loop hole,” says Zvulony adding that there’s a difference of opinion amongst lawyers as to whether or not streaming fits the bill of copyright infringement. “That’s the latest and greatest challenge for the Hollywood – it’s a cat and mouse game and the mouse is winning.”