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Monday, December 7, 2009

Internuts Blame Copyright Enforcement for the Sins of BitTorrent Tracker-Site Operators.
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A dumbfounding idea has been circulating on the Internet: If would-be pirate kings commit egregious acts in order to increase the costs of enforcing federal civil rights, like copyrights, then we should reward them by forcing copyright owners to spend more to enforce their rights.

I would have thought that almost anyone would realize that functional societies cannot let would-be-pirate kings use fraud or negligence to increase the cost of enforcing the federal civil rights that they usurp. But then I read the "scholarly" article Challenges and Directions for Monitoring P2P File Sharing Networks: Why My Printer Received a DMCA Takedown Notice, and the Ars Technica post Using faulty data to demand settlements from innocent surfers. Both assert that if BitTorrent tracker-site operators recklessly or deliberately accuse third parties of infringing copyrights, then the owners of the copyrights infringed must spend more money to enforce civil rights intended to empower a creative sector beholden to private audiences, not governments.

Fortunately, centuries of common-sense practice suggest a better solution: If BitTorrent tracker-site operators are falsely accusing third parties of infringing copyrights, then functional societies should stop those operators who do so recklessly, and prosecute those who do so deliberately.

This latest pathetic saga in piracy promotion began in 2008 when three publicity-seeking professors published a "study" entitled Challenges and Directions for Monitoring P2P File Sharing Networks: Why My Printer Received a DMCA Takedown Notice. These professors noted that some BitTorrent tracker sites were using defective, buggy software that would let a very sophisticated user blame another IP address for the user's own illegal acts. The professors then used this bug to falsely accuse their own network printer of sharing movies like Iron Man, and managed to receive cease-and-desist notices.

Naturally, you would assume that the combined intellect underlying three doctoral degrees could perceive the obvious solution to such scholarly defamation of an innocent printer: The major BitTorrent tracker sites are located in the United States, Canada and the EU--countries with consumer-protection laws that could easily close any tracker site using the defective tracker-site software. But, somehow, this most obvious solution to a problem admittedly caused by defective software never occurred to these learned rofessors.

Instead, the dynamic trio's proposed solution was to require copyright owners to expend even more time and effort to enforce copyrights. This was, of course, a brilliant solution--provided that your goals were to encourage BitTorrent tracker sites to use buggy software and to ensure that students making utterly foreseeable infringing uses of campus networks might have to pay even more to settle copyright-infringement claims. And perhaps those were the goals of professors who concluded that their "observations" should suggest some "next steps for all parties involved in P2P file sharing" including "users."

When Challenges and Directions was first released, I drafted a blog post responding to its inanity, but I decided not to publish it. Simply put, this professorial P.R. stunt largely failed: the media generally ignored the daft analysis attached to their oh-so-clever Wanted-Poster graphic of their deliberately defamed printer. My unpublished response would have made two points: (1) falsely accusing your printer of wrongdoing is stupid, but falsely accusing your neighbor of wrongdoing is a tort and a crime; and (2) the "study" failed to show that the bug identified was actually being exploited in practice.

In retrospect, I should have suspected that once Challenges and Directions had suggested to operators of piracy-empowering BitTorrent tracker sites that they could conceal the crimes and wrongs that their sites actually do facilitate by falsely accusing third parties of piracy, then tracker-site operators might well do just that--directly, and without waiting for third parties to exploit buggy software.

According to Ars Technica, that is what operators of some popular BitTorrent tracker sites have done. Ars reports that some operators are deliberately and falsely accusing third parties of participating in the massive piracy that their sites enable:

A BitTorrent tracker coordinates the various peers in a "swarm," keeping track of which users have which bits of a particular file. When a new machine joins a swarm looking for that file, it is given a list of peers which are sharing parts of it.... [I]t's a simple way for investigators to quickly grab long lists of "pirate" IP addresses.
This only works if a tracker is passing out reliable information--a faulty assumption. Tracker operators aren't interested in making their trackers simple enforcement tools for the content police, so some popular sites purposefully add legitimate, non-infringing addresses to their trackers. The goal is to poison the well just enough that content owners can't use tracker data with impunity, but not so much that it degrades performance of the swarm.
Some support for these claims was given, and I will assume, arguendo, the accuracy of the Ars report in order to highlight its fundamental errors: Ars seems to treat such conduct by tracker-site operators as if it were not only perfectly acceptable, but also a really clever way to thwart copyright enforcement. Actually, it is neither, for two reasons.

First, you commit a crime if you falsely accuse others of criminal acts in order to aid, abet, and conceal actual criminal acts--and the Ars report suggests that the crime(s) being committed are almost uniquely eggregious: Tracker site operators are allegedly deliberately endangering some of the millions of Internet users who do not engage in deliberate piracy in order to cover the tracks of those who do. Indeed, in developed nations, if you commit such acts, then you may commit many crimes. For example, under U.S. law, tracker-site operators who falsely accuse third-parties of piracy in order to obstruct attempts to identify actual illegal and criminal acts might well commit at least the following federal crimes--not to mention other state-law crimes:

  • 18 U.S.C. § 2 (Aiding-and-Abetting)
  • 18 U.S.C. § 3 (Misprison of Felony)
  • 18 U.S.C. § 241 (Conspiracy against Federal Rights)
  • 18 U.S.C. § 371 (Conspiracy)
  • 18 U.S.C. §§ 1343, 1346 (Wire Fraud)
  • 18 U.S.C. §§ 1961-68 (Racketeering)
Naturally, if the entity to whom tracker-site operators send such false information happens to be an actual law-enforcement agency, then those operators may commit even more crimes.

Second, this daft tactic certainly can harm the innocent--but it should not materially hinder copyright enforcement. When alternative enforcement methods like notice-and-takedown or graduated response are unavailable, copyrights are usually enforced by bringing, or threatening to bring, civil lawsuits. In such lawsuits, the plaintiff must prove infringement by the preponderance of the evidence. So long as it is at least 51% likely that the defendant infringed a copyright, then such a lawsuit can be reasonably threatened, filed, litigated, and tried to a verdict.

Consequently, any tracker-site operators who falsely accuse others of crimes are imbeciles. Ars reported that their "goal is to poison the well just enough that content owners can't use tracker data with impunity, but not so much that it degrades performance of the swarm." But copyright owners can reasonably use tracker data to bring or threaten enforcement actions unless 51% of the "swarm" addresses are fakes--and that would severely "degrade performance." As a result, BitTorrent tracker sites that falsely accuse a few others of participating in the criminal acts that their sites facilitate are committing crimes--and those crimes could harm innocent third parties--but they cannot really materially harm the copyright owners whom the tracker-site operators intend to cripple.

It makes no sense to blame copyright owners for tracker-site-operator conduct so criminally stupid. If operators of popular piracy-prone tracker sites deliberately and falsely accuse third parties of participating in what are arguably racketeering enterprises, then a good solution exists: The operators planting those false accusations should be swiftly identified, prosecuted, convicted, and punished as severely as applicable criminal and civil laws permit. Falsely accusing the innocent in order to conceal actual wrongdoing would be one more nadir in the already ugly history of file-sharing piracy.

And professors should be particularly embarrassed to be blaming copyright owners for tracker-site-operator conduct that is either reckless or criminally inept. Technically, professors are supposed to help young people learn how functional human societies do and should operate--Challenges and Directions fails that test. Nor is it alone. A law professor spent nearly 25,000 words explaining why we should narrow copyrights merely because website operators might profit from infringement by committing fraud. See Ned Snow, Copytraps, 84 Ind. L.J. 285 (2009) (arguing that if Party A might create a website that dupes Party B into infringing the copyrights of Party C, then we must narrow the copyrights of Party C so that Party B will not infringe them).

Finally, I must note than none of the above endorses the enforcement practices of the Video Protection Alliance discussed by Ars. Absent circumstances that would make doing so impractical, if you are sending a settlement demand in addition to a cease-and-desist notice, then it does seem sensible to try to connect to the reported peer. Fortunately, reasonable alternative enforcement mechanisms like notice-forwarding and graduated response have real potential to all but eliminate infringement lawsuits against ordinary consumers--as notice-and-takedown has done in the context of hosting sites.

posted by Thomas Sydnor @ 5:48 PM | Copyright , E-commerce , IP , Internet , Software , The FTC

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