BitTorrent.com released a new search facility yesterday, making it slightly easier to find torrent files on the Net. This is an odd strategic move by BitTorrent.com – it doesn’t help the company’s customers much, but mostly just muddles the company’s public messaging.
[Backstory about BitTorrent: The BitTorrent technology allows efficient Internet distribution of large files to many recipients, without creating a central network bottleneck. In current released versions of BitTorrent, you locate content by getting a torrent file from a standard web server. The torrent file points to the location of a “tracker” which in turn keeps track of where on the net you can go to get pieces of the content. (A new beta version eliminates the tracker, which is an interesting development but is largely irrelevant to the issues I’m discussing today.)]
The term “BitTorrent” is used to refer to three separate things:
- a company, which I’ll call “BitTorrent.com”,
- a software product called BitTorrent, distributed for free, with source code, by BitTorrent.com,
- the communication protocols that enable users’ systems to communicate, which are implemented by the BitTorrent software but can be implemented by other software programs.
Blending the three together is sometimes a harmless rhetorical shortcut, but at other times leads to faulty reasoning. For example, a court could hypothetically shut down BitTorrent.com (if the company were found to be a lawbreaker) but it could neither undistribute the software code that was already in users’ hands, nor uncreate the protocol. Critics who are thinking sloppily (or want their audiences to think sloppily) sometimes ignore these distinctions. BitTorrent.com, the company, may have a business incentive to blur the distinctions, in order to make the company’s role seem more important than it really is.
The new BitTorrent.com search facility seems to be entirely separate, functionally, from the BitTorrent software and protocols. Anybody could have created this search facility; and indeed others have. Google, for instance, happens to offer a fairly complete torrent search facility. A BitTorrent.com search for “sith” returns quite a few files claiming to be the new Star Wars movie; but so does a Google search for “sith filetype:torrent”. There’s no reason, functionally, why BitTorrent.com had to be the one to offer a torrent search engine. An independent search engine would work just as well.
Is BitTorrent.com search legal? I’ll leave that one to the lawyers; but I’ll point out two things. First, the DMCA provides a safe harbor against indirect infringement for search engines that follow certain takedown procedures on receiving infringement complaints. BitTorrent.com will apparently follow those procedures, and so the safe harbor may apply. Second, the connection from BitTorrent.com to any infringing content is quite indirect: a BitTorrent.com search result gives the address of a torrent file; the torrent file gives the address of a tracker, the tracker gives the addresses of client computers, and the client computers are the ones that actually distribute infringing content. (The new trackerless version of BitTorrent changes the details, but doesn’t reduce the number of steps.) There are at least three intermediaries between BitTorrent.com and any infringing material.
Even if the search facility is legal, it seems like a bad strategic move by BitTorrent.com. Large copyright interests have been trying to paint BitTorrent as having a pro-infringement agenda; but thus far their efforts have had only limited success because Bram Cohen (the software’s creator) and BitTorrent.com have carefully dissociated themselves from infringement and have conspicuously designed their technology for the benefit of noninfringing users.
As Joe Gratz argues, the new BitTorrent.com search facility, regardless of the merits, will make it easier for BitTorrent.com’s critics to paint the company as having a secret pro-infringement agenda. And that by itself is enough to make an in-house search engine a big mistake for the company.
BitTorrent.com needs to remember that it can be killed by Washington politics. But politicians need to remember, too, that it is the BitTorrent protocol, not the company, that is changing the world. Killing the company will not kill the protocol. A protocol is an idea; and in a free society ideas cannot be killed.