April 20, 2014

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BitTorrent: The Next Main Event

Few tears will be shed if Grokster and StreamCast are driven out of business as a result of the Supreme Court’s decision. The companies are far from lovable, and their technology is yesterday’s news anyway.

A much more important issue is what the rules will be for the next generation of technologies. Here the Court did not offer the clarity we might have hoped for, opting instead for what Tim Wu has described as the Miss Manners rule, under which vendors must avoid showing an unseemly interest in infringing uses of their products. This would appear to protect vendors who are honestly uninterested in forstering infringement, as well as those who are very interested but manage to hide it.

Lower courts will be left to apply the Grokster Court’s inducement rule to the facts of other file distribution technologies. How far will lower courts go? Will they go too far?

The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement – so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court’s active inducement test.

A court that followed the Grokster analysis closely would have to let BitTorrent off the hook. To do otherwise, I think, would be to institute a de facto predominant-use test, finding BitTorrent liable because too many of its users infringed. This might be dressed up as an inducement analysis, but it would be clear to everybody what was going on. Given the squishiness of the Grokster analysis, we can’t rule this out.

So the stage is set for the next phase of the copyright/technology litigation war. The music and movie industries don’t want to live in a world where BitTorrent is allowed to exist. The Supreme Court didn’t give them enough yesterday to kill BitTorrent. So the industries’ goal will be to stretch the Grokster rule, just as they tried to stretch the Sony rule before hitting a sandbar in the Grokster district court. We’ll see a careful campaign of litigation against peer-to-peer services, trying to gradually stretch the noose of inducement liability until it fits around BitTorrent’s neck. Failing that, we’ll see a push to get Congress to codify (the industries’ interepretation of) the Grokster rule.

The real winners, as usual, are the copyright lawyers.

Comments

  1. Luis Villa says:

    What would a suit against bittorrent look like? Aside from personally shutting down Bram and enjoining him from further development (a distinct possibility) , wouldn’t a suit against bittorrent be less like a suit against grokster and more like a suit against http or html? There are dozens of clients out there and the protocol is documented.

    It it probably worth noting in this context that DVD Jon is still happily doing… uh, dubiously legal things ;) and there are DVD players using decss or a variant available for every linux distro. None of the major players have tried to ship them yet, but it wouldn’t completely surprise me to see someone do it- as long as the shipped binary were ‘only’ a player, and not a ripper, and the express goal were clearly playing, it seems like (ignoring DMCA) this decision would give them clear cover for it.

  2. bill says:

    Don’t forget that BitTorrent is employed by Blizzard to distribute World of Warcraft (i.e. a copyright owner is using BitTorrent to distribute its software to its customers).

  3. Doug Hudson says:

    I think a distinction has to be made between the producers of (1) a communications protocol, (2) a file transfer program employing the communications protocol, and (3) a file sharing network employing the file transfer program.

    Here are four examples:

    Company A develops and freely distributes the SuperTorrentProtocol (STP). Many companys employ STP for efficient software and media distribution legally, many use STP to share copyrighted works as well. Company A doesn’t take a position on use, but has a small directory of example legitimate users and software programs employing STP.

    Company B makes a simple STP client/STP seed program and distributes it as $5 shareware. No overt advertisement of illegal uses, but 90% of the people using the program use it for improperly sharing copyrighted works. Company B includes a clickwrap notice that notifies users that their program is not to be used for illegal purposes.

    Company C makes complex file sharing software employing STP, and advertises you can use it to share legitimate copyrighted works such as a few files by famous bands whose distribution is sponsored by Company C. The vast majority of the file sharing software use (95%) is for improperly sharing copyrighted works, though. Company C includes a clickwrap notice that their program is not to be used for illegal purposes.

    Company D makes a traditional FTP (file transfer protocol – the 30 year old will known protocol) client/server with technical functionality specifically developed to foster anonymitiy, difficulty in tracing, and secure, encrypted communications. It is called “Spookster” and its byline is “Scare the RIAA!”

    So who would be liable for active inducement?

  4. Luis Villa says:

    Bill: all linux distros use bittorrent to distribute their install media at this point, which for fedora alone can amount to 100 terabytes of data in a good week. If torrent goes to court, there will be no shortage of amici briefs which stand up to the greater direct scrutiny suggested in the anti-Sony concurrence.

  5. bill says:

    Luis: Yeah, but RedHat and SuSE don’t use it for their paying customers (to my knowledge). So who really cares about Fedora and Debian and Slackware. a) There’s no money involved, and b) their products are freely distributable anyway. Blizzard is a shining example because their product (which is not already freely distributable) is distributed to _paying_customers_ via BitTorrent (or a variant therof if you want to get technical).

    I was aware of the Linux distribution, but what is needed are copyright holders with paying customers who sell licenses to their software to stand up and say “My business would be impossible without BitTorrent!” This is the lesson I’ve learned from Eldred and Grokster.

  6. Jon Lech Johansen says:

    If something can be taken out of context and used against you, it will be.

    “I build systems to commit digital piracy” — Bram Cohen
    http://web.archive.org/web/20010812033909/bitconjurer.org/a_technological_activists_agenda.html

    Luis:

    Dubiously? ;-)

    Linspire’s DVD player is basically xine + libdvdcss. Linspire has a CSS license from the DVD CCA, but they’re violating it by distributing libdvdcss (the CSS license requires, among other things, enforcement of regional playback control).

  7. dirty hippie says:

    I’m surprised nobody has drawn the analogy to “smoke shops.” This file sharing software is for tobacco use only. Step right up and get your water pipes. Don’t name your app “Bongster.”

  8. Daruku says:

    Ha “Bongster”…

    How about Ripster?

  9. Kev says:

    Lets not forget about XDCC and the mass amounts of file sharing that takes place on both IRC and AOL.

    I don’t see anyone going after Steve Case for allowing users to keep gigs and gigs of pirated software and music in their inboxes for redistribution through chat room bots.

    Are they going to go after Khaled Mardam-Bey for writing mIRC just because some people like to start channels soley to distribute cracks and software just to stick it to the man?

    Where do they draw the line??

    I believe we are only at the beginning of what peer to peer transfer will become legal and illegal. I also believe the open source movement will not only outgrow its greedy competitors but will provide multiple arenas for the mass distribution of pirated software/music/movies to everyone. Yay!

    I can still find plenty of software/cracks…. and dont see that ending anytime soon.

    Kev – Australia