April 16, 2014

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A Freedom-of-Speech-based Approach To Limiting Filesharing – Part III: Smoke, smoke!

Over the past two days we have seen that filesharing is vulnerable to spamming, and that as a defense, the filesharers have used the IP block list to exclude the spammers from sharing files. Today I discuss how I think lawyers and laypeople should look at the legal issues. Since I am most decidedly not a lawyer, nothing I say here should be considered definitive. Hopefully, it is at least interesting.

An analogy:

Washington Square, in New York City, was for many years a place where drugs were sold. A fellow would stand around quietly saying to passersby “Smoke, smoke!” However, this so-called “steerer” held no drugs. His role was simply to direct the buyer to the “pitcher”, who had the drugs somewhere nearby, and who kept silent.

Even the strongest defender of free-speech rights understands that the “steerer’s” words are not just speech. His words are not similar to those of this article, though both simply say that someone in the park is selling. He is as legally responsible for the sale as the “pitcher”, because they are, according to legal terminology, “acting in concert”. He is a drug dealer who may never touch any drugs. Note also that the “steerer” receives payments from the illegal transactions – though it is not in fact legally necessary to be able to prove the payments to establish that he’s “acting in concert”. All that’s required is that the “steerer” and the “pitcher” share “community of purpose” in facilitating the illegal transaction.

In the Napster case, the court held that Napster, even though it did not have any copyrighted data on its servers, was liable for contributory infringement. To use Napster, a downloader would login to Napster’s central server, which connected the user to another user who had a file that was being searched for. Since it was Napster’s role to hook up the parties illegally exchanging files, it is reasonable to see this as analogous to the “steerer” in Washington Square – Napster didn’t have the infringing materials, but that really isn’t a defense.

The gnutella network is decentralized to solve the legal problem presented by the Napster decision. Nonetheless, there is something still centralized in gnutella: the IP block list. Users of LimeWire get their block list from LimeWire and only from LimeWire. Accordingly, if Napster was like the “steerer” in Washington Square, LimeWire furthers the “community of purpose” in a different way; it is someone who gives negative information rather than affirmative. He’s someone paid to stand in the park pointing out who are cheaters selling bad drugs, allowing the purchasers to find the good stuff.

What is a legitimate P2P spam filtering authority versus one that shares “community of purpose” with infringers? The former could legitimately act to keep the network from being flooded by those selling weight loss drugs, without facilitating infringing. There is probably no bright-line rule, but it is reasonably clear that LimeWire is well on the wrong side of any possible grey area.

It’s useful to compare gnutella spam cop LimeWire with e-mail spam cop AOL.

LimeWire does not clearly advertise its spam cop role as a feature of its software, and does not discuss its block list. (The LimeWire web site has only the cryptic description “We’re always working to protect you from viruses and unwanted sharing.”) There is no discussion anywhere about what sorts of sites and files it is blocking and for what reason. No notification is given by LimeWire to a site when it is blocked, nor is there any way given to contact LimeWire to remove yourself from the block list.

In comparison, blocking e-mail spam is, for AOL, a major selling point. AOL does not block bulk e-mailers (many of which are legitimate) on a whim. Every e-mail rejected by AOL is bounced with a notification to the sender, and there are detailed instructions to bulk e-mailers as to what they need to do to avoid running afoul of AOL’s filters. There is a way to contact AOL to remove oneself from the block list, if one is legitimate. The whole process is transparent.

It is clear that a legitimate spam cop cannot block spoofers, since any search for a non-infringing file would be unmolested by spoofs, yet it appears that LimeWire does block MediaDefender. In fact, LimeWire appears to be quietly promising to do so, when it says that it protects against “unwanted sharing”, whatever that is.

Lastly, it appears that LimeWire’s statements in court conceal what it is doing.

As we mentioned in the first post, there is an ongoing case, Arista v Lime Group. In its motion for Summary Judgement, LimeWire states

Likewise, LW does not have the ability to control the manner in which users employ the LimeWire software. Unlike the Napster defendants, LW does not maintain central servers containing files or indices of files. … LW’s system is like that analysed by the Ninth Circuit in Grokster, “truly decentralized”. … LW no more controls the actions of its customers than do any of the thousands of companies that provide hardware or other software used in connection with the internet.

This omits any discussion of LimeWire’s centralized block list. LW assuredly does control the manner in which LimeWire users employ the LimeWire software, because if a site is added to the IP block list, it is no longer visible to most LimeWire users. This is very far from the normal situation applying in other software used in connection with the internet.

Moreover, the plaintiffs’ attorneys appear to be unaware of the blocking of spoofs, as their reply motion makes no mention of it (nor the other hidden features of LimeWire software discussed yesterday).

While it might be possible to run a legitimate spam-blocking service for P2P networks, it would look rather different from what LimeWire is doing.

Conclusion

The best way to regulate filesharing effectively is to analyze the various players’ roles on free-speech grounds. The individual filesharers (when they share infringing material) are certainly violating the law, but in a small way that probably can’t be reasonably controlled. The publishers of the software that allows the network to run (including LimeWire) are exercising free speech – the fact that their code can be made to do something illegal should be irrelevant. However, LimeWire is facilitating infringing because of the way it runs its IP block list. If LimeWire were shut down, the gnutella network become useless for downloading infringing music. Because of their actions to keep the network safe for infringers – their “acting in concert” – LimeWire should be liable for contributory infringement.

This course will avoid free speech restrictions that trouble many. In terms of preventing infringing, it also will be far more productive than trying to target the small fish. It is an effective measure that respects rights.

[This series of posts has been a somewhat shortened version of an article here.]

Comments

  1. Crosbie Fitch says:

    Free speech is a natural right, and cannot be censored under any circumstances (though certain speech may be prohibited).

    Copyright is a mercantile privilege. No, it’s not mentioned in the US Constitution, and couldn’t be since the Constitution only recognises natural rights – it cannot grant privileges.

    Unless a ‘steerer’ endorses/incites the violation of anyone’s rights it’s difficult to see how they are as guilty as a pusher/publisher of substances/speech that jeopardise other citizens’ lives. If someone says “Psst! Klu Klux Klan meeting in the house behind me at 7pm” are they necessarily inciting racial hatred? Similarly, is someone who directs tourists to Speakeasies guilty of selling intoxicating liquor?

    Such speech cannot be censored, but is the speaker as guilty of incitement as the person they’re directing others to?

    Is Google as (or at all) culpable of incitement if it directs those seeking such?

    Can you really infer motive to distinguish between Google and Limewire?

    I suggest that if you were truly in support of free speech and the individual’s natural right to liberty, to freely share and build upon mankind’s art and technology, then you would instead be exploring ways in which file-sharing systems could better defeat such unnatural privileges as copyright and patent.

    • golden says:

      While I would agree with you that there is much to talk about in a deep way on the subject of copyright and patent, it is not my purpose here. For this discussion, I will simply discuss the legal state of affairs as it is now.

      The problem I have with your analogy is the KKK having a meeting is not in-and-of itself illegal. The KKK was even allowed to march in Skokie. (And I support this decision, BTW.) The point is that (at least now) sharing a copyright file *is* against the law.

      Maybe because you see pot is a victimless crime, I’ll try a different analogy

      Suppose someone was standing outside a bank while it was being robbed. He said nothing until he yelled “Hey, the cops are coming.” Do you agree that that is not a free-speech case? He is “acting in concert” with the robbers and is a part of the conspiracy.

      By affirmatively blocking spoofers on their IP block list, LimeWire is participating in a conspiracy with the people doing actual infringing. The spoofers in no way reduce the usefulness of gnutella for non-infringing uses.

      • Anonymous says:

        I don’t get how you try to throw the KKK march in Skokie in as even a remote comparison of filesharing or the issue of free speech. Sorry.

        Meanwhile, regulating filesharing as a concept is a failed and moot point. That would be like trying to regulate IRC, and would involve a lot of violations of personal rights and otherwise trying to shoehorn a solution.

        There’s a very easy solution to filesharing: give people an EASIER and legitimate way to not need to fileshare. Then, we won’t do it. Why is the record company not bothering? They have decided that legislation and lobbying are easier, since they have more resources than the average individual.

        Contributory infringement doesn’t really work in the way you imply, either. What if you make a program, and your sole intent is to simply let people share works with eachother? Does that mean you are liable? No. Why is someone who says “smoke” guilty of anything? oh, right, they’re not. They don’t spin.

        Physical products and adding theft to something intangible don’t go together.

        • golden says:

          1) I wasn’t the one who brought the KKK into it, that was the post I was replying to.

          2) The case I am commenting on is in the courts now and is very far from moot.

          3) Napster was held accountable for contributory infringement. I believe that LimeWire should likewise be, on the basis of its active publication of the IP block lists blocking spoofers.

          4) The example of the guy in Washington Square Park saying “Smoke, Smoke” is very much real and does work the way I described.

          • Anonymous says:

            Napster? really, you need a better example.

            The real court test now is inducement, not contributory so much. It’s a lot harder to prove contributory unless you advertise it openly.

            The case will mean nothing no matter which way it goes, because in the end the appeal will speak for more.

    • John Millington says:

      “Copyright is a mercantile privilege. No, it’s not mentioned in the US Constitution, and couldn’t be since the Constitution only recognises natural rights – it cannot grant privileges.”

      The constitution grants all sorts of privileges; giving power to government, which the government otherwise wouldn’t have, is what the Constitution does. And Article 1 Section 8 explicitly grants Congress the power to give exclusive rights to authors and inventors. You can argue that this has been mis-applied to music, movies and warez, but if we were talking about books, the constitution clearly does grant a privilege (and calls that privilege a “right”) to authors. You’re just plain wrong that it doesn’t grant privileges. Read it.

      “Unless a ‘steerer’ endorses/incites the violation of anyone’s rights…”

      The “steerer” does that, provided that you understand the “right” in question is one created by Congress (and justified by the Constitution) rather than a natural right.

      “I suggest that if you were truly in support of free speech and the individual’s natural right to liberty…”

      Relax, dude. The guy is talking about the existing law, not engineering. It’s not _his_ fault that copyright and patents are the way they are; he’s just explaining it. Shooting messengers won’t help.

      “ways in which file-sharing systems could better defeat such unnatural privileges as copyright and patent.”

      Technology can’t do this. Technology might come up with ways to make the laws harder to enforce, but it won’t actually be able to remove liability. If you really want to “defeat” unnatural privileges, then write your congressman to repeal the existing laws (tip: include a lot of cash in the envelope), or if you’re more ambitious, get the ball rolling on a constitutional amendment that takes all those laws out with one fell swoop.

  2. Anonymous says:

    On the one hand, I’m surprised that LW set up a central block list. As you correctly point out, this leaves them legally at risk for “aiding and abetting.” It does seem to conflict with their decision to devise a file sharing system that is not centralized.

    On the other hand, perhaps your comment “The spoofers in no way reduce the usefulness of gnutella for non-infringing uses.” is incorrect. Suppose MediaDefender is hired to prevent copying of the new Harry Potter movie. I suspect there are legally shared works relating to that movie – perhaps a movie review, or a student’s school paper on Harry Potter. How likely is it that MediaDefender actually downloads these documents and does a copyright and fair use analysis? How difficult is it to find the legal works relating to this movie amidst the MediaDefender spoofs?

    Of course, I have no information about how MediaDefender works, but if the spoofs add nothing of value, and at least potentially remove something of value to LW’s customers, perhaps LW is justified in keeping them out of the system.

    • golden says:

      I can’t speak specifically to every action MediaDefender did, and so I can’t say that they never went out and blocked items beyond what they should have. That being said, I don’t think that the case you are referring to would actually occur. Suppose I had something called “Mitch Golden’s Harry Potter Spoof”. If this is non-infringing and you search for it, you’ll find it whether or not there are spoofs present called “Harry Potter and the Philosopher’s Stone”, because MediaDefender won’t be posting spoofs with that title.

      My impression is that most users of LimeWire are unaware of the centralized block list. I was surprised by it too.

      • Brian Sniffen says:

        MediaDefender and similar processes work by finding the titles of existing shared files and posting files with identical or similar names. They often add notes like “Complete” or “without errors” to steer people their way. In a few cases, I have seen them issue takedown notices against obviously non-infringing work—for example, a screenshot of a program posted in a review. Because it was called “Office2003.jpg,” it triggered their sensors and they automatically issued a DMCA takedown notice on behalf of Microsoft. Had this been on a Gnutella network, they surely would have started spoofing the file as well as sending a takedown notice.

        Why *wouldn’t* MediaDefender overreach? They are unlikely to damage their clients and may prevent a few fair uses that would have substituted for licensed works.

        • golden says:

          Again, the issue isn’t MediaDefender. The issue is LimeWire and what it is doing. They use their block list to block spoofers but not infringers.

          • Dissentor says:

            Huh? I don’t follow. Of course MediaDefender is part of the issue. Suppose we accept the premise that MediaDefender is indeed overreaching and taking actions that burden legal filesharing. Suppose that this was posing problems for legal users of Limewire. Suppose that Limewire’s motives were to help their legal users avoid the MediaDefender junk and access legal content, and this happened to (as a side effect) also help illegal users. Then that should change the analysis, shouldn’t it? It certainly changes the assessment of whether Limewire had “community of purpose” with infringers.

          • golden says:

            There are lots of premises there. (a) That MediaDefender was overreaching. (b) That there were lots of non-infringing uses of gnutella that were being adversely affected, and (c) that LimeWire (which doesn’t act against infringing uses of its technology) was simply motivated to protect the non-infringing uses.

            I don’t think you can establish all of that. Then again, the guy might just have felt like saying “Smoke, smoke” in Washington Square.

    • golden says:

      An amusing point one could make is that by your argument, all the people who are posting the *real* Harry Potter movies (the infringing ones) are also burying the non-infringing works of the types you’re describing. Of course, LimeWire does nothing to prevent that from happening, so it’s pretty inconsistent to bother with the spoofs.

  3. Steve R. says:

    the stated them of Mitch Golden post is “Today I discuss how I think lawyers and laypeople should look at the legal issues.” In doing a quick read I fail to find how Mr. Golden is explaining his thesis of “A Freedom-of-Speech-based Approach To Limiting Filesharing”.

    My first reaction to what I have read is that he is starting his analysis based on the presumption that file sharing is simply an illegal activity that must somehow be policed. Also, while freedom of speech is one issue, for a supposed look at the legal issues, Mr. Golden seems oblivious to other legal issues such as due process.

    For example, in his analogy he speaks of a “steerer” directing people to a “seller” of some illegal activity. This example is flawed for presupposes guilt on the “steerer” and the person conversing with the “steerer”. To establish effective guilt, one would need to trace the actions of the “steerer” and supposed “buyer” through observation to establish that guilt through due process. For all we know the “buyer” may only want a legal aspirin..

    I won’t deny that a large portion of file sharing may be considered illegal. My issue is that we seem to have accepted the notion that certain concepts such as free speech and due process can be ignored in the quest to stamp out piracy. Additionally, that we can pass laws that would effectively allow warrantless search and seizure of a persons data stream.

    PS: I am not a lawyer, so these are my lay person views. I also would like to add that there appears to be a growing body of real research documenting that filesharing causes no real damage. If that is the case, we need to ask ourselves why we’re wasting our time discussing a non-issue.

    • golden says:

      Let me be perfectly clear on this. I believe filesharing in general to be quite legal. As I write this, a machine at my home is running a BitTorrent client seeding a Kubuntu distribution. Moreover, even if gnutella were populated at present with nothing but infringing files, I would still argue that the distribution of source code for its clients should be legal. If this all isn’t clear enough here, let me suggest you read the longer version of this essay linked from the bottom of the post, where I make this quite explicit. I am adamantly opposed to the sorts of things sometimes suggested by the record labels, which would, for example, turn all the ISPs into spies watching everything we do to prevent infringement.

      That is, however, not the end of the story. What LimeWire is doing is not merely distributing software. They are actively running a service (the IP block list) that acts in concert with the people who are sharing infringing files. Without this list, the record labels would be able to use spoof files to defend their copyright materials.

      In case there’s any confusion, I am not suggesting that one shouldn’t be able to distribute the block list. I distribute it myself in the Appendix to the linked document. What LimeWire is doing is *actively* running an ongoing service that facilitates infringement. That is not freedom of speech,.

      • Steve R. says:

        First, I need to apologize to you for not effectively proof-reading what I wrote. Furthermore, I some-times get stuck on a theme (such as due process) and I don’t effectively respond to what was actually written. You are absolutely correct “turn all the ISPs into spies watching everything we do to prevent infringement”. Thanks for your clarification. I will need to re-read what you wrote.

      • Brian Sniffen says:

        It’s not freedom of speech. It’s network management. The IP block list only started after spammers—however motivated—began abusing the network. The spammers are not using the network with the intention of sharing files, but with the intention of blocking the sharing of files. The organizer and operator of the network (and author of its principal client) is more than entitled to reasonable network management, including blocking abusers.

        Since this block is optional and easily disabled by end-users who *want* to find the spam, how can it be bad?

        MediaDefender’s customers have a recourse in the law: they may issue DMCA takedown notices. If they do not like the DMCA, they may ask Congress to make it stronger. Abuse of others’ technical resources to enforce their copyrights is not appropriate.

        • golden says:

          In the case of e-mail spam, there is a genuine network concern from spammers. P2P spoofers present no such concern, as they don’t initiate the sending of the file.

          It’s odd that you seem to define sharing a legal, but mislabeled spoof file as “abuse”, but sharing an infringing file is okay. The latter is certainly not a proper, non-infringing use of the network.

  4. Dissentor says:

    I don’t see why mere “community of purpose” should be enough to allow legal prohibitions to enter into force. If I participate at an anti-abortion protest, and another anti-abortion protestor brings a gun and shoots an abortion doctor dead, we may share “community of purpose” (our purpose was to stop abortions), but I should not be liable for “contributory murder”. Even conspiracy law requires more than a mere shared purpose, and conspiracy law is notorious for having a very low burden of proof.

    I’m not a legal expert, so I cannot judge whether or not your description of the law is accurate. For the purposes of this post, I’ll assume it is correct, as a descriptive matter. But I don’t accept that this is good policy, as a normative matter. So I reject the premise behind your reasoning that it’s enough to stop at analyzing whether “community of purpose” exists.

    • golden says:

      I am not a lawyer either, but if you look at my reply below you will see why I am pretty sure the example you give below is not correct. You may have had community of purpose in the protest, but not in the murder. Moreover, in the example you gave there was no plan that you were advancing – you didn’t even know what the other guy was going to do.

  5. Anonymous says:

    At t his stage we either find a way to live comfortably with file sharing, or we go down the road of a global police state. The battle to stop file sharing is a lost cause. And succeeding in stopping file sharing prevents us from gaining the benefits involved. Lets just consider those benefits.

    You can download via bittorrent at present a file containing a library of 15,000 science fiction books. Just appreciate the beauty of that. That is more science fiction books than you could find in a library. That is close to all the science fiction books that have ever been written. That is more books than one could expect to read in a lifetime. You could not ever purchase this many books in hard form. Most in any case are now out of print. You can download them in an afternoon on a fast connection. WOW!

    The publishing and distribution industries are now obsolete. This technology does it cheaper – better – faster. However authors are not obsolete and need to be paid. That is what we should be talking about. And I think the way to do it is to shift to a service industry model whereby people tip the authors of works that they like. If it was set up properly to make it easy to do, Authors would probably get more money that way than they do currently from royalties. Similarly for musical artists etc etc.

    • golden says:

      Opinions on this subject are so polarized that people think that there is no possibility of common ground. One point I am trying to make is that the standard talking points on both sides are not working.

      In general, I think that most people believe that creators should be compensated somehow. That doesn’t mean most people are satisfied with the way things are now. I myself took the position “Intellectual Property is Theft” in a recent debate. But that doesn’t mean that I think that what LimeWire is doing is okay. LimeWire is doing its best to see to it that creators are not compensated.

      As I have said in other comments: I am not *here* trying to enter into those discussions, as interesting as they are. My hope is that we can agree that what LimeWire is doing *under today’s laws* is illegal. My hope is that the court will see it this way, rather than accepting the far more far-reaching and terrible theories being offered in other quarters.

  6. Paul Stiverson says:

    I would like to know if Limewire’s system of blocking specific peers is active or passive. Do LimeWire’s servers actively look for people spoofing shares, or do they passively rely on users reporting dead shares?

    My money would be on the latter, once a certain number of complaints for dead shares are logged a peer is likely banned. Thus the block-list would really be an extension of the users’ actions, so LimeWire—in and of itself—would not be infringing on any of their users.

    • golden says:

      Only LimeWire can say precisely what you have to do to get on their block list. In fact, that is one of my points: it’s totally non-transparent. They may take into account things they hear from their users. I know that they *also* are “active”, and I believe that the inspection code they have built into their apps plays a role.

      To reiterate: many people are irritated because apps they use “phone home”. The LimeWire client is even more aggressive than most: home will phone it. Only a specific IP address of LimeWire’s is allowed to do this (and then only with a cryptographic signature). Using this facility LimeWIre can ask fairly open-ended questions about what the client is doing.

      I don’t know precisely how this facility is used, but it does appear to play some role in getting on the block list – so yes, LimeWire is, at least partially, “active”.

      I question whether a court would or should accept the argument that the central server is okay to police against spoofs so long as it is tallying votes. But it doesn’t appear to be what LimeWire is doing.

  7. -rb says:

    I am intrigued by the concept of “acting in concert”.

    Golden mentions the flow of “positive” information initiated by the “steerer” in an analogy, but contrasts this with the flow of “negative” information, namely, the block list.

    In a followup response, he cites a hypothetical example of negative information flow: the person outside the bank being robbed. He indicates that with no uncertainty, said person is conspiring in the robbery.

    The groundwork is well laid with these examples: providing information to a criminal makes you a co-conspirator.

    So, how about speed traps on the roadway? Drivers who have passed by an officer using radar, are often seen flashing their headlights (negative information flow) at the unsuspecting oncoming vehicles, who may or may not be breaking the law. I suppose it follows then that the flashers are co-conspirators in the criminal act of speeding.

    Another consideration: two acquaintances in a bar start to argue and fight (disorderly conduct). Someone near the door notices two police officers approaching the bar on foot, and yells “the cops are coming”. The patrons come to their senses enough to stop fighting just as the officers enter. Consider the dude who yelled: is he guilty of conspiring in disorderly conduct by providing timely negative information (just like the spotter outside the bank), to help criminals escape punishment?
    Or, is he a hero/Samaritan who effectively stopped a crime in progress?
    Would it matter if there were no police officers nearby (i.e. he lied)?

    What if the dude outside the bank didn’t know the robbers?

    What if the dude outside the bank yelled “the cops are coming” even if there were no cops around (i.e. he lied)?

    • golden says:

      I should reiterate that I am not a lawyer, and this discussion will rapidly run up against the limits of my knowledge on these matters. The term “Acting in Concert” is a real legal term however, and here is how I see it defined:

      “A person is deemed to act in concert when he acts with another to bring about some preconceived result. See, e.g., Black’s Law Dictionary 262 (5th ed. 1979).” (http://www.11thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=9177)

      This is the sense in which I am using it. LimeWire knows that if they stop the spoofers, the users of gnutella will be able to exchange infringing files. The intent is to construct a system that allows the exchange of infringing files, and LimeWire plays their part in the overall structure. LimeWire’s interest is advanced because they make money from the functioning of the system – and the infringers’ interest is to get copyright files for free.

      In many of the cases you cite, their is (a) no pre-existing plan, nor (b) a community of purpose. Nor is there any common interest.

      The point I was trying to make was simply that just because an act consists solely of speech – as saying “smoke, smoke” (or publishing a block list) is – doesn’t mean that it automatically is covered by the Freedom of Speech, nor is it free from criminal or civil liability.

      • Anonymous says:

        Actually, what ‘spoofing services’ like those offered by Media Defender do is to simply bury the entirety of what is being shared under a mound a offal. If I’m searching for the Beatle’s ‘Yesterday’, or a non-infringing analysis of said song (also called ‘Yesterday’) or someone’s student film project that they called ‘Yesterday’, or even ‘Yesterday Night’, it will be equally hard to find.

        The comparative scenario would be walking into a hardware store and asking where to find ‘Weed Killer’, but being interrupted by dozens of people telling you where to find ‘Weed’. LimeWire offers a service that keeps those people away from you so you don’t get overwhelmed by junk you’re not looking for.

        • golden says:

          That’s true. But it’s illegal for you to get what you’re looking for, if you are looking for the Beatles’s Yesterday.

      • Dissentor says:

        I think this legal discussion is heading towards a rathole. I’m not aware of any criminal prohibition against “acting in concert” with a criminal.

        For instance, let’s look at conspiracy. As I understand it, conspiracy requires an agreement between the parties to the conspiracy; intent to achieve the end goals of the agreement; and an act in furtherance of this intent. Let’s try an example. Suppose two blokes Chuck and Danny are sitting around a bar and say “hey, let’s go rob a bank”; they never see each other again, but Chuck later goes and robs a bank. Is this enough to prove Danny is guilty of conspiracy to rob a bank? Nope, not as far as I know — no act in furtherance. But now suppose they agreed in the bar to wear ski masks to hide their identity, and they agreed that Danny would buy the masks and Chuck would buy the guns. Suppose Danny does actually wander down to the nearby clothing store and buys two black ski masks. That’s an act in furtherance. As I understand it, that’s how conspiracy law resolves the potential tension with freedom of speech: conviction for conspiracy requires an act in furtherance, and thus is more than “just speech”.

        It sounds like some of your analogies — e.g., selling weed — were based on conspiracy law, and you were using those analogies to claim that in some cases “mere speech” can still be criminal. But I wonder whether your analogies may conceal misperceptions about the law. If I’m right that conspiracy requires an act in furtherance, I’m not sure that “mere speech” is enough to make you guilty of conspiracy. For instance, in your pot-selling example, you seem to be assuming that all it takes to convict the steerer of conspiracy to sell drugs is to prove that the steerer told someone “you can find someone selling drugs at the following corner”. I’m not convinced that’s enough to convict. I suspect the prosecutor will also have to prove some kind of act in furtherance: say, acceptance of some of the profits. So while I’m not certain, I suspect your analogy is flawed on the legal merits.

        Of course it’s very possible (even likely) that I’ve got the law wrong; I’m not a lawyer. But the point I’m trying to make is that your argument depends subtly on the details of the law, and it’s hard for me to judge whether your argument takes those subtleties into account.

        We could discuss what the law does restrict, but in this case I think that’ s going to require someone who knows the law well. Or we could discuss what the law ought to restrict; and in that case, I don’t think I accept your premises.

        • golden says:

          I am not a lawyer either. I will say that I did ask a criminal defense lawyer friend of mine about the “smoke, smoke” example, and he told me that the prosecution does not have to prove that the steerer was paid.

  8. pete.d says:

    I admit, I feel a bit confused about the title of the article series, as compared to the actual content.

    As you state, the question of a block-list is not a freedom-of-speech issue. That is, it’s not illegal to publish a block-list, nor to stand around a park saying “smoke, smoke”. A person is free to do either, as much as they like. The law is broken regardless of the actual speech, simply by the person acting in concert with someone else to intentionally violate some law.

    Other observations:

    — If MediaDefender were itself a completely honest, upstanding netizen, I would find the argument against blocking them more compelling. But, I have no confidence based on my reading of news reports of their activities that they in fact limit their spoofing to infringing sharing. They appear to have a broader goal of simply disrupting gnutella and similar altogether, regardless of what’s actually being shared. So I’d say that even a company who has a “substantially non-infringing purpose” would have a legitimate reason to block MediaDefender.

    — There is also, of course, the question as to whether the spoofing does or does not interfere with non-infringing use even if MediaDefender doesn’t specifically try to spoof non-infringing content. As someone else pointed out, depending on the exact search terms a user tries to use, as well as the degree of care MediaDefender puts into actually identifying infringing files, it’s entirely possible that their spoofing could have a negative effect on the network even without direct intent.

    I’ve got no idea how a court would actually find the case. There’s clearly some precedent for a person’s actions being considered “in concert” with someone else acting illegally. But it’s not clear at all whether LimeWire would be found to meet that bar. I think in the end what it will really come down to is little or nothing to do with whether they publish a block-list, and more to do with what kind of content is on the p2p network and to what extent LimeWire’s business model relies on that.

    • golden says:

      Due to the limited space of the Freedom-to-Tinker posts, I had to restrict the discussion of Freedom of Speech issues to the conclusion section. If you are interested in my more elaborated discussion of that point, see the longer version of the essay here: http://mitchgolden.com/essays/20090630sharing_long.html

      – Why does it matter who MediaDefender is or what other things they are doing? The question here is about LimeWire’s actions, not MediaDefender’s. LimeWire is busy keeping gnutella safe for infringers.

      – See my replies to “anonymous” above, especially “One further thought”.

  9. sidereal says:


    LimeWire knows that if they stop the spoofers, the users of gnutella will be able to exchange infringing files.

    Yes, but they also know that if they stop the spoofers, the users of gnutella will be able to exchange non-infringing files.

    It is perfectly reasonable to conceive of a blocklist intended to eliminate nodes from the network which persistently and deceptively mislabel their files. MediaDefender is such a node, and it’s a valid network feature to eliminate them from the network, all issues of copyright aside.

    Now you and I know that MediaDefender has chosen to only deceptively mislabel copyrighted files, because that’s all they’re paid to do. But that’s a feature of the problem node, not a feature of the blocklist.

    To add my own to the array of tortured analogies in the comments, consider a strip club in which occasionally illegal activities (such as solicitation of prositution) occur. Suppose that concerned private citizens want to disrupt illegal activity at this establishment by, say, shining lots of lights on it, blaring loud music outside, or posting photos of all of the customers on a webpage. Suppose that employees of the establishment choose to disrupt that disruption by, say, closing the blinds, turning up their own music, and giving everyone a hat.

    Now, have the employees of the strip club committed a crime because some of the activity they are attempting to de-disrupt is illegal? Does it matter that the disruption they are circumventing is the act of private citizens rather than law enforcement? Should they accept that if the private citizens assert they’re only bothering the people who engage in lawbreaking and they’re really sure they know exactly who that is, the strip club employees should be legally obligated to let them have their way?

    If you accept that the existence of a filesharing network is legal (and you should) I don’t believe it’s correct to assume that countermeasures established on the network to prevent disruptions to its normal functioning are self-evidently or even likely illegal.

    • golden says:

      As I said, the exchange of non-infringing files is not affected by the presence of spoofs. See above, the comment “One additional thought”. The argument that LimeWire is blocking spoofs to preserve the non-infringing uses of gnutella is specious.

      Also, I do accept that filesharing is legal – see my comment above called “Filesharing is Legal”!

      • Anonymous says:

        You’ve obviously never seen the spoofing techniques used by those such as Media Defender. The techniques they use bury essentially anything named even *remotely* like something that *may* be the title of a song/movie under so much crap that it is impossible to find without the block list.

  10. Peter says:

    I would say so, but I think it is illegal.
    Peter

  11. BertBert says:

    It could be, that LimeWire just blocks spoofers, infringing or not. As in, a gnutella user discovers that someone sais to share A but actually shares B and reports this to LW who puts the user on the blacklist.

    What actually is the reason of this spoofing is then irrelevant, e.g. the blacklist might contain things like advertisement or pornography that is distributed as a Disney film.

    Maybe LW does not even check these reports and blocks every ip that is reported by more than X users. In that case, the blacklist really is an extension of the users’ actions (like Paul Stiverson said).

    If LW would be somewhat more open in what is on their blocklist, how it got there and how to get off it, then I don’t see them as “acting in concert” to distribute ‘illegal’ files, just to distribute ‘non-spoofed’ files, which indeed is the purpose of the network.

  12. BertBert says:

    Analogies always go wrong, it can be insightful to see where and what the differences are between the original situation and the analogy that cause the discrepancy.

    In the Netherlands we have (or had) official drug testers at parties. They test your pills for quality and dangerous substances (besides the one the users wants to be there).

    In a sense, they clearly give pointers towards the bad dealers. A user that has bad pills will not go to that dealer again. Are those testers ‘acting in concert’ with the good drug dealers?

    I suppose the good dealers would encourage users to go to the testers to uplift their trustworthiness. I can even imagine that the testers tell users to only buy from people they trust. Yet those testers have existed (legally) for over a decade.

    So what is the difference between the ‘drug testers’ and the ‘blacklist providers’?

    (Disclaimer: I never actually went to such a party, I just phrase the impression I got from the media. Google tells me they were called the ‘Safe House Campagne’, I cannot find an English reference.)

    • BertBert says:

      To give some answers to my own question…

      One of the differences between ‘drug testers’ and ‘blacklist providers’ is the public goal.

      The drug testers benefit for society is that they prevent dangerous situations: people have died because of bad drugs. They exist to increase the public health, independently of whether any health hazard arose due to an illegal/immoral process.

      The blacklist providers benefit for society is that they help users get the files that they actually try to find, independently of whether it is legal/moral for the user to request the files at all.

      Society might find the first goal more ‘noble’, which therefore might get more support from it (e.g. through the law)?

    • BertBert says:

      A well, if I’m writing anyway: another difference

      What is very relevant to this article, is who is “the steerer”.

      LimeWire organizes the sharing of files, and it is also the one providing the blacklist. House parties hosts the testers, but they do not exist to deal drugs. Probably/possibly, the contributors to the blacklist and the drug testers are not directly connected to the organization that enjoys their work.

      However, house/techno parties would not exist without drugs, just as gnutella would not exist without illegal file sharing. (Of course in both cases there are people who disagree, but it is a large part of their appeal.)

      How much distance should there be between the blacklist and LimeWire? It is pushed by LimeWire, without the users being even aware. Is this to much integration?

    • golden says:

      Once again, IANAL, but I don’t see that as meeting the definition of “acting in concert”. As you describe it, the guys who test the drugs are not acting together with the guys selling the good drugs in order to bring about a preconceived result. He is testing the drugs for his own reasons and doesn’t help you find the good drugs.

  13. Anonymous says:

    “As I said, the exchange of non-infringing files is not affected by the presence of spoofs.”

    If this is a true statement, then it makes LW look bad. Even so, I’m not sure it is enough, by itself, to make them liable for the copyright infringement of its users, unless LW knows that the spoofing never interferes with legal use of their service. LW may reasonably point out that spoofing can never help their users in any way with their legal file sharing.

    Further, I’m not convinced it *is* a true statement. At the very least, spoofing involves hiding the legal filenames amid the drek spoofed results for a related search. Should the searcher for “Mitch Golden’s Harry Potter Analysis” have to try to find it amidst 100 fake results? How about amidst 100,000 fakes. If MediaDefender spoofs similar sounding names without checking the copyright status of legal files first, then it damages the sharing of legal files. Does MD spoof with files named”Mitch Golden’s Harry Potter Analysis- Complete Copy” or do they really check those files first?

    Do they have the right to spoof a bad film review of the movie when they don’t want that bad movie review spreading? How about a critique that uses a fair use 14 second film clip? The author claims fair use, but the movie company denies it – Does MD have the right to spoof or not?

    I’m not blind to the fact that most files are not legally being shared, but in our system that’s not LW’s fault – despite the fact that they benefit from it. LW only should have liability if they are assisting in that illegal sharing, and I’m not convinced that blocking a spoofer is equivalent to assisting illegal filesharing when the spoofing causes harm to the legal file sharing–even if that harm is relatively minor.

    Self help spoofing by copyright owners is not the way our system deals with these problems, and I don’t see that he law makes LW liable for blocking it when it interferes with the legal use of their system. The copyright owner has the right to bring suit against the copyright infringer (the user), or to seek a change in the laws by legislative action – he doesn’t have any right I can find in the law to make the marketplace less usable for legal filesharing.

  14. rp says:

    Mitch seems to be doing exactly what he criticizes some of his commenters for: stating as fact a conclusion (that Media Defender’s actions do not interfere with the sharing of non-infringing files) based on suppositions and possibly-inadequate evidence. This tends overall to diminish one’s confidence in his analysis.

    If I were doing an acting-in-concert analogy, it might be to someone in the old Washington Square Park who wandered around pointing out the undercover police officers. Also colorably intended to faciltate the drug trade, but unlikely to have a conspiracy conviction upheld. You can also look at cases involving motorists who warn other motorists of speed traps — an activity quite clearly directed at facilitating unlawful activity, and as clearly protected.

  15. golden says:

    I don’t believe I have “criticized” anyone, at any rate I had no intent of doing so.

    My piece is not about MediaDefender, it’s about LimeWire. I have direct knowledge of what LimeWire is doing, not MediaDefender. I know that they are taking it upon themselves to police the gnutella network. I know they issue IP bans against people who distribute non-infringing things (not just spoof files and viruses) that LimeWire decides they don’t like. I can read the quote from the court filing I quoted above, and I believe it seriously misrepresents what they actually do.

    If LimeWire takes on the role of policing gnutella, it seems to me that they can be held accountable for how they do it. What is undeniable is that they act to keep gnutella safe for infringers. That is, in fact, the whole point.

    • golden says:

      (Obviously, the parent post was meant to reply to the post above it.)

      As I have understood “acting in concert” (and here I repeat that IANAL), the examples you give do not qualify. If I drive down the road, see a speed trap, and flash my lights at the oncoming traffic, there is clearly an intent to facilitate illegal activity. But that is not sufficient. There has to be a preexisting plan, which, as I understand your example, there isn’t.

      In the case of LimeWire, there is a clear understanding that, as an ongoing matter, if they block the spoofers, the network will (not just can) be used by infringers. Given how LimeWire behaves, it is clear that this is their intent.

      • Anonymous says:

        In the case of motorists, there is a clear understanding that, as an ongoing matter, if they warn of the speed traps, the motorways will (not just can) be used by speeders.

  16. Anonymous says:

    1 “I can read the quote from the court filing I quoted above, and I believe it seriously misrepresents what they actually do.”

    I agree with you on this point #1.

    2 “If LimeWire takes on the role of policing gnutella, it seems to me that they can be held accountable for how they do it.”

    And, I agree on this point #2.

    3 “What is undeniable is that they act to keep gnutella safe for infringers. That is, in fact, the whole point.”

    I even sort of agree with this point #3 (Iwouldn’t say blocking makes it safe, but it does make it easier for infringers to get infringing files). What I don’t agree with, is that there is enough evidence to establish liability by LW (i.e. hold them accountable as in point # 2) for copyright infringement based solely on the effect of their blocking (point #3).

    The reason I’m not convinced is that we can’t be certain whether the effect of making it easier to infringe (by blocking) is a result of a purposeful act by LW to facilitate infringement or merely a byproduct of an act done to facilitate legal filesharing.

    The entire purpose of LW’s program is to facilitate filesharing. We know the program makes it easy to infringe, but they aren’t liable for infringement just because their program makes it easy. Similarly, I’m not convinced we can hold them liable for aiding and abetting the infringement merely because they block MD if they have a legitimate reason to block MD that aids legal filesharing (even if it also has the effect of aiding illegal filesharing).

    The bottom line is what is the purpose of the blocking? If LW is going to be held liable, its intent has to be established. I see a defense for LW in that the effect of the MD spoofing is always a net detriment to legal filesharing. Whatever the effect of blocking MD’s IPs is on illegal filesharing, it always improves legal filesharing and never hurts it. The argument that they don’t block IPs that are sharing illegal copyrighted files doesn’t convince me since they don’t have the same characteristic of always having a net detrimental effect on legal sharing LW does not know what they is always illegal and certainly does not want to get into the business of deciding what is legally shared and what is not.

    I agree that LW is making a major mistake when it hides the fact that it blocks. Hiding may be used against them to conclude they know they are doing something illegal. LW probably should have just left it possible for users to block. I’m sure the users would band together to share blocklists.

  17. replacement coils says:

    Whatever people say, either they try to justify themselves by finding loopholes in the law or by just talking about freedom, everyone knows firesharing is always being used in the wrong way. The system is good, we have a better way of sharing large files and that too without the need of establishing a server. But things go wrong when people starting to misuse it. It should be the pirates who needs to be screwed not the system itself. After all you cant ban currency notes as there are too many cases of theft and robbery…
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  18. Anonymous says:

    LimeWire organizes the sharing of files, and it is also the one providing the blacklist. House parties hosts the testers, but they do not exist to deal drugs. Probably/possibly, the contributors to the blacklist and the drug testers are not directly connected to the organization that enjoys their work.tiffany

  19. dave says:

    It is wrong, but pandor’s box has know been open, a generation are growing up who may never buy a cd or dvd and for whom downloading either leagally or illegally is all they know. Look at the new dmr-bs850 blu ray recorder, it’s all been set up .kdl40z5500

  20. Anonymous says:

    ‘The individual filesharers (when they share infringing material) are certainly violating the law,”

    This is overly simplistic. There are case where copyrighted files can be shared without it being an illegal activity, depending on other factors (ie; downloading stuff that is not licensed (well sort of the requirements differ by country and I think a fairly recent WTO agreement has changed it) in the downloaders country is legal or very grey area in many countries. Similarly in some countries it’s ok for personal use (canada, spain, netherlands, etc.) even though it still infringes copyright. Similarly different countries have different exceptions to copyright law, I believe England lacks a parody exception, so if the download is international the legality becomes a major headache. (Even perfectly legal downloads can raise legal issues if they are international. These are just so often ignored that they are defacto legal)

  21. Shad Sterling says:

    At first this series seemed interesting, but now it seems like an attempt to influence an ongoing legal case. It bothers me that that intent was not made clear up front. Why not file an Amicus brief, and publish that online? (Even if the aim was more to express the opinion than to influence the outcome, that should have been made clear in part 1.)