A few years ago I was summoned for jury duty. The summons was an old-fashioned computer-printed document spit out by an IBM mainframe computer down at the county courthouse. Procedural rules required that prospective jurors be chosen by an officer of the court, so a judge had apparently deputized the mainframe as an officer of the court. For some reason I found this concept, of a computer as deputized legal officer, endlessly amusing.

Now the same concept is being applied at the Federal level. But in this case the computer isn’t even owned and run by the court. It’s run by the recording industry.

The recording industry, you see, is barraging the Federal courts with requests for subpoenas to compel Internet Service Providers to identify their customers who are alleged to be offering copyrighted music for download. Seth Schoen has read many of these subpoenas and he reports that “they’re obviously generated by a script”, that is, by a computer program.

Congress created the special subpoena provision that the RIAA is using here, a provision that requires the court to rubber-stamp any subpoena request made by a copyright holder who claims to have a good-faith belief that its copyrights are being infringed. Given this relatively low standard for issuance of a subpoena, the advent of subpoena-bots should come as no surprise.

Of course, big copyright owners aren’t the only people allowed to use subpoena-bots. Virtually everything that anybody writes is copyrighted, so this subpoena power is available to every writer or artist, even down to the humblest newbie blogger. Want to know who that anonymous critic is? No problem; send your subpoena-bots after them.

As expected, the Seventh Circuit Court of Appeals has upheld a lower court’s temporary injunction against the Aimster file-sharing service. The Court’s opinion was written by Judge Richard Posner.

I noted three interesting things in the opinion. First, the court seemed unimpressed with Aimster’s legal representation. At several points the opinion notes arguments that Aimster could have made but didn’t, or important factual questions on which Aimster failed to present any evidence. For example, Aimster apparently never presented evidence that its system is ever used for noninfringing purposes.

Second, the opinion states, in a surprisingly offhand manner, that it’s illegal to fast-forward through the commercials when you’re replaying a taped TV show. “Commercial-skipping … amounted to creating an unauthorized derivative work … namely a commercial-free copy that would reduce the copyright owner’s income from his original program…”

Finally, the opinion makes much of the fact that Aimster traffic uses end-to-end encryption so that the traffic cannot be observed by anybody, including Aimster itself. Why did Aimster choose a design that prevented Aimster itself from seeing the traffic? The opinion assumes that Aimster did this because it wanted to remain ignorant of the infringing nature of the traffic. That may well be the real reason for Aimster’s use of encryption.

But there is another good reason to use end-to-end encryption in such a service. Users might want to transfer sensitive but noninfringing materials. If so, they would want those transfers to be protected by encryption. The transfer could in principle be decrypted and then reencrypted at an intermediate point such as an Aimster server. This extra decryption would indeed allow Aimster to detect infringement, but it would have several enginering disadvantages, including the extra processing time required to do the extra decryption and reencryption, and the risk of the data being compromised in case of a break-in at the server. The opinion hints at all of this; but apparently Aimster did not offer arguments on this point.

The opinion says, instead, that a service provider has a limited duty to redesign a service to prevent infringement, where the cost of adopting a different design must be weighted against the amount of infringement that it would prevent.

Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been dispropotionately costly for him to eliminate or at least reduce substantially the infringing uses.

And so one more reading of the Supreme Court’s Sony Betamax decision is now on the table.

The Washington Post online has a nice summary/directory of articles on the RIAA’s upcoming crackdown on peer-to-peer file sharers. The crackdown seems like a risky move, but it seems the industry can’t think of anything else to do about their P2P problem.

When the industry sued Napster into oblivion, Napster was replaced, hydra-like, by a newer generation of P2P systems that are apparently resistant to the tactics that took down Napster.

The RIAA’s new crackdown, if it works, will most likely cause yet another step in the evolution of P2P systems. P2P systems that provide only weak anonymity protection for their users will fade away, replaced by a new generation of P2P technology that resists the RIAA’s new tactics.

The RIAA’s new tactic is to join a P2P network semi-anonymously, and then to pierce the anonymity of people who are offering files. There are two countermeasures that can frustrate this tactic, and the use of these countermeasures is already starting to grow slowly.

The first countermeasure is to provide stronger anonymity protection for users, to prevent investigators from so easily unmasking users who are sharing files.

The second countermeasure is share files only among small friends-and-family groups, making it difficult for investigators to join the group. If every P2P user is a member of a few of these overlapping small groups, then files can still diffuse from place to face fairly quickly.

All of this must look pretty unfair from the RIAA’s point of view. No matter how strong the RIAA’s legal and ethical arguments against file sharing are, people will continue to share files as long as they view it as a basically benign activity. It seems to me that only a change in public attitudes, or a change in the basic legal structure of copyright, can solve the file sharing problem.

Senator Orrin Hatch issued a short press release yesterday, backtracking from his previous (mis-)statement about remedies for copyright infringement. There are some interesting tidbits in the release, which I quote here in full, with the surprising bits italicized:

HATCH COMMENTS ON COPYRIGHT ENFORCEMENT

Washington – Sen. Orrin G. Hatch (R-Utah), Chairman of the Senate Judiciary Committee, today issued the following statement:

“I am very concerned about Internet piracy of personal and copyrighted materials, and I want to find effective solutions to these problems.

“I made my comments at yesterday’s hearing because I think that industry is not doing enough to help us find effective ways to stop people from using computers to steal copyrighted, personal or sensitive materials. I do not favor extreme remedies – unless no moderate remedies can be found. I asked the interested industries to help us find those moderate remedies.”

We can assume that every word of the release was chosen carefully, since it was issued in writing by Hatch’s office to clarify his position after a previous misstatement.

It’s significant, then, that he wants technology to prevent not only copyright infringement but also “piracy” of “personal or sensitive” information.

Note also that he does not entirely disavow his previous statement that appeared to advocate vigilante destruction of the computers of suspected violators – he still favors “extreme remedies” if “moderate remedies” prove infeasible, an eventuality that seems likely given his apparent belief that we have no moderate remedies today.

If the mainstream press is paying attention, they ought to find this alarming, since much of what they do involves collecting and publishing information that some people would prefer to call “personal or sensitive”. If “extreme remedies” for copyright infringement are a bad idea, “extreme remedies” for making truthful statements about other people are even worse.

Jesse Jordan, one of the students sued by the RIAA, is back in the news. It’s not that anything new has happened; it’s just that Jordan and his father are complaining about the unfairness of the suit and of the $12,000 settlement.

It’s true, as Seth Finkelstein observes, that continuing to fight the suit was a lose-lose proposition for Jordan. Even if he won, his legal bills would have far exceeded the $12,000 for which he settled (and the odds are poor that the court would order the plaintiffs to cover his legal bills).

The plaintiffs’ contributory infringement claim against Jordan, based on the assertion that he ran a “Napster-like network” (which was really just an ordinary search engine) was indeed questionable. If that were the only claim against him, then I would agree that the suit looked a bit like a shakedown.

But let’s not forget the plaintiffs’ other claim, that Jordan was a direct infringer, based on his alleged redistribution of hundreds of copyrighted works from his own computer. If proven, this claim would have cost Jordan much more than $12,000 in damages. And it seems reasonable to assume that the direct infringement claim was not baseless, especially given that Jordan has not denied it.

If so, then the only unfair aspect of Jordan’s story is that he was singled out, from among all of the direct infringers out there, as the target of a lawsuit. In other words, the problem is that a great many direct infringers are out there, any of whom could be sued at the industry’s whim.

A huge gulf has developed, between the ubiquity of casual file sharing and the law’s treatment of it as a Very Serious Offense; and this cannot go on forever. Something has to give. Either the law will change, or the industry will sue file sharers into submission, or both. So far we have an uneasy truce that nobody likes.

UPDATE (3:50 PM): I originally wrote that Jordan would have had to pay the plaintiffs’ legal bills if he lost, but they wouldn’t have to pay his if he won. Louis Trager pointed out that that was incorrect, so I have corrected the text. The Copyright Act allows a court to order the losing party to pay the winning party’s legal costs, regardless of which party wins. In other words, Jordan might have had his legal bills covered, if he won his case. But of course that would be unlikely absent a total victory; and total victory would have been a long shot given the direct infringement claim.