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Super Bust: Due Process and Domain Name Seizure

February 3, 2011 by

With the same made-for PR timing that prompted a previous seizure of domain names just before shopping’s “Cyber Monday,” Immigration and Customs Enforcement struck again, this time days before the Super Bowl, against “10 websites that illegally streamed live sporting telecasts and pay-per-view events over the Internet.” ICE executed seizure warrants against the 10, ATDHE.NET, CHANNELSURFING.NET, HQ-STREAMS.COM, HQSTREAMS.NET, FIRSTROW.NET, ILEMI.COM, IILEMI.COM, IILEMII.COM, ROJADIRECTA.ORG and ROJADIRECTA.COM, by demanding that registries redirect nameserver requests for the domains to 74.81.170.110, where a colorful “This domain name has been seized by ICE” graphic is displayed.

This domain name has been seized

As in a previous round of seizures, these warrants were issued ex parte, without the participation of the owners of the domain names or the websites operating there. And, as in the previous rounds, there are questions about the propriety of the shutdowns. One of the sites whose domain was seized was Spanish site rojadirecta.com / rojadirecta.org, a linking site that had previously defeated copyright infringement claims in Madrid, its home jurisdiction. There, it prevailed on arguments that it did not host infringing material, but provided links to software and streams elsewhere on the Internet. Senator Ron Wyden has questioned the seizures, saying he “worr[ies] that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court.”

According to ICE, the domains were subject to civil forfeiture under 18 U.S.C. § 2323(a), for “for illegally distributing copyrighted sporting events,” and seizure under § 981. That raises procedural problems, however: when the magistrate gets the request for seizure warrant, he or she hears only one side — the prosecutor’s. Without any opposing counsel, the judge is unlikely to learn whether the accused sites are general-purpose search engines or hosting sites for user-posted material, or sites providing or encouraging infringement. (Google, for example, has gotten many complaints from the NFL requesting the removal of links — should their domains be seized too?)

Now I don’t want to judge one way or the other based on limited evidence. Chilling Effects has DMCA takedown demands from several parties demanding that Google remove from its search index pages on some of these sites — complaints that are themselves one-side’s allegation of infringement.

What I’d like to see instead is due process for the accused before domain names are seized and sites disrupted. I’d like to know that the magistrate judge saw an accurate affidavit, and reviewed it with enough expertise to distinguish the location of complained-of material and the responsibility the site’s owners bear for it: the difference between direct, contributory, vicarious, and inducement of copyright infringement (for any of which a site-owner might be held liable, in appropriate circumstances) and innocent or protected activity. As Joe Hall has written here, domain names can’t defend themselves.

In the best case, the accused gets evidence of the case against him or her and the opportunity to challenge it. We tend to believe that the adversarial process, judgment after argument between the parties with the most direct interests in the matter, best and most fairly approaches the truth. These seizures, however, are conducted ex parte, with only the government agent presenting evidence supporting a seizure warrant. (We might ask why: a domain name cannot disappear or flee the jurisdiction if the accused is notified — the companies running the .com, .net, and .org registries where these were seized have shown no inclination to move or disregard US court orders, while if the name stops resolving, that’s the same resolution ICE seeks by force.)

If seizures must be made on ex parte affidavits, the magistrate judges should feel free to question the affiants and the evidence presented to them and to call upon experts or amici to brief the issues. In their review, magistrates should beware that a misfired seizure can cause irreparable injury to lawfully operating site-operators, innovators, and independent artists using sites for authorized promotion of their own materials.

I’d like to compile a set of public recommendations to the magistrate judges who might be confronted with these search warrants in the future, if ICE’s “Operation In Our Sites” continues. This would include verifying that the alleged infringements are the intended purpose of the domain name use, not merely a small proportion of a lawful general-use site.

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Ninth Circuit Ruling in MDY v. Blizzard

December 14, 2010 by

The Ninth Circuit has ruled on the MDY v. Blizzard case, which involves contract, copyright, and DMCA claims. As with the district court ruling, I’ll withhold comment due to my involvement as an expert in the case, but the decision may be of interest to FTT readers.

[Editor: The EFF has initial reactions here. Techdirt also has an overview.]

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Copyright, Censorship, and Domain Name Blacklists at Home in the U.S.

September 21, 2010 by

Last week, The New York Times reported that Russian police were using copyright allegations to raid political dissidents, confiscating the computers of advocacy groups and opposition newspapers “under the pretext of searching for pirated Microsoft software.” Admirably, Microsoft responded the next day with a declaration of license amnesty to all NGOs:

To prevent non-government organizations from falling victim to nefarious actions taken in the guise of anti-piracy enforcement, Microsoft will create a new unilateral software license for NGOs that will ensure they have free, legal copies of our products.

Microsoft’s authorization undercuts any claim that its software is being infringed, but the Russian authorities may well find other popular software to use as pretext to disrupt political opponents.

“Piracy” has become the new tax evasion, an all-purpose charge that can be lobbed against just about anyone. If the charge alone can prompt investigation — and any electronics could harbor infringing copies — it gives authorities great discretion to interfere with dissidents.

That tinge of censorship should raise grave concern here in the United States, where Patrick Leahy and Orrin Hatch, with Senate colleagues, have introduced the “Combating Online Infringement and Counterfeits Act.” (PDF).

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Jailbreaking Copyright's Extended Scope

July 28, 2010 by

A bit late for the rule’s “triennial” cycle, the Librarian of Congress has released the sec 1201(a)(1)(C) exceptions from the DMCA prohibitions on circumventing copyright access controls. For the next three years, people will not be ” circumventing” if they “jailbreak” or unlock their smartphones, remix short portions of motion pictures on DVD (if they are college and university professors or media students, documentary filmmakers, or non-commercial video-makers), research the security of videogames, get balky obsolete dongled programs to work, or make an ebook read-aloud. (I wrote about the hearings more than a year ago, when the movie studios demoed camcording a movie — that didn’t work to stop the exemption.)

Since I’ve criticized the DMCA’s copyright expansion, I was particularly interested in the inter-agency debate over EFF’s proposed jailbreak exemption. Even given the expanded “para-copyright” of anticircumvention, the Register of Copyrights and NTIA disagreed over how far the copyright holder’s monopoly should reach. The Register recommended that jailbreaking be exempted from circumvention liability, while NTIA supported Apple’s opposition to the jailbreak exemption.

According to the Register (PDF), Apple’s “access control [preventing the running of unapproved applications] does not really appear to be protecting any copyright interest.” Apple might have had business reasons for wanting to close its platform, including taking a 30% cut of application sales and curating the iPhone “ecosystem,” those weren’t copyright reasons to bar the modification of 50 bytes of code.

NTIA saw it differently. In November 2009, after receiving preliminary recommendations from Register Peters, Asst. Secretary Larry Strickling wrote (PDF):

NTIA does not support this proposed exemption [for cell phone jailbreaking]…. Proponents argue that jailbreaking will support open communications platforms and the rights of consumers to take maximum advantage of wireless networks and associated hardware and software. Even if permitting cell phone “jailbreaking” could facilitate innovation, better serve consumers, and encourage the market to utilize open platforms, it might just as likely deter innovation by not allowing the developer to recoup its development costs and to be rewarded for its innovation. NTIA shares proponents’ enthusiasm for open platforms, but is concerned that the proper forum for consideration of these public policy questions lies before the expert regulatory agencies, the U.S. Department of Justice and the U.S. Congress.

The debate affects what an end-user buys when purchasing a product with embedded software, and how far copyright law can be leveraged to control that experience and the market. Is it, as Apple would have it, only the right to use the phone in the closed “ecosystem” as dictated by Apple, with only exit (minus termination fees) if you don’t like it there? or is it a building block, around which the user can choose a range of complements from Apple and elsewhere? In the first case, we see the happenstance of software copyright locking together a vertically integrated or curated platform, forcing new entrants to build the whole stack in order to compete. In the second, we see opportunities for distributed innovation that starts at a smaller scale: someone can build an application without Apple’s approval, improving the user’s iPhone without starting from scratch.

NTIA would send these “public policy” questions to Congress or the Department of Justice (antitrust), but the Copyright Office and Librarian of Congress properly handled them here. “[T]he task of this rulemaking is to determine whether the availability and use of access control measures has already diminished or is about to diminish the ability of the public to engage in noninfringing uses of copyrighted works similar or analogous to those that the public had traditionally been able to make prior to the enactment of the DMCA,” the Register says. Pre-DMCA, copyright left room for reverse engineering for interoperability, for end-users and complementors to bust stacks and add value. Post-DMCA, this exemption helps to restore the balance toward noninfringing uses.

In a related vein, economists have been framing research into proprietary strategies for two-sided markets, in which a platform provider is mediating between two sets of users — such as iPhone’s end-users and its app developers. In their profit-maximizing interests, proprietors may want to adjust both price and other aspects of their platforms, for example selecting fewer app developers than a competitive market would support so each earns a scarcity surplus it can pay to Apple. But just because proprietors want a constrained environment does not mean that the law should support them, nor that end-users are better off when the platform-provider maximizes profits. Copyright protects individual works against unauthorized copying; it should not be an instrument of platform maintenance — not even when the platform is or includes a copyrighted work.

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Census of Files Available via BitTorrent

January 29, 2010 by

BitTorrent is popular because it lets anyone distribute large files at low cost. Which kinds of files are available on BitTorrent? Sauhard Sahi, a Princeton senior, decided to find out. Sauhard’s independent work last semester, under my supervision, set out to measure what was available on BitTorrent. This post, summarizing his results, was co-written by Sauhard and me.

Sauhard chose a (uniform) random sample of files available via the trackerless variant of BitTorrent, using the Mainline DHT. The sample comprised 1021 files. He classified the files in the sample by file type, language, and apparent copyright status.

Before describing the results, we need to offer two caveats. First, the results apply only to the Mainline trackerless BitTorrent system that we surveyed. Other parts of the BitTorrent ecosystem might be different. Second, all files that were available were equally likely to appear in the sample — the sample was not weighted by number of downloads, and it probably contains files that were never downloaded at all. So we can’t say anything about the characteristics of BitTorrent downloads, or even of files that are downloaded via BitTorrent, only about files that are available on BitTorrent.

With that out of the way, here’s what Sauhard found.

File types

46% movies and shows (non-pornographic)
14% games and software
14% pornography
10% music
1% books and guides
1% images
14% could not classify

Movies/Shows

For the movies and shows category, the predominant file format was AVI, and other formats included RMVB (a proprietary format for RealPlayer), MPEG, raw DVD, and some multi-part RAR archives. Interestingly, this section was heavily biased towards recent movies, instead of being spread out evenly over a number of years. In descending order of frequency, we found that 60% of the randomly selected movies and shows were in English, 8% were in Spanish, 7% were in Russian, 5% were in Polish, 5% were in Japanese, 4% were in Chinese, 4% could not be determined, 3% were in French, 1% were in Italian, and other infrequent languages accounted for 2% of the distribution.

Games/Software

For the games and software category, there was no clearly dominant file type, but common file types for software included ISO disc images, multi-part RAR archives, and EXE (Windows executables). The games were targeted for running on different architectures, such as the XBOX 360, Nintendo Wii, and Windows PC’s. In descending order, we found that 74% of games and software in the sample were in English, 12% were in Japanese, 5% were in Spanish, 4% were in Chinese, 2% were in Polish, and 1% were in Russian and French each.

Pornography

For the pornography category, the predominant encoding format was AVI, similar to the movies category. However, there were significantly more MPG and WMV (Windows Media Video) files available. Also, most pornography torrents included the full pornographic video, a sample of the video (a 1-5 minute extract of the video), as well as posters or images of the porn stars in JPEG format. Also, as these videos are not typically dated like movies are, it is difficult to make any remarks regarding the recency bias for pornographic torrents. Our assumption would be that demand for pornography is not as time-sensitive as demand for movies, so it is likely that these pornographic videos constitute a broader spectrum of time than the movies do. In descending order, we found that 53% of pornography in our sample was in English, 16% was in Chinese, 15% was in Japanese, 6% was in Russian, 3% was in German, 2% was in French, 2% was unclassifiable, and Italian, Hindi, and Spanish appeared infrequently (1% each).

Music

For the music category, the predominant encoding format for music was MP3, there were some albums ripped to WMA (Windows Media Audio, a Microsoft codec), and there were also ISO images and multi-part RAR archives. There is still a bias towards recent albums and songs, but it is not as strongly evident as it is for movies—perhaps because people are more willing to continue seeding music even after it is no longer new, so these torrents are able to stay alive longer in the DHT. In descending order, we found that 78% of music torrents in our sample were in English, 6% were in Russian, 4% were in Spanish, 2% were in Japanese and Chinese each, and other infrequent languages appeared 1% each.

Books/Guides

The books/guides and images categories were fairly minor. We classified 15 torrents under books and guides—13 were in English, 1 was in French, and 1 was in Russian. We classified 3 image torrents—one was a set of national park wallpapers, one was a set of pictures of BMW cars (both of these are English), and one was a Japanese comic strip.

Apparent Copyright Infringement

Our final assessment involved determining whether or not each file seemed likely to be copyright-infringing. We classified a file as likely non-infringing if it appeared to be (1) in the public domain, (2) freely available through legitimate channels, or (3) user-generated content. These were judgment calls on our part, based on the contents of the files, together with some external research.

By this definition, all of the 476 movies or TV shows in the sample were found to be likely infringing. We found seven of the 148 files in the games and software category to be likely non-infringing—including two Linux distributions, free plug-in packs for games, as well as free and beta software. In the pornography category, one of the 145 files claimed to be an amateur video, and we gave it the benefit of the doubt as likely non-infringing. All of the 98 music torrents were likely infringing. Two of the fifteen files in the books/guides category seemed to be likely non-infringing.

Overall, we classified ten of the 1021 files, or approximately 1%, as likely non-infringing, This result should be interpreted with caution, as we may have missed some non-infringing files, and our sample is of files available, not files actually downloaded. Still, the result suggests strongly that copyright infringement is widespread among BitTorrent users.

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