February 18, 2018

Ninth Circuit Ruling in MDY v. Blizzard

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.]

Jailbreaking Copyright's Extended Scope

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.

Erroneous DMCA notices and copyright enforcement, part deux

A few weeks ago, I wrote about a deluge of DMCA notices and pre-settlement letters that CoralCDN experienced in late August. This article actually received a bit of press, including MediaPost, ArsTechnica, TechDirt, and, very recently, Slashdot. I’m glad that my own experience was able to shed some light on the more insidious practices that are still going on under the umbrella of copyright enforcement. More transparency is especially important at this time, given the current debate over the Anti-Counterfeiting Trade Agreement.

Given this discussion, I wanted to write a short follow-on to my previous post.

The VPA drops Nexicon

First and foremost, I was contacted by the founder of the Video Protection Alliance not long after this story broke. I was informed that the VPA has not actually developed its own technology to discover users who are actively uploading or downloading copyrighted material, but rather contracts out this role to Nexicon. (You can find a comment from Nexicon’s CTO to my previous article here.) As I was told, the VPA was contracted by certain content publishers to help reduce copyright infringement of (largely adult) content. The VPA in turn contracted Nexicon to find IP addresses that are participating in BitTorrent swarms of those specified movies. Using the IP addresses given them by Nexicon, the VPA subsequently would send pre-settlement letters to the network providers of those addresses.

The VPA’s founder also assured me that their main goal was to reduce infringement, as opposed to collecting pre-settlement money. (And that users had been let off with only a warning, or, in the cases where infringement might have been due to an open wireless network, informed how to secure their wireless network.) He also expressed surprise that there were false positives in the addresses given to them (beyond said open wireless), especially to the extent that appropriate verification was lacking. Given this new knowledge, he stated that the VPA dropped their use of Nexicon’s technology.

BitTorrent and Proxies

Second, I should clarify my claims about BitTorrent’s usefulness with an on-path proxy. While it is true that the address registered with the BitTorrent tracker is not usable, peers connecting from behind a proxy can still download content from other addresses learned from the tracker. If their requests to those addresses are optimistically unchoked, they have the opportunity to even engage in incentivized bilateral exchange. Furthermore, the use of DHT- and gossip-based discovery with other peers—the latter is termed PEX, for Peer EXchange, in BitTorrent—allows their real address to be learned by others. Thus, through these more modern discovery means, other peers may initiate connections to them, further increasing the opportunity for tit-for-tat exchanges.

Some readers also pointed out that there is good reason why BitTorrent trackers do not just accept any IP address communicated to it via an HTTP query string, but rather use the end-point IP address of the TCP connection. Namely, any HTTP query parameter can be spoofed, leading to anybody being able to add another’s IP address to the tracker list. That would make them susceptible to receiving DMCA complaints, just we experienced with CoralCDN. From a more technical perspective, their machine would also start receiving unsolicited TCP connection requests from other BitTorrent peers, an easy DoS amplification attack.

That said, there are some additional checks that BitTorrent trackers could do. For example, if the IP query string or X-Forwarded-For HTTP headers are present, only add the network IP address if it matches the query string or X-Forwarded-For headers. Additionally, some BitTorrent tracker operators have mentioned that they have certain IP addresses whitelisted as trusted proxies; in those cases, the X-Forwarded-For address is used already. Otherwise, I don’t see a good reason (plausible deniability aside) for recording an IP address that is known to be likely incorrect.

Best Practices for Online Technical Copyright Enforcement

Finally, my article pointed out a strategy that I clearly thought was insufficient for copyright enforcement: simply crawling a BitTorrent tracker for a list of registered IP addresses, and issuing a infringement notice to each IP address. I’ll add to that two other approaches that I think are either insufficient, unethical, or illegal—or all three—yet have been bandied about as possible solutions.

  • Wiretapping: It has been suggested that network providers can perform deep-packet inspection (DPI) on their customer’s traffic in order to detect copyrighted content. This approach probably breaks a number of laws (either in the U.S. or elsewhere), creates a dangerous precedent and existing infrastructure for far-flung Internet surveillance, and yet is of dubious benefit given the move to encrypted communication by file-sharing software.
  • Spyware: By surreptitiously installing spyware/malware on end-hosts, one could scan a user’s local disk in order to detect the existence of potentially copyrighted material. This practice has even worse legal and ethical implications than network-level wiretapping, and yet politicians such as Senator Orrin Hatch (Utah) have gone as far as declaring that infringers’ computers should be destroyed. And it opens users up to the real danger that their computers or information could be misused by others; witness, for example, the security weaknesses of China’s Green Dam software.

So, if one starts from the position that copyrights are valid and should be enforceable—some dispute this—what would you like to see as best practices for copyright enforcement?

The approach taken by DRM is to try to build a technical framework that restricts users’ ability to share content or to consume it in a proscribed manner. But DRM has been largely disliked by end-users, mostly in the way it creates a poor user experience and interferes with expected rights (under fair-use doctrine). But DRM is a misleading argument, as copyright infringement notices are needed precisely after “unprotected” content has already flown the coop.

So I’ll start with two properties that I would want all enforcement agencies to take when issuing DMCA take-down notices. Let’s restrict this consideration to complaints about “whole” content (e.g., entire movies), as opposed to those DMCA challenges over sampled or remixed content, which is a legal debate.

  • For any end client suspected of file-sharing, one MUST verify that the client was actually uploading or downloading content, AND that the content corresponded to a valid portion of a copyrighted file. In BitTorrent, this might be that the client sends or receives a complete file block, and that the file block hashes to the correct value specified in the .torrent file.
  • When issuing a DMCA take-down notice, the request MUST be accompanied by logged information that shows (a) the client’s IP:port network address engaged in content transfer (e.g., a record of a TCP flow); (b) the actual application request/response that was acted upon (e.g., BitTorrent-level logs); and (c) that the transferred content corresponds to a valid file block (e.g., a BitTorrent hash).

So my question to the readers: What would you add to or remove from this list? With what other approaches do you think copyright enforcement should be performed or incentivized?