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Sunday, 19th of June - article from PINAC contribututor BJ.

For those that don't know, the DMCA is an American law more properly known as the Digital Millennium Copyright Act and its purpose is many-fold. In short it was a law to appease both copyright holders, and Internet Service Providers, without also alienating education institutions, and other academic and research facilities, and persons. An overview of this 1998 law can be found here (http://www.copyright.gov/legislation/dmca.pdf 72KB PDF) but broadly speaking, it:

• outlaws the reverse engineering, or decompiling of any encryption (such as deCSS, needed to watch DVDs on Linux operating systems for instance),
• decrees that webcasters have to pay additional royalty fees, and
• means that ISPs must, upon notification remove copyrighted works from their servers promptly, to avoid facing any liability charges.

These are the 3 main or at least most publicized aspects of this law. There are others as well, all described in the document above.

It's this 3rd provision that this piece is about. In particular, its interaction with what is the most common method of distributing large files, BitTorrent. Since I've done a brief overview of the DMCA, I'll do one of BitTorrent. You have a tracker, a torrent file, and a client. A torrent file is small (typically 10-60kb) and contains error correction information for whatever is being 'torrented', and an address for a tracker. A torrent is identified by something called its 'hash' - nothing drug related; it's just a 40 character hexadecimal "summary" of the data in the file. A tracker holds a list of certain hashes, and what IP (or 'web addresses) is using a torrent of a certain hash. When you run a torrent, your client contacts the tracker, and asks for some 'peers' or other people running the same torrent. The Tracker then responds with these addresses. The client then contacts those peers, and data transfer goes on between them. That, in a nutshell, is BitTorrent. (A further, more in-depth documentation and description here - http://www.bittorrent.com/introduction.html)

That's the background out of the way, now for the article proper. Last week, I contacted a few different torrent websites, and asked them to send me some examples of DCMA "takedown" notices they had received. I shall post some of them later on. In general, they are accurate, and in many cases lengthy, in others less so. Some use legal language, some don't, but they all have one thing in common - they all use the DMCA against BitTorrent. They often follow the instructions and requirements of the act (eventually in some cases, and some with very bad grace).

There is now, however, a stumbling block, of indeterminate size. It came about on the 1st of June 2005 and has potentially explosive consequences for the whole file swapping argument. It comes from something that most of you have probably forgotten, and in this day and age, regard as a term or verbiage for an act, but may never have used the technology any more. I am of course, referring to Napster - the first of the 'new technologies' that has shown a chink in the armour of the mass media distributors and their business models. At long last, digital file distribution was available to the masses. So, when 'the industry' saw it was popular, easy to use, and most of all WHAT PEOPLE WANTED, they had to sue it. Giving people what they want, how and when they want it is not in the interests of such companies, which need market domination, artificial scarcity, and price fixing (see for references: here [oag.state.ny.us] and here [attorneygeneral.state.tn.us]) to maintain their business models. Napster put choice and availability in the hands of consumers. Before it, if you wanted, for instance, a copy of Spitting Image's 'Chicken Song' you could either chance an online auction site, or second hand store (with questionable quality - scratched records/CDs, chewed tapes etc.) or hope for a reissue (not likely). Along came Napster, and bang, down it came. Moved to the US, or indeed anywhere else, in the 15 years between the original release and Napster? Not a problem (as far as I'm aware, The Chicken Song was only available in Europe), just hop on Napster, search and download. The fact it was free was not the main point (just look at how popular iTunes is) but that it was out, and available. In the end, though, a number of legal proceedings took place, and Napster was taken down, and resold.

The case against its original owners carried on however, and as I have just mentioned, produced some results. The ruling was, in many ways as unusual. It involved laws that I, being a Brit had never heard of, from an area I'd never even considered - BOOKS. As a creative 'art form' of its own, as old as music and just as hard to produce, I have to say it was a very fair ruling. For those that want to, they can do so here [svmedialaw.com]- but it basically says the following:-

1. That merely indexing is not copyright infringement, unless both unauthorized copies and the index are Owned and Operated by the same entity. Napster did hold an index, yes, but it did not hold an actual copy of the copyrighted work, so it is non-infringing. (An interpretation of Hotaling v. Church of Jesus Christ of Latter-day Saints, a case involving copyrighted genealogical materials (Hotaling), and church library system.
2. That the Artists' Rights and Theft Prevention Act of 2005 ("the ART Act") does not, and should not be considered as influencing or altering the interpretation of the 1976 Copyright Act, indeed to quote "First, and most importantly, the ART Act does not amend section 106(3) of the Copyright Act.". It's nice to have a judge that is fair and well read, all too often a rarity.
3. That an 'offer to distribute' is not distribution in and of itself.

These are some intriguing decisions, more so because of the differences between the technology under trial, and the technology in majority usage now, BitTorrent. An indexing system based peer-to-peer system which differs from Napster in many ways.

• It is non-centralised, so one tracker has no relation to any other tracker
• Complete files are not transferred from user to user
• The tracker doesn't use easily identifiable labels in its indexing system.

I'll address these and their differences one by one right now, starting with

• The court ruled that Napster, having control of the network, and created the technology, are possibly liable for secondary copyright infringement (hence why the suit has not been dropped, a ruling made by the same judge earlier in the case, July 14 th 2004). Bram Cohen developed the technology. He does not run it. He is merely one of a number of developers now furthering this technology, but he in no way runs 'the network'. He had no influence, power, or control over the tracker used by BT-EFnet, for instance (see this article for information there)
• Torrents swap pieces of data, packets ranging in size from 256kb to 4Mb (although the piece size can vary from 128kbit to 16Mb). It is entirely possible, and likely to never upload a 'full, complete copy' unlike Napster. As the judgement says "Certainly, there is authority outside the Ninth Circuit that supports defendants' view that distribution of a copyrighted work requires the transfer of an identifiable copy of that work." BitTorrent does not do this. Instead its lots of people transferring unidentifiable bits of data, which may be converted at some point, into an identifiable copy.
• This ties into both b and c. If I were to give you the following hash, how many of you could tell what it is? It's 4b09179d4dc348425b7a9f6416a52b7c143f0b45. That's the SHA1 'hash' of a torrent; it's what a tracker goes by. It's based on the data contained in the torrent file. To compare, I switched the two trackers listed in the torrent around, and it changed to 038c88d4f728196d17ba88db0f255962ce418000. Let me put them together for easy comparison

4b09179d4dc348425b7a9f6416a52b7c143f0b45
038c88d4f728196d17ba88db0f255962ce418000

Sorry, but I don't seem to see it. It is non-identifiable at the tracker-side, as to what the torrent is. Makes any claim for contributory copyright infringement difficult, especially if it is a tracker that allows public uploading.

Regardless, under the terms of the summery judgement, neither trackers are infringing (being merely listings/indexes) or Torrent files, being as they are, invitations to download. Where does this leave things with the DMCA?

As we've said at the start, ISPs and server owners must remove, on notification, works which infringe copyright laws. This has, in the past, been extended (by the cartels) to mean torrent files, and indexes (i.e. trackers) as well. With this new ruling, however, that is no longer valid. In short, DMCA notices against trackers, and torrent listings are invalid now, and since they are made 'penalty of perjury' there are now potential criminal actions able to be used against those DMCA-noticing such things. Lawyers are not stupid (they're greedy, but not stupid) and this judgement isn't from a magistrate in some backwoods town in Iowa. It is one of the most closely followed trials going on in the US today, and so any notices coming from large corporations, or law firms, are quite clearly guilty of perjury. Indeed, anyone getting a notice for a torrent file, or tracker, I urge you to submit a rebuttal, citing the judgement above, and stating clearly that copyright infringement is only applicable, where the copyrighted data itself is downloadable from the server in question. Use the law to its extent. Don't be bullied or lied to; stick up for your rights, and for what is right.

Yours in freedom of information

B.J.

Further Reading

Electronic Frontier foundation on the ruling - http://www.eff.org/deeplinks/archives/003625.php

As promised, some sample DMCA notices, sent to various torrent listing sites, and tracker sites.

Some "takedown notices" sent to Mininova, and an example of a rubbish one sent to BT-GM.