Napster relied on a single server to store the files every user shared, provided a central file search, and even initiated file transfers between users. Due to this single point of failure, Napster collapsed once the server was shut down by RIAA.

Fortunately, the next generation of less centralized filesharing networks was already on the horizon. On the one hand there were completely decentralized networks like Gnutella. They used query flooding to find other clients, i.e. they just sent their requests from client to client until either enough results were found or the search timed out.

Yet this advantage of a completely server-independent network topology came with the disadvantage of the network not being scalable. Simply put, you can’t search the whole network efficiently.

On the other hand there was eDonkey2000 with its server-based network (first release on September 6th, 2000). Unlike with Napster, everyone could run a server. While the existence of multiple servers meant that the network couldn’t be shut down by closing a single central point, it also had the disadvantage that users could now only search for and share files with users on the same server.

This system had similarities with BitTorrent, at a time where the tracker was the sole mechanism through which to find other peers. However, with BitTorrent (started in the year 2001) this dependence on the tracker was intended because it meant that the tracker can control who is allowed to join the swarm, how many peers each client gets, etc…

The eDonkey2000 Network had a different design goal – a fully decentralized and yet scalable network. In this spirit eDonkey2000 started a new project called ‘Flock’ in May 2002. After beta testing it was renamed ‘Overnet’ and finally merged with the original eDonkey2000 client in August 2004.

In 2002 a new and rapidly growing client entered the ed2k network, a term which refers only to the server-based part of the eDonkey2000 network. An open source client for the ed2k network – our birthday-client eMule – was founded on May 13th, 2002 – 10 years ago today.

In June 2004, ed2k had about 2 million users while eDonkey2000’s Overnet network only had about 800,000 users. So eMule was the leading client in the ed2k network and together with BitTorrent it dominated the following years of filesharing.

Both networks, BitTorrent and eMule, slowly headed towards a more decentralized structure. In order to make files from all servers available to every user, eMule added keyword search via UDP to query all servers and source exchange between clients via TCP to get all available sources for a specific file. BitTorrent adopted the latter in peer exchange.

Early 2004 eMule implemented Kademlia, a decentralized DHT-like key-value store capable of finding sources as well as performing keyword search, thus making ed2k servers completely obsolete. Once again, BitTorrent headed in the same direction, implementing DHT in 2005.

DHT marks a revolutionary step in filesharing. Not just because you can download a file with only its hash (and a few nodes to bootstrap the network), but now a decentralized scalable network becomes available. While decentralized networks like Gnutella were capable of finding information using query flooding in O(n), DHT finds information in O(log2(n)). So if the size of the network doubles, only 1 additional request is needed on average – regardless of the actual size of the network.

The following example illustrates this advantage: Say you have a network with 2 million users and you want to find information about a specific file which unfortunately doesn’t exist in the network (i.e. no user shares this file). Using query flooding every client in the network has to be asked before we can be sure that the file isn’t available. Usually the search just runs into a time-out before, assuming (but not knowing) that the file isn’t available.

Thanks to DHT you only have to ask about 21 nodes (log2(2 mio)) before being sure that the file isn’t available in the entire network. Even better, this was the mathematically worst case scenario. Usually the actual number of required requests is much lower because on your search path you’ll likely reach the node closest to your requested file after only 3-4 requests (empirical evidence on eMule’s current Kademlia).

The next feature we think torrents should adopt is a real DHT-based keyword search. Tribler already made a step in that direction. However, their torrents are being broadcasted to other known clients which results in a search with bad scalability.

We already know that after switching to magnet links only, The Pirate Bay has a total size of about 90 MB. Now think of those 90 MB being stored decentralized. A network with millions of nodes in which each node stores a few hundred Kilobytes means you have thousands of replicas of each torrent entry.

This ensures each entry can be found, even if many nodes leave the network simultaneously. Unfortunately, all previous decentralized search implementations had huge amounts of spam in their search results. This is where we can learn from the torrent community. Sites like The Pirate Bay provide trusted search results.

In a completely decentralized search without any spam they would simply continue to provide this functionality using public-key cryptography to sign torrents. A user relying on his favorite torrent site’s search results would simply add its public key to his torrent client, thus allowing the client to check the signature of each torrent search result and filtering all fakes.

In this completely decentralized future a torrent site such as The Pirate Bay would simply be a laptop with average computing power connecting itself to the internet once every few hours to sign new torrents with its private key. Think about how hard it is just to trace such a “torrent site”. Shutting it down is practically impossible.

We are currently working on a client which will offer the above mentioned torrent search. It is currently in a closed alpha testing phase and will soon enter public beta tests.

—

About the authors:

David Xanatos is one of the founding members of the Austrian Pirate Party; he lives in Vienna and works as a Physicist at the university by day, and develops file sharing applications by night. He is mostly known for his NeoMule Mod.

Ekliptor is a computer scientist from Munich. He has developed many eMule Mods in the past and is currently researching weaknesses in eMule’s Kademlia and countermeasures at university. Their current project is called “NeoLoader” and able to download files from BitTorrent, eMule and one-click hosters.

Source: eMule: A Decade of File-Sharing Innovations

Sharing Is Caring

Yesterday a young lad asked me, “Dan Bull in the charts? Is this a ‘fuck off’ to the record industry then?”

Good question, I thought. What do I really want to say to the entertainment industry?

When I released my first album “Safe” in 2009, I sent it to record companies and radio stations but they ignored it. When I telephoned Q magazine with a story, they told me they couldn’t write about it because they only feature artists with record deals.

In frustration at the glass ceiling that independent artists face, I started to publish protest songs on YouTube. To my surprise, they got much more coverage. I was excited, but thought “What if the labels see my tracks? They’ll never sign me now!”.

At that point, I realised something; if they didn’t want me, then the feeling was mutual. I didn’t need a record label telling me what to do, how to do it, and then keeping 80% of the takings for the privilege. I had the internet and I had my brain.

By embracing the free flow of information the internet allows, through filesharing and social media, I’ve found a worldwide fanbase without leaving the house. I’ve collaborated with artists across the globe without ever meeting them, and I can chat to my supporters whilst lying in bed eating pizza.

None of that would have been possible without file-sharing. If I followed the copyright law that lobbyists like the RIAA and the BPI insist is in the interest of artists like me, I would have no musical career. If pro-filesharing sites like TorrentFreak and The Pirate Bay didn’t share my work with you, you wouldn’t be reading this. I owe a debt of gratitude to every person that has ripped, burned, copied and shared anything I’ve done.

Sites such as The Pirate Bay do more to help unsigned artists than industry lobbyists ever have. Projects like The Promo Bay, which devotes The Pirate Bay’s home page, free of charge, to any musician who applies, creates overnight success stories.

The Pirate Bay stands defiantly in the face of corporate bullies who tout such nonsensical non-sequiters as “if you copy files, artists don’t get money, and if artists don’t get any money, they will stop making art.” This is an insult to the millions of dedicated amateur artists around the world.

What’s funny is that I’d have more respect for major labels if they just admitted what we already know – their bottom line is nothing but profit. There’s nothing wrong with that; there’s no need to hide it. But there is a need to play fair.

Entertainment lobbyists want to have their cake and eat it – they accumulated massive wealth through exploiting a free market when the means to distribute recorded art was scarce. This scarcity no longer exists – the market has moved on; and now they’re fighting to enforce artificial measures which will recreate those fleeting economic and technological conditions which allowed them to flourish.

Art has always been about sharing, adapting, and re-interpreting what you experience. Our children deserve to grow up in a world where they can enjoy this freedom without the fear that a pack of corporate lawyers will circle in and extradite them overseas.

People born in the late 80s have now lived more of their lives in the 21st century than the 20th century. A new generation has arrived for whom sharing information online is as easy and reflexive as breathing.

This generation isn’t going away; it’s growing larger all the time and to them, defunct business models developed by greying monopolists are utterly irrelevant. But these kids aren’t freeloaders or criminal masterminds, they are normal, decent people. When they hear a song or see a video that they like, they’ll post it to Facebook; they’ll Tweet it. They might remix it, or poke fun at it. This very behaviour which big entertainment claims to be the death knell of creativity, is the same behaviour that I believe will make my single a success.

“Sharing Is Caring” is a satire on this age of instant communication. It’s about what happens when things go wrong, and whether we are using the power of online communication to its full potential. Hidden somewhere in the track you can hear me urinating on a printout of the Digital Economy Act.

There are three main versions of the song – each about a different social network (Facebook, Twitter and Google+). There’s also a dubstep remix by Benny Aves and a reggae-tinged reworking by Animal Circus. I’ve also provided instrumentals and acapellas for you to remix and re-imagine at will.

I invite you to download “Sharing Is Caring” for free. If you like it, and want to support the campaign, you can choose to buy it. Each version you buy will count as a sale towards the charts. There are ten versions in all, meaning a single person can create ten sales towards the charts.

The singles charts are worthless as an indicator of quality, and artists needn’t strive for the validation of reaching them. However, by taking a free song by an unsigned artist to the echelons normally reserved for the industry elite, I want to smash the glass ceiling and show that there is another way of doing things. We don’t need the protection of ACTA, CISPA or any other acronym. As long as our internet is free, creativity will thrive.

And so, to answer the original question – I’m not shouting “fuck off” to the entertainment industry.

I’m saying “excuse me, but I think you’re in my seat”.

Links to the torrent or paid version of “Sharing Is Caring” are available here.

Source: Dan Bull & Pirate Bay Attack the Music Charts With “Sharing Is Caring”

Two decades ago 3.5″ disks were the most sought after medium to distribute files. At the time, their massive 1.4 MB file size was more than enough to distribute files. But things got really interesting when people started to swap files on the Internet.

In just 2 score years, filesharing has evolved into an amazingly efficient process which has enhanced lives everywhere. It has brought great exposure to underexposed types of media and democratized distribution, making it possible for individuals to share files with the rest of the world at virtually no cost.

Let’s briefly examine how filesharing has become what it is today in a non-exhaustive overview.

BBS: The Early Days (70s-90s)

The BBS, or Bulletin Board System, has been largely attributed with the beginning of contemporary digital filesharing. Beginning with the Hayes Smartmodem, Bulletin Board Systems became automatic enough that Sysops (or administrators) were able to own and operate these mediums from their own homes as both a hobby and, later, as a business. Typically, the BBS was almost like an intranet in which users would dial-in with their modems to read/send messages, access news, and most importantly for us, share files.

Shareware became incredibly popular through the distribution provided by Bulletin Board Systems. From Wolfenstein to Commander Keen, users were able to learn about a BBS by word of mouth and, in its pinnacle, through printed magazines focusing on BBS’s. Many well-known software packages, including PKZIP, were made popular through the BBS. Many users today still use PKZIP’s .zip algorithm when compressing and decompressing archives.

There are still many traditional Bulletin Board Systems in operation today.

Usenet: Beginnings of Decentralization (Late 70s-Present)

Usenet or Newsgroups were similar to Bulletin Board Systems. However, they operated using UUCP and were able to transcend beyond the centralization of a BBS. Essentially, Usenet servers were able to receive files and re-distribute them amongst other Usenet servers effectively creating multiple copies of messages and files across hundreds upon thousands of servers. Usenet was the medium for discussions which gave birth to several projects, including the World Wide Web, Linux, and Mosaic, amongst other amazing projects.

While Usenet has been in existence since the late 70s, major filesharing did not typically occur until much later. In 1993, Eugene Roshal created RAR which allowed users to split files into multipart archives. Given the decentralized copy-nature of Usenet, this helped distribute files much faster and more efficiently, as corruption in file transfers no longer required files to be re-uploaded in their entirety.

Although many may disagree, Usenet is still very much in use today. However, it is used mostly for filesharing rather than for its original purpose of messaging, which has been mostly replaced by contemporary web forums and IRC.

FTP and FXP: Topsites and the ISO Scene (90s-Present)

Soon after, the underground filesharing scene gave birth to an intricate private network of FTP sites known as Topsites. These networks were based on invite only systems and adopted many of the features of Usenet.

Generally, release groups would upload new media to their release servers and create various kinds of announcements thereof (generally, IRC bot based). Then, couriers who had access to the release servers, as well as other servers, would transport or “race” new releases from one server to another, typically with the use of FXP. By doing so, they would earn credits (typically 1:3 ratio) for uploading files as long as the file was considered to be appropriate and unique (not a dupe — hence the racing).

Through this culture and rewards system, files eventually would make their way to topsites all over the world in this decentralized nature. Much like Usenet, split-file or RAR archives were utilized in order to further enhance the racing culture.

Of course, due to the private and closed nature of this distribution network, it was difficult for many users to gain access to these topsites. Topsites are very much still in existence today.

IRC (90s-Present)

IRC has been around for a long time and has played quite a role in society, both in filesharing as well as politics. Many IRC clients feature a DCC (direct client to client) protocol which allows users to do exactly as the name implies.

Through DCC, and later with advancements and bots known as XDCC servers, filesharing took yet another turn. Distribution groups who were able to get their hands on releases were able to serve files to the masses using these XDCC servers, which were typically hosted anywhere from powerful machines, brute forced Windows NT computers, personal computers, and university computer labs.

XDCC is still quite popular and a quick search through Netsplit.de shows many active channels across many active IRC networks still utilizing XDCC for distribution. Additionally, IRC is still widely used for its original purpose of chat as well as a bootstrap mechanism for filesharing mediums which sprouted later.

Hotline (90s)

For a brief period Hotline was a very popular medium for sharing files. At first, Hotline was very mainstream with many mega corporations participating in the Hotline network. However, it quickly faded away due to many complications, including but not limited to the encrypting of source files on Hotline computers which essentially crippled the company.

Napster (Late 90s)

Napster arguably brought MP3 and filesharing to the masses. There are very few netizens who haven’t used or heard of Napster. The software operated as a peer to peer filesharing network strictly used for music. Napster’s database, however, was centrally located, which eventually helped lead to its shutdown and subsequent demise. However, not before it helped to spread the idea of filesharing, in its entirety, to the masses.

Gnutella, eDonkey2000 and Kazaa (Early 2000)

The centralized nature of Napster gave way to a single point of failure – or single point of shutdown. As such, many gifted developers researched methods to avoid such complications. Gnutella, eDonkey2000, and Kazaa were different implementations which all did quite well in their heyday. While their protocols were all different, they were each very similar in that there was no central server. However, each protocol ended up “failing” as they were rooted in commercial (and corporate) interest – which ended up becoming an attack point.

Gnutella, originally created by the Nullsoft people, was once the most used network thanks to LimeWire. The LimeWire client was sued by the RIAA and shutdown in 2010, which turned Gnutella into a ghost network. The original eDonkey2000 from Jed McCaleb was toppled as well, but clones have kept the eDonkey network alive. The Kazaa team later created Skype, which is a widely used VoIP/IM platform.

DC++ and i2hub

DC++ and i2hub were popular methods of sharing files in closed-networks. Both were highly used within the university and college scene where students would share hub/server addresses with each other in order to share files at very high speeds within the local college networks. The advantages provided within these was that outside agencies and other various third parties could not access the content found within these networks.

However, the RIAA found a way into i2hub and was able to shut it down. DC++ is still in active development today, but is not as common or widespread as it once was.

BitTorrent (2001)

Bram Cohen created BitTorrent, which almost anyone with an Internet connection today has used, knowingly or not. BitTorrent essentially took on all of the greatest properties of its predecessors and packed them all into one, easy to use file sharing platform.

Taking on the concepts of breaking files into multiple chunks (Usenet, Topsites) as well as the decentralized peer-to-peer distribution mechanism (Napster, Gnutella, eDonkey2000, Kazaa), BitTorrent has catapulted into a mainstream filesharing mechanism which is fast, efficient, and difficult to stop.

Early versions of BitTorrent required centralized trackers to operate, but have later become able to utilize trackerless “torrents.”

Increasingly BitTorrent users have grown concerned with their privacy. Indexes such as YouHaveDownloaded.com have been able to maintain logs of every file downloaded by IP, which has raised significant awareness to whether it is safe to download files through BitTorrent. In addition, many ISPs have been known to cap speeds when detecting BitTorrent downloads.

As a result of these privacy concerns millions of BitTorrent users have signed up with Anonymous VPN services to mask their IP-addresses when downloading files

Filelockers and Forums (2000 to Present)

In recent years Megaupload, Rapidshare, Hotfile and other file lockers became quite popular. These file lockers provided the simplest means of filesharing when compared to all of their predecessors. Files are simply uploaded to the file locker, and a URL is provided to the file which is download through HTTP/HTTPS.

Generally, the URLs are shared through forums. Due to the affiliate compensations some cyberlockers offer to file uploaders on a per-file based download count, many files are distributed in split-file or RAR archives much like in the days of topsites and Usenet. This is mainly due to for-profit reasons as opposed to cultural or technical reasons as seen in the scene (topsites) or on Usenet respectively.

However, governments as well as special interest groups including the RIAA and MPAA have targeted file lockers leading to widely publicized lawsuits, including the arrest and destruction of Megaupload and Kim Dotcom.

Final Thoughts

Filesharing has come a long way, and with it, many industries have been born.

While it provides challenges to many of the big media conglomerates, it undoubtedly enriched the lives of many independent creators. Distribution is no longer something for the happy few, which shows as tens of thousands of artists share their work for free online every year.

Filesharing as a technology is good. Let’s make sure it stays around so that we may continue to share our thoughts, ideas, and art in order to better ourselves, our communities, and our earth. Anyone who is against that must obviously dream of world destruction, or at the least, wish for human progress to stop.

Source: The History of File-Sharing

Both lawyers discuss whether someone can be held liable for the copyright infringements committed by others on their Internet connection.

The opinion below comes from Nicholas Ranallo, who is a licensed attorney in California and New York. He currently resides in Boulder Creek, California and is building a solo practice handling emerging issues in Intellectual Property, Internet law and e-commerce.

Ranallo’s opinion focuses on the question of whether people are liable for the copyright infringements of others, which may occur when they operate an open WiFi network or when they share their internet access with roommates or employees.

The other post in this series, which argues the opposite of Ranallo (but focusing on the open WiFi angle only), can be found here. We thank both Ranallo and Randazza for their contribution.

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Liability for 3rd Party Copyright Infringement: A Lawyer’s Take on Misleading Legal Claims by Pre-Settlement Trolls

The continuing adventures of the copyright trolls have been covered widely on this blog and others, so I will limit my thoughts today to one particular aspect of the scheme: Copyright trolls’ claims regarding your responsibility for someone else’s infringement of copyrighted works.

Or in other words, are you liable for the infringements of other people when you choose to leave (parts of) your wiFi network open to friends, family or even complete strangers. In the press many of the attorneys representing copyright holders claim you are. Some even have a dedicated section on the topic included in with their settlement letters.

Lawyer John Steele for example, uses the following description, which he has ironically enough pirated from a FAQ that competitor copyrightsettlements.com hosts on its website.

“If you are unfamiliar with the copyright protected file or content, we normally find that the infringement was the result of a spouse, child, roommate, employee, or business associate uploading, downloading or otherwise sharing or displaying the copyright protected material over your Internet connection. Infringements can also result from an unsecured wireless network. In any of these scenarios the Internet Service Provider (ISP) account holder is still legally responsible for the infringement(s) and settlement(s) fees.”

This statement needs to be deconstructed and examined. There is a lot of (mis)information in there, with many startling claims about copyright liability.

As a whole, the trolls’ statement of your potential defenses reminds me a lot of the mob’s policy on similar issues in Goodfellas : Your roommate downloaded this? F__k you, pay me. Your child downloaded this? F__k you, pay me. Your ‘business associate’ or someone you’ve never met downloaded this? You get the idea.

Perhaps it’s not surprising that the flow chart at copyrightsettlements.com always ends up at “you are guilty,” however THIS IS NOT THE LAW. In fact, their claims are legally incorrect in a fun assortment of ways. I’m going to focus only on the ways that it’s incorrect under existing copyright law in this article.

Third-Party Liability for Infringement under Existing (Real) Copyright Law

It’s important to focus on the concept of third-party liability under copyright law because the copyright trolls’ entire scheme is built on one particular aspect of copyright law – statutory damages. Normally, a plaintiff’s recovery is limited to actual damages, or the monetary measure of the actual harm done. The copyright law, however, imposes statutory minimum and maximum penalties that are grossly disproportionate to the value of an actual work (i.e. one copy of a song or video), up to $150,000 for the most egregious infringements. Perhaps not surprisingly, this $150,000 figure gets cited a lot by copyright trolls as the amount to which they will be entitled if they sue you.

Courts have articulated three basic ways that a person can be held liable for infringing another’s copyright: direct liability, contributory liability, and vicarious liability. Direct liability means, quite simply, that you infringed the copyright yourself. This is first-party liability and is probably not surprising to anyone. The other two are the focus of this article, and the ultimate rebuttal to the misstatements in the FAQ.

A. Contributory Infringement

In MGM v. Grokster 545 U.S. 913, 930 (2005) the United States Supreme Court (USSC) described liability under the doctrine of contributory infringement as follows: “One infringes contributorily by intentionally inducing or encouraging direct infringement.” The USSC approvingly cites Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., the 2nd Circuit Court of Appeals adopted the following test for contributory infringement.

“One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may also be held liable for the infringement. 443 F2d 1159, 1162 (2nd Circuit 1971).

The Gershwin test has been widely adopted by courts, including in the 9th Circuit, home to copyrightsettlements.com. As you can see, this test is far narrower than the F__k you, pay me test adopted by copyrightsettlements.com. The Gershwin test specifically requires:

1) Knowledge of the infringing activity
2) Intent
3) Inducing, causing, or materially contributing to the infringing conduct of another.

The 9th Circuit had a chance to revisit the issue of contributory infringement in the wake of the USSC ruling in Grokster, described above, and elaborated further on the requirements for contributory infringement in the digital realm in Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146(9th Circuit, 2007). Perfect 10 held that:

“a computer system operator can be held contributorily liable if it ‘has actual knowledge that specific infringing material is available using its system and can “take simple measures to prevent further damage’ to copyrighted works, yet continues to provide access to infringing works.”

Notably, the italics in this sentence were the court’s own, and emphasized ACTUAL knowledge of SPECIFIC infringing material. This is certainly not the test described by CEG.

B. Vicarious Infringement

The USSC also described vicarious infringement in MGM. The Court stated that one “infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Grokster, 545 U.S. at 930, 125 S.Ct. 2764.

Like contributory liability, above, this definition has multiple elements, BOTH of which need to be shown to before imposing liability.

1) Profit from direct infringement
2) A right (and ability) to stop or limit the infringement

This test has two distinct elements, BOTH of which need to be shown to impose liability. I cannot think of a good faith argument that any of the parties described by the core claim actually profit from infringing activities, especially when the work that is claimed to be infringed is porn. An employer profits from an employee downloading porn? Really? You profit when someone downloads porn via your unsecured connection? Profit? This stretches all bounds of credulity.

It almost seems unnecessary to go into the second element, the right and ability to control, when the first element cannot reasonably be shown. But this prong also raises a host of issues, especially in cases involving spouses, “business associates”, or roommates. I need only recall the look of my college kitchen to conclude that we never really had sufficient right or ability to control each others’ activities in any way.

C: Inducement?

The USSC discussed a third potential avenue for third-party liability in MGM under the broader rubric of contributory liability, but this route is equally unhelpful for the core claim. In MGM the Court recognized that one could be liable if they “induced” the infringement of another. The Court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” MGM at 936-37.

Although this could conceivably apply to an unsecured router, the court is quick to extinguish this possibility for the situations described in the core claim. The court specifically states that:

“Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability… The inducement rule, instead, premises liability on purposeful, culpable expression and conduct…”.

Notably, the FAQ page emphasizes repeatedly that purposeful, culpable expression and conduct is not at all necessary. It does emphasize, however, that you are still liable.

The Takeaway

The copyright troll’s core claim regarding third-party liability is extremely misleading regarding the present state of third-party liability under copyright law. As each misstatement works to the benefit of the trolls, I can only assume that this misrepresentation is intentional. One can only wonder whether they will face claims of fraud and misrepresentation from those who were misled by these statements.

^{(Disclaimer: The legal analysis and opinion expressed herein are solely those of the author. Nothing herein is to be construed as legal advice and is not meant to replace the advice of an attorney with knowledge of the specific facts of your case. No attorney-client relationship is created, and you should not send me confidential information. Please just don’t try to sue me for offering my thoughts. Thank you.)}

Source: Are You Guilty If Pirates Use Your Internet? Lawyer Says NO

Both lawyers discuss whether someone can be held liable for the copyright infringements committed by others on their Internet connection.

The opinion below comes from Marc Randazza, a lawyer who has sued thousands of BitTorrent users in recent months on behalf of copyright holders. His piece focuses mainly on the question of whether people who operate open WiFi networks are liable for the copyright infringements of others.

As much as we may disagree with his cases in this field, Randazza has always been gracious with his time when we have had questions about his and other cases.

We understand that our readers may not agree with Randazza either, but we ask that comments remain civil and respectful. He has been respectful to us, and we ask that readers treat him as our guest and take the opportunity for debate.

The other post in this series, which argues the opposite of Randazza, can be found here. We thank both Ranallo and Randazza for their contribution.

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Why Negligence in Torrent Cases?

I. Introduction – Is it illegal to leave your wifi open?

For a while, I have been bringing anti-torrent cases against defendants who have been illegally distributing my client’s movies. However, we recently began adding a negligence claim to the complaints – arguing that if you leave your wifi open, and someone uses it to pirate my client’s materials, you are at least partially responsible. In the wake of a recent judgment for $10,401.00 against a defendant in one of these cases, where the $10,000 was for the negligence claim, I have gotten quite a few inquiries from people asking if it is illegal to leave your wifi open.

I am pleased to report that there are no laws on the books, which affirmatively mandate that you must lock your wifi. However, there are civil claims that can make you liable for the infringements of others. That is what civil claims are for — to privatize certain legal issues. When there is a car accident, we don’t usually bring the prosecutors into it. The parties figure out who was negligent, and the negligent party pays the other party for its damages.

What it comes down to is whether the defendant had a part in the plaintiffs damages. So the question is not: “Is it illegal to have open wifi?” The correct question is: “Can you be held liable for what others do with your connection if you leave your WiFi open?” The answer to that is “yes you can.”

II. Negligence

The law of negligence has a long history, and it morphs over time. The unchanging elements of a negligence claim are:

* Duty – did the defendant have a duty?
* Breach – did the defendant breach that duty?
* Causation – was the breach the cause of the plaintiff’s damages?
* Damages – were there damages, and if so, how much?

Whether or not there is a duty is where the most debate occurs. Whether or not there is a duty is a matter of law for the court to decide, and some courts have already endorsed the theory that there may be a duty to keep your wifi secured. In an ever-evolving legal landscape, legal duties are constantly updating with technology. In law school, we are introduced to this concept by reading the case called “The T.J. Hooper.” In that case, the plaintiffs shipped two barges full of cargo, there was a storm, the barges sank and the cargo was lost.

The defendants were the owners of the tugboats that were towing the barges. The plaintiffs claimed that since the tugboats did not have working radios that could have warned them about the storm, the tugboat operators were negligent. This was 1932, and radios were not required to be on the ships by any law. Furthermore, it was not common custom for commercial ships to have them at this point, and only one company on the whole Eastern Seaboard used them.

Judge Learned Hand wrote the opinion in this case, and he stated that it did not matter that there was no law mandating their use. It did not even matter that shipping companies generally did not have radios. Hand wrote that it is the province of the courts to decide whether a duty exists, and it is not up to the affected group to make that decision. In circumstances of evolving technology, the duty may change along with technology, even if common practice does not.

III. Application: Is leaving your wifi open “negligent”?

I believe that leaving your home wifi open is, indeed, negligent. Unlike the radios in the T.J. Hooper case, closed wifi connections are actually the norm. The vast majority of Americans recognize that leaving their wifi connection open is foolhardy and likely to lead to trouble. I have heard other lawyers compare leaving your wifi open to leaving a loaded gun lying around.  I think comparing open wifi to a loaded gun is overly melodramatic and hysterical.  However, the point is well taken – you are leaving the instrumentality of an illegal act out there for anyone to use.

While unlike leaving a gun around (nobody ever died from open wifi), I’d say leaving your home wifi open is more like leaving your keys in your car in your driveway.  Someone might just steal it, in which case the only person who gets hurt is you, right?

Wrong. 

The kind of person who would steal your car is probably the kind of person who would commit other crimes (or just do something stupid).  So if you leave your keys in your car, and someone takes it and drives it into someone’s fence, you’re at least partially responsible for the damage.  If the car thief runs off, who should pay for the damage? The fence owner or you? It would seem that between those two parties, you would be more responsible than the fence owner. You wouldn’t say that the fence owner should have built a better fence, would you?

That’s what negligence is:  It is the law saying “You really should have seen that coming.”  When you do something careless, and that carelessness costs someone else money, you pay the ”carelessness tax” – Negligence. 

And the kind of person who would steal wifi is more likely to steal something else, isn’t he?  So if you invite wifi theft by leaving your home network open, you’re more likely than not also inviting more.  

While there is no law requiring you to keep your wifi secured, the absence of a law is no refuge from the consequences of being careless. The existence of the duty is heightened by the fact that it is common knowledge that cyber criminals use open wifi networks to commit nefarious acts. Everyone has heard about the cases where purveyors of child pornography used open wifi connections to transmit their materials. Then, the poor saps who left them open are greeted by police raids.  

Is your wifi open?  I would bet it is not.  Mine certainly isn’t, and the reason why is not that I mind sharing with my neighbors.  If my neighbor needs my wifi for some reason, I have a guest network that I would share with him if he asks.  But, then if I get a subpoena for something he did, at least I know who to point the finger at.  I’m not willing to take that risk for someone who might just be cruising around in a car looking for an opportunity to commit a crime. 

IV. Other Benefits of Bringing the Negligence Claim

Bringing a negligence claim in a torrent case has some added benefits. It takes care of two classes of defendants:  The “it was some other guy” case, and the “if I lie about open wifi, you can’t get me” case.  

The Some Other Guy Case: When pressing these cases, I frequently talk to the IP account owner, and he says “It was my roommate, not me.” When someone gives me the “it was some other guy” defense, I would much rather go after the other guy. When the roommate gives up the other guy, I think that pressing a negligence claim against him is a bit mean-spirited, and I recommend dropping the negligence claim against a cooperative account holder.

However, if the account owner does not want to reveal the identity of the actual guilty party, then he is shielding the defendant and I have no qualms about making him a defendant too. In cases like that, I’m required to press the negligence claim, to get to the truth, and obtain proper compensation for my client. There is very little chance that a roommate will not know what is going on, and if they are supplying a connection to someone who is using that connection to steal from my client, then my client has a legal right to be compensated for its losses. If someone is concealing the direct infringer, then I find little wrong with holding that person responsible.  

The Open Wifi Liar: The unfortunate fact is that a common meme among the “IANAL, but I play one on torrent boards,” crowd is that any torrent suit can be won if you lie and tell the plaintiff that you had an open wifi.  I’ve caught even real licensed lawyers dispensing this “advice.”  (which is unethical)  There are even those who advocate leaving your wifi open on purpose, just so that you can have plausible deniability about anything that happens on your network.  I would say that one out of two defendants that I deal with initially claim “I had open wifi.” That winds up being a lie about 95 percent of the time   If they were all telling the truth, there would be free wifi coast to coast, and the age of wifi Aquarius would be upon us.   

So how do we move forward in these kinds of cases?  

Step 1: A relatively mild investigation and questioning of the potential defendant.  Most non-sociopaths are lousy liars and are easily tripped up. This step winds up shaking out a good percentage of the liars.  Often telling the “some other dude” account holder that we will move forward with the negligence claim gives them pause and they get the roommate on the phone. This is effective most of the time, but not 100%.  So what do we do then?  Move on to the next two options:

Option A: We engage in discovery, seize all of the computers in the house, issue subpoenas to everyone the account holder knows, and start having depositions of everyone who lives in their home and neighborhood.  By the time we’re done, we not only will likely have gotten to the bottom of things, we would have flipped the defendant’s entire life upside down.  While that might get us somewhere, I prefer not to be that heavy-handed if I can avoid it. 

Option B: Recognize that the open wifi story still leaves negligence liability on the table, so work with that. This gives us an avenue of liability with which to hold people responsible without turning their neighborhood upside down.

Ultimately, the negligence claim brings a lot of benefits. The downside is that occasionally, you catch someone who was simply merely careless. When that happens, my client is usually willing to use discretion and to settle rather lightly. Sometimes, when the defendant is particularly sympathetic, and it is clear that they are not lying, we have been willing to settle for little more than them filing a police report and agreeing to lock their wifi down.

V. Conclusion

I respect the perspective of those who don’t like the negligence claim.  They have every right to say that they disagree with the law. The owners of the T.J. Hooper didn’t think it was fair that they were held to a standard, which neither law nor custom required them to live up to. But, the court understood that sometimes, when you can take a pretty easy and cheap route to preventing harm, you may very well have a duty to do so. You can keep your wifi open if you like, and if nobody ever uses it for evil purposes, then you won’t ever be held negligent. Similarly, if the T.J. Hooper had only seen calm seas, its owners would have gotten away with not having radios.

Ultimately, it comes down to “what should you have done?” And, “if you don’t do it, and someone else loses, who should bear the cost?” It may seem unfair to some, but if you consider that my client is losing money, and the open-wifi-guy (even if he wasn’t one of the liars) contributes to that loss, who should bear the cost? Between him and my client, I think it should be him.

Furthermore, this claim really helps to shake out some of the more dishonest people, who deserve to get sued.  Therefore, I stand behind bringing the negligence claims, and I think that the good outweighs the bad.  

VI. Epilogue

Let me conclude by thanking Ernesto and the TorrentFreak community for this opportunity to share the marketplace of ideas with you all. Wide open and robust debate on matters of public concern is what the First Amendment is all about. I recognize that this is not a friendly forum for my positions, but nobody ever grew or learned anything from just shouting into an echo chamber.

I respect dissenting opinions. I think there is room for healthy disagreement on most items, and I am not unaware that this negligence claim is controversial.

The fact is, I have a job to do, and I’m going to do it for my client to the utmost of my ability.  My engagement letter with my clients does say that I will withdraw from representation if they want me to take action that will cause harm to the First Amendment.  But other than that, my client is entitled to the full menu of legal theories that I can come up with. Anything less would be unethical on my part.  

Source: Are You Guilty If Pirates Use Your Internet? Lawyer Says YES

“The Man from Earth” in particular has become immensely popular due to its distribution on BitTorrent. After RLSlog reviewed the film and linked to a torrent of it and to the official site, the producer wrote to the blogger, thanking him for reviewing it. They had received some 23,000 hits in the days following the review and went from the being the 11,235th most popular movie on IMDB to being the 5th most popular one, and the most popular independent film in a matter of days. He said:

Our independent movie had next to no advertising budget and very little going for it until somebody ripped one of the DVD screeners and put the movie online for all to download. After that happened, people were watching it and started posting mostly all positive reviews on IMDb, Amazon and other places. Most of the feedback from everyone who has downloaded “The Man From Earth” has been overwhelmingly positive. People like our movie and are talking about it, all thanks to piracy on the net!

“Day Zero“, too, hasn’t even been released yet. But a leaked DVD screener of it has been making its way around the Internet. The movie premiered at the 2007 Tribeca Film Festival , but will only open in a few theaters in the US on the 18 of January ’08, which will be followed by a wider release in the weeks after. Despite mainstream audiences having practically no access to this film, it has become popular online and is the 5th most seeded movie in the Drama category on mininova.

Of course there are still several independent Film producers that would rather not see their creations up for grabs while they are still running in theaters. The following quote is taken from an email that was sent to a BitTorrent site by one of the producers of Cashback. The film in question was downloaded nearly a million times over the past few months, reaching a much broader audience online than in the movie theaters.

Is it possible to remove it from your site for say 6 months? At least then it gives the filmmakers a chance to see how popular viewers really think it is, and for us to make our living. I can’t really attack film piracy, because reality is, it’s inevitable.. but until we find a real solution that works for everyone is it possible that we could have a bit of compromise from your end?

The reaction from the producer is understandable, but I dare to argue that the popularity of independent films on BitTorrent does more good than harm. A pirated copy does not equal a visitor lost in the movie theater, similar to music, independent films might actually profit from filesharing. It generates a lot of word to mouth advertising.

More and more people start to recognize the potential BitTorrent has. Last year filmmaker Mark Achbar released a torrent of the award winning Canadian documentary ‘The Corporation’ here on TorrentFreak. He was one of the first to realise that filmmakers can profit from BitTorrent, even though the official distributors did not agree.

It isn’t hard to see why filmmakers are starting to look at “piracy” in a different light. The more hype their movie gets early on, the greater the chance of someone wanting to buy the DVD or go see it in the cinema. It’s really as simple as that. Independent filmmakers don’t have the same promotional and marketing budgets as Hollywood studios, and getting the word out about their film is really the biggest hurdle for them. We’ve seen producers of TV shows start to leak content to BitTorrent and embrace filesharing, so why not movie producers too?

Source: BitTorrent, A Boon To Independent Filmmakers