In all the years it’s been available, uTorrent hasn’t changed as much as it will with the upcoming release. Codenamed Falcon, the client will have an easier, more secure and more complete web UI as well as support for streaming and remote downloading.
In May 2008, Newzbin - considered by many to be the Internet’s premier indexer and .NZB provider - announced it was under legal threat from the MPA, the MPAA’s worldwide big brother. On Monday next week, the copyright infringement showdown in London’s High Court begins.
Ignited by the Comcast fiasco in the US, the concept of Net Neutrality has been brought into the mainstream resulting in planned government interventions. However, unlike the name suggests, Net Neutrality might not stop BitTorrent blocking and could leave us worse off than when this all started.
No man is an island, no man stands alone
Each man’s joy is joy to me
Each man’s grief is my own
We need one another, so I will defend
Each man as my brother
Each man as my friend
-No Man Is An Island, Traditional
It looks like Britain is seriously considering going ahead with its three strikes Internet ban for accused pirates. I have previously written on exactly how monstrous this law (and others like it) might be. But, for a brief moment, I entertained the possibility that the law’s drafters have a noble goal at heart—to unite mankind by forcing one man to pay for his brother’s sins. A little scary that they would go to these lengths, but maybe just maybe this is the result of a desire to raise consciousness of a collective humanity rather than a symptom of shortsighted stupidity.
But that fun little thought experiment didn’t last long. Industry representatives seem to realize that violating tenets of tempered justice that date back to the enlightenment might not be such a good thing. Recently, Shira Perlmutter of the International Federation of the Phonographic Industry claimed during a panel discussion at the Congressional Internet Caucus’ State of the Net conference that ISPs will only punish the offender’s account and thus will (miraculously) avoid inflicting collateral damage on the whole family.
What world is this industry group thinking of? What family has multiple Internet accounts? Further, even if they do have multiple accounts, what would keep little pirate Jimmy from hopping onto little innocent Suzy’s Internet? Perhaps they are developing an app that requires you to double pinky swear that you aren’t Jimmy every time you log on. I call shenanigans.
Make no mistake. This law makes you your brother’s keeper. And your roommate’s. And of anyone who might be leeching off your connection. There is no way to cut off the Internet connection of an individual without trampling on the economic rights of cohabitants (to say nothing of their speech rights).
But wait, it gets better. What if your connection has been disconnected unfairly (remember, no due process guaranteed here, accusations are enough to kill your connection)? Lord Mendelson, the Bill’s champion and friend of the Entertainment industry, has foreseen that these sorts of appeals will be legion. To fund this logjam, he argues that you should have to pay your own money to secure a hearing. Wow, so they get you coming and going. Double trouble.
Why should this insane Brit law worry me? Because there is a great chance that we are already negotiating similar provisions in the Anti-Counterfeiting Trade Agreement. Read the latest examples of zero transparency in ACTA and shiver.
Let’s clear this up. ISPs cannot be trusted to execute pinpoint Internet amputation. A law that kills your shared Internet connection harms other users. And any system that is practically designed to spit out false positives and then charges individuals for the right to appeal? That’s just an old-fashioned shakedown.
I am all for caring for my fellow man (Apathetic people of the world unite! …. Or don’t. Whatever.). I honestly hope that I can reach the point where each man’s joy is joy to me. But please, please, please, don’t make each man’s grief my own. While I do reject many other elements of the enlightenment ("I’m telling you people, the Earth revolves around the Sun!" "Burn him!"), I like the idea of avoiding collective punishment. There is no way, short of mandating some sort of biometric verification/restriction, to digitally kill only one member of a household.
Call or write your member of Congress and demand that the ACTA negotiations become public. If not, you might regret it. Never send to know for whom the router light blinks; it blinks for thee.
(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He is beginning to suspect there will be no pie in the sky when he dies.)
Photo, "alone, we navigate the past," courtesy of Flickr user ecstaticist, licensed under CC BY-NC-SA 2.0.
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.
Canada’s Privacy Commissioner has launched an investigation into changes Facebook made to its privacy policy. The changes were made in response to an investigation the Privacy Commissioner carried out last year.
The summary statement from the Mexico ACTA talks has been posted online. As predicted, it is a bland statement confirming discussions on civil enforcement, border measures, and Internet issues. It also includes the usual discussion around transparency and the desire to conclude ACTA in 2010.
The European Commission is planning to beef up the Data Protection Directive, strengthening the enforcement of the EU law and including introducing new demands that technologies and processes include ‘privacy by design’.
If there’s one country that might have insight into what a post-ACTA future may look like, it’s the Republic of Korea. Korea is known as having one of the most advanced networks in the world, but more recently it has also been the recipient of some of the strongest foreign pressure to ramp up its IP laws. Heesob Nam is a member (and former Chair) of IPLeft, a Korean digital rights activist group founded in 1999 to critique the increasingly maximalist IP rights agenda in that country, and research and present alternative policy proposals. He writes of the impact on Korea of ACTA and other international IP agreements.
For Korea, ACTA is the Anti-Commons Trade Agreement
In August 2008, our group, IPLeft, demanded that the Korean government disclose relevant information about its stance on the negotiation of ACTA. The disclosure was denied, as was our appeal. The reason for the denial was unconvincing: the disclosure, we were told, would result in “a harmful effect on a diplomatic relationship with foreign countries and severe damage to considerable national interests”.
How does the participation in an international cooperation to combat the trade of “counterfeit and pirated goods” harmfully impact foreign relationships? Which national interests are to be damaged by open and transparent discussion? Unlike its attitude to civic society and the general public, it turned out that the Korean government already provided relevant information to, and sought opinions from, particular business groups from the earliest stages of the negotiation, at least from November 2007.
When it comes to ACTA, transparency and openness became principles that apply only to a small number of business interests. This is why the secrecy of ACTA is so bad: it mirrors a particular perspective that views the system of intellectual property as a means for maximizing commercial profit and which pays little attention to the broader social, cultural and economic implications of the IP system.
This imbalanced and biased approach is infused into the draft texts that we have seen. The draft chapters on civil enforcement, criminal enforcement, and border measures lack procedural justice and fairness. They improperly promote the interests of IP holders to the detriment of the other party in civil, criminal and administrative proceedings.
The provisions contained in the proposed Internet Chapter appear to impose undue obligations on ISPs. The extent to which ISPs are to be liable for copyright infringement by users is a matter of domestic cultural policy, not a trade issue. Careful balancing of interests and fine-tuning are necessary, including factors specific to local culture and environment which cannot be concluded in a closed room occupied by trade negotiators.
More significantly, the liability of ISPs is of great importance not merely for the protection of copyright: it is important for the protection and realization of everyone’s right to take part in cultural life as declared in legally binding international human rights instruments. One of our concerns about ACTA is the risk of undercutting the principle of the rule of law and the possible conflict with human rights, in particular with the right to a fair trial, the right to equality before courts and tribunals, the right to equality of arms, and the right to be presumed innocent. ACTA tries to introduce substantial changes in civil and criminal procedures. But the proposed changes give rise to issues of procedural justice and fairness, jeopardizing Korea’s obligations under the international human rights instruments, e.g., the International Covenant on Civil and Political Rights, and potentially weakening the democratic values recognized in our Constitution.
For instance, pursuant to the US-Japan joint proposal, any provisional measures such as a preliminary injunction may be rendered by judicial authorities without a prior hearing of the alleged infringer. Here, neither “irreparable harm to the right holder” nor “a demonstrable risk of evidence being destroyed” is explicitly required. Even the Customs office may take an ex-officio action to suspend the release of suspected copyright or trademark infringing goods. Moreover, right holders may be awarded a predetermined amount of damages without having a burden to show the amount of damage or even when the amount is greater than actual damage. An even more severe breach of principles of procedural justice is found in a so-called “camcorder provision” under which anyone who attempts to use an audiovisual recording device to make a copy of any part of an audiovisual work in a theater may be criminally punished. This out-of-proportion rule not only produces a direct conflict with the right to be presumed innocent but also undermines the principle of fair use or fair dealing.
National autonomy is vital in order to decide the proper level of local IP protection and enforcement. Korean IP law has undergone substantial revision due to the threat of trade sanctions from both the US and the EU since the early 1980s. This economic coercion has continued for about thirty years, and has led to an emergence of consistent domestic pressure for stronger IP protection.
Interestingly, the strongest advocates for these reforms in Korea are not the IP industries: they are the executive branches in government which claim competance over the administration of patent, trademark, and copyright. To them, stronger IP protection and enforcement is a chance to enhance their position. The unending economic pressure and the heavy reliance of our domestic economy upon exports have produced this environment. The problem is that these state actors are much more influential than other, emerging local businesses, because they possess institutional capacities and resources to promote a maximalist IP regulatory culture.
With this power, these government agencies have introduced new laws in Korea which may well be used to support controversial provisions currently being discussed in Guadalajara, Mexico. Examples include a filtering obligation imposed on certain online service providers, and a “graduated response” rule under which the Minister of Culture can suspend or terminate the Internet account of a repeat infringer or even shut down a website that the repeat infringer is using. Advocates claim that the shutting-down provision is incorporated in the US-Korea Free Trade Agreement (and Side Letters) (currently awaiting ratification), and may possibly be pushed by the US in modified form during the ACTA negotiations. If ACTA is concluded with an inspiration of such provisions and applied to Korea under the name of international harmony, our effort to reform the copyright system would be undermined, and opportunities for democratic policy discussion at local level would be lost.
Contrary to the beliefs of ACTA negotiators, stronger, criminal enforcement rules can create unintended consequences among the general public. In Korea, following the introduction of these new laws, reports of criminal copyright infringement skyrocketed from 14,838 to 90,979 between 2005 and 2008. Among these, juveniles victims occupied 24% in 2008, an increase from 1.9% in 2005.
This reported increase, however, does not represent a rapid rise of the unauthorized use of copyrighted material by juveniles. Rather, it shows how criminal sanctions can be misused. Under the Korean Copyright Act, any unauthorized acts of reproduction or distribution of copyrighted works can invoke a criminal liability. This wide coverage of criminal sanction paves the way to abuse or misuse of criminal enforcement. ACTA is no different in this sense. In order to be “willful copyright piracy” under ACTA, an infringing activity needs to be “on a commercial scale”. But commercial scale is defined so broadly that it covers activities with “no direct or indirect motivation of financial gain”. With this broad definition, the infringement on a commercial scale may include almost every unauthorized use of copyrighted work. So, for instance, those who download a single piece of music may risk criminal penalties. In other words, ACTA opens the door to the global misuse of criminal enforcement rules, beyond even what we’ve seen in Korea.
Here, criminal sanctions have become a sort of new business model for lawyers acting for copyright holders (mainly music and film industries). They monitor Internet users and send warning letters to suspected individuals threatening a criminal action. In exchange for not taking the criminal action, they ask for a cash settlement. Criminal enforcement procedures provide copyright holders with leverage; using the threat of criminal action as leverage for the settlement negotiation as the initiation of criminal procedure is triggered by a complaint by the right holder. Among the 90,979 complaints in 2008, 56% were settled out of court.
ACTA risks exporting Korea’s criminal enforcement regime, while importing the worst of other countries’ IP laws. But that’s not the only reason to oppose it. A trade agreement that breaches procedural justice, fairness, transparency, and proportionality is not Anti-Counterfeiting: it’s Anti-Commons.
This week the condemnation of file-sharing “legal blackmail” lawyers ACS:Law has been widespread, with extremely harsh words coming from the country’s House of Lords. Despite this the law firm are unrepentant and say they will persist with their campaign. It is, however, possible to immunize your family from this growing threat.