Is it wrong for websites to help people find things online that shouldn’t be there? And if it is, should the sites keep track of their users and what they do?
These are the main questions raised in a string of lawsuits brought by the six major Hollywood studios against websites that help people find files shared online through the BitTorrent protocol. Think of BitTorrent as the grandson of the original Napster, the first mass-scale technology for finding and copying files stored on other users’ computers. But its technology is so different that copyright holders and courts are straining to find ways to apply the principles developed in the Napster case to BitTorrent-fueled bootlegging.
Some of the targets of the lawsuits, which include TorrentSpy and IsoHunt, not only let users search for files by name, they present lists of what’s available, organized by type (movie, TV show, video game, software, etc.). The sites don’t have the files themselves, however; instead, they just offer links to the places where the files can be copied. A key issue for these companies is whether they know their links are tied to infringing material. If so especially if they’re told repeatedly about the problem, yet they don’t remove the objectionable links they could be liable for contributory infringement.
TorrentSpy asserts that its goal is to be a comprehensive index of available torrents a Google for torrents, if you will. Searching for a file on TorrentSpy may return links to legitimately available material (e.g., a movie trailer ) as well as infringing content (the movie itself). Other companies with similar ambitions, including BitTorrent Inc. and Azureus Inc., have stayed out of trouble with Hollywood by going an important step further than TorrentSpy: They try to prevent their search engines from being used to find bootlegs. But the law is murky on whether this kind of proactive copyright protection is mandatory. Courts have ruled it illegal to link to some types of files in particular, software that circumvents the electronic locks on DVDs but not necessarily those that infringe copyrights. Instead, search engines and other link-heavy sites have argued that their only obligation is to remove links to infringing material when asked, as required by the 1998 Digital Millennium Copyright Act.
The Motion Picture Assn. of America (MPAA) maintains that companies such as TorrentSpy violate the law because they’ve built their entire business around infringing content. As their lawsuit against TorrentSpy puts it, the company’s operators “knowingly enable, encourage, induce and profit from massive online piracy ... [that they] could stop, but refuse to.&.” Hollywood and the music industry have made similar arguments against other companies associated with file-sharing en route to a series of important legal victories. But a bit of history is in order here to note how BitTorrent indexes may differ from their file-sharing predecessors.
The original Napster ran afoul of the federal courts because it used its own computers to create indexes of the songs each user offered to share. Those indexes put Napster in a position to know that its network was being used to trade copyrighted tunes (or rather, files whose names bore a striking resemblance to copyrighted tracks, such as “03-One-Achtung Baby-u2.mp3"), and to control the piracy. As Napster’s troubles grew, a second generation of file-sharing programs emerged that had no central indexes or servers. These included Kazaa, Grokster and Morpheus. The companies distributing these programs argued that they had no way to monitor or control what their users were offering or downloading, so they couldn’t be held liable for it. Their defense relied heavily on the Supreme Court’s ruling in the Sony Betamax case, which limited the liability of companies that made products capable of substantial non-infringing uses. The U.S. 9th Circuit Court of Appeals was persuaded, giving Grokster and Morpheus a pass even while conceding that their networks were hotbeds of music and movie piracy. That led the Supreme Court to establish a new doctrine of secondary copyright infringement: companies could be liable if they actively induced people to infringe, regardless of their product’s lawful uses.
Even before the Supreme Court took up the Grokster case, the second-generation file-sharing programs were being eclipsed by BitTorrent. The BitTorrent protocol speeds online copying by enabling users to download multiple pieces of a file simultaneously from numerous sources. In theory, the more people who offer that file for sharing, the faster BitTorrent can deliver it. But not only is there no central BitTorrent index, the software doesn’t even have a built-in search function. In other words, running BitTorrent is like plugging in a phone with no keypad.
This is where TorrentSpy comes in. Two sets of websites trackers and indexers have emerged to help create communities of BitTorrent users, enabling people to search for and copy files. Like the original Napster, Grokster, Morpheus and Kazaa, these sites don’t make or offer copies of songs, music or anything else. Instead, they exist to help other people do these things. Torrent trackers keep account of the potential sources for a file, so when someone wants to download it, the tracker can connect that person’s computer to the other computers offering it. Torrent indexers such as TorrentSpy, meanwhile, are the Yahoos of the BitTorrent world they list the files being offered, group them into categories and provide links to the corresponding trackers.
What duty, if any, BitTorrent indexers have to prevent infringement is just one of the intriguing questions raised by the MPAA’s lawsuit against TorrentSpy. The other is whether such companies have an obligation to keep logs of who uses them and what they do on the site. In previous, successful legal forays against some prominent torrent-related sites, the MPAA obtained computer logs that helped them identify and sue hundreds of individuals who allegedly traded copyrighted movies online. But TorrentSpy didn’t collect this kind of data; instead, information about users was held only temporarily in its computers’ random access memory, or RAM. Nevertheless, at the MPAA’s request, U.S. Magistrate Judge Jacqueline Chooljian ordered TorrentSpy on May 29 to start keeping logs.
The order drew howls of protest not just from the company, but from two advocacy groups for technology and civil liberties online: the Electronic Frontier Foundation and the Center for Democracy and Technology. They argued that the ruling would set a dangerous precedent by making virtually any computer or digital device with RAM into a potential monitor, endangering privacy rights and anonymous speech online. Although Chooljian wrote that her order “should not be read to require litigants in all cases to preserve and produce electronically stored information that is temporarily stored only in RAM,” her remarks suggested that a similar requirement could be levied on any site accused of large-scale copyright infringement. The order, which has been put on hold pending an appeal to U.S. District Judge Florence-Marie Cooper in Los Angeles, could give the MPAA yet another method for rounding up infringers (or, more accurately, infringers’ Internet addresses). More likely, though, it will spur users to find file-sharing technologies that do a better job of covering their tracks.