In recent years, file-sharing has spurred a bitter battle between proponents of free media and enforcers of intellectual property rights. After the Napster file-sharing model collapsed under numerous lawsuits, a new file-sharing method known as torrent websites emerged to fill the void. Now these immensely popular torrent websites are facing legal problems of their own.
What’s a Torrent?
In 2001, Bram Cohen developed the BitTorrent protocol. The BitTorrent protocol transfers information by breaking it up, encrypting it and disbursing it to multiple computers. To be usable, the information is then reassembled from the multiple source computers at a single workstation.
This technique sets the BitTorrent protocol apart from previous peer-to-peer technologies. In most other peer-to-peer technologies, such as Kazaa, a single file is downloaded in its entirety from a single source on the network. The BitTorrent protocol – and similarly designed programs – differ in that every instance of the program can download sections of any file from multiple peers simultaneously. Once obtained, the file is then reconstructed on the downloading computer and shared in a similar manner on the network.
Seizing upon this new file-sharing method, a number of search engines quickly developed to utilize the BitTorrent protocol. These search engines index torrent files and make them searchable by users. Thus, people can easily search and share media, including movies, music and televisions shows, over the Internet using these websites. Two of the most popular torrent websites are isoHunt and TorrentSpy.
Copyright Problems (and Possible Solutions)
While these torrent websites provide an efficient method of file-sharing, they also face copyright problems similar to those that plagued previous generations of peer-to-peer technologies. Using the BitTorrent protocol and other similar programs, users can easily distribute illegal copies of copyrighted works. Such illegal sharing can mean trouble for the torrent websites and their users.
One potential “safe harbor” that might save these torrent websites from being shut down for copyright infringement is the Digital Millennium Copyright Act (PDF link), which was passed by Congress in 1998. Under the DMCA, websites that perform services such as database searches that might turn up copyrighted material can be exempt from liability if they take down the copyrighted material once it is properly identified through certain takedown procedures.3
On February 26, 2006, The Motion Picture Association of America (MPAA), acting on the behalf of major movie studios, sued a number of torrent websites including isoHunt and TorrentSpy. In its press release (PDF link), the MPAA stated that these websites “encourage” copyright infringement. By accusing the websites of “encouraging” infringement, the MPAA is making the case that the torrent websites knowingly link to copyrighted work and are thus ineligible for protection under the safe harbor provision of the DMCA.
But the torrent websites themselves are not the only ones who should be worried about these lawsuits. During the early phases of the lawsuit against TorrentSpy, a federal judge ordered TorrentSpy to start keeping a log of all users who connect to the server (PDF link). Obviously, this could mean trouble for the millions of users of these websites.
Torrent Websites’ Responses
Both TorrentSpy and isoHunt have changed their tactics in response to the judge’s order. TorrentSpy has started identifying and blocking users from the US, such that American users cannot do searches on the site. Instead, US users are forwarded to a page titled TorrentSpy Acts To Protect Privacy. Ironically, part of TorrentSpy’s stated reasoning for this is that as an EU-based entity they must follow EU privacy laws and hence cannot link identifying information to activities on the website.
isoHunt’s approach is in some ways similar to TorrentSpy’s: first and foremost, isoHunt moved its servers to Canada in an attempt to escape US jurisdiction. However, unlike TorrentSpy, isoHunt has also created a takedown process, which allows content owners to remove content from the site. isoHunt also started blocking access to torrent trackers operated by isoHunt itself. isoHunt’s strategy is clearly to cease to become a distributor (at least to US citizens), and instead to become ‘only’ a specialized search engine – much like Google or YouTube. As such, isoHunt might then be able to seek protection from the DMCA’s safe harbor provision.
So Now What?
It remains to be seen whether or not isoHunt’s approach will fly in court. Taken at face value, the language of the DMCA’s safe harbor provision applies only to Internet Service Providers (PDF link) doing things like transmitting email, rather than search engines like isoHunt or even Google. While a court might be willing to give a critical piece of infrastructure like Google the benefit of the doubt when interpreting this language, it seems unlikely that a court would give isoHunt similar leeway. As a result, TorrentSpy’s approach – disassociate yourself altogether from US users – may prove the more reliable one.
It is worth noting that the technology both sites use to block US users is imperfect. The article Guide for Canadians Wanting To Use Demonoid points out a number of mechanisms which allow Americans to sneak around these blocks.13 Any court looking at the problem will face an interesting and apparently unprecedented question: if a website makes a good-faith effort to block Americans from using the service, but they get access anyway, is the website liable in the US, or does liability shift primarily to the people trying to get access? At this time, the answer looks academic, as operations of both groups have shifted outside the US, but whatever the court decides may have interesting implications for future cases involving organizations (like Google) that can’t just get up and move when they are sued.
By Hailey DeKraker, Shawn Oakley, Luis Villa and Sarah Calvert. Originally posted at the Columbia Program on Law and Technology blog.