Monthly Archives: June 2010

Scope of French ’3 Strikes’ P2P Piracy Monitoring Confirmed

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As one of the pioneers of a ’3 strikes’ mechanism for dealing with P2P piracy, France is moving closer to its full implementation. In order to warn and punish alleged file-sharers, it will first be necessary to monitor them whilst engaged in infringement. The scope of that monitoring has just been confirmed.

As reported earlier this year, anti-piracy outfit Trident Media Guard has been chosen by the entertainment industry to track and report illegal file-sharers in France. The company, previously better known for its pollution of file-sharing networks with fake data, will be providing evidence for use under the country’s 3 strikes ‘Hadopi’ legislation.

From the sidelines of a conference, Thierry Desurmont from rights collecting group SACEM has just confirmed the scope of TMG’s upcoming monitoring regime.

TMG’s tracking systems are able to monitor several different file-sharing networks, but the priority will undoubtedly fall on BitTorrent, eD2K (eDonkey/eMule) and Gnutella (e.g LimeWire). Fears that TMG would be monitoring so-called cyberlocker sites (e.g Rapidshare) were not true. Even if they could, the company does not have permission to do so. TMG will concentrate purely on P2P.

“We reached an agreement with TMG and [the company] will monitor the IP addresses used for illicit file-sharing from a basic reference work,” explained Thierry Desurmont from rights collecting group SACEM.

“There is the music industry and the audiovisual sector. For the music industry (SCPP, SPPF, SACEM, SDRM), there will be a base consisting of 5,000 works [from a back catalogue, described as 'golds'] and 5000 which will be for renewal. For broadcasting, the base formed by [anti-piracy group] ALPA will be 200 works.”

The monitoring process will see TMG working up to capacity, tracking an eye-watering 18,250,000 infringements per year – that’s 50,000 per day, every day.

“Our agreements provide that TMG should be able to provide 25,000 incidents per day for music, 25,000 for audiovisual. This goal will be preceded by a phase of increasing power to calibrate the process,” explained Desurmont.

Quite how the paperwork side of the operation will hold up to such lofty goals remains to be seen. The French will be hoping that the initial ‘first and second strike’ warnings work or the judges dealing with the fines and disconnections could be in for a hell of a lot of overtime.

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Google Scores 1 Point for BitTorrent

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Google has won its court case against Viacom, where it was facing a $1 billion claim for allowing users to upload copyrighted clips to YouTube. The landmark case is expected to have a major impact on future cases dealing with the responsibilities of the operators of user-generated media libraries, including BitTorrent sites.

The Google Bay

Over the past years Google has been battling in court with Viacom over the question of whether YouTube is protected against copyright infringement claims under the Digital Millennium Copyright Act (DMCA).

Yesterday, U.S. District Court Judge Louis Stanton granted Google’s motion for summary judgment, ruling that Google is protected by the DMCA’s safe harbor provision. Effectively, this means that YouTube doesn’t have to remove any clips unless they are asked to do so by copyright holders.

“If a service provider knows of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements,” Judge Stanton wrote.

In a response, Google claimed the judgment to be a victory for all the people who ‘share’ on the Internet. “This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other,” the company wrote on its blog.

This judgment is obviously a huge win for YouTube and other video hosting services, but it also sets an important precedent for BitTorrent sites. Google’s YouTube shows striking similarities to torrent sites as it allows users to submit content. The only difference is that YouTube actually hosts the uploaded files, whereas torrent sites only link to content indirectly through .torrent files.

The Pirate Bay aside, nearly all torrent sites work closely together with copyright holders to ensure that their rights are respected. Like YouTube, IsoHunt and others have strict notice and takedown policies and swiftly remove .torrent files pointing to infringing material when they are notified by copyright holders.

Despite the similarities, BitTorrent sites haven’t been very successful in court thus far. Using the same arguments as Google did in its case against Viacom, Mininova and isoHunt have both argued in court that they were protected by a DMCA(-like) safe harbor, but both eventually lost their case.

The good news is that both isoHunt and Mininova have still options to appeal, and with yesterday’s landmark victory in hand their chances of winning may have increased.

If anything, BitTorrent sites should be seen as less infringing than video hosting sites because they only link to copyright infringing content indirectly through .torrent files. If Judge Stanton’s decision is translated to BitTorrent sites, it means that under safe harbor protection sites like isoHunt and Mininova would operate legally and wouldn’t have to use filtering mechanisms to prevent users from uploading ‘infringing’ torrents.

Viacom, meanwhile, isn’t done with Google and Youtube just yet. “We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court,” the company said in a statement.

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Another File-Sharing Case Fails – Join The Revolution Or Perish

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The on-going fight against file-sharing link sites in Spain is turning into a farce. Despite many rulings which state that the sites break no laws, still anti-piracy groups waste their money pursuing them. As yet another site is cleared of wrong doing, a lawyer who speaks out for civil rights on the Internet is clear on the piracy issue – either join the revolution, or perish.

Another month and yet another defeat in a Spanish court for anti-piracy groups chasing a lost cause against file-sharing sites. Following hot on the heels of a decision in May by the Madrid Provincial Criminal Court in favor of sports streaming links site Rojadirecta, a court has thrown out an appeal against another file-sharing site.

Lauren Films first issued a complaint against links site Cinegratis.net in 2007 but the case has taken 3 years to reach a utterly disappointing but completely predictable outcome for the company.

Following the provisional dismissal of the case by a court in early February, Lauren Films made a petition for amendment. In April, Magistrate’s Court No 1 of Santander dismissed the petition.

The dismissal was based on facts gathered in previous similar cases, i.e “that the simple provision of external links to access content protected by copyright does not constitute a breach of the provisions of Article 270 of the Penal Code.”

Undeterred, the movie company appealed against the decision, claiming that this case was different to other cases where file-sharing sites had been deemed within the law.

Although the Cantabria Provincial Court agreed that the name of the site (translated ‘Movies for free’) was an accurate indication of potential infringement by users, the outcome wasn’t favorable for the studio.

“[..] there is [no] doubt that the very name of the website is a major attraction for network users and explicitly suggests that its contents will provide access to viewing films for free, [but it] must be taken into account the effects of the present action and the purely circumstantial evidence that such free access is done in contravention of the provisions of intellectual property laws,” wrote the Court.

What is important, the court continued, is whether the provision of links to copyright works constitutes a breach of Article 270 of the Penal Code. As in at least eight previous cases of this type, the Court ruled that it does not. The appeal filed against the earlier decision was rejected and the Court confirmed that Cinegratis can carry on, business as usual.

Carlos Sánchez Almeida, lawyer and former member of Fronteras Electrónicas España (FrEE), a group previously affiliated with the Electronic Frontier Foundation, is not surprised.

“The lords and masters in the Spanish videographic industry have heard me say, ad nauseam, that the path of repression is not going anywhere. Already in 2003, shortly after the first legal action against a links page, I said that this way you only create heroes and martyrs of technological progress,” he writes.

“When a revolution is underway, there is only one way to go: join it or perish.”

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The 'Piratbyrån’ Disbands

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In 2003 a group of friends from Sweden decided to found Piratbyrån (the bureau of piracy), a lobbying organization to promote the sharing of information and culture. A few months later the group took a decision that would change the Internet – the launch of a BitTorrent tracker named ‘The Pirate Bay’. Today marks the end of an era with the announcement that Piratbyrån has disbanded.

Piratbyrån had many purposes, but could be described as a pro-piracy lobbying organization. It was founded in response to Antipiratbyrån, the local anti-piracy outfit in Sweden. The goal was to start a debate on copyright issues and how they affect society. Until then, most press in Sweden would simply take everything Antipiratbyrån said for granted.

Internationally, Piratbyrån is mostly known for launching The Pirate Bay in the fall of 2003, just a few months after the group itself was founded. Since there was no file-sharing network in Sweden at the time, Piratbyrån decided to launch the first Scandinavian BitTorrent community, using the then relatively new BitTorrent protocol.

By the end of 2004, a year after the site launched, the tracker was already tracking a million peers and more than 60,000 torrent files. Around the same time the founders also became aware that it wasn’t just Scandinavians showing an interest in their site.

Because of increasing worldwide popularity, The Pirate Bay team completely redesigned the site, which became available in several languages from then on. Around the same time The Pirate Bay became separated from Piratbyrån, with the latter focusing more on other ‘copyfights’ that had to be won.

Piratbyrån

pirat

In the years that followed Piratbyrån engaged in discussions about the role of intellectual property in the digital age, giving a voice to millions of file-sharers who believed that copying is not a crime. Now, nearly 7 years after it was founded, Piratbyrån’s role has been played out and the group has decided to disband.

The discussions about file-sharing that Piratbyrån wanted to have, are already won,” former Pirate Bay spokesperson and Piratbyrån member Peter Sunde told us. “The projects that needed to start have already been finalized. Piratbyrån was a temporary group for a temporary reason.”

The final decision to disband the group came after Ibi Kopimi Botani, a prominent member and co-founder of the group, passed away. Without one of its greatest minds, the group would never be the same again, Piratbyrån’s member felt.

“The discussions about abolishing Piratbyrån have been going on for years already, but this weekend a beloved friend and member died, and we decided it was time to move on for real, since the group could not be the same without him anyhow. It felt like a good time for passing this part of life,” Peter told us, who added that the group was about much more than being the founders of The Pirate Bay.

“Without Piratbyrån there would have been no Pirate Bay of course, but Piratbyrån has accomplished so much more than just that,” he said, a position shared by all of the group’s members. Marcin de Kaminski, who announced the end of Piratbyrån in a blog post, is proud of what they’ve accomplished in all those years.

“The most longlived project which has originated from Piratbyrån is obviously The Pirate Bay, but when it comes to great accomplishments I would like to point out how Piratbyrån were forerunners in one of the most obvious clinches of our time,” Marcin told us.

“By proudly standing up for the ideas of a whole generation of internauts and taking the fights no one else did, Piratbyrån worked as catalyzers when it came to understanding the current evolution of culture, clusters and chaos,” Marcin said. “While other actors have been trying to deliver answers, Piratbyrån has been very focused on targeting problems of the present by searching for the right questions.”

All the right questions have been asked now, and the group believes it has served its purpose. File-sharers are more vocal than ever before, they can stand up for themselves now and continue to challenge the corporations that promote intellectual property abuse.

Just copy what Piratbyrån did and evolve.

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