HUGE FAT WARNING: I AM NOT A LAWYER. If you need legal advice, GET A REAL LAWYER.
Update 5, 2012-12-06: I’m working out the details of a next-gen P2P file sharing program that should fix up most of the problems with P2P file sharing today, including the IP address issue.
Update 4, 2012-10-18: Added a rambling post containing my thoughts on why it’s impossible to prove that individuals infringed over the Internet without their own confession to doing so.
Update 3, 2011-11-02: Added a new post with an analysis and the actual text of one of these notices.
Update 2, 2011-11-02: My little site at http://copyright-infringement-notice.com/ has been massively updated, including a guide for people who are panicking and feel a need to do immediate damage control.
Update: This is one of the most popular pages on my entire blog now…so, I’m now running a small website that provides information about copyright infringement notices. Check it out at http://copyright-infringement-notice.com/ and give me additional ideas, suggestions, or information to make it better!
I generally keep myself aware of what’s going on with the whole peer-to-peer file sharing scene, particularly because the case law it generates changes the nature of copyright law in this country, and as someone who writes software, I need to know about such changes. Additionally, because I download a good number of legitimate files from BitTorrent trackers (i.e. Linux distribution CD images), I want to know what I’m stepping in. I’ve noticed a very disturbing trend over time which concerned me enough to finally write a whole blog post:
“Copyright cops” who threaten users of BitTorrent trackers frivolously pursue anyone whose IP appears on their radar and their evidence would not stand up to even the most trivial review.
That’s right, companies such as BayTSP, Copyright Enforcement Group, U.S. Copyright Group, and other paid agents of large media companies are bringing claims against torrent users without even collecting evidence of infringement. For example, the University of Washington was able to trigger a DMCA copyright infringement cease-and-desist notice being sent to their technical department. The copyright cops caught the user at this UW IP address RED-HANDED, INFRINGING ON THEIR COPYRIGHT!
The IP address being accused of BitTorrent-based copyright infringement belonged to a network printer.
No, I’m not kidding. The recording/movie/television industry copyright “enforcement” corporations accused their network printer of stealing movies. That’s how easy it is to be wrongly accused. But what else? There’s another experiment from 2007 which was performed with a specially written BitTorrent client which explicitly did not download nor upload any material, only jumped on a tracker and added itself to peer lists. This client, which was designed to be incapable of actually infringing copyrights, generated copyright infringement notices from BayTSP despite the fact that such infringement was simply not possible with that application!
I find this to be absolutely ridiculous, particularly because of the nature of these notices. Many of them are also legal threats. Regardless of innocence or guilt, any filing of a lawsuit against you costs money to handle, and if it’s so easy for these automated copyright scanning processes to both target the wrong person entirely AND target people who didn’t provably upload or download file data at all, that doesn’t bode well for any of the parties involved. It’s fairly obvious that the “copyright cop” companies are basing their claims of infringement solely on the population of BitTorrent trackers’ peer lists. They don’t actually download the entire file from you and keep logs that show they did so as evidence that you indeed infringed on their copyright; they merely see your address in a particular list and send off the notice.
Study 1: http://dmca.cs.washington.edu/
Study 2: http://bmaurer.blogspot.com/2007/02/big-media-dmca-notices-guilty-until.html
TechDirt article on this topic: http://www.techdirt.com/articles/20100401/0846028831.shtml
What’s even more outrageous to me is that these companies advertise their services as being unethical right off the bat. They resort to legal threats and mass lawsuits against “infringing parties” but they advertise it to content owners and rights holders this way: “Monetize copyright infringement! We can bring you income from a surprising source: people who download your content illegally!” It’s not even about doing the right thing, it’s about the bottom line, meaning they have no reason to care about innocent people being caught in the dragnet.
Despite the risk of a lawsuit, if you happen to receive a DMCA copyright infringement notice which is forwarded by your ISP, either by email or regular mail, here’s my advice:
- DO NOT EVER CLICK ON ANYTHING IN AN EMAIL, VISIT ANY WEBSITE IN A LETTER OR POSTCARD, OR OTHERWISE REPLY OR MAKE CONTACT IN ANY WAY WHATSOEVER! You run a plethora of risks if you respond in any way, even indirectly such as by visiting the “copyright cops” website out of curiosity. They can fingerprint your computer, you may be implicitly admitting guilt even if you’re innocent, you could hand them personal information such as your full name by accident…the list goes on. DON’T DO IT.
- Read the studies above, as well as any other relevant material you find online such as articles on p2pnet.net, just in case anything happens. If you end up in a bad situation, you need to be able to educate your lawyer on how their infringement detection tactics are grossly flawed. Be prepared, JUST IN CASE.
- If you really did infringe on someone’s copyright, do the right thing. That means disposing of the things you’ve downloaded and putting yourself in a position where you’re less likely to end up with more infringement notices. That doesn’t mean admitting guilt. Don’t ever admit guilt in any way, just delete the downloads, stop downloading stuff you shouldn’t be, and shut up about the whole thing. Admitting ANYTHING is just plain begging for a lawsuit.
- If you’re truly paranoid, back up your data, zero out your hard drive using something like the Tritech Service System (running “dd if=/dev/zero of=/dev/sda” will do it on almost any computer out there), and reinstall clean so there’s no evidence left behind. If you get in a legal fight and your computer gets subpoenaed for discovery, you can’t do this, but there’s nothing stopping you from doing as you please with your hard drive before receiving a subpoena.
- Most ISPs won’t kick you off their service for this. Don’t respond to the ISP unless you receive direct threats from them. If your ISP threatens to disconnect your service, use the information in the experiments above to explain to them that these people are making claims for which they have no real proof, and that you are not infringing on anyone’s copyrights. Remember that the ISP has no reason to boot you unless you’re a very egregious media thief, and if that’s the case you probably can’t read this by now anyway.
As a creator of copyrighted works, I can’t condone the piracy of copyrighted material, but I also feel that the major media industry corporations have gone way too far with their “sue them all” tactics. If someone pirated my creation and I found out, I wouldn’t threaten them or demand a settlement payment so quickly; I’d ask them to do the right thing and just pay up for it if they liked it (or toss it if they didn’t and tell me why so I could make it better.)
Don’t steal stuff, but don’t let big companies steal from you for something you didn’t do either.
It would be nice to hear from a real copyright lawyer on this issue. Feel free to comment, especially if you’re a lawyer. I don’t post email addresses, your comment will be as anonymous as you name it to be.