Government Tossing Child Porn Cases Rather Than Discuss Its Torrent-Tracking Software In Court

from the escape-hatches-and-opacity dept

The federal government isn't done tossing cases rather than let defendants have access to slightly more level playing field. A new investigation by ProPublica has uncovered more dismissed prosecutions due to the government's unwillingness to allow defendants to examine the software used to build cases against them.

The cases deal with child porn and BitTorrent distribution. The defendants are hardly the most sympathetic. But, like the cases that exposed the FBI's use of malware to gather identifying information from devices around the world, child porn investigations are on the front line of the government's tech deployments. From the description of the cases covered here, it almost appears the government had enough evidence to see the prosecution through to the end. It just chose not to because continuing the cases would mean turning over info on their tracking software to the accused.

Using specialized software, investigators traced explicit child pornography to Todd Hartman’s internet address. A dozen police officers raided his Los Angeles-area apartment, seized his computer and arrested him for files including a video of a man ejaculating on a 7-year-old girl. But after his lawyer contended that the software tool inappropriately accessed Hartman’s private files, and asked to examine how it worked, prosecutors dismissed the case.

Near Phoenix, police with a similar detection program tracked underage porn photos, including a 4-year-old with her legs spread, to Tom Tolworthy’s home computer. He was indicted in state court on 10 counts of committing a “dangerous crime against children,” each of which carried a decade in prison if convicted. Yet when investigators checked Tolworthy’s hard drive, the images weren’t there. Even though investigators said different offensive files surfaced on another computer that he owned, the case was tossed.

The secrecy in these cases is being aided and abetted by private companies. A nonprofit called the Child Rescue Coalition produces a suite of tools called the Child Protection System. But as ProPublica points out, the details are more complicated than its initial appearance: a kindhearted nonprofit helping law enforcement catch child porn producers and consumers. CRC has ties to TLO, a data brokerage recently acquired by credit reporting agency, TransUnion.

Defendants have asked prosecutors to turn over information about CRC's software in cases where it appears to have possibly drawn the wrong conclusions about downloading and distributing child porn. In those cases, TLO -- not the CRC -- has stepped in to inform the courts that it will not be producing the requested info.

The software’s makers have resisted disclosure of its coding. In May 2013, TLO asked a federal court in El Paso, Texas, to quash a subpoena to reveal the software known as the Child Protection System in a child-porn case. The materials sought, they said, “are protected under the law enforcement privilege and trade secrets laws.” After the judge ordered the software produced, prosecutors instead agreed to a plea deal that favored the defendant; he was sentenced to three years he had already served for “transportation of obscene material.

It's not just private companies pushing prosecutors towards dropping cases. It's also public institutions. Torrential Downpour -- software used to track the sharing of child porn via hash values -- was developed by the University of Massachusetts using government funding. When access to code was requested by a child porn case defendant, the university inserted itself into the case to reject the judge's order to turn over the code.

Its lawyer said in a court document that handing over the software would “destroy its value to the university and its faculty researcher,” citing a $440,000 annual FBI grant. “Releasing it to public view would frustrate public policy and impede law enforcement’s ability to deter peer-to-peer sharing of child pornography,” the lawyer added.

The trove of documents [PDF] ProPublica secured show instances where the evidence prosecutors said they had may not have actually been there, thanks to software or human errors. A recent ruling in favor of letting the defendant have access to Torrential Downpour's code seems to show the FBI relies more on what the software tells it than it can actually see with its own eyes.

Defendant Gonzales argues that Torrential Downpour is material to his defense because the distribution charges are based on child pornography files that Torrential Downpour purportedly downloaded from his tablet but that were not found on the tablet when it was seized by the FBI. Doc. 25 at 8-9. He has presented an affidavit from his expert, Tami Loehrs, confirming that the files are not on the tablet. Doc. 25-5. Loehrs explains in her affidavit that it is critical to Gonzales’s defense to understand how Torrential Downpour functions in order to determine the program’s reliability and accuracy in identifying files that Gonzales is charged with knowingly distributing. Id. at ¶ 17. She further states that based on her many years of research and testing of peer-to-peer file sharing software, including BitTorrent, she has discovered that all of these programs “contain bugs, they do not always function as intended and the data reported by these applications is not always accurate or reliable.”

[...]

Loehrs explained that, because a torrent is simply a text-file containing the hash values – or “fingerprints” – of the target image and video files, a BitTorrent user who downloads a torrent has fingerprints of the target files, even if he has not yet downloaded them. Id. at 22:14-23:8. Loehrs stated that the actual downloading of the target files occurs only when the client software instructs the torrent to search for those files on the BitTorrent network and download them to a designated folder on the user’s computer. Id. at 23:9-25:3. She further stated that a forensic examination of the device used to download the torrent can determine whether the torrent has been used to download the file, and her examination of Gonzales’s tablet revealed no evidence suggesting that he downloaded the files listed in counts one through eight.

It's not just defendants' experts being unable to find the files the government claims they downloaded. Investigators themselves have admitted they can't find files that Torrential Downpour said the accused accessed. An examination of the software being used to build cases should be allowed, but the entities behind the software won't allow it and the government is cutting defendants loose rather than giving them a chance to properly defend themselves against these very serious charges. I supposed it ultimately works out for defendants, but it only encourages the government to tip the scales in its favor again when the next prosecution rolls around with the hopes the next defender of the accused isn't quite as zealous.

Filed Under: bittorrent, child porn, child protection system, defendants, discovery, evidence

Anti-Piracy Operations Are Fabricating Links To Non-Existent Torrents In DMCA Notices

from the this-seems-like-a-problem dept

We've seen lots of stories involving various "anti-piracy" organizations sending bogus takedown notices -- often because they use lame keyword matching without any review, and it targets totally unrelated things that happen to have the same name. However, the folks over at TorrentFreak have found another form of totally bogus takedown: completely fabricated torrent links for torrents that have never existed. The issue here is that the fabricated links were targeting two torrent caching systems, Zoink.it and Torrage.com. TorrentFreak explains how they work... but also why the targeted links did not ever exist:

These don’t have a searchable index of torrents, but serve as a hosting platform for torrent sites, identifying torrents by their unique hash.

For example, a torrent for an episode of Ballers that aired a few weeks ago has the hash C87000EF73557A488D5C21BF8F9FA4CC24EC0513. This file would then be available at Zoink under the following url:

zoink.it/torrent/C87000EF73557A488D5C21BF8F9FA4CC24EC0513.torrent.

We say would be, because Zoink.it was shut down at the end of 2014. The same is true for the other torrent cache, Torrage, which has been offline for quite a while as well.

Okay, so you can see how this happened. The anti-piracy groups understood just enough about how the torrent cache sites worked, that they automated sending takedowns based on torrent hashes on the assumption that those torrents would also show up via the cache sites. Okay, understandable. But here's the problem: they never checked to see if those links ever existed. Hell, it sounds like they never even visited Zoink.it again for at least the past two years.

And yet they sent takedowns for links there.

So how can these companies actually claim that they know these "files" are infringing, when they clearly never even checked the links, let alone the fact that the site they're accusing of infringement, hasn't even been up for two years?

The TorrentFreak article notes that this is not a one-off thing. They found other anti-piracy groups sending takedowns for more non-existent torrents on the same non-existing sites. We know that these fly-by-night operations don't bother to check the files to see if they're actually infringing material, but now we know they don't even seem to check to see if sites or links ever actually existed in the first place.

Filed Under: bittorrent, caching sites, copyright, dmca, fabricated, takedowns
Companies: ip echelon

Cox Points Out That Rightscorp Is Either A Mass Infringer Itself... Or Admits That Downloading Songs Can Be Fair Use

from the oops dept

Remember Rightscorp? This is the company that is trying to be sort of a "light" copyright trolling operation, sending threatening letters to individuals, but letting them "settle" for lower dollar amounts than the more traditional copyright trolls (in the $10s of dollars rather than in the $1000s). The scheme hasn't been working all that well. Late last year, Righstcorp, along with two music publishing clients, BMG and Round Hill Music, decided to sue broadband ISP Cox, to test the (nutty) theory that the DMCA already requires ISPs to kick users off the internet if they receive multiple takedown notices. The whole lawsuit, beyond the questionable legal theory, appeared to be an attempt to force Cox and others to hand over subscriber info.

Either way, going after Cox may be proving to have been a serious strategic mistake. Both companies have filed motions for summary judgment and the contrast between the two is somewhat stunning. BMG/Round Hill Music's is readable here* and basically focuses on the argument that Cox is somehow unable to make use of the DMCA's safe harbors. While many of the details are redacted, the basic argument is the same as initially filed. That because Cox doesn't kick customers off its service entirely, it fails to meet the requirements of the DMCA's safe harbor:

Cox does not qualify for a safe harbor because, at least since 2010, it has never had nor implemented a policy to terminate repeat infringers in appropriate circumstances. Instead, Cox has created a notification system designed to limit the circumstances in which Cox will learn of infringement on its system. Cox has [REDACTED] more than 95% of the millions of infringement notices sent to it by copyright holders without taking any action.

Of course what it's ignoring is that what Cox was complaining about was that the policies that Rightscorp wanted here included sending blatantly misleading information to end users and sharing information back with Rightscorp. That's not required under the DMCA.

Meanwhile, the motion for summary judgment from Cox is quite a read, with the folks over at TorrentFreak posting an initial summary.

The real kicker: Rightscorp is only working with the publishers, who certainly appear to hold a legitimate copyright interest in the publishing/compositions. But that's different than the copyright in the actual sound recordings. That's held by someone else, who does not appear to be partnered with Rightscorp. And yet, Rightscorp itself claims to have downloaded the various song files to help it find infringers. Yet... if it doesn't have authorization or a license from the copyright holders of the sound recordings, that sounds like Rightscorp just engaged in massive copyright infringement.

That, alone, would be a pretty strong point -- but then Cox's lawyers twist the knife. They point out that the only way in which Rightscorp's own actions would not be infringing is if they were to claim fair use in the downloading of all those song recordings. But if that's the case, then isn't Rightscorp clearly admitting that many of the people its threatening and shaking down would also have a legitimate fair use argument?

Oh, and one final knife twist: given that courts have held that those issuing DMCA takedowns need to take into account fair use before sending those takedowns, this would act as evidence that Rightscorp failed to do that.

In its work for Plaintiffs Rightscorp downloaded files of thousands of sound recordings over the BitTorrent protocol, evidently to create evidence of infringements over Cox’s network.... But copyrights in sound recordings are separate from copyrights in musical compositions.... Rightscorp either committed massive infringements of the sound recording copyrights or must have relied on the fair use doctrine. If the latter, that fact is an admission that activity over BitTorrent may constitute fair use, but there is no evidence that Rightscorp considered the possibility of fair use in generating millions of notices of claimed infringement. Because fair use is not infringement, Rightscorp’s notices contained fraudulent misrepresentations about detections of infringement. See Lenz.... Thus, because Rightscorp acting as agent for Plaintiffs either was an infringer itself or engaged in misrepresentations, Plaintiffs have unclean hands.

Ouch. It will be fun to see these companies try to twist themselves out of that one. The rest of the filing is worth reading as well, and we may do some followup posts on other aspects included. But, in short, Cox points out that the legal theories here make no sense, that the company abused the DMCA process, there there is no evidence of actual infringement and that the publishers failed to actually mitigate any of the damages. You never know how the courts will eventually rule on these things, but from a first glance, Rightscorp's chances aren't looking too good right now.

* Correction: I originally got confused and posted the wrong document here -- but the right document has now been posted.

Filed Under: bittorrent, copyright, copyright infringement, copyright trolling, fair use, sound recordings
Companies: bmg, cox, righscorp, round hill music

RIAA Asks BitTorrent Inc. To Block Infringing Content With A Hash Filter

from the good-luck-with-that dept

Almost exactly a year ago, the Hollywood-funded and run astroturfing group "Creative Future" posted a bizarre and fact-challenged article attacking BitTorrent Inc. for copyright infringement, and demanding that the company "take responsibility" for how the BitTorrent protocol was being used. There was, as always, some apparent confusion between BitTorrent the protocol and BitTorrent Inc., the company. You would have thought that this would have been figured out by now, especially given that BitTorrent Inc., the company, has been trying repeatedly to help content creators experiment with new business models that embrace the BitTorrent protocol, with a fair bit of success.

And yet, as Andy at TorrentFreak notes in a recent post, the RIAA has now sent a letter to BitTorrent Inc., once again demanding some sort of "piracy filter." [pdf]

Attached is a subset of the list of verified hashes of files of our members' works that have and are likely continuing to be infringed via BitTorrent, Inc.'s products and services. We are willing to establish a process to share the hashes with BitTorrent, Inc. on a regular basis so that BitTorrent, Inc. can use the information to deter further infringement of those files via its goods and services. We also know of several companies that offer services to help identify infringing torrent sites and files that may be useful in helping BitTorrent, Inc. deter piracy through BitTorrent, Inc.'s products and services.

To quote Mr. Mason yet again, "We don't endorse piracy." If that is indeed your business philosophy, then we believe it is only right and proper for BitTorrent, Inc. to take steps to reduce their facilitation of infringement. We look forward to hearing from you on next steps.

Consider this is a shot fired. It's not hard to see where this is heading. The RIAA is likely looking to set the stage for a lawsuit arguing that BitTorrent Inc. is somehow "inducing" copyright infringement by not proactively blocking content. Of course, pretty much all previous lawsuits making that argument have failed (miserably) and it's even more ridiculous in this case. And, yes, while the RIAA is pointing specifically at apps, such as uTorrent that BitTorrent owns, the idea that the software needs to proactively contain a hash-based filter is unlikely to go over well in court. Nor, of course, would it stop copyright infringement.

Assuming, for the sake of argument, that the RIAA gets its way here and BitTorrent is forced to somehow insert a special "YER A PIRATE!" filter into uTorrent, two things would happen almost immediately: 1. People would quickly create slightly modified versions of works to get around the hashes and 2. people would move to other BitTorrent clients -- coming from companies that aren't willing to work with the entertainment industry and aren't helping more artists learn how to embrace the technology to make more money and reach more fans.

It's the same move repeated over and over again by the industry: rather than figure out how to make use of the technology that fans like in order to do more, they attack the technology and then don't understand why people get pissed off and no longer want to give them any money any more.

Filed Under: bittorrent, copyright, filters, hash, infringement
Companies: bittorrent inc., riaa

Sony Execs Freaked Out That Its Marketing People Wanted To Use Torrents For Marketing

from the how-dare-you-embrace-new-technology? dept

The decision of whether or not to embrace or fight innovation is such a weird one at times. It leads to such ridiculous choices. It's no secret that the big movie studios have decided that things like BitTorrent are evil and must be shunned at all costs -- even as plenty of successful creators have learned how to embrace the technology in ways that helps them make money in ways that weren't possible before. But, if you've staked your entire corporate position on the idea that BitTorrent technology is pure evil, then you can never, ever even try to embrace it and see if you can actually use it to your advantage.

Witness this bizarre email thread, in which Sony's top execs completely freak out over the idea that some other Sony folks are considering ways to use torrents for promotional purposes. It started with some Sony folks in Europe, who had the idea of putting up fake torrents of the TV show "Hannibal" that would (at first) include a short portion of the show, and then would tell downloaders to watch the show on TV. But Sony bosses in LA put the kibosh on this plan:

Personally, I love this and this it is a great promotion – unfortunately, however, the studio position is that we absolutely cannot post content (even promos) on torrent sites. The studio spends millions of dollars fighting piracy and it doesn’t send a good message if we then start using those same pirate sites to promote our shows.

Well, first of all, it's not a "great promotion" because people have tried putting up similar fake torrents for ages, and it tends to just piss people off. There's a reason they're downloading it rather than watching it on TV and telling them to just watch it on TV probably doesn't help anyone. It just pisses them off. But let's leave that aside for a minute.

The folks on the TV side at Sony tried again. They thought, instead of a "promotion" for the TV, how about just a "public service announcement" (PSA) about how unauthorized downloads are bad. This is also a pretty dumb idea that has been tried for over a decade and generally just leads to mockery. So it likely wouldn't be that effective, but Sony top execs got even more worried that even using torrents for PSAs would somehow legitimize BitTorrent, and Sony cannot allow that to happen.

I called Paula and restated that this is simply a long road to “no” because it so severely undercuts our efforts not only in CE, but all we have accomplished elsewhere (and that could be compromised by making the distinction between bad & good sites more gray)… Forget about a site blocking strategy if we start putting legitimate PSAs or promos on sites we’ve flagged to governments as having no legitimate purpose other than theft… PSAs being for public good, etc…

Elsewhere in the email thread, Sony Pictures' top lawyer Aimee Wolfson notes that "this is a highly problematic idea":

This is a highly problematic idea. Even with a PSA message, it will be easy for the pirate sites to cite it as (a) lawful activity on their site, and (b) an attempt to promote the show. (Note that the attached script is definitely promotional, and responds to the pirate viewer’s activity with a knowing and conspiratorial “wink” – not the message we would want to send.)

Meanwhile, the Sony TV and marketing people keep pushing for this idea, with Sony TV boss Steve Mosko saying "this is really important to me" and others recognizing that this is a "clever" idea, considering that the European team has "no budget."

In some ways, this is so incredibly shortsighted. Here Sony is so committed to the idea that torrents can't be shown to have any legal, non-infringing uses (even though there are plenty), that it won't even allow its own staff to experiment with ways to use the new technology to their own advantage. But just the admission in the email alone shows that Sony's top execs know damn well that there are legitimate, non-infringing, uses for BitTorrent, and they're deliberately trying not to use them just to make BitTorrent look much worse than it is.

Sony's focus is so blinded by "Piracy bad! Piracy bad!" that it can't even consider "Hey, this technology might be helpful." Once again, I'm reminded of how Jack Valenti declared in 1982 that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." Except, at least back then Hollywood wasn't so stupid as to not embrace the VCR. Just four years after Valenti claimed that the VCR would kill the American film industry, in 1986, VCR revenue for the movie industry surpassed box office revenue. The Hollywood of the 1980s fought technology, but at least it learned how to use it to its own advantage. Apparently the Hollywood of today is so committed to hating on technology that it will give up the new markets enabled by it.

Filed Under: bittorrent, hannibal, marketing, promotions, psa, sony emails
Companies: sony

Moby Not Just Giving Away His New Album For Free On BitTorrent, He's Okay With You Profiting From It

from the an-enlightened-view dept

The musician Moby has long been an outspoken critic of the old recording industry. He's been a big fan of giving away works for free (and noting that he's made quite a bit of money from music he's made available for free) and has argued strongly against the old gatekeepers. He's criticized their anti-innovation views, suggested the RIAA should disband for suing music fans, and said he can't wait for the major label gatekeepers to die.

So it shouldn't be too surprising that Moby happily teamed up with BitTorrent to release his latest album as a BitTorrent bundle for free (you just have to provide an email address). But here's the more surprising part. Not only is he happily making it available for free, but he's actually fine with people profiting from potential remixes or other uses of the music. As he explained in a recent interview with Mashable:

Are people really free to do whatever they want? Can they sell their recordings?

I met with the BitTorrent people and they were asking, "What if someone comes up with their own remix and they sell it?" They were wondering what I would want them to do with the money. And my response was that they could take their friends out to dinner or give money to their favorite charity. Even if I make the stems, if they made the effort to make the remix, they should be the ones to profit from it.

This is a really enlightened view. Even among people who are accepting of how to use free in a business model, we still see artists get uptight about "commercial use" -- even though it's often not entirely clear what qualifies as commercial use. We've long advocated that more people should be open to the idea of allowing commercial use of their works, as the potential benefits for everyone -- including the artist and fans -- could be great. I recognize this still makes some artists (who otherwise support remix and open culture) nervous, but I think as we get more examples of artists who allow for commercial use, and see how well it works, that we'll see more artists get comfortable with allowing others to profit as well.

The rest of the Moby interview is worth reading as well. He points out that artists who adapt aren't worried about infringement:

Artists who are adaptable are doing fine. A musician who makes records, tours, DJs, remixes, does music for video games and films is doing fine. If you can learn how to adapt — it's really weird and unhealthy when people talk about restricting progress to accommodate the inability of people to adapt. Every industry has been impacted by [changes in technology] in both negative and positive ways, but I feel like to complain is pointless. I love Thom Yorke, but when I heard him complaining about Spotify, I'm like, "You're just like an old guy yelling at fast trains." I love anything that enables people to have more music in their lives.

He also talks about how great other services like Spotify, SoundCloud and Pandora are -- and notes that he's actively lobbied Congress not to restrict such services. He also talks about how ridiculous it was when his old label, EMI, tried to control everything to prevent infringement:

It was about 7 or 8 years ago when I was on EMI, and someone at EMI business affairs contacted my manager and told him that I wasn't allowed to play my own music when I DJ'ed because they didn't want people in the audience pirating it. This was back in the days of the Nokia flip phone. If someone recorded a song in a nightclub it would be the worst sounding recording you could possibly imagine. You probably wouldn't even be able to identify the song. That seemed like nonsense to me.

Instead, he notes, that wonderful things happen when you stop focusing so much on control, and let creativity and innovation flow:

My approach is to not try and control it at all. I really like the idea of not just giving people finished content. It's giving them something that if they choose to they can manipulate and play with however they want. There's absolutely no restrictions on it and that makes me happy. When people try to control content in the digital world, there’s something about that that seems kind of depressing to me. The most interesting results happen when there is no control. I love the democratic anarchy of the online world.

This kind of stuff is very refreshing after the latest round of artists on the wrong side of history trying to hold back creativity, culture, innovation and progress.

Filed Under: bittorrent, business models, control, free, moby, music, recording industry, sharing

Swedish BitTorrent User Accused Of Sharing Beyonce Album, Hit By $233,000 Lawsuit From Sony

from the that's-justice? dept

Lots of news regarding file-sharing has come out of Sweden over the years, but as TorrentFreak points out, until now, there's never been a prosecution for alleged unauthorized sharing using BitTorrent. The current case is unusual in a number of other respects:

The claim is that on June 8, 2011 a man from Gothenburg shared Beyonce's album '4' in advance of its June 24 commercial release date. The case was made even more interesting following the revelation that the 47-year-old is a music industry worker.

Because the album in question was a pre-release version, the Swedish prosecutor says he believes a heavy punishment could be handed down. As if that weren't enough, the label concerned -- Sony Music Entertainment -- has said that it intends to seek damages in a civil case:

In a submission to the Gothenburg District Court, Sony said that its business has been negatively affected by the leak on a number of fronts. The label says it has suffered damage to its marketing strategy, sales revenues and has also incurred additional costs. Sony adds that its relationship with Beyonce has been damaged and the artist's reputation hurt.

For all of the above Sony say they will claim 1.5 million kronor from the man, which is roughly $233,000.

But as various studies have suggested, rather than hurting Sony, it's just as likely that this leak helped make the official launch even more successful than it would have been. Similarly, it's hard to see how Beyonce's reputation was hurt by such a leak, since the more passionate the fan, the more pleased they would be by obtaining early access.

Anyway, the figure of $233,000 seems plucked out of the air, as is so often the case in this evidence-free area. Or perhaps it was inspired by the most famous damages imposed for unauthorized sharing of music, those against Jammie Thomas, who was fined $222,000 in her first trial (which then went up to $1,920,000 in the second trial, and to $1,500,000 in the third trial.) The fact that her sorry saga is still dragging on is an indication that even if Sony wins the current action, there are likely to be appeals against such a disproportionate and blatantly punitive figure.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: bittorrent, copyright, file sharing, lawsuits, pre-release, sweden
Companies: sony music

Court Won't Block CNET From Offering BitTorrent Downloads: Not In The Public Interest To Stifle Public Discussion

from the there-we-go dept

We've talked before about rich guy Alki David's "revenge" lawsuit against CBS for its lawsuit against his internet TV service. He and some musicians he's convinced to join the lawsuit are alleging, ridiculously, that CBS should be liable for infringement itself, based on a convoluted copyright liability theory (and by "convoluted" we mean "totally bogus") involving the fact that CNET, which is owned by CBS Interactive, offers downloads of file sharing software on its Download.com platform, while its News.com news and reviews site have published news stories and reviews about using file sharing software. Late last year, they took the case to another level seeking an injunction against all BitTorrent downloads from CBS Interactive sites.

CBS hit back, not surprisingly, arguing that it would interfere with CBS's editorial mission, and that it would be against the public interest. Of course, this seemed more than a bit ironic, given CBS's own interference with CNET's editorial concerning copyright lawsuits that CBS is involved in. Last week, the artists tried again for an injunction, claiming incredibly that:

Because CBSI distributed several torrent software programs and encouraged infringement on torrent networks, CBSI is liable for all infringement on the torrent network.

Say what now? That's not how the law works, and thankfully, the judge recognized that pretty quickly. Yesterday, the judge denied the injunction attempt with a fairly simple statement. The judge makes it pretty clear that merely knowing that BitTorrent software is used to infringe doesn't make you liable for those infringements by offering the software for download. That's just not how the law works. At all. The key bits are here (full thing embedded below):

Plaintiffs have not shown any likelihood that Defendants will be found liable for their continuing activities. There is ample evidence of BitTorrent’s – and other P2P software’s – ability to infringe copyrights and that a large number of individuals use the software to infringe. Defendants are clearly aware of both of these facts. However, inducement of infringement requires more than just knowledge of actual or potential infringement. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S. 913, 937 (2005). While there might be some evidence of past inducement of copyright infringement, there is no evidence of any ongoing distribution of any file sharing software “with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.”

In other words, the court properly recognized that this was yet another attempt to expand the ruling in the Grokster case which, while a bad ruling overall, laid out the rules for what is considered "inducement." What CBS is doing is clearly not inducement. The court notes that even if an argument could be made that CBS "induced" infringement in the past (still unlikely) there needs to be at least some evidence that it might happen again if the court is going to issue an injunction.

The Court is well-aware that injunctions are often properly imposed where allegedly wrongful conduct has ceased. However, there must be at least some evidence that future infringement may occur. Here, Plaintiffs’ only solid evidence of possible inducement comes from reviews that were published a decade ago.... The other articles cited by Plaintiffs merely discuss P2P issues, including legitimate distribution through P2P, and the various technological and legal issues that have emerged with the technologies. (See id., Ex. M, O, T, U, V, X.) The Court has no reason to believe that Defendants will purposefully encourage copyright infringement now or in the foreseeable future.

Finally, the court notes that such an injunction is "not in the public interest" and calls out David and the other plaintiffs for trying to "silence public discussion of P2P technologies."

The nature of some of the supposedly problematic articles also demonstrates that an injunction is not in the public interest. Most of the articles cited by Plaintiffs are straightforward, legitimate news articles that do not in any way encourage or induce copyright infringement. This suggests that Plaintiffs’ goal goes far beyond stopping actual infringement by Defendants and extends instead to silencing public discussion of P2P technologies.

Of course, the case is far from over. This was just looking at whether or not the court should issue an injunction to stop CBS Interactive from offering BitTorrent clients for download. There's still plenty more to go before this ridiculous case hopefully ends up on the scrapheap.

Filed Under: alki david, bittorrent, copyright, inducement, injunction
Companies: cbs, cbs interactive, cnet