A bundle of intangible rights granted by statute to the author or originator of certain literary or artistic productions, whereby, for a limited period, the exclusive privilege is given to that person (or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale.
Plus, all the early proto-copyright laws (to e.g. John Usher, William Billings, and Andrew Law) were all described as "printing privileges."
Sorry to keep harping on this point, but here's another minor error you made. It may not seem like much, but it will help explain why the 512(a) safe harbors should apply.
So when she referred to the fact that the torrent file for Casino Royale was downloaded from torrentbox.com 50,000 times, while the torrentbox tracker registered 1.5 million downloads, she was referring to difference between .torrent files downloaded from torrentbox.com itself and .torrent files found using the torrentbox tracker.
The torrentbox tracker does not tell you where to find .torrent files. It is not a search engine.
Instead, it means that the torrent file was downloaded 50,000 times, but the amount of users connected to the swarm for that particular movie, was 1.5 million, whether that swarm connected through those particular torrent files or not.
This is how trackers work. Anyone, at any time, can "announce" to any torrent tracker, simply by entering its URL or IP into the .torrent file. The tracker will track it automatically, without any input (or knowledge) from the owner of the tracker.
That is what Fung was arguing: that he should get immunity for the infringement committed by users who connected to the tracker through .torrent files that were not created by him, nor offered on his website, nor even found through searching on his website.
The fact that he does not, means that anyone running any torrent tracker may be liable if any user uses that tracker for infringing material at all, even without the owner's knowledge or consent.
I read the whole section as turning on the fact that Fung's conduct was intimately involved in the routing.
I have no idea how you read it that way. The court accepted that Fung, personally, had no involvement in the routing done by the tracking software. It didn't matter that it was completely automated; it only mattered that the software decided which other "point" in the swarm to connect to. Even though the software only did so at the request of the users, it didn't matter.
That's a huge problem, because a) it's how torrents work, and how a torrent tracker has to work; and b) torrents aren't the only type of network that uses this form of distributed connectivity.
I think you're simply misreading that. 512(a) only applies to conduits, i.e., dumb pipes. Fung's tracker selects where the user's client will connect. The user does not select these points, Fung does.
Fung does not select the "points." The tracker does. The court is very clear that it is not Fung's behavior which makes a tracker ineligible for safe harbor immunity. They clearly state that it is because of the technical nature of how torrent distribution works in general.
Fung's trackers - like all torrent trackers - were completely automated. The "points" were not selected by Fung, but by a purely mechanical interaction between the tracker and the users' BitTorrent clients. If this doesn't qualify as a "dumb pipe," then no type of distributed network possibly could.
Fung can't get the safe harbor because he played a role in telling people where to find the infringing stuff.
To be clear: That is not what the court said.
Fung asserts that these functions are "automatic technical processes" that proceed "without selection of any material by us." Even so, for the tracker to be a "service provider" for purposes of the 512(a) safe harbor, the tracker, whether its functions are automatic or not, must meet the special definition of "service provider" applicable to this "conduit" safe harbor. If those functions go beyond those covered by that definition, then it does not matter whether they are automatic or humanly controlled.
The court accepts Fung's argument that he played no role in the tracker "telling people where to find the infringing stuff." They then said it didn't matter.
She is correctly noting that this particular safe harbor only applies to service providers who route transmissions "between or among points specified by a user."
But under her ruling, the user must explicitly specify which "points" are being used. If the user does not know that, then no safe harbor, even if the "points" are automatically generated by a routing process.
His trackers generated the very information that was used to tell users where to find the infringing materials.
Technically, each tracker didn't "generate" the information, but collect it. It automatically polled other BitTorrent clients who were also connected to that tracker via that torrent file, and routed the results back to the requesting BitTorrent client.
In other words, it selected the recipients of the material as an automatic response to the request of the user.
This is exactly what all torrent trackers do (with all files, not just infringing materials). Again, it would mean that no torrent tracker gets safe harbors.
And this particular interpretation seems to contradict the specific wording of the statutes. A torrent tracker actually satisfies all the subsections of 512(a): the transmission was initiated by the user; the "provision of connections" and "selection of material" was made by the user; "the recipients of the material" are selected as "an automatic response to the request" of the user; "no copy of the material" that is accessible to anyone else, is maintained by the tracker; and the tracker does not modify the content of the transmissions.
Which is why I think this part of the ruling won't last very long. At least, I hope not.
Sure they do. They say "send this email to address X" or "take me to webpage with address Y."
But that email address, or that webpage, is not at any "point" (in the court's words) that the user actually knows about. I have no idea whatsoever which physical computer is hosting the Techdirt site (and it's likely more than one); that "point" is "generated" by their ISP. That's the problem.
Another example: I use Dropbox to back up my files (mainly my schoolwork). I don't even go to their website; I simply make an automated request (via the sync software on my desktop) for a specific file to download. Do I know at what "point" my files are located? No idea. I expect that, like many file hosting sites, they dynamically balance loads between different machines, and route between those "points" as necessary.
So, under this court's ruling, Dropbox would not get 512(a) safe harbor protections, either, since I am not specifying a "point" from which to get backups of my files. (They would still likely get protection under 512(c), though.)
There are all sorts of ways this particular section of the ruling can be abused. Hopefully it will be overruled or overturned.
a .torrent file is very much link a hyperlink. The .torrent file, like a link, does not itself contain the infringing file. It's merely a means of telling someone where to find the infringing file. Thus, if Fung is liable for telling someone where to find an infringing file via a .torrent file, it follows that a person would be liable for telling someone where to find an infringing file via a link.
Not really, no. True, a .torrent file merely contains metadata, and not the actual content. But the content data itself is not available to anyone who does not use that specific .torrent file. A hyperlink, on the other hand, is available to anyone, everywhere, whether they get there through that hyperlink or not.
Perfect 10 v. Google (again) highlighted this distinction. Re-read the section comparing Napster's "proprietary music-file sharing system" and Google. It's in the "vicarious infringement" discussion (p. 39 in my copy).
It is an unmitigated disaster for anyone facilitating infringement in any form that can be charged in the Ninth Circuit.
I'm pretty sure anyone facilitating infringement is already in a "disastrous" legal situation, whether in the Ninth Circuit or not.
But the devil is in the details. I don't think anyone is surprised that IsoHunt was found to be secondarily liable, but how it was found liable is more important than the actual finding. Those details make a huge difference in whether the ruling is an "unmitigated disaster" for only people who are facilitating infringement, or an "unmitigated disaster" for everyone else as well.
And there were some pretty ridiculous details in the District Court decision, especially regarding the DMCA safe harbors and the overly broad injunction, which the Ninth luckily corrects. There are still some troubling parts about it, which Mike explains (and I agree they are troubling, though not as troubling as Mike thinks), and others as well (like my previous post about 512(a)).
Actually, the part of the ruling I found most troubling was this part, which Mike did not even address:
Unlike a P2P network like Napster, in which users select particular files to download from particular users, Fung's trackers manage a "swarm" of connections that source tiny pieces of each file from numerous users; the user seeking to download a file chooses only the file, not the particular users who will provide it, and the tracker identifies the source computers to the user seeking to download a work.
Given these characteristics, Fung's trackers do not fit the definition of "service provider" that applies to this safe harbor. The definition provides that a "service provider" provides "connections ... between or among points specified by a user." 17 U.S.C. 512(k)(1)(A) (emphasis added). Here, it is Fung's tracker that selects the "points" to which a user's client will connect in order to download a file. The tracker, not the requesting user, selects the publishers from which chunks of data will be transmitted.
This would mean that no torrent tracker whatsoever is eligible for immunity under the safe harbors. It is a terrible ruling, especially given the text of 512(a)(3):
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
Put together, it seems very clear that the "points" do not have to be specified by the user, but rather, only the request does.
In fact, it seems like that would knock out protection for nearly everyone. After all, when going to a webpage or sending email, the user doesn't specify the "points" of that webpage or email recipient. That information is often routed through numerous nodes between the web/email server (often more than one per site) and end user, often changing multiple times per day, and known to no one but the ISP. By this standard, providers like Comcast, Verizon, and so forth, wouldn't have DMCA safe harbors either. That's hugely problematic, and hopefully it gets overturned. Otherwise, you can be certain that "Big Content" will come after them with lawsuits (since they have deep pockets).
The court mentions three of Fung's sites: isohunt.com, torrentbox.com, and podtropolis.com. The court says that some of the actual files (and not just the .torrent) were available on his sites.
Actually, no, the court did not say this. They said specifically that the .torrent files were hosted on his site. (It is these files that were uploaded at the discretion of users.) The other two sites were mainly used as trackers. No infringing content was actually hosted on any of the sites.
p.s. The long-winded comment, above, should not have been flagged. I have no objection to flagging the yee-haw'ing "pirate Mike" douchebag slimeballs that vomit on these comments, but that was not one of them.
In truth, I think Mike's concerns are valid, but the actual ruling is not as bad as he believes. On the other hand, I've seen many people take rulings like this, and try to spin them to mean exactly what Mike fears they might mean - most especially MPAA/RIAA wonks.
On the post: Copyright Lobby: The Public Has 'No Place In Policy Discussions'
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Oh, thanks for reminding me! There's another word designed to appeal to emotions: "entitlement."
On the post: Copyright Lobby: The Public Has 'No Place In Policy Discussions'
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On the post: Copyright Lobby: The Public Has 'No Place In Policy Discussions'
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http://www.youtube.com/watch?v=urGeA-d9Utw
On the post: Copyright Lobby: The Public Has 'No Place In Policy Discussions'
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Let's not forget "Victim," a favorite of one of our major appeal-to-emotion trolls here.
And, of course, attempts to debate "morality" are always just thinly-veiled attempts to turn the debate into appeals to emotion as well.
On the post: Copyright Lobby: The Public Has 'No Place In Policy Discussions'
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Ironic, considering that your main arguments against Mike are attempts at "appeal to emotion." (Not that they work, of course.)
On the post: Leaked! MPAA Talking Points On Copyright Reform: Copyright Is Awesome For Everyone!
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From the definition of "monopoly":
From The Catholic Encyclopedia, Volume 10:
From West's Encyclopedia of American Law (the source for TheFreeDictionary's legal dictionary):
Plus, all the early proto-copyright laws (to e.g. John Usher, William Billings, and Andrew Law) were all described as "printing privileges."
Sounds pretty accurate to me.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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So when she referred to the fact that the torrent file for Casino Royale was downloaded from torrentbox.com 50,000 times, while the torrentbox tracker registered 1.5 million downloads, she was referring to difference between .torrent files downloaded from torrentbox.com itself and .torrent files found using the torrentbox tracker.
The torrentbox tracker does not tell you where to find .torrent files. It is not a search engine.
Instead, it means that the torrent file was downloaded 50,000 times, but the amount of users connected to the swarm for that particular movie, was 1.5 million, whether that swarm connected through those particular torrent files or not.
This is how trackers work. Anyone, at any time, can "announce" to any torrent tracker, simply by entering its URL or IP into the .torrent file. The tracker will track it automatically, without any input (or knowledge) from the owner of the tracker.
That is what Fung was arguing: that he should get immunity for the infringement committed by users who connected to the tracker through .torrent files that were not created by him, nor offered on his website, nor even found through searching on his website.
The fact that he does not, means that anyone running any torrent tracker may be liable if any user uses that tracker for infringing material at all, even without the owner's knowledge or consent.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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It is, unfortunately, not the AC's interpretation, but the court's.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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I have no idea how you read it that way. The court accepted that Fung, personally, had no involvement in the routing done by the tracking software. It didn't matter that it was completely automated; it only mattered that the software decided which other "point" in the swarm to connect to. Even though the software only did so at the request of the users, it didn't matter.
That's a huge problem, because a) it's how torrents work, and how a torrent tracker has to work; and b) torrents aren't the only type of network that uses this form of distributed connectivity.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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Fung does not select the "points." The tracker does. The court is very clear that it is not Fung's behavior which makes a tracker ineligible for safe harbor immunity. They clearly state that it is because of the technical nature of how torrent distribution works in general.
Fung's trackers - like all torrent trackers - were completely automated. The "points" were not selected by Fung, but by a purely mechanical interaction between the tracker and the users' BitTorrent clients. If this doesn't qualify as a "dumb pipe," then no type of distributed network possibly could.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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It certainly made a difference in the Perfect 10 v. Google case.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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To be clear: That is not what the court said.
The court accepts Fung's argument that he played no role in the tracker "telling people where to find the infringing stuff." They then said it didn't matter.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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No. The judge did not consider Fung's conduct in this particular section of the ruling.
Of course, losing safe harbors does not automatically mean you are infringing. It just means you lose immunity from liability.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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But under her ruling, the user must explicitly specify which "points" are being used. If the user does not know that, then no safe harbor, even if the "points" are automatically generated by a routing process.
His trackers generated the very information that was used to tell users where to find the infringing materials.
Technically, each tracker didn't "generate" the information, but collect it. It automatically polled other BitTorrent clients who were also connected to that tracker via that torrent file, and routed the results back to the requesting BitTorrent client.
In other words, it selected the recipients of the material as an automatic response to the request of the user.
This is exactly what all torrent trackers do (with all files, not just infringing materials). Again, it would mean that no torrent tracker gets safe harbors.
And this particular interpretation seems to contradict the specific wording of the statutes. A torrent tracker actually satisfies all the subsections of 512(a): the transmission was initiated by the user; the "provision of connections" and "selection of material" was made by the user; "the recipients of the material" are selected as "an automatic response to the request" of the user; "no copy of the material" that is accessible to anyone else, is maintained by the tracker; and the tracker does not modify the content of the transmissions.
Which is why I think this part of the ruling won't last very long. At least, I hope not.
Sure they do. They say "send this email to address X" or "take me to webpage with address Y."
But that email address, or that webpage, is not at any "point" (in the court's words) that the user actually knows about. I have no idea whatsoever which physical computer is hosting the Techdirt site (and it's likely more than one); that "point" is "generated" by their ISP. That's the problem.
Another example: I use Dropbox to back up my files (mainly my schoolwork). I don't even go to their website; I simply make an automated request (via the sync software on my desktop) for a specific file to download. Do I know at what "point" my files are located? No idea. I expect that, like many file hosting sites, they dynamically balance loads between different machines, and route between those "points" as necessary.
So, under this court's ruling, Dropbox would not get 512(a) safe harbor protections, either, since I am not specifying a "point" from which to get backups of my files. (They would still likely get protection under 512(c), though.)
There are all sorts of ways this particular section of the ruling can be abused. Hopefully it will be overruled or overturned.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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Uh, I meant a "web page location," not a hyperlink. Sorry.
On the post: IsoHunt Still Guilty Of Contributory Infringement
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Not really, no. True, a .torrent file merely contains metadata, and not the actual content. But the content data itself is not available to anyone who does not use that specific .torrent file. A hyperlink, on the other hand, is available to anyone, everywhere, whether they get there through that hyperlink or not.
Perfect 10 v. Google (again) highlighted this distinction. Re-read the section comparing Napster's "proprietary music-file sharing system" and Google. It's in the "vicarious infringement" discussion (p. 39 in my copy).
On the post: IsoHunt Still Guilty Of Contributory Infringement
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I'm pretty sure anyone facilitating infringement is already in a "disastrous" legal situation, whether in the Ninth Circuit or not.
But the devil is in the details. I don't think anyone is surprised that IsoHunt was found to be secondarily liable, but how it was found liable is more important than the actual finding. Those details make a huge difference in whether the ruling is an "unmitigated disaster" for only people who are facilitating infringement, or an "unmitigated disaster" for everyone else as well.
And there were some pretty ridiculous details in the District Court decision, especially regarding the DMCA safe harbors and the overly broad injunction, which the Ninth luckily corrects. There are still some troubling parts about it, which Mike explains (and I agree they are troubling, though not as troubling as Mike thinks), and others as well (like my previous post about 512(a)).
On the post: IsoHunt Still Guilty Of Contributory Infringement
Most troubling bit
This would mean that no torrent tracker whatsoever is eligible for immunity under the safe harbors. It is a terrible ruling, especially given the text of 512(a)(3):
Put together, it seems very clear that the "points" do not have to be specified by the user, but rather, only the request does.
In fact, it seems like that would knock out protection for nearly everyone. After all, when going to a webpage or sending email, the user doesn't specify the "points" of that webpage or email recipient. That information is often routed through numerous nodes between the web/email server (often more than one per site) and end user, often changing multiple times per day, and known to no one but the ISP. By this standard, providers like Comcast, Verizon, and so forth, wouldn't have DMCA safe harbors either. That's hugely problematic, and hopefully it gets overturned. Otherwise, you can be certain that "Big Content" will come after them with lawsuits (since they have deep pockets).
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If by "project," you mean "calculated smear campaign." And if by "worked," you mean "made Mike more influential."
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Actually, no, the court did not say this. They said specifically that the .torrent files were hosted on his site. (It is these files that were uploaded at the discretion of users.) The other two sites were mainly used as trackers. No infringing content was actually hosted on any of the sites.
p.s. The long-winded comment, above, should not have been flagged. I have no objection to flagging the yee-haw'ing "pirate Mike" douchebag slimeballs that vomit on these comments, but that was not one of them.
In truth, I think Mike's concerns are valid, but the actual ruling is not as bad as he believes. On the other hand, I've seen many people take rulings like this, and try to spin them to mean exactly what Mike fears they might mean - most especially MPAA/RIAA wonks.
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