Network Traffic Shaping a Threat to DMCA Safe Harbor for Network Providers

My reading of the article from University of Georgia student newspaper RedAndBlack.com, cited in the entry below discussing "Ruckus", left me with the uneasy thought that universities and employers, in trying to subtly dissuade downloading on their networks are choosing methods that may strip them of the protections from secondary liability under the Digital Millennium Copyright Act (17 USC § 512) for copyright infringement by network users.

The above cited article quotes University of Georgia communications director Bert DeSimone as saying that his network is largely unaffected by peer-to-peer file sharing because "[t]he system rates activities like peer-to-peer file sharing and limits it in favor of other activities...More bandwidth is given to the research mission of the University."

The practice described by Mr. DeSimone is known as network traffic shaping. Traffic Shaping is a practice by which network administrators attempt to give priority to digital transmissions of one type of information over another. This method, while effective in assigning greater bandwidth to desired network traffic and less bandwidth to undesirable traffic, is arguably an abrogation of the DMCA online service provider safe harbor when read in light of the Supreme Court's holding in MGM v. Grokster 125 S.Ct. 2764, 2767 (2005).

In order to shape network traffic, the network is configured to read the identifiers of data packets traveling over that network and read basic information from those identifiers that specifies what type of data is being sent. Because this gives the network provider (in this case the University) knowledge of the transmission of potentially infringing material over the network, yet allows that traffic to proceed and funnels the traffic into what is essentially the "slow lane" of the network highway, the provider may be charged with participating in the selection of content and/or ceasing to act as a conduit delivering content through automatic processes.

Either of the conclusions above places the university-provider squarely into the shoes of Grokster and Streamcast, the liable defendants in the MGM case. The Supreme Court wrote that there was "no evidence that either company made an effort to filter copyrighted material from users’ downloads or otherwise impede the sharing of copyrighted files" on the Grokster and Streamcast systems and was persuaded by the fact that "[the defendants did not] attempt to develop filtering tools or other mechanisms to diminish the infringing activity using their [software]."

When combined with the Ninth Circuit's language in Napster that "[i]f a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement," the network provider who shapes traffic and knowingly allows downloading to continue may be secondarily liable for copyright infringement accomplished over the network.

Can Ruckus Stop the Commotion? Free Downloads Offered to Students

A new attempt to stem the tide of illegal downloading on college campuses has digital music provider Ruckus offering free downloads of MP3s from a catalog of 2.5 million songs for any student with a ".edu" email account. The downloads are licensed for use on the Ruckus player software, as well as compatible MP3 players. The music may not be burned to CD. (99 cent purchases are available for those who wish to burn CDs.) One university giving the service a try is the University of Georgia.

The program, however, leaves out a few important details regarding its origins. I believe that once uncovered by the student body at large, these omissions may lead to the rapid demise of the service.

I was surprised to find that the Ruckus service is compatible with "many MP3 players," but not the iPod or iPhone products from Apple. According to Ruckus' website, users must have a "PlaysForSure" compatible MP3 player in order to take their music files with them. That led me to ask: What is PlayForSure?

It turns out that PlaysForSure is a standard owned by Microsoft. The PlayForSure logo sports a small Windows icon in the middle, and the PlayForSure website sports a Microsoft copyright logo on the bottom of the page. It would seem, when all this is brought to light, that Ruckus and the free music downloads are an attempt by Microsoft, through creative licensing with the major record labels and negotiation with possibly unsuspecting universities, to wrestle away some of Apple's MP3 player market share, where iPod is king. While universities are likely quick to come on board with this program, seeing it as a legitimate way to stem the tide of illegal downloading on campus, thereby reducing the universities' exposure to secondary liability, I highly doubt that they are fully aware of the program's pedigree.

The article cited above from the University of Georgia raises more legal questions. Please read on in the next post for that discussion.

Online File Sharing Programs: What is BitTorrent?

Much of the discussion of online file sharing that has grown out of the recent pre-litigation letters sent by the RIAA to universities and university students has been throwing out terms relating to file sharing programs and protocols without explaining to readers what these things are and how they work. Let's take a quick look at what BitTorrent, one of the most popular file sharing protocols is and how it works.

BitTorrent is a protocol that was created by a programmer named Bram Cohen in 2001 and 2002. (A protocol is simply a standardized method of communication.) Cohen also created a program to use that protocol - also named BitTorrent. The BitTorrent protocol is relatively simple from a conceptual standpoint:

Users' computers directly connect to one another over the Internet, using the BitTorrent protocol, in order to share files. The various computers achieve this connection by running a program called a BitTorrent client. There are many clients out there made by many different software companies or individuals, but all use the same technology under the hood - the BitTorrent protocol - to communicate.

The BitTorrent protocol allows users to identify multiple other computers that have copies of the files for which they are searching. Once identified, BitTorrent looks at that file as a series of digital chunks called packets. In order to achieve a fast download, the BitTorrent client downloads the various packets of the desired file one at a time, in order or out of order. When the packets arrive, the client re-assembles the packets into the whole. This is possible because: 1) each packet has an identifier that essentially says "I am packet 14 of 255"; and 2) since it's digital, all the 1's and 0's in each packet are still right where they need to be within the whole. Two obvious benefits of this method are that the user can download each packet from the fastest of multiple sources and should any source go offline, the download can continue from the remaining sources.

So far, this isn't much different than file-sharing programs like Kazaa. But here's where BitTorrent gets interesting and attractive to people who do significant sharing. The protocol weights the connections between users in order to reward the users for sharing as well as downloading. Users who download but do not make files available for upload are known as leeches. Those who provide files for upload are seeds. Since seeds are a needed source of content for download, the BitTorrent protocol gives faster downloads and higher priority to users who seed, while leeches do not get this benefit. So...the more you share the faster you can download. Further, since users are downloading in packets, they can begin sharing each packet as they receive it; no need to have the whole in order to share.

The final point: how do the clients know how to find each other? Various websites host "trackers" for torrents. These are lists of the available torrents and by downloading the torrent file related to the desired download, the user's client knows how to announce its desire to the protocol and join the torrent (i.e. the wave of uploading and downloading).

That's pretty much all there is to it. Have questions? Drop me an email.

ABA Techshow 2007: Day 1

I am attending the American Bar Association's annual technology conference, The ABA Techshow, in Chicago this week. As day 1 begins to wind down, it is very clear that the recent changes to the Federal Rules of Civil Procedure related to discovery of electronically stored information (ESI) are, and will continue to be, THE hot topic and all parties agree that many questions remain open.

Federal Rule 34 now includes the language:

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained

Most every speaker, including Federal District Court Judge Shira Scheindlin (SDNY), has spoken in terms of "open questions", "facscinating issues", "problems", "concerns", "considerations" and the like. The ability to now discover essentially all digital documents and communications poses unanswered questions of form of production, feasibility of review for privilege, responsibility of the parties to preserve information in the face of litigation and even retention, preservation and destruction of information when litigation is not an immediate concern. Furthermore, the train headlight at the end of the tunnel is clearly the cost of all of the above, which quickly may become unwieldy. The questions are unending.

Consider:

• What do litigants do when their opponent uses custom software whose data is unreadable without the software?
  
• Can attorneys possibly know the IT systems of their clients well enough to properly advise them and make accurate representations to the court regarding retention and spoliation?
  
• Does production of TIFFs and load files deprive the receiving party of proper discovery of meta data?
  
• What type of technological support, if any, is the producing party required to give to the recipient?
  
• Has the individual or small business now been deprived of the ability to litigate in federal court due to the high cost of e-discovery?
  

It seems at this early stage that there will be questions, debate, frustration and trepidation for some time to come.

Audio Available: APLF Presentation on Secondary Liability for P2P File Sharing

The audio recording of my presentation "Secondary Liability of Network Providers for Copyright Infringement through Peer-to-Peer File Sharing" is now available through the website of the Association of Patent Law Firms (APLF). Full event details can be viewed here. The PowerPoint presentation is also available.

• Link: www.aplf.org/events/roundtables/2007-02-22.shtml