Does more broadband mean more piracy?

In the $787-billion economic stimulus package enacted in February, Congress told the Federal Communications Commission to create a plan for extending broadband service to all Americans and increasing broadband speeds. It's an apple-pie, chicken-in-every-pot goal -- at least until people see the price tag. Nevertheless, there are plenty of disagreements over the details of the plan. One is a battle between copyright holders and consumer advocates over what to do about all the content that broadband users download or stream illegally. The former want Internet service providers to use technology to filter out unauthorized content flowing over their networks; the latter argue that filters won't work as advertised and will inflict an unacceptable amount of collateral damage on lawful Internet uses. I sympathize with the copyright holders' concerns about rampant unauthorized copying, but I'm not persuaded that filtering is the solution -- or that this proceeding is the place to have that debate.

Gigi Sohn, president of Public Knowledge, laid out the case against filters ...

Seeing how they run from the Pirate Bay

Just how big is the Pirate Bay among illegal downloaders? A new report by DtecNet, a Beverly Hills-based firm that tracks online piracy, found that transfers via the Bit Torrent protocol -- the most popular file-sharing application -- fell nearly 80% after TPB's Swedish Internet service provider cut off its bandwidth under pressure from the courts there.

Interestingly, other file-sharing applications didn't gain much traffic in the wake of TPB's cutoff, the report said. Instead, users migrated quickly to other BitTorrent "tracker" sites. Four alternative trackers -- OpenBitTorrent, Denis Stalker, tracker.publicbt.com and pow7.com -- "now comprise nearly 70 percent of all BitTorrent traffic," the report states. It adds that the migration was aided by the Pirate Bay, which altered its software to track files through OpenBitTorrent.

The report's bottom line is gloomy for those who believe file-sharing is killing the entertainment industry:

Though such concentration of traffic would appear to present yet another enforcement opportunity, similar to the Pirate Bay shutdown, it will be more difficult as BitTorrent technologists continue to adapt. Torrent sites now point to multiple trackers, so if one is disconnected or overwhelmed by traffic, pirates can still find the files they seek without stopping to find another tracker.

Meanwhile, TPB continues to jump from Internet provider to Internet provider as more courts try (with no lasting success) to keep it offline. And this week, a Dutch court ordered the company's founders and former spokesman Peter Sunde to remove links to content from the Netherlands, an order that Sunde says they can't comply with because they have no such control.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division. Follow him on Twitter: @jcahealey

Even Pirate Bay can be downloaded on Pirate Bay

Pirate Bay supporters demonstrate in Stockholm. Credit: Fredrik Presson / AFP/Getty Images

An anonymous user of Pirate Bay, a massively popular website for downloading pirated music and movies, has placed an archive of the entire site online for anyone to download. The file can be found at -- where else? -- Pirate Bay. How meta.

Fearing the site's demise, more than 2,200 people have started downloading the file, called TPB index, since it was uploaded Friday. After a high-profile win for Hollywood against Pirate Bay co-founders and a planned sale to Global Gaming Factory, some users say they're grabbing the file as a souvenir of a once-dominant bootleg paradise. Others indicate that they may mirror the site with their own version.

Theoretically, someone could install the 21-gigabyte file onto a Web server and pick up where the Swedish moguls left off. But scrapping together the computer power to sail such a behemoth ship (the site's co-founders once famously attempted to raise money to buy an island in order to house their servers) is an insurmountable task for most people. Plus, who wants the legal headaches?

The user who stripped the files from the Pirate Bay's servers said he found 873,671 separate torrent files for download.

"Remember that all torrents from TPB now have the new tracker openbittorrent.com included, so they will continue to track even after the TPB tracker shuts down," the anonymous submitter noted. In plain English, it means that even if the Pirate Bay site closes shop, drastically transforms and the old servers are seized and smashed into a million pieces, the bootlegs will continue to live on -- at least with these 2,200 users.

Sorry, Hollywood. It's not over yet.

-- Mark Milian

Zookz: A license to infringe?

Companies that offer downloadable movies and music online without licenses from the copyright holders typically wind up answering lawsuits from the Hollywood studios and the major labels. So it was odd to see a news release announcing the impending launch of Zookz, a site that offers unlimited music or movie downloads for about $10 a month, or both for $18. That's a bit like waving a red cape in front of a couple of bulls, isn't it? But Zookz believes it's in the clear, legally, thanks to the World Trade Organization. It's a far-fetched argument, but you've got to give Zookz credit for nerve.

The main differences between Zookz and most online outlets for bootlegged goods are that it's not a file-sharing network and that the content isn't free. Instead, it's just insanely cheap. The company's impossibly low prices reflect the fact that it doesn't pay for most of its inventory or share revenues with copyright holders. All the proceeds go to Zookz, its 10-person staff in St. Johns, Antigua, and (through taxes) the Antiguan government.

How can it get away with this, you ask? I'm not sure it can, but here's its argument....

A big week for copyrights and piracy

The sale of The Pirate Bay probably ranks as the week's biggest news for those of us who obsess about copyright issues, followed by the ruling that Usenet.com's newsgroup-access service infringed on the major record companies' copyrights and the Supreme Court's decision not to take Hollywood's appeal of the Cablevision network DVR ruling. But two other developments in U.S. courts seem more important to the average music fan because of the potential they have for disrupting digital services.

The first is the latest lawsuit filed Monday by MCS Music America of Nashville and a dozen other music publishers against the operators of two current and one former subscription-music services. The suit seeks a hefty financial penalty from the companies for including the publishers' songs in their services, even though federal law compels the publishers to grant the necessary licenses. The second is a move by the American Society of Composers, Authors and Publishers to have a federal court declare that cellphone ringtones aren't downloadsbut rather public performances for which they are entitled royalties. In other words, ASCAP argues that playing a 15-second snippet of "Don't Talk to Me About Love" when a call comes in is the legal equivalent of blasting the song over the speakers at a hockey rink. In fact, ASCAP argues, it's an infringement even with the volume turned off.

The Pirate Bay: sold and (gasp) reformed?

The recent prosecution of The Pirate Bay, a popular site for finding and downloading bootlegged movies, songs, video games and software, suggested that the company's gleeful flouting of copyright law might not be sustainable. (The Stockholm District Court sentenced four of The Pirate Bay's leaders to a year in jail after finding them guilty of violating copyrights, and fined them close to $30 million.) Something had to change at TPB, and it looks like it's going to be three things: the ownership, the business model and the infrastructure. Whether the site ends its love affair with all things bootlegged, however, is another question entirely.

Variety reported that Swedish video game company Global Gaming Factory X agreed to pay about $7.7 million to buy TPB, although the site's blog hinted that the deal was still tentative. (Apprently, the buyer still has to raise the money.) Variety quoted Global Gaming CEO Hans Pandeya as saying the value in TPB was its traffic: more than 20 million visitors and 1 billion page views a month.

"In order to live on, The Pirate Bay requires a new business model, which satisfies the requirements and needs of all parties, content providers, broadband operators, end users and the judiciary," Pandeya said. "Content creators and providers need to control their content and get paid for it. File sharers need faster downloads and better quality."

But as TPB's blog notes, "If the new owners will screw around with the site, nobody will keep using it. That's the biggest insurance one can have that the site will be run in the way that we all want to." Loosely translated, that means Global Gaming will quickly lose those 20 million visitors if it tries to stop users from downloading "Transformers: Revenge of the Fallen" for free....

RIAA: 2, Jammie Thomas-Rasset: 0

Maybe Jammie Thomas-Rasset should have quit while she was behind. Just as in Thomas-Rasset's first trial in 2007, a Minnesota jury found today that she infringed the copyrights of two dozen major-label songs on the Kazaa file-sharing network. But the new jury handed down a much larger punishment -- $80,000 a song, not $9,250. For the labels, that's roughly equivalent to selling 114,000 songs at Apple's iTunes Store.

Thomas-Rasset didn't seem likely to pay the original $222,000 penalty, so it seems even less likely that the RIAA will be able to extract nearly $2 million from her. The trade group has always been more interested in winning the judgment than the amount awarded; spokeswoman Cara Duckworth told CNet that the group has been willing to settle "since day one." But the size of the jury's verdict may only increase calls for Congress or the courts to reduce the financial penalties for copyright infringement

Thomas-Rasset's was the first trial in the campaign against individual file-sharers that the RIAA began in 2003 and ended late last year. As such, it was one of the few tests of the legal underpinnings of that campaign, including the argument that making tracks available to others online (by keeping them in a folder that was open for sharing) was a form of infringement. U.S. District Judge Michael J. Davis instructed the jury in Thomas-Rasset's first trial that making songs available was an infringement, a low threshold that would enable the labels to prove piracy just by collecting lists of the songs in people's shared folders. But Davis second-guessed himself after the verdict and ordered a new trial, mirroring the views of several other judges who had rejected the RIAA's interpretation of the law.

The result of the second trial suggests that the higher threshold isn't enough to derail the labels in an infringement lawsuit. The RIAA's anti-piracy contractor, MediaSentry, presented evidence that Thomas-Rasset actually distributed 11 copyrighted songs through Kazaa (to MediaSentry's investigators), and cited metadata from tracks in her shared folder strongly suggesting that the files had themselves been downloaded, not purchased or ripped from her CD collection. RIAA witnesses also linked the Kazaa uploads to a unique identifier on Thomas-Rasset's modem and computer and showed that the unusual username on the Kazaa account matched one that Thomas-Rasset acknowledged using on several other websites. In other words, the RIAA's case was built entirely on circumstantial evidence, but there was a lot of it.

Thomas-Rasset and her attorneys seemed eager to continue their battle against the RIAA, and although the trade group insists that it doesn't plan to file any new cases, there are still a number of older claims yet to be resolved. Defense attorneys are fighting these on several fronts, arguing that, among other things, MediaSentry's investigative tactics were illegal.

More interesting, IMHO, is the argument Harvard Law Professor Charles Nesson and others are raising that the statutory damages provided in copyright law are grossly excessive -- even unconstitutionally so. The two Thomas-Rasset verdicts, each of which was reached after just a few hours of deliberations, reflect the juries' irritation with her defense. But even if she did put 24 copyrighted songs in her shared folder, it's hard to believe that the labels suffered anything close to $2 million in damages. More important, the mere threat of such a penalty could persuade some accused infringers to settle with the RIAA rather than fight, even if they weren't the ones responsible. Thomas-Rasset may not be a sympathetic defendant, and there's no excuse for illegal downloading. But she will have done all Internet users a favor if her case prompts lawmakers to recalibrate the statutory damages in copyright law.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

Photo credit: Julia Cheng / Associated Press

DECE: No news is no news

Given my obsession with DRM, I feel compelled to report every tidbit of news I come across about Hollywood's interoperable DRM initiative, the Digital Entertainment Content Ecosystem. Unfortunately, after attending a panel discussion at Digital Hollywood involving five participants in DECE's planning sessions, all I can report is that the group is closing in on a new name.

Mitch Signer, the Sony Pictures technology chief who doubles as the DECE president, said representatives of the roughly 40 member companies meet monthly and have weekly conference calls. But it has yet to publish any specifications for "DECE-compliant" products, services or content, or say when those might be available. Singer and Mark Coblitz, atop strategic planner for Comcast (and an active participant in the DECE discussions) flatly declined to give a date for, well, anything.

The group's goal is to make legitimate sources of content online more attractive to consumers than free, illegal ones by eliminating the worst features of the electronic locks used to limit copying. The underlying assumption is that some kind of lock, or DRM technology, is necessary to deter piracy, despite ample evidence that DRM on movie downloads and discs hasn't eliminated or, arguably, even reduced movie bootlegging. Regardless, it's certainly true that the major studios won't ...

Congress takes on file-sharing, again [UPDATED]

The news that a House committee was reopening its investigation into security risks posed by file-sharing software reminded me of something one of my pals in the computer-security field once told me. The biggest vulnerabilities aren't caused by deficiencies in machines or their software; they're caused by the humans who use them. It's a point that seems lost on the committee.

Ever since successors to Napster's song-swapping program made it possible for users to share any file stored on their PC, people have been unwittingly sharing address books, financial records, resumes and other personal items. They did this because they didn't bother to check which folders the software was offering to the public, or they put items into shared folders that didn't belong there. And they continued to do it even as the programs changed their default modes to force users to be more selective about their sharing. When the file-sharers are using office or government computers, the leaks can be even more damaging. The problem can be mitigated with better software design, but it can't be eliminated -- just as the government can't stop defense contractors from carelessly losing their laptops.

The Oversight and Government Reform Committee had conducted hearings in 2007 into the inadvertent sharing of sensitive and personal information over LimeWire and other peer-to-peer networks. At the time, they extracted a promise from the Lime Group (the company that makes and distributes LimeWire software) to change the program to deter such leaks. But the trade group representing file-sharing companies, the Distributed Computing Industry Assn., had already been working with the Federal Trade Commission on this problem, and it offered to work with the committee as well. In fact, the association had been active on the issue since at least 2004.

Lime Group spokeswoman Linda Lipman told the Associated Press that the latest version of LimeWire software was designed not to share the file types associated with spreadsheets and documents. "In fact, the software does not share any file or directory without explicit permission from the user,” she said. Nevertheless, the chairman and the top Republican on the Oversight and Government Reform Committee -- Reps. Edolphus Towns (D-N.Y.) and Darrell Issa (R-Vista) -- declared in a letter to the Lime Group, "[I]t appears that nearly two years after your commitment to make significant changes in the software, LimeWire and other P2P (peer-to-peer) providers have not taken adequate steps to address this critical problem."

Perhaps the real motive here is to find grounds to ban the software outright, which would please Hollywood but wouldn't solve the problem. Their letter to U.S. Atty. Gen. Eric H. Holder Jr. suggests as much -- it asks whether federal law enforcement efforts can protect people, businesses and the government "from the security risks posed by P2P networks such as LimeWire." They sent a similar inquiry to the FTC. If they were really trying to solve the problem, they would conduct an investigation into what the Pentagon and government agencies were doing to keep file-sharing software off of computers used by their employees and contractors. The right approach here isn't to browbeat Lime Group, it's to demand better security practices by the people who work on the government dime.

Update, 11:40 a.m. Wednesday: Marty Lafferty, the CEO of the Distributed Computing Industry Assn., sent me an e-mail elaborating on the trade group's efforts to deter inadvertent sharing. According to Lafferty, the DCIA's Inadvertent Sharing Protection Working Group, formed two years ago, has worked with federal regulators, the Lime Group and other P2P software providers to develop voluntary best practices.

"Since publishing these in 2008," Lafferty wrote, "we have also completed a compliance report that can be reviewed here. As you will see, our industry takes the safety of consumers very seriously. Once this concern was recognized, we responded proactively. Our best advice now – to parents and children alike – is similar to that given by other Internet software distributors: Please upgrade to the latest version for the best performance and the safest experience."

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

Google Torrent Search helps users pirate content

The search bar that sits atop the Google Torrent Search page.

Is Google hosting a piracy search engine?

That's the question that's been on the minds of Internet users today, when a link to a Google page called Torrent Search made the rounds.

Punching in the name of the latest record, movie or computer software instantly returns a Google search page that lists where to find bootlegged downloads using popular piracy websites.

While hosted on Google.com, the product doesn't appear to be the work of a Google employee. The search engine uses Google's Custom Search platform, which allows anyone to manufacture a page that can scan a defined set of sites. This one just happens to be limited to some of the most-used piracy portals.

But those who support piracy websites are pointing to the search page in defense of the four creators of the Pirate Bay. On Friday, they were sentenced to a year in jail and ...