The US District Court of California has issued a permanent injunction against the BitTorrent search engine isoHunt, forcing it to shut down in the United States…
…The MPAA issued a complaint against isoHunt and its sister site TorrentBox, claiming that owner Gary Fung operated file-sharing services and profited from copyright infringement.”
The California Court ruling is that if ISOhunt doesn’t begin filtering and blocking all content matching a list of banned keywords it will have to stop operating in the US.
Canadian businessman Gary Fung has expressed his lack of faith in filters. I can certainly understand that.
My experience with computer filtering is with email and spam. When spam first became a problem, some ISPs instituted blacklist filtering.
Its a simple concept really, where the “blacklist” is the list of everything that is blocked.
My guess is the word blacklist comes from the McCarthy “witch hunt” from the 1950’s, when allegations of Communism resulted in Americans being put on a blacklist depriving them of the ability to work. Although communists were hunted out in other fields, Senator McCarthy most famously hunted them in the movie business.
You didn’t actually have to be a communist to be singled out, allegations were treated as fact, so almost anyone could be made to appear to be a communist, or a communist sympathizer. Sometimes just by knowing someone who is suspected of being a communist could result in your designation as a communist, the only evidence being guilt by association. At that time, although much of the movie Industry abhorred the undemocratic nature of the McCarthy hearings, most people quaked in fear of the government power being exercised against their freedoms. One of my favorite Hollywood movies was Spartacus, written by blacklisted writer Dalton Trumbo under a pseudonym. (Trumbo won two Oscars pseudonymously… an interesting example of how well trying to suppress freedoms actually works). The decision to release the epic film using his real name is widely credited with breaking Hollywood’s blacklist.
The way a blacklist filter works with email is that the filter decides that since spam is coming from some of the email accounts from an ISP it will no longer accept any of the email being sent from that ISP. I first found out about this several years ago when some of my friends mysteriously stopped receiving my email. Of course my initial assumption was that I had maybe typed the email address wrong or made some other mistake. But as it turned out, their ISP had simply blacklisted all email from my ISP. This was in the early days of high speed Internet, and at the time, my ISP was Rogers Cable. Naturally, since Rogers had a very large chunk of the market, it stands to reason it would also have a proportionately greater number of clients sending spam. But my email was blocked, as was every Rogers email, even though I had sent no spam ever. And my friends did not know that email people were sending them was not getting through. Because my ISP, Rogers, was so big, the other ISP had to back down. There is even a website where you can check to see if your domain name is being blacklisted.
Blacklisting of this kind is particularly insidious when it is invisible. They say you can’t prove a negative; and if the ISP is simply blocking your email before you get it, you aren’t even aware that what you get is being censored. The fact that the sender is not notified makes it appear that the email dropped into a black hole. Some people are willing to take the risk that important email they might want could be blocked in exchange for the protection against spam. These are the kind of trade offs that people make, often without really thinking it through, that result in the erosion of freedoms. To my way of thinking, the worst part of this problem is that most people are unaware it is happening at all. You may know that your ISP is saving you from spam, but chances are you don’t realize that this means that your ISP does this by censoring your incoming email, using a mechanical process that can just as easily stop real email.
This is a Net Neutrality issue as well. Once you give anyone the power to censor what you are allowed to see, that power can be corrupted. The entity deciding what you are allowed to know can choose to favor its own agenda. Freedom of speech is a result.
We expect email to be able to go everywhere. We assume that email we send actually gets where we send it.
If we are limited to only being able to send email to other people with the same ISP it would be a very different system than the one we’ve come to expect. I know that this kind of blacklist still goes on, since email I send to my Florida friend gets blocked. Not because I’m with Rogers (not!), but because my email is now being sent through my personal website account domain name. This makes me think her ISP blocks domain names it doesn’t know. This was really annoying because we’d been corresponding for years, as well it was a long time before we realized that the email wasn’t getting through since her ISP didn’t bounce blocked email. So instead of being able to communicate using my real email address, my traceable and trackable email address, I can only send her email through my somewhat anonymous disposable Yahoo account. Like hotmail (now live), anyone can get any number of these accounts. I got mine when my real email account was down once, and I use it if I’m asked to leave an email address in a situation that may result in excessive amounts of spam. I consider it my disposable email address because if it ever gets really terribly inundated with spam, I can just walk away.
Filters are not always bad. After all I have a very good spam filter on my real email account. But the reason it works well is that I have had to train it by identifying spam piece by piece. That’s a lot of work. Which is one reason people are willing to allow others to decide what is spam for them.
But even though it is well trained indeed it still makes mistakes. If my sister sends me an email that mentions what she paid for her new car, my spam filter will probably block it since most of the spam I get is associated with money. So the filter would quarantine it, which means until I go check I won’t realize that I’m missing an email. But I can still use my ability to reason to decide to unspam it. That’s the thing; first, a filter is only as good as the parameters of the search.
People who have blogs hosted on WordPress have an awesome spam comment filter called Akismet (which you can also download and use free if yours is a personal blog. ) >This< blog has so far received 7,473 spam comments in nine months, compared with a total of 254 real comments. In all that time, I accidentally deleted one real comment (by clicking on the wrong bit) and Akismet has only blocked a couple, which actually turned out to be really good ones. If Akismet just trashed them without allowing me oversight, I’d have lost out on some excellent information.
p2p = peer to peer
Although I’ve been learning about the Internet at breakneck speeds, and I’ve learned about the importance of torrents for efficient online data transfer, I haven’t had time to learn how to actually download anything myself. I haven’t even had time to be able to volunteer as a Project Gutenberg proof reader either, since I believe my skills are better employed in blogging at present.
So in researching this article, today was the first time I’ve been to the isoHunt site. Looking around the site it hit me: isoHunt is a bitTorrent search engine.
With all that’s said about Internet “piracy” and the sites that make it possible, I never really connected the dots before. I’ve seen flea market stalls selling major motion pictures in slimline DVD cases with cheaply printed cover art which are clearly bootleg DVDs. So I always just assumed that the law was going after sites like isoHunt because they were committing piracy by storing bootleg movies on their server or something. Even though I learned about the mechanics of bitTorrent for a StopUBB article I just assumed that people would be putting the media they are sharing on the isoHunt servers. But that’s not how it works at all.
Any copyright infringement that might be happening is taking place on the peer computers, not isoHunt.
isoHunt is a Search Engine
isoHunt is a specialty search engine. They allow you to find the right torrents you need to download a large file. I explain how BitTorrent works in the StopUBB blog, but looking at the isoHunt site is a real eye opener. One of the reasons that I think p2p is so important is that it makes good use of bandwidth for downloading large files (which will be really important for Canadians after Usage Based Billing is introduced).
If I didn’t already have an awesome Ubuntu limited edition picture CD I got at the Kwartzlab Ubuntu release party a few weeks back, I might need to download the new distribution of the Ubuntu operating system on the isoHunt site. As I understand it, torrents work faster the more people are working together. And right now, today, the isoHunt site will direct you to 2293 seeds of the new version. That means more than two thousand people, strangers to one another, are working together through this p2p network to share this with anyone who wants a copy.
downloading is legal
Like a great deal of material available for downloading online via p2p networks around the world, the Ubuntu operating system is legally offered for free. The corporate lobby groups that are working very hard to make it seem that p2p and torrents are synonymous with illegal downloading but that’s not true. Yet the other day the Globe and Mail article: Illegal downloading: How do you explain it to the kids? was most disturbing because although the article title refers to “illegal downloading”, the article itself assumes that all downloading is illegal.
Which just isn’t true. There’s plenty of perfectly legal material available to download out there. Besides Linux operating systems like Ubuntu (if you switch to this or one of the many other home versions of Linux like Fedora or Mint you’ll never have to pay Microsoft another cent), there is a steadily growing pool of music released by Independent artists like Allison Crowe have released under Creative Commons licenses, as Nina Paley has done with her incredible animated movie Sita Sings the Blues and Cory Doctorow routinely does with his books, like bestseller Little Brother. There is also a growing catalogue of public domain digital books available free from Project Gutenberg.
The Internet is very big. There is a great deal of content out there. Search engines help us find what we’re looking for on the Internet. Because there is so very very much out there. Each search engine works a little differently. But the crucial tool that every search engine needs are search terms.
When I learned how to make my web page I made sure to include “keywords” so that web pages would be able to find it. When posting blog articles on my WordPress blogs I make sure to fill in “categories” and “tags” which do the same thing.
Keywords are important. Without them, no one would be able to find anything on the Internet. It’s important to choose the right search words, and even then, if the words you put in the search bar are too vague it will give you too many possibilities.
filtering = censorship
If isoHunt is forced to use a pre-ordained filter search terms, like, say the titles of movies, their ability to do business will be compromised. Because their engine will will not be allowed to function properly.
On the website, isoHunt makes the point that
any requirement to keyword filter is a violation of freedom of speech and amounts to no less than censorship. There is much non-infringing uses of BitTorrent technology and we hope you will be able to continue to use isoHunt for these uses, free of constraints by large holes in the english dictionary because your search triggered a keyword in a title of one of the million movies that have been produced.”
Years ago I learned that you can’t copyright a title, so its possible that many different songs have the same title. Or books. Or movies. I remember digging through the cheap DVD bin at the Great Canadian Superstore and finding the title of a movie I’d been keeping my eye out for for years. This was a great Bill Forsyth film (about an ice cream truck war) called Comfort and Joy, Except that it wasn’t. It was another movie called Comfort and Joy.
An IMDB search for the title “The Three Musketeers” brings up 32 exact title matches. The oldest version of this film would be the black and white silent movie version of the The Three Musketeers made in France in 1903. This film is quite probably in the public domain. The underlying work, the excellent novel The Three Musketeers by Alexandre Dumas is itself in the public domain. This is an excellent reason for film makers to make films of it. In the first place it’s a famous classic story, but even more important, they don’t have to purchase the rights to it.
But if Disney includes the movie title “The Three Musketeers” for the search terms blacklist, not only will it stop isoHunt from finding the 1993 Disney version but all of the other 31 versions as well.
This is a classic story. What if I decided to create my own feature film of Three Musketeers? As an independent film maker i wouldn’t have to buy the rights. Instead of the lions share of the film budget paying for film prints and physical transportation costs, my entire budget can go on the screen. I could probably pull it together quite easily as a low budget effort. It’s amazing what you can do with low or no budget. For the past hundred years or so the largest barrier to releasing a feature film has been distribution. But the current digital technology in combination with the Internet makes it possible to release a feature film to the world for almost nothing.
But if isoHunt has to include the title “The Three Musketeers” in their search term blacklist, my movie will NEVER be found by an isoHunt search. In this scenario, this blacklist will hinder my ability to distribute my movie. As the Electronic Freedom Foundation outlines in their excellent article Unintended Consequences: Twelve Years under the DMCA this California court ruling would directly hinder my legitimate competition. Although “The Three Musketeers” is part of the public domain internationally, with this kind of suppression, one powerful film company has the power to suppress competition.
The only thing that could possibly be worse would be for the blacklist to block the words of the title individually. This would block isoHunt’s ability to search out anything at all about Musketeers, or any other digital content with either “Three” or “The” in the title.
the real question
Why is isoHunt is being punished for copyright infringement? As a search engine they aren’t actually providing content that infringes copyright, they are only directing people to where the content they are searching for can be found.
I’m not an IP lawyer, but that sounds awfully extreme to me. Particularly since you can use any search engine to find the things that isoHunt is not going to be allowed to search for. It sounds rather like a serious breach of the free market to me. They won’t likely be as efficient, but all the other search engines will be able to find the exact same content that isoHunt is being prevented from finding. The only way a legal action like this could possibly be fair in a free market way would be if all the search engines had to block the same list of search terms.
Hey wait… I guess that’s what A.C.T.A. is for. Hmmm. I guess it will level the media playing field by eliminating all competition.
Which is well and truly scary from a freedom of speech point of view.
Although I’m not a lawyer, looking at the actual isoHunt Permanent Injunction, it seems that isoHunt has not been charged with copyright infringement but with “intent to induce infringement”. Because isoHunt is not actually infringing anyone’s copyright. At all. Period. If they were, they would be toast.
But United States DMCA law will allow them to toast isoHunt anyway, for the crime of telling the people who ask where they might find copyright infringing content. isoHunt is not making anyone infringe copyright.
Does this then mean that a newspaper that reports a particular city street is rife with drug dealers or prostitutes is then considered responsible for drug dealing or prostitution because telling people where it is “induces” drug dealing or prostitution? Under a law like the DMCA that seems frighteningly possible.
Especially if the newspaper’s editorial policy advocated the legalization of marijuana, say. There is a Canadian political party advocating the legalization of marijuana. Would that be illegal too?
will this court ruling stop any copyright infringement?
If the goal is to prevent people from finding copyright infringing software it won’t work. It may stop isoHunt from fulfilling their search function, but it won’t stop anyone from making the same search on Google or altavista AOL yahoo or bing.
Rendering the use of words illegal is a suppression of free speech. The Permanent Injunction is designed to stop isoHunt’s use of words as search terms. So as well as suppressing free speech, this ruling impedes market competition.
If the intention is actually to stop copyright infringement since isoHunt apparently leads users directly to copyright infringing content, why aren’t the forces of law and order following these same links and actually stopping the infringement.
But then, that isn’t really the point. The point of all of these laws is not really to stop the type of copyright infringement they call “piracy”, because personal use copying, including sharing a movies via a p2p network appears to be one of the factors driving the movie industry’s increased revenues. They wouldn’t want to stop that. No. The point is to stop the growing competition from Independent media creators, by stopping the possibility of their distribution.
The United States spent much of the last century trumpeting the importance of free speech to the world. Now that much of the rest of the world has bought into the idea, what is truly sad thing is that the United States government is pandering to special interest groups making laws to suppress free speech.
The idea of Net Neutrality is that the Internet is neutral. The Internet should not be subject to the control of governments or corporations. If the Net is NOT neutral, rights like free speech are at risk. Laws like the DMCA stack the deck against Net Neutrality.
The problem is that the Pandora’s box is open, and free speech is just too big an idea to fit back inside.
“Gavel” photo by Jonathunder on Wikipedia, but I found the image uploaded on Flickr by Thomas Roche…
If I wasn’t so busy with all this political stuff I’d love to take the time to browse through the rest of his photographs… I cut my teeth on Doc Savage! … and having just read through Roche’s “Double Indemnity” piece, one of these days I’ll be back to read the rest of his blog…