Are IP Addresses Sufficient for Identification?

TorrentFreak recently noticed an interesting Florida case dealing with electronic copyright infringement.  The case involves Malibu Media, which mostly makes porn, sued a number of BitTorrent users for illegally downloading their movies.  Florida District Court Judge Ursula Ungaro ruled that simply producing an IP address did not constitute a sufficient evidence for a subpoena (where Malibu would ask the ISP to produce records regarding the user in question) because she felt the IP address did not sufficiently identify the user as the actual infringer.

Judge Ungaro’s reasoning is one espoused by technology experts for awhile: IP addresses do not necessarily identify that the accused as the infringer.  Geo-location, in general, is an enormous problem when it comes to internet law.  There are a few specific issues with IP addresses as a form of geo-location.  First, the IP address may not originate from a residential address.  Users potentially share the IP address from, say, a commercial network provided by a retailer.  There are also other potential wrinkles with IP addresses, such as when the user utilizes a VPN or proxy to change their IP address.  Second, a single IP address can encompass multiple users.  If a household has a single network, it will possess one IP address in all likelihood.  That IP address would just potentially indicate that the infringement originated from that household.  It would not help determine the actual infringer.  Finally, IP addresses can be altered, spoofed (where the user forges an IP address), or otherwise falsified.  It is not unheard of, for example, for someone to log on to another user’s network and download files from there.  If that user did so, then they would share an IP address with the network’s normal users.

To their credit, Malibu Media did go further than simply presenting an IP address.  They claimed to use geo-location software to determine that the IP originated from a residential address.  Judge Ungaro stated that, while welcome, these additional measures did nothing to indicate that the account holder with the listed IP address actually downloaded the file in question.

The question now becomes what happens when and if the case gets appealed.  Malibu is infamous for suing lots of IP addresses connected to BitTorrent.  This may be a sign that they wish to extract settlements rather than pursue serious cases, which would discourage them from appealing this case.  Upholding a standard requiring more evidence than merely an IP address may also require courts to espouse a more definite standard for geo-location.  Plaintiffs have long used IP addresses as the method of identifying defendants in file sharing cases.  A higher standard for identifying defendants could serve as a very hard limit on the number of cases plaintiffs can file.  There is also a very real possibility that, without some form of self-reporting (for example, listing a home town on Facebook), geo-location in file sharing cases is effectively impossible (or at least very difficult).  It should be interesting to follow this case, should Malibu appeal. 

Food for Thought: Berners-Lee’s Internet Magna Carta

Recently, the world celebrated the 25th birthday of the World Wide Web (Web) as created by Tim Berners-Lee.  The Web represents one of the most important pieces of technology today, as it makes the commercial internet (the one you and I are using right now) possible.  As part of this celebration, Berners-Lee went on a number of interviews.  In these interviews, Berners-Lee called for a kind of Internet Bill or Rights or Magna Carta to protect the rights of users against various forms of overreach.  The idea is that various interests, particularly national and corporate interests, threaten to erode the rights of private users.  Berners-Lee feels these rights need explicit protection, the kind normally provided by the highest forms of law.

There are two major questions that come to mind when reading Berners-Lee’s comments.  First, is an Internet Bill of Rights a good idea?  I personally feel that a well-executed Internet Bill of Rights is a good idea.  Given some of the recent revelations regarding user privacy, having some protections in place for ordinary web users would be useful.  There is a strong counter-argument that current government mechanisms should be sufficient to protect the rights of web users.  In other words, the current US Bill of Rights (especially the First and Fourth Amendments) should sufficiently protect American users and provide them with some recourse against government and corporate overreach.  There are three major problems with this argument.  First, actual US courts have been inconsistent in applying precedent to technology and internet cases.  The issue with whether police can search a cell phone incident to an arrest without a warrant or the continuing legal fight over the NSA’s storage and use of metadata serve as examples of this phenomenon.  Second, such constitutional restraints only apply to the government.  Corporations require specially enumerated laws for such protections to exist.  Third, the rights protected under law vary wildly between countries.  Data protected in the European Union or United States under the letter of the law is not protected in many other countries.  However, finding a baseline of rights between all countries that use the internet raises a host of other logistical issues.

Second, how would the Internet Bill of Rights operate?  This is where I feel that, from a practical standpoint, the idea runs into major problems.  There are a number of logistical problems that need to be overcome.   First, there is an issue of enforcement mechanisms.  Some entity needs to ensure that governments and companies follow the Internet Bill of Rights, and that they can be brought to trial if they violate user rights.  While a trans-national entity such as the United Nations might work just for putting the rights on paper, there is little the UN can realistically do to hold violators accountable.  Placing control and enforcement of the Bill of Rights under a nation solves the enforcement issue, but raises concerns that enforcement will serve that country’s national interests.  Placing the enforcement and interpretation under a non-profit organization like the ICANN (which manages the Domain Name System, or DNS) potentially serves as a middle ground.  The non-profit route is far from perfect (ICANN also serves as an example in this respect) and might still lack the enforcement mechanisms to make an Internet Bill of Rights more than words on a digital sheet of paper.  These issues don’t even address what rights the various internet-using nations of the world could all agree to support.

Despite these issues, I would love to see this idea pursued further.  It would just take time, energy, and a dash of creativity.

Update (5:28): This is unrelated to the above material, but it looks like Popcorn Time took down their service (http://arstechnica.com/business/2014/03/netflix-like-torrenting-app-popcorn-time-disappears/).  They left a brief note on their webpage protesting the nature of current copyright law.

 

Popcorn Time and Grokster

Popcorn Time is an internet service recently gaining a lot of attention.  A lot of this attention is because of how simple Popcorn Time makes torrenting.  For those who don’t know, torrenting is a method of speeding up the downloading of large files.  It works by distributing the work of downloading to many users (colloquially referred to as a swarm), so that the entire swarm contributes to the process of downloading large files.  The data gathered by the swarm is then compiled by a client, such as BitTorrent or uTorrent.  Now, torrenting does have legal uses (such as distributing Linux distributions) but torrenting’s effectiveness in sharing large files made it a tempting method of sharing movies.

Popcorn Time’s strength is that it does most of the hard work on its own.  You simply select a movie you want to see, and Popcorn Time handles all of the potentially confusing aspects of torrenting.  You just click a button and the video plays.  That makes for an incredible program, but it also makes for some obvious legal issues.  If the ease of use (and press coverage) result in increased use, Popcorn Time is almost certainly going to hear from the MPAA’s attorneys.

For their part, Popcorn Time insists that they don’t have much to worry about from a legal standpoint.  According to TechCrunch, Popcorn Time legal defense lies in the fact that they don’t host the information themselves and that they don’t make money from their web service.  They also told Ars Technica that they have a dialog box warning that certain uses may be illegal in the user’s country.  Unfortunately, US law doesn’t inspire much confidence that they’re correct.

There are two cases that provide some basic guidance in this case: MGM v. Grokster (Grokster) and Arista Records v. LimeWire (LimeWire).  These cases deal with two different file sharing services from the post-Napster era.  Grokster was a person to person (P2P) filesharing service.  The issue in the Grokster case revolved around whether the Sony Betamax precedent (from Sony v. Universal) applied to Grokster.  The Sony Betamax case held that a court cannot hold a manufacturer liable for infringement if the devices they sold had substantial non-infringing uses and were sold for legitimate purposes.  The Supreme Court held that, in Grokster’s case, their technology encouraged copyright infringement and that Grokster promoted such infringement to their benefit.  Grokster also created the inducement test, which states that a company is liable for contributory infringement (helping facilitate the infringement of others) if their conduct encourages infringement.  As a result, Grokster could not claim protection under the Sony Betamax case.

The LimeWire case serves as one of the first major applications of Grokster’s inducement test.  The Supreme Court, in LimeWire’s case, found that LimeWire induced contributory infringement because 1. around 93% of the material on LimeWire’s servers infringed, 2. they were aware of the existence of a substantial number of infringing materials, 3. the company’s efforts assisted and enabled such infringement, 4. its business depended on infringement, and 5. LimeWire took no efforts to mitigate infringement.  The final point is particularly applicable to Popcorn Time.  LimeWire claimed that one of their attempts to mitigate infringement was to post a statement to users, reminding users that downloading copyrighted items is illegal and warning them not to use LimeWire for those purposes.  The Court found this not to represent an attempt to mitigate any benefits from users downloading copyrighted items.

There is one substantial difference between Popcorn Time and these other two cases: Popcorn Time is an open source project created by a group of programmers receiving no compensation for their efforts.  In both Grokster and LimeWire’s cases, the companies in question made money off the infringement.  There is no indication that anyone is making any money off Popcorn Time.  Both LimeWire and Grokster make it clear that financially benefiting from the infringement created by the service is a factor when determining inducement.  Whether that gets Popcorn Time off the hook by itself is an interesting question.  Another interesting question is the Popcorn Time’s open sourced nature and how that would affect standing and redressability (the ability of the court to actually right the alleged wrong).  As a point of reference, content holders have generally chosen to sue users or the torrent sites (like the Pirate Bay in Sweden) rather than the program developers.

For what it’s worth, Popcorn Time provides a neat service that clearly fills a niche.  Netflix’s Instant Streaming service shows that there is a big demand for a service that allows users to download or stream content in an easy to use manner.  In addition, one of the major complaints with Netflix is its “limited selection of movies, especially the latest releases.”  There is consumer demand for a service that gives users easy access to the latest movies.  That alone makes Popcorn Time a service worth following.

Getty and Digital Copyright

Getty recently made a rather substantial change to their business model.  Instead of charging websites for use of their stock images (as they previously had), Getty instead will allow for non-commercial use of some of their images.  In exchange for use of these images, Getty will offer their data to other businesses.  

Now, this business model is hardly unique.  Facebook and Google both profit handsomely off selling user data to marketing firms.  What makes this move interesting how Getty treated bloggers who used their images previously.  Prior to this move, Getty sued many, many people over alleged infringing use of their images.  According to the International Business Times, Getty filed five single image lawsuits in January of this year.  Even before those lawsuits, Getty acquired a reputation for being very protective of their images (though they rarely brought this suits to court).

This move by Getty simply acknowledges the realities of copyright in a digital world.  Nothing invalidated Getty’s copyright over these images.  These lawsuits were always valid, and could potentially harm the defendants on their receiving end.  Preventing the infringement, on the other hand, can be close to impossible.  Computers make copies by design, and reining in the spread of information is close to impossible.  Companies can employ some kind of Digital Rights Management (DRM), but DRM always risks alienating customers or making the product unusable. 

Getty instead chose to, at minimum, to take the path of least resistance in regard to noncommercial use of their media.  It represents a move in the right direction to realize that suing Twitter users is probably not the best use of their legal department’s time.  Instead they’ve decided to make money by selling user information gathered through free use of their stock images.

P.S. Colbert had a great bit on Warner Music Group’s strict royalty demands for use of the song “Happy Birthday.”  The bit is hilarious and well worth a watch.  It made a copyright nerd such as myself very happy.

 

Keurig Adds DRM

Keurig recently announced a decision to add a form of digital rights management (DRM) like restrictions on their future coffee makers (http://www.canadianbusiness.com/companies-and-industries/keurig-2-single-serve-coffee-pod-drm/).  Basically, the next set of Keurigs will include certain hardware preventing people from brewing generic “K-Cups” (the single serve packs you pop into a Keurig to brew the coffee).  Green Mountain Foods (the owner of Keurig) previously held a patent on the K-Cup design that allowed them to exclude competitors.  That patent expired in 2012 (http://blogs.wsj.com/corporate-intelligence/2012/11/28/the-k-cup-patent-is-dead-long-live-the-k-cup/), opening up use of the K-Cup design to other companies.  Other companies quickly capitalized, typically selling below what Green Mountain charged for official K-Cups.  Green Mountain still controls a great deal of the K-Cup marketplace, despite the availability of generic options.

I know a number of people who love these machines, but these behavior smacks of trying to lock out the competition.  Previously, the patent allowed Green Mountain to maintain a monopoly on who could and could not use the K-Cups.  Green Mountain took advantage of that, particularly by licensing the use of K-Cups to various companies when they deemed it in their interest to do so.  Starbucks is an obvious example of a K-Cup licensee.  Now that the patent has expired, Green Mountain can no longer exclude their generic competition.  This competition includes other K-Cup options, such as reusable K-Cups (http://www.reuters.com/article/2012/02/03/us-coffee-idUSTRE81203720120203).

The K-Cup patent serves as a good reminder as to why the patent system exists, and why the government grants companies the right to exclude competition.  Basically, a patent tries to allow an inventor to benefit from its research and development.  The inventor has to file copies and descriptions of their design.  These designs get released to the public, with the full intention of allowing for other people to use them after the patent expires (usually after 20 years).  The logic is that the state gives that inventor a period of time with which to benefit from creating something new and innovative.  After that time runs out, the inventor has to allow the public at large to benefit from the new and innovative design.  The patent, as a result, acts as a kind of negotiated bargain that tries to promote the creation of innovative technology by giving the inventor a financial incentive to invent (and preventing other entities from simply piggybacking on their design for a period of time).  The anti-competitive nature of patents is often seen as a necessary, and temporary, evil.

There is no benefit, however, to trying to exclude competitors further.  A number of the above sources mention that, like printers, the real money comes from selling the coffee maker at a low cost and making the real money on the refills.  Green Mountain does, as a result, have a financial reason to want to exclude their competition.  That doesn’t excuse them actually taking measures to lock out competitors.