ISPs Face Down DMCA – File-trading is all about anonymity. Rather, it was.

Thanks to new software applications hitting the market, content providers are now able to track users that share music, movie and other media files across file-trading networks like Napster. Even Freenet -– the fiercely protective network — appears to be vulnerable to the new programs.

Thanks to new software applications hitting the market, content providers are now able to track users that share music, movie and other media files across file-trading networks like Napster. Even Freenet -– the fiercely protective network — appears to be vulnerable to the new programs.

One service, Copyright Agent, allows content owners to provide ISPs with lists of files to remove and, in many cases, to have Internet access to certain users cut off completely. The systems work by automating the take down and removal policies in the Digital Millennium Copyright Act of 1998, many of which have been too unwieldy for service providers to monitor.

“Unlike encryption and digital rights management solutions, you need something to go out and make sure that any leaks out there are stopped because those leaks mean you are losing revenue,” said Tim Smith, president of, the maker of Copyright Agent. “Our software all developed around the DMCA. We’ve Web-enabled the DMCA.”

“We developed software that automates the processes laid out under the DMCA for copyright owners to protect their work and to the ISPs to protect their interests.”

According to the DMCA, Smith said ISPs are required to remove materials from their system once copyright owners have identified the infringing content.

Content owners simply provide a list of materials that the Copyright Agent application will search. The system then compiles a list of Internet protocol (IP) addresses, identifies the ISP that the content is running through, and prepares a batch list for each different ISP.

This gives the ISPs a manageable list of materials to remove from its system.

Emusic recently unveiled a similar system, which it developed to track users trading the company’s content over the Napster network.

Its application tracks the MD5 checksum, which uniquely identifies the original source of a song, allowing Emusic to track files that were being made available.

Once infringing users are identified, they would then receive an instant message warning them to remove the materials from the network within 24 hours or be faced with having their account blocked by Napster.

The system would also track the IP addresses of the infringing users, which would enable Emusic to send a take-down notice directly to the user’s ISP if necessary.

But these new systems might be overstepping the bounds of the law.

While helping ISPs track users who are committing copyright infringement, attorney Fred von Lohmann said the new automated systems might actually be putting ISPs at the mercy of content owners.

“If you are the ISP, what can you do at this point?” said von Lohmann, an associate with San Francisco’s Morrison & Foerster. “Once the first note is sent to the users, ISPs are stuck. They don’t have the right to burrow into the users’ hard drives to verify the material is infringing. That doesn’t seem like the right answer here. Similarly, I don’t want the ISPs rolling over on the end user, giving away all of their information to third parties.”

The new systems create a world where the mere accusation of wrong-doing could cause users to begin losing their Internet access. That would put content owners in a very powerful position on the Web.

“I don’t think that the user should be terminated just because they might be trafficking infringing materials,” von Lohmann said. “The take-down policy only applies to links and Web pages. We don’t want a world where content owners can, just with an accusation, terminate users’ Internet access.

“If it’s some teenager in New Jersey, it might not be the end of the world to lose your connections, but imagine a person at home with a DSL line, and their livelihood depends on it.”

The DMCA says users only have to remove links that lead to infringing content or websites that house infringing content, von Lohmann said. It doesn’t say that ISPs have to terminate users.

Smith admits he would much rather work with the ISPs and legislators to create a more uniform system that wouldn’t force users offline.

Another system called Mediaenforcer, which powers the search portion of Copyright Agent, can track users through several file-trading networks such as Cutemx, Napster and Gnutella.

The system can even track users through Freenet, the brainchild of Ian Clarke, which is supposed to provide total anonymity.

Freenet provides a decentralized, virtual server that is made up from extra space provided from the hard drives of people connected to the network. Within the virtual server, information from multiple sources resides. Users can access the information from the virtual server, but not directly from end users.

While Mediaenforcer President Travis Hill said the system can’t track everyone on Freenet, he claims it can track the last person to come in contact with the information, which might be enough to slow down the growth of the file-trading system.

“People claim if you don’t know the original provider on Freenet, you can’t do anything,” Hill said. “When all these people are running Freenet, we connect to each one of them, throw in a query and if a particular node responds to that key, we consider that IP address to be infringing.

“Then you can go to the ISP and hand them that IP address. The disadvantage to being anonymous is that the only way to stop the infringement, if you’re an end user, is to stop using Freenet.”

That means either give up your Internet access, or give up using the Freenet service.

Clarke agreed that certain users could be tracked today, but wrote in an e-mail that ultimately these tracking systems will fall short.

“Freenet’s primary concern is hiding the identity of information producers and consumers, not so much the nodes themselves,” Clarke wrote. “However, Freenet traffic cannot really be distinguished from other encrypted traffic on a network –- not reliably anyway — and we will shortly be introducing changes to make it even more difficult.

“Such software would probably end up blocking all encrypted traffic, making online transactions and such very difficult.”

He also pointed out that the upgrades to Freenet and other open-source file-trading networks could outpace the policing technology.

Hill said that, regardless of the upgrades, enough users trying to get around the law will be caught with the ISPs and content companies working together with available policing technologies and legislative help.

“The whole issue is that if you are making available something that is infringing, you lose all rights to privacy,” Hill said. “It doesn’t concern me that the this might not be infringing. That was the whole reason behind the DMCA and if it’s found that the language isn’t clear enough, believe me, they will fix that quickly with new legislation.”

Author: Brad King

News Service: Wired News


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