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Open source shields BitTorrent from legal attacks

8 March 2005 21:24 by James "Dela" Delahunty | 3 comments

The fact that Bram Cohen decided to make BitTorrent open source may be the biggest reason why the Motion Pictures Association of America (MPAA) has not gone after it. If you read headlines all over the Internet you see that the MPAA launched a pretty heavy assault on some of the biggest BitTorrent sites like LokiTorrent but don't be confused, BitTorrent as a technology or Bram Cohen its author has not come to any harm legally. Also BitTorrent is often viewed as its own P2P network, which it is not.

BitTorrent relies on tracker sites for torrent files (and this is where BitTorrent comes into contact with centralized distribution) but without these sites, BitTorrent would be pretty much useless. While centralised distribution is not a problem for legitimate companies who are using BitTorrent to distribute files, it would be a severe problem for any site that offers torrents for pirated files.

Look at the Napster case. Napster had a big central server that assisted in all the trading on the network. For this reason it was an easy target for the Recording Industry Association of America (RIAA) to attack. Centralised distribution pretty much killed Napster. But then networks that work differently appeared like FastTrack (which Kazaa uses). The network is setup so that the users on the network make the sharing happen, not any major central server (known as decentralised distribution).

So centralised distribution is what ruins any BitTorrent site. However, back to the point that Open Source shields the technology from legal attack. "It's open source, so who do you go after?" asked Phil Albert, IP attorney and partner with the San Francisco law firm Townsend and Townsend. "You could go after its author and you could somehow force him to give up and say he'll never touch it -- so what? It's open source. Anybody can develop on it." If you use BitTorrent then you must have noticed the massive amount of clients that have appeared for it.

Because BitTorrent is open source and so many new clients have been developed by its users, there basically is no company for the RIAA/MPAA to go after, besides the sites. Another big point for BitTorrent is its massive amount of legitimate uses. "If someone wants to distribute their own material and it's a lot of bits, the simplest way to do it is BitTorrent," Albert said. "There's a lot of legitimate uses for BitTorrent outside of the entertainment industry. My gut reaction [to BitTorrent] is, maybe you could use that for illegal movie and music swapping, but its primary purpose is to distribute material legitimately."

So what do the MPAA think?

Surprisingly, the MPAA have no plans to go after Bram Cohen or the BitTorrent technology. John Malcolm, The MPAA's Senior Vice President of Worldwide Anti-piracy Operations said the organisation had no problems with the technology. "I am totally agnostic about the technology that is involved," Malcolm said. "I view innovations as exciting. While they present some piracy problems, there are tons of opportunities for creative people to put content in peoples' hands at a reasonable price."

While Malcolm had that to say about BitTorrent, he does not particularly favour it over other technology, or hype it up. "I view it as the latest and greatest, which is not the same thing as the last and best," he said. "Technology marches on. We have not gone after the creators of BitTorrent because they're the developers of a technology. If I learn they geared this technology for unlawful purpose, and ignored easy things that they could've done to prevent it, we might view it differently." That is one thing I have to agree with, technology keeps on growing so BitTorrent won�t be the last to cause a stir.

Malcolm then went on to say that those who use BitTorrent legitimately are using the technology properly, but those who don't, are attacking the technology, which is kind of true when you read websites that are confused by the situation that believe BitTorrent to be an evil tool to infringe copyrights. "The people who are anti-technology are the targets," he said. "They're the people who use technology to engage in rampant theft. Our beef is not with the people who develop technology. It's with the people who use it illegally."

EFF staff attorney Fred von Lohmann said it is clear that Cohen created BitTorrent for legitimate uses and not to assist in piracy. "It seems clear to me that BitTorrent and Bram Cohen are not liable for what BitTorrent is being used for," von Lohmann said. "Bram has little to worry about on it." He also believes that the fact that its open source takes the target off its back. "I think [the MPAA] realizes if they tried to sue Bram, they'd be in a very weak legal position," he said. "The MPAA is acting in ways that [indicate] they recognize that. The fact that it's open source really underscores the point that they wouldn't go after [it], anyway. The technology is available and can be used by anyone."

However, if the MPAA is living in a belief that if they close down the biggest tracker sites online where pirated material is traded then the problem will go away, they need to take a lesson from past technology advances. Look at eXeem, an attempt (I believe the first attempt?) to combine decentralised distribution (of torrent files) with BitTorrent technology. To this day, P2P networks that work on a decentralised network have survived legal attacks because of the way they work. In a year or two, will we see more attempts like eXeem become as popular (by the numbers of people using it to trade files) as let�s say the FastTrack or eDonkey2000 networks?

Source:
NewsForge

Permalink to this article

MPAA files lawsuits with data from P2P logs (25 August 2005)

New BitTorrent search from Bram Cohen (24 May 2005)

Slow TV networks driving viewers to piracy? (4 April 2005)

DVDR-Core owner set to stand up to MPAA (16 March 2005)

LokiTorrent shut down by MPAA (10 February 2005)

Bram Cohen fending off MPAA accusations (7 February 2005)

Downhill Battle working to save Eyes on the Prize (28 January 2005)

eXeem public beta release (24 January 2005)

P2P services under widescale legal attack? (16 December 2004)

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venomX05 (Senior Member) 9 March 2005 6:00
This is kinda funny in a way. Well, I guess that is what others have to do, is make it open source. But one has to think, that if money is involved in this, how are they making it? Would it be safe to say that developers could create open source p2p programs but sell the code for say.....$5 or so. I haven't heard of anyone doing this, so I would like to here what others think of this idea. At least if you think about it, the MPAA or RIAA won't be able to come after you because you are just selling YOUR code that you created. Who cares what others use it for? Definately want to hear want others think about this. [ + quote]
Mr_Taz_UK (Senior Member) 9 March 2005 6:22
Open source should mean developed by the community/users for the community/users. Geez next thing you know they'll be charging us for open source operating systems!! ....oh....hang on a sec (that was irony for those of you that missed it) besides, if an application / solution is open source, one version is free, and your version is $5. Who's version do you suppose the community/users will more readily adopt? [ + quote]
Ne007 (Junior Member) 9 March 2005 7:23
Open source is OPEN SOURCE. Meaning EVERYONE would have it! Now if everyone has it available to them for free....then why pay for it? smacks self on head Open source by definition is open to everyone....therefore how could they close it up and sell it. The first person to get it now has the code also...... still ponders how someone could miss this [ + quote]