August 05, 2003
Porn Used in File Sharing Arguments

Jon Healey/LATimes writes that Both Sides Add Porn to Debate Over File Sharing (htm):

The music and movie companies warn that file-sharing sites are rife with graphic pornography that insinuates itself into users' computers. Civil libertarians and Internet service providers argue that music companies' anti-piracy tactics open the door for pornographers and others in the seamy online underbelly to invade Internet users' privacy.

Internet service providers and civil liberties groups have argued that a record industry strategy -- using subpoenas to force ISPs to identify customers accused of file-sharing piracy -- could enable pornographers, stalkers and other shady characters to obtain the names and addresses of Internet users.

Last week, one adult-entertainment company may have given the RIAA's opponents ammunition in their fight against the subpoenas. San Francisco-based IO Group Inc., which sells gay male adult videos under the name Titan Media, sent Pacific Bell Internet Services a pair of subpoenas seeking the names, addresses, phone numbers and e-mail addresses of at least 59 customers accused of infringing its copyrights on file-sharing networks.

When Pac Bell objected to the requests, Titan withdrew the subpoenas. Nevertheless, Pac Bell sued Titan in federal court July 30, asking for an order declaring that such subpoenas were improper.

Porn and file sharing have been discussed before, for example in Wired where the contention was that file sharing was good for porn sellers, in one way or another, where they were using file sharing to gain exposure and customers. Apparently, Titan has decided that file sharing was not helping their business and acted accordingly. However, Judges may be able to evaluate more critically the subpoena process (with subpoena-bots) if they are thinking about its use with porn verses content the RIAA wants to protect. SBC's action against Titan may shift the file sharing/subpoena debate, if SBC is successful in forcing a change in the subpoena process allowed under the DMCA.

Posted by Mary Hodder at August 05, 2003 08:35 AM | TrackBack
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From Bruce Lahey, president of Titan Media to the Senate Judiciary committee:

Full test at: http://www.titanmedia.com/promotions/public/NEWS/judiciary.htm

....."Thousands of individual users of P2P software are stealing our content by “ripping” (circumventing encryption technology in order to duplicate) DVDs and making copies freely and anonymously available to anyone with an Internet connection, including children. I founded this company with the core belief that only adults wishing to view our content would be allowed to do so. We fight daily to ensure that this happens. TITAN Media is not placing unprotected adult material on P2P networks or anywhere else. We have never done so and we never will. To the contrary, when others illegally distribute our material on P2P networks, we do all we can to remove it.

I ask you to consider the measures my company has taken to prevent our content from being illegally distributed and viewed by minors:

1. We require adult age authentication before we sell, ship or make available any adult material to any individual. We are the only adult entertainment company to utilize an age authentication process that matches information available in government databases (e.g., drivers licenses). This ensures the most accurate means of age authentication and is the only system that is Patriot Act-compliant. We spend the extra time, money and energy to do this because it’s the right thing to do.

2. We embed a “KIDsafe” Digimarc in every photograph we release or distribute, including box cover graphics for retail stores. This ensures that even when our content is stolen and re-distributed, minors whose parents have installed the free “KIDsafe” filtering software cannot view it.

3. All digital video files we release use Microsoft’s DRM (Digital Rights Management) encryption software, which locks the file and will not allow it to play until the user has successfully passed our age authentication process (noted above.) This ensures NO ONE can access our material without the proper age authentication requirements.

The current state of P2P networks allows users to anonymously and freely distribute our content, and works against all our efforts to do the right thing. In response to the overwhelming abuse of our materials, we have served several subpoenas to service providers under 512(h) of the DMCA. We do this in an effort to halt the distribution of our legal, copyrighted, adult materials on P2P networks. In order to deter individuals from distributing our products, we will file lawsuits against individuals who engage in illegal distribution or other forms of infringement.

I ask that you do not limit our ability to identify and prosecute offenders. The DMCA is well crafted and clear in its intent, and it provides safeguards that ensure information obtained by DMCA subpoenas is used appropriately.

It is my opinion that you should not change this well-crafted legislation based on speculation of abuses that might occur in the future while ignoring what we know is happening now: children are wantonly being exposed to adult materials on P2P networks. Senator, I believe individuals who publicly share legal, copyrighted adult materials with no regard for the safety of children, and with no regard for copyright law, should not be allowed to hide behind the anonymity their service providers allow. ......"

Posted by: keith Webb on September 13, 2003 02:30 PM

The problem I'm trying to illustrate here is two fold: one that porn companies don't all find P2P distribution of their content helpful, which in your case at Titan, leads to point two: that the subpoena process is being used in porn content cases as well, and the general problem with the subpoena process in the DMCA has to do with the legal process it allows copyright holders to employ. The issue is that usually a subpoena is sent after a lawsuit is started, which then means that the subpoena is reviewed by the court before being sent. Under the DMCA, anyone can send a subpoena, before litigation has started, to an ISP, asking for personal info. This includes pedophiles wanting kids personal info including address and account info, stalkers, identity thieves.

I don't have a problem with your wanting to go after legitimate infringers, if that's what you want to do (instead of say, using P2P to help your business, but that is another issue about business models, not the legal process) but not having judicial review could cause so many problems and privacy violations. This is the real issue, and in that light, no, the DMCA is not well crafted.

There are other issues as well with the DMCA. It's really kind of a mess. And it needs to be straightened out.

Posted by: mary hodder on September 13, 2003 03:29 PM

The larger ISPs such as Verizon and SBC were part of the lobbying effort that shaped the DMCA. They got the inclusion of the Safe Harbor provisions added to the act with the full knowledge that to get the protection from liability they would have to comply with certain provisions, including 512(h) subpoenas. Now 3 years later when they starting getting served 512(h) subpoenas they cry "It's an invasion of privacy for our customers!" They can't have it both ways, if they choose not to comply with 512(h) subpoenas then they lose the protection of the Safe Harbor provisions for liability. I can guarantee you that if they do not comply we for one will file John Doe suits and name the ISP as a co-defendant for contributory and/or vicarious liability.

Another provision of the DMCA requires the ISP to "Develop and post a policy for termination of repeat offenders". SBC is not complying with this provision as well. We are now finding IP/users cases that are on their second or third time being caught over a period of 2 or 3 months. With each incident the ISP has been given proper notice under the DMCA. After the third time catching the same ip/user with our content it's becomes clear to us that the ISP is not even bothering to send our take down notice to the responsible party, and they obviously have not implemented a policy to terminate repeat offenders nor followed the requirement "to send statutory notices to affected subscribers."

We have heard from sources within SBC that say the real reason they do not want to comply is that they don't know who the actual responsible party is. Most of the large ISP do not maintain the DHCP records needed to identify the responsible party by ip address and timestamp. Without that info it's almost impossible to identify the responsible party and pretty much makes the entire process useless. There are currently no regulations requiring ISP to retain these records for a specific period of time, so they don't. If the rules were changed to require a standard subpoena signed by a judge it would be worthless in catching the responsible user. The timeline needed to secure a standard subpoena is such that by the time it is served on the ISP the identifying DHCP records have been lost and the user cannot be identified. Without a simple and expedite way to put the ISP on notice so that the DHCP records are maintained to id the user at a later date the entire process is useless.

There is no requirement that the ISP give up the user information to the requesting party before they have contacted their customer and informed them that a subpoena has been served and giving them time to file a motion to quash if they so choose. We have served 512(h) subpoenas on other ISPs and they have first notified the customer and given them a certain time period to act to refute the subpoena before supplying us with the user info as requested in the subpoena. This gives the user knowledge of who is trying to obtain their info and time to act if they feel it is a threat or in error.

When individuals freely open up there computers to millions of anonymous users to distribute adult materials and make those materials easily available to minors are breaking the law and forfeit their right to claim an invasion of privacy by identifying them. The distribution of adult material to minors negates the right to privacy in my opinion.

Let me put it this way: If John the nice guy who lives next door gave your 12 year old daughter a hardcore adult DVD what would you do? Most parents would be very upset and a lot would call the police immediately. Well guess what folks, that exactly whats happening in P2P networks right now. Only difference is that John ripped the digital file from the DVD and is using Kazaa to give it any kid that stumbles across it. Same exact file with the same exact content whether it’s on a disk or in a digital file.

The only way I can stop John from doing this with my legal and copyright protected adult content is to first identify him through the use of a 512(h) subpoena. Most parents don’t care that someone is giving their kid the new Brittany Spears mp3, but when irresponsible adults start freely passing out full-length videofiles of “Lolita Gangbang” or “Girl 13 years old with Dog“ (actual titles of files found in Kazaa) they forfeit their privacy rights. If you want to truly see what going on in the P2P networks go into Kazaa and do a top level search on a simple word such as “teen”, “angel”, “horse” or “mom” and see what you get! Okay now pick your jaw up off the floor and double click on a file title. Okay, now you’re done just sit back while Kazaa automatically downloads and indexes the file for you. This is why 512(h) subpoenas are so important. The quickest way to get users to stop making adult content available is by using civil copyright law to identify them and make them remove the files from public access.

All of the potential mis-uses that might or could occur are just that speculation, none has yet to occur. Do we value the potential abuse of the right of privacy over those of the acts of infringement and the distribution of material harmful to children that are actually occuring?

Posted by: Keith Webb on September 13, 2003 11:09 PM
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