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To Technicolor and Beyond

This final chapter is more prescriptive than the preceding two (The Split, and V for Vindication), focussing on the scope for reform of anti-piracy law. The first half of this chapter will look to describe the regulatory framework that would best rectify the flawed focus of anti-piracy legislation described in The Split. However, V for Vindication established that a more laissez-faire liberalist culture could be beneficial for all parties. As such, the conclusive section of this chapter will look to determine what reforms could be made to better situate the law in this preferred theoretical framework – finding a ‘Technicolor’ balance between the ideals of authorship and laissez faire liberalism. This analysis would be channelled through Lessig’s socioeconomic understanding of regulation[1] – a broad, complex interaction of four interdependent forces: law, markets, social norms, and code/architecture.

Successfully Protecting Authorship

Law

As established in The Split, for numerous reasons, legal deterrence tends to be ineffective against the consumers of pirated material[2]. However, its prospects in controlling the propagation of BitTorrent clients is unassessed. Accordingly, two possible legal frameworks are proposed – the “Reasonable Alternative Design” (RAD) model[3], and the “Scheduled and Controlled Software” model.

RAD proposes that liability should be attached where “the foreseeable risks of harm posed by the [software] could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor”[4]. More specifically, RAD legislation would force software developers to incorporate advanced and regular auto-update facilities to actively target piratical use of BitTorrent[5].

However, considering that “software is so easily reproduced that it can take off overnight, [it seems unfair that] a developer who unexpectedly finds that his code is phenomenally successful [is made] liable for not fully anticipating the consequences”[6]. Furthermore, the jurisdictional issues that would hamper enforcement would be insurmountable as the global nature of the Internet means that users could still obtain non-limited clients from jurisdictions whose legal systems did not incorporate the RAD framework.

An alternative would be to schedule and control BitTorrent clients in a manner similar to drugs with liability imposed on end-users in possession of the software ranked as dangerous. However, commercial users (e.g. Facebook) would be able to apply for ‘licenses’ to permit their use of such technology – so such restrictions will not affect the legitimate users of BitTorrent technology.

This circumvents the aforementioned jurisdictional issues as liability is imposed on end-users, rather than software distributors. Furthermore, the activities of common end-users on the Internet are extremely and increasingly traceable[7]. Conversely, such a proposal may be seen to contravene libertarian socio-political principles. This will be discussed in more depth in the relevant subsection.

Markets

As noted in V for Vindication, some advocates of piracy argue that Hollywood is missing an opportunity with piracy. This is a prospect which is even more relevant now, as film studios are rapidly refocussing the distribution of their content. The success of Hulu, a free streaming service whose main income stream is advertising revenue[8], may illustrate the viability of P2P distribution as a commercial venture. More importantly, if more movie studios get involved in P2P/online distribution, the increased competition would raise the low barriers to entry into the P2P distribution market which will consequently reduce the number of indices and clients available and therefore make infringers easier to police.

This would probably be heavily discouraged by cinema chains and filmmakers as they feel that one can only find the ‘authentic’ experience of a film in the cinema[9] and that the use of VoD encroaches upon their business.[10] The irony here is clear. The above proposals were submitted as options available in protecting the authorship of filmmakers, but it seems that they themselves may not be happy with them. A cinematic release is typically the most expensive part of film distribution, and most films barely break even at the box office[11]. However, creative authorship, not profits, are not what these proposed regulatory forces are intending to protect. Although ordinarily the protection of authorship is seen as a logical consequence of the reduction of online piracy, under the proposals above, this logical relationship may be broken. Online piracy may be reduced, but the authorship and preferences of filmmakers may still be neglected and nonetheless, unfortunately, the reforms may still be seen as successful.

Social Norms and Education

Schemes to manipulate social norms and realign the public’s moral compass to associate piracy with physical theft have failed so severely[12], that they themselves have become subject to creative parody[13]. As of today, piracy is vindicated by its social acceptance and ubiquity[14]. One could suggest that prostitution or drugs are analogous situations where the consensus on certain activities has been successfully manipulated. However, the campaigns in those fields have centred upon the personal, physical, and psychological harm that may be suffered.

The presence of such harm does not necessarily guarantee greater success in the manipulation of social norms. For example, the Temperance campaigns during Prohibition Era America[15] failed to adjust the moral climate of the country despite being largely focussed on the psycho-social detriments of alcohol consumption. Conversely, it could be argued that social norms evolve with time due to the implementation of law and manipulation of markets. For instance, the 1885 Criminal Law Amendment in England and Wales effectively made prostitution less socially palatable[16]. Ultimately, the only thing that these examples illustrate is that the pliancy of social norms is unpredictable and not necessarily linked to either the nature of the harm or the legal landscape relating to the activity.

However, there is one noteworthy difference between the Prohibition Era example and the case at hand. Prior to the Volstead Act, commercial possessors of alcohol were ordinarily within their legal rights and thus their irritation with the Volstead Act was justified.[17] Conversely, in the case at hand, consumers of piratical products do not have the justifications of legality. Few will rise to defend an activity that is illegal already and this may help the cause.

Code and Architecture

Lessig argues that the architecture of the Internet has the potential of becoming a regulator trough “a kind of physics [which poses] a physical constraint on the liberty of someone to [perform a specific action]”[18]. However, there is limited scope in terms of how the code of BitTorrent clients can be manipulated due to the fact that BitTorrent clients are largely created and controlled by people who seek to propagate piracy. The only way the architecture of BitTorrent clients may be manipulated is if they are no longer controlled by such people. One way would be the adoption of the above market proposals which will effectively replace the current administrators of piratical software with film studios.

Ultimately, before changes in the architecture of BitTorrent clients can be considered, the party with administrative influence over the clients must be changed. An economic coup would be required, but when that happens, that may in itself contribute so much to mitigating piracy that no change in code is needed at all.

The Result: Authorship Protected

The reforms, particularly the ‘Scheduled and Controlled Software’ legal model, suggests treating software like drugs by legally equating financial harm with personal physical harm. Although unlikely, if this is accepted, then the regulatory framework proposed above may actually be successful in mitigating piracy and increase the profits of the already profitable film studios, but it will also negatively affect cinema chains, alienate the most renowned creators in the film industry, deincentivise innovation in cinema, and rid the industry of alternative opportunities for distribution for independent filmmakers. The success of these proposals will likely lead to the loss of creativity, the loss of the very soul, of the film industry.

Entering Technicolor

As established in V for Vindication, a ‘Technicolor’ balance between protecting authorship and encouraging laissez-faire liberalism is required. Thus, this section will look to define what changes to the current regulation could be made to resituate the legal landscape into this preferred theoretical framework. In many ways, what would be proposed is a regression towards a stage similar to the earliest stages of copyright legislation[19], when its purpose was to stimulate and facilitate creativity and research into new, distinct, and special ways films can be distributed, thus further securing the position of cinema chains, the revenue streams of studios, and the preferences of filmmakers, without diminishing the creative impetus that online piracy holds over the film industry. Nonetheless, efforts do need to be made against piratical action that may be infringing upon the moral interests of filmmakers – for instance pre-release piracy.

There is some benefit in leaving the laws against piratical action extant, regardless of how ineffective they are as these protections may be of at least some nominal benefit. Furthermore, the proposed reforms in the previous subsection are unrealistic. It will be extremely difficult to realign society’s moral compass so as to distinguish financial harm from personal harm on a basis of degree rather than type. Perhaps in fact, society’s moral compass need not be altered at all. It is submitted that it would be better to scale back on attempts to realign the social moral compass as such efforts are futile and the resources would be better spent elsewhere, for instance in the encouragement of research into new cinematic technology through the use of adverts, public policies, and subsidies. There is great scope for further development in the film distribution industry. Past successes include IMAX and 3D advances. Failures include Smell-o-vision[20] and AromaRama[21]. This is both a combination of a manipulation of social norms and education and markets, working together to encourage studios to stay in the cinema distribution system – appeasing cinema chains and traditional filmmakers. Additionally, in the long run, this may reduce any alleged financial impact of piracy, in fact leading to the preferred outcome of the cinematic experience becoming so distinctive that it cannot be recreated at home, without removing the creative drive that piracy has over the industry.

Ultimately, the only reason social norms would need to be profoundly altered would be if piracy is indicative of the public being unappreciative of the efforts of creative authors of the film industry, which would suggest that society does not value the moral rights or interests of filmmakers. Fortunately this is not true and can be tangibly proven by the Nielsen ratings of the Academy Awards[22], or more accurately by the significant contribution recent and past film releases consistently make to pop culture and the zeitgeist.

In terms of addressing piratical activity directly, not much needs to be changed. Legal efforts do need to be marginally refocused, to focus on piratical activity that significantly infringes upon the moral rights of creators – such as pre-release piracy, rather than the thinly spread poorly-focussed ineffective mess it is at the moment. Any changes to the text of the law in this regard will still result in the same inefficiencies as described in The Split, so rather, what may be required is simply a reallocation of resources in this regard. Currently the law seeks to target all acts of piracy in unison. Rather, it could be weighted. Pre-release piracy could be weighted heavier and prioritised higher, making propagators and downloaders of those files specifically more likely to be caught and liable for more severe offences. This staggered weighting of the offences would make the law more focussed and consequently, more effective.

The Result: Technicolor Achieved and Conclusions

In many ways this trilogy as a whole has justified the current regulatory framework regarding piracy. This is because, rather than looking at the short-term goal of mitigating piracy, it has considered the entire industry as a whole, particularly the importance of creativity and the influence piracy has over it. A few reformative suggestions have been put forward, which may help protect some of the moral interests of filmmakers. These protections are important because, if instituted, they help to further drive creativity in the industry. As such, what has been envisioned is the ideal entertainment industry, and how the regulatory frameworks can be altered to shift the industry from what it currently is to what it ought to be – one where the importance of creativity regains its priority over the importance of profits under the guise of ‘authorship’. This is the very soul of the industry, and perhaps its intangible nature may make it difficult, but it ought to be the crux of all regulatory ambitions regarding piracy, and the film industry as a whole.

Image by gruntzooki

Footnotes:

1) Lawrence Lessig, Code 2.0 (Basic Books, 2006) 123

2) Trajce Cvetkovski, Copyright and Popular Media (Palgrave Macmillan 2013) 187

3) Peter S Menell and David Nimmer, “Unwinding Sony” (2007) 95 California Law Review 941, at 1022

4) ibid. 1010

5) ibid.

6) Giles Parsons, “Journal Article – Publication Review: Code Wars” E.I.P.R. 2012, 34(8), 573

7) Lessig (n 1) 54

8) Jason Kilar (CEO), ‘A Big 2012’ (Hulu.com, 17 December 2012) {Link} accessed 23 March 2015

9) Ben Garman, ‘Christopher Nolan, Jon Favreau, and More Sign Up To Combat Premium VOD Service’ (Collider, 1 June 2011) {link} accessed 24 March 2015

10) David Trumbmore, ‘Cinemark Threatens to Ban Tower Heist from its Theatres in Response to Universal’s VOD Plan’ (Collider, 6 October 2011) {link} accessed 24 March 2015

11) ‘Are Cinemas Under Threat From Video On Demand’ (Techradar.com, 4 December 2011) {link} accessed 24 March 2015

12) Piracy and Illegal File-Sharing: UK and US Legal and commercial responses (Chapter: Education and Awareness of Music Piracy) {link} accessed 22 March 2015

13) Trajce Cvetkovski, Copyright and Popular Media (Palgrave Macmillan 2013) 186

14) ibid. 191

15) The Drunkard’s Progress (1846) by Nathaniel Currier is illustrative example on display in the Muchele & Donald D’Amour Museum of Fine Arts {link} accessed 24 March 2015

16) Elie Halevy, History of the English People: The Rule of Democracy (1905-1914) (first published 1932, Benn 1961) 498–500

17) National Commission on Law Observance and Enforcement, Report on the Enforcement of the Prohibition Laws of the United States (Dated 7 Jan 1931) ch 3 ss 3 available at: {PDF}

18) Lessig (n 1) 82

19) Dr James Griffin, ‘Copyright evolution – creation, regulation and the decline of substantively rational copyright law’ [2013] 3 I.P.Q. 234, 236

20) J. Drobnick, The Smell Culture Reader (Berg Publishers 2006) 360

21) Bosley Crowther ‘Behind the Great Wall (1959) Smells of China; ‘Behind Great Wall’ Uses AromaRama’ The New York Times (New York, 10 December 1959)

22) Rick Kissell, “Update: Oscar Ratings Down 16%, Lowest in Six Years” (Variety, 23 February 2015) {link} accessed 19 April 2015


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Budding legal theoretician currently doing his time as an auditor. Diverse interests ranging from the aforementioned law to film, literature, and art. Don't get him talking because he'd probably never stop.

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22 thoughts on “To Technicolor and Beyond

  1. Dude, this was a wonderful post and a wonderful series.

    Looking at the comment section, it looks like you’re discovering the problem with writing something that people just can’t argue with.

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  2. Well, since you asked, JB ;)

    I would just push back (which I may have already earlier in the series) on first, the normative moral claim this post gives to content producers, in that utilitarianism is literally hard coded into the US Constitution when it comes to intellectual property. They didn’t have 21st century distribution systems, of course, but they were cognizant of how a distruptive technology could inspire new legal forms. (Though granted, the disruptive tech was over 2 centuries in the past and had achieved something of an equilibrium)

    I also push back on the claim that the public is sympathetic to the moral claims of content producers. People want to get stuff as cheap as possible – free is even better. People generally won’t go out of their way to get it – most aren’t going to climb up utility poles to hook themselves up to the cable system. Just saying something is illegal will discourage some as well. But if people can get stuff for cheap or free, with little chance of getting caught and with no need to deal with the unsavory characters that are the middlemen in a black market – people are going to do that.

    Last, any sort of prior restraint for software is probably a non starter when it comes to US constituional protections, and apart from that, is rather odious philosophically.

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    • Hey Kolohe,

      Great comment.

      With your first point, just to be clear, by ‘utilitarianism’ you mean the philosophy of the ‘greatest good for the greatest number of people’ posited by Bentham/Mill? If so, then what I am simply suggesting is that a different legal perspective is perhaps required to properly assess what the ‘greatest good’ actually is – one that is perhaps focussed on less tangible but more important qualities like ‘creativity’ instead of money.

      This consequently leads on to your second point. Yes, people generally try to get things as cheaply as possible. I guess in some ways it may even be considered to be human nature (a deeply metaphysical query that is so far out of the scope of this subject matter). As a result, it sort of strikes me as inaccurate to use the willingness to pay for something as a metric for how much that thing is appreciated. This is why I make cursory suggestions like Nielsen ratings of the Academy Awards or just the general contribution films make to the zeitgeist as better evidence that people HUGELY appreciate films even though they would wish to get it for as cheaply as possible.

      Lastly, a de facto restraint on software is not that outlandish though. For instance the Computer Fraud and Abuse Act ss5a (the U.K. equivalent of which is the Computer Misuse Act) specifically criminalises the distribution of hacking software. In many ways this is an extension of that. With the UK equivalent anyway, this Act has generally been seen to only act as a nominal deterrence. However, both you and I note that this could be valuable nonetheless.

      Great comment! Thanks Kolohe.

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      • Yes, people generally try to get things as cheaply as possible. I guess in some ways it may even be considered to be human nature (a deeply metaphysical query that is so far out of the scope of this subject matter).

        Jim, if you wrote a post on *that* topic, you’d have 300 comments by the end of the first day. :) Throw in some “ceteris paribus” ‘s and suchlike and you’ll be more than halfway down the road to rejecting conventionally accepted economic Law!

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      • Willingness to pay, in economics, refers to the maximum price someone is willing to pay for something when the alternative is not having it at all. When the alternative is getting it for free, this doesn’t tell us anything about willingness to pay.

        Even when piracy isn’t an option, market price doesn’t really tell us much about the average consumer’s willingness to pay, because market price is a reflection of marginal willingness to pay. I need water to live, so my willingness to pay is very high, but because water is so abundant, the market price is much lower than that.

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    • Last, any sort of prior restraint for software is probably a non starter when it comes to US constituional protections, and apart from that, is rather odious philosophically.

      The software proposal was what jumped out at me, but not from the prior restraint perspective. Open source. Abandonware. Software written in China or Eastern Europe. Attempts to block distribution simply don’t work. Examples: (1) Back in the day, I had a highly-illegal deCSS t-shirt; (2) Professionally, back in the 1990s, the company used software where the installation procedure included downloading a strong encryption library from overseas and linking it into the executable (strong encryption was a “munition” on the federal government’s no-export list).

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      • This is true. These are the jurisdictional issues I have mentioned not only in this piece, but in the preceding two as well. Attempts to block distribution don’t work because the target of the block is the “distributor” who could be anywhere in the world literally. However a slight nominal change – criminalising not the distribution, but rather the possession of the software, could have a profound effect. In effect, owning an established BitTorrent client on your computer would become akin to having a kilo of coke stashed under your mattress. As noted above, this will increase the nominal deterrence of the law, and also perhaps make policing easier. But this increased effectiveness would be vastly counterproductive and result in truly terrible results (as noted both above and in the two preceding articles) and therefore is not recommended.

        I hope this makes my submission clearer.

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        • In effect, owning an established BitTorrent client on your computer would become akin to having a kilo of coke stashed under your mattress.

          The point is, it’s been tried and it doesn’t work. It can’t be uniformly enforced. The RIAA learned that when they started trying to sue twelve-year-old girls for having pirated content on their computers. And for the reasons DavidTC points out below, it’s very unlikely that you can draft a statute that would be both effective and not have serious side effects. Make it specific enough that only the current BitTorrent protocol is affected and the protocol gets changed — this is not rocket science. Make it vague enough to cover everything and you discover that it outlaws the Web and network file systems.

          I’ve been involved in thinking about this one way or another for 20-some years. It’s not a battle you can win with technology*. It’s not a battle you can win in the courtroom. The only way to win is economics: make content readily available, easy to pay for, and at appropriate prices, and you can reduce piracy to a minor nuisance. But it’s a new business model.

          * Yeah, you can win the technology war for some amount of time in some very narrow circumstances. CSS worked until somebody mistakenly revealed a key (it would have been broken by brute force within a couple of years anyway). Cable TV’s encryption for premium digital content has never been cracked, but the FCC’s mandate for CableCARD tuners provided a way around it.

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          • There was, IIRC, a proposed law requiring companies retain any keys used by their software, so that they could comply with warrants.

            The law, as proposed would break the internet completely. Like top to bottom. Made ebanking and ecommerce illegal in one fell swoop, outlawed all sorts of things that they didn’t intend.

            Just plainly stupid from a tech perspective.

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            • In case anyone is wondering why it would break the internet to require people to keep track of their keys, because, surely if a server has an encrypted connection available, they already have to keep track of the keys, right?

              I mean, I have some SSL certs, and one of them is the public key, and one of them is the private key, and I have to have those in place for the SSL server to *work*, so obviously I am ‘retaining’ those keys, right? (I paid for them to be signed by a third party, I damn well better keep a copy of them!)

              Except that’s not how encryption works. Encrypted communications uses existing keys and passphrases to negotiate *randomly generated* keys, and it’s those keys that actually do the encryption. We don’t actually let user-supplied passwords or even computer-generated-but-permanent things like SSL keys do the *actual encryption*, because that is a damn stupid security paradigm. Each communication has its own key. If it’s an encrypted *channel*, the generated keys even change if the connection is open a specific amount of time.

              We just, uh, never bothered to *explain* this to non-technical people, because it’s not actually important. You think files are encrypted ‘with a password’, when in reality those files are encrypted with a computer-generated key, and then that *key* is encrypted with a password. We just have been simplifed-lying all this time.

              So keeping track of ‘the keys used to encrypt things’ would not only require modifying *all* software that does encryption, but keeping a rather large list of keys.

              And then we got doofuses trying to pass a law saying we needed to do that, so had to start explaining the actual details.

              And that’s on top of the problem it is literally impossible to do this securely. I mean, it’s not like you could *encrypt* those keys so hackers can’t get to them…because then you have to store *that* key somewhere…oh, and also, because you stored the keys to your *SSH* connection, now someone who recorded those packets can decrypt the password you used to su, etc, etc.

              Even if they didn’t know how encryption worked, this seems a rather obvious problem.

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  3. As I tried to explain last time: You do not understand what protocols are. I tried to warn you away from this, but here we are, right where I thought you’d end up. So be it. I will now dissect the nonsense I tried to warn you away from.

    You keep using the term BitTorrent and ‘BitTorrent clients’ are if BitTorrent is a actual, real things. But a protocol is merely an agreed-upon manner of speaking. If you *slightly change how it works*, you are no longer speaking the protocol.

    If you, through some insanity, managed to pass laws that regulate the BitTorrent protocol, people will *instantly* create the BitTorren2 protocol, which is exactly like the BitTorrent protocol except all commands are prepended with a ‘Jim-is-dumb’. There. Tada. That’s no longer the BitTorrent protocol! Wow, that was the easiest law ever to avoid, it’s like if I could label my car a ‘kar’ and avoid all traffic laws.

    But wait, you think, what if I just outlaw the *behaviors* being done, and not the protocol?

    But as I pointed out last time, there is functionally, nothing inside the BitTorrent protocol that is not being done by current, existing, important parts of the internet.

    Protocols are just computers talking to each other. And we currently, *right now*, as in, literally you are using it to view this page, have a protocol that is *more* flexible than BitTorrent.

    Anything BitTorrent can do, HTTP is being used to do *right now*. The second you try to make a broad law like that, you will find all the clients just switch to speaking HTTP.

    If you want, I can dissect that, showing a *direct example* of every single thing a BitTorrent client does that is also *currently* done by a web browser and/or a web server. Asking for search results, following the results to a machine-parsible file, automatically downloading file, going to additional servers, asking for files by byte-range, putting files together, server-side push, all this is literally *already* part of HTTP and HTML/XML at this point.

    Hell, there is a BitTorrent client written in Javascript: https://webtorrent.io/

    Yes, that speaks the BitTorrent protocol, but the point is, what BitTorrent does is so close to what a web browser does is that it’s trivially to script BitTorrent support *inside* a web browser.

    And that, BTW, also shows how surreal your idea of regulating software is. Wouldn’t the people hosting magnet links just *also host this javascript*? Tada, your entire concept fails utterly even if you *can* somehow define the bad behavior that software isn’t allowed to do, because the only time anyone has ‘the software’ is literally when they are downloading.

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    • Specifically, people need to look at this: https://wiki.theory.org/BitTorrentSpecification#Messages

      That, plus a greeting on connection, is the ‘Peer wire protocol’ part of BitTorrent. (The Tracker protocol is *already* HTTP, but trackers aren’t actually needed with magnet: links.)

      This protocol is not intended to be human readable, and messages are passed [message length][type of message][any added data] and the response is either some housekeeping data, or the block of data just requested.

      HTTP, OTOH, is a bit different because it’s supposed to be mostly human readable, and more like:

      GET /file.txt HTTP/1.1
      Host: example.com
      Header: blah
      More-Headers: blah blah

      And the response was something like:
      HTTP/1.x 200 OK
      Transfer-Encoding: chunked
      Some-Reponse-Header: blah
      [empty blank line]
      [actual data]

      It would be *trivially easy* to rewrite the BitTorrent stuff to use HTTP. We just make them into GET requests, with results in header. There are already HTTP headers to indicate you want a range of bytes, and to keep a connection alive, and basically everything a client might request.

      In fact, the BitTorrent protocol is simpler than I thought it was, the passing around of IPs is even an extension! And, hell, there’s already an existing HTTP standard (Well, proposal) that will even do that too! Let’s see what that would look like:

      GET /dht?md5=d41d8cd98f00b204e9800998ecf8427e HTTP/2.0

      HTTP/2.0 404 Not Found
      Alt-Svc: http2=”172.16.4.25:80″
      Alt-Svc: http2=”192.168.132.2:80″
      Alt-Svc: http2=”172.16.1.2:80″

      The sole thing that HTTP doesn’t *already* do is fully-bidirection connections (I.e., both ends can’t do requests), but there’s no reason it *couldn’t*, all sorts of other protocols do. Or it could just open another connection in the other direction. (There actually is a server-side push protocol in HTML5, but it’s some dumb little thing instead of HTTP.)

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      • The depth of your understanding of BitTorrent protocol is very impressive (am I using the term right there this time?). There are a number of fundamental things you ought to note though:

        1) The idea of regulating software is not my idea. Far from it. Please refer to the footnotes. Ultimately, I am hugely critical of such proposals, however for different reasons – reasons which have permeated the entire three submissions because they are the point of the three submissions.

        2) In the idea of criminalising BitTorrent clients – the ‘BitTorrent’ nature of the client is not the criteria for the law (to be clear before you get confused: the fact that the client uses BitTorrent protocols to communicate with other internet assets is not the criteria for the law). It is simply a characteristic that all such software share right now, which, as you have noted could easily be lost whilst the software still retains its core functionality which the law aims to prohibit. So ultimately it is just a term of art which I have used so readers know specifically which softwares I imagine would be targeted. I imagine the softwares would be criminalised on an ad hoc basis the way hacking tools are. To give a broad illustration, the possession of hacking tools is being criminalised but this does not mean the core language used to build those hacking tools (C#, C++, etc) is illegal in themselves.

        Hopefully this is enough to explain what I have tried to explain for so long – that this has less to do with the substantive code underlying BitTorrent and is more of a criminological essay about the behaviours of the common end users of piratical products and the impact on the industry. So, although your in-depth understanding of BitTorrent is alluring, it is only marginally relevant and ultimately beside the point.

        Also, I do hope that this too explains that ‘Jim-is-not-dumb’.

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        • First of all, at this point, I have to ask: Have you actually ever used a bittorrent client? I rather feel like I’m talking to someone who thinks they say ‘Download pirate stuff there’ and have a list.

          In reality, they’re just a damn *download manager*, the same thing that you can (Or at least used to) bring up inside web browsers. You use *something else* to find files, like, oh, a web browser.

          In fact, I have a network attached storage device that has a web-client with HTTP, torrent, Usenet, and all other sorts of downloads all merged together in the same interface.

          So ultimately it is just a term of art which I have used so readers know specifically which softwares I imagine would be targeted.

          That…isn’t what term of art means. And you can’t just wave your arms and claim ‘term of art’.

          As I have pointed out several times now, it is literally impossible to define what you are trying to define without including about *half* of what the internet is currently used for.

          You just keep waving your hands and saying ‘Everyone knows what I mean’. I’m sure a lot of people are nodding along, because they *also* know what you mean.

          The problem is…you have no idea what you mean, and have no idea how to define it. I’m sorry, I’m having to get blunter and blunter here, but you *really* don’t.

          You simply *cannot* define the sort of software you think you can. There is no distiguishing characteristic that is involved in torrenting.

          And I see no footnotes talking about this fact at all.

          I imagine the softwares would be criminalised on an ad hoc basis the way hacking tools are. To give a broad illustration, the possession of hacking tools is being criminalised but this does not mean the core language used to build those hacking tools (C#, C++, etc) is illegal in themselves.

          Why do you keep acting like hacking tools are illegal?

          Because, uh, they aren’t. At least not in the US.

          Interestingly, hacking tools *do* actually do a few specific behaviors that could be outlawed without the internet breaking. Attempting brute-force password files, or attempting a large amount of connections as a portscan, are things the internet could do without, things that could, indeed, be outlawed. They are not common behaviors that web browsers or email clients or whatever need to do. (Unlike everything involved in torrents.)

          But ‘hacking tools’ are actually just *computer security* tools. They can be used for good or evil. Taking them away means computer security people cannot find problems in their own network. And hence they are legal. (An argument I’ve rather skipped across in the whole ‘bittorrent’ nonsense to get straight to the ‘What you are proposing is literally impossible to categorize’ point, but the fact remains that bittorrent is used for all sorts of legal things.)

          Hopefully this is enough to explain what I have tried to explain for so long – that this has less to do with the substantive code underlying BitTorrent and is more of a criminological essay about the behaviours of the common end users of piratical products and the impact on the industry.

          If you’re trying to do a ‘criminological essay’ about the *behaviors* of the ‘common end users of piratical products’, I have to point out you have *completely* failed to mention Usenet *or* IRC, and thus have only managed to cover a fraction of where pirate trading actually happens.

          IRC, in fact, is the main hub of pirating. Stuff goes *from* there to torrents.

          There’s also some private FTP servers, but how involved *those* are in the process are completely unknown, being, you know, private and all.

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          • Seriously, if you have never used any torrent software, please download utorrent (I’m fairly sure that works on all platforms.) and then click here. Or magnet:?xt=urn:btih:0403fb4728bd788fbcb67e87d6feb241ef38c75a if that doesn’t work. (Bah, neither of them did. Copy from ‘magnet…’ to ‘…75a’ and paste it into the URL bar of the web browser.)

            That is a linux distribution, and you don’t have to completely download it, but just watch the process. You click a link, a file download starts. Just like any download manager, you can start and stop it.

            There is no ‘Here is a list of pirate stuff to download’ or whatever you think is going on. The list of pirate stuff to download is *over in the web browser*.

            Incidentally, unlike torrent software which usually have has no real features that could be considered ‘helping piracy’, there are FTP servers out there with actual, literal, pirate options.

            Specifically, any feature talking about ‘ratios’ is basically there for pirates, especially ones that have ratios for anonymous users.

            A ratio server is where you first have to upload stuff before downloading existing, and it’s hard to figure out any sort of rational reason to have that besides ‘You have to upload some of your pirate stuff before downloading pirate stuff’.

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  4. The success of Hulu, a free streaming service whose main income stream is advertising revenue[8], may illustrate the viability of P2P distribution as a commercial venture.

    I’m not sure what you think P2P distribution is, but Hulu is decidedly not an example of it.

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    • Sorry to be misconstrued. This is a reference to the first article, The Split.

      Hulu is 100% NOT P2P distribution. Hulu is an example of an online distribution system whose main revenue stream is NOT by charging customers directly (i.e. through monetised adverts instead)

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  5. BitTorrent and other P2P protocols actually make enforcement of anti-piracy laws very easy, technically speaking. When downloading via BitTorrent, you’re simultaneously uploading. It doesn’t matter if the original distributor is in another country; all you have to do is start downloading a file, and your client will show you the IP addresses you’re downloading from, many in your country or countries with which your country has a copyright treaty. Those IP addresses will lead you to ISPs or VPNs, who can tell you the physical locations to which those IP addresses were assigned at the time you found them uploading the files in question.

    This is what the MPAA and RIAA did when they filed their lawsuits. The public was outraged; apparently a lot of people think piracy should only be illegal if you’re doing it on a large scale for profit. This was not a terrible intuition back when peer-to-peer piracy meant physically handing someone a cassette tape that degraded with every copy generation, but it doesn’t make much sense when piracy can be done quickly, effortlessly, and with perfect digital copies.

    All of which is to say, the obstacles to cracking down on peer-to-peer piracy are political, not technological. Technologically, it would actually be harder to crack down on piracy if it involved downloading from a web or FTP server in an unfriendly foreign country.

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    • This is what the MPAA and RIAA did when they filed their lawsuits. The public was outraged; apparently a lot of people think piracy should only be illegal if you’re doing it on a large scale for profit. This was not a terrible intuition back when peer-to-peer piracy meant physically handing someone a cassette tape that degraded with every copy generation, but it doesn’t make much sense when piracy can be done quickly, effortlessly, and with perfect digital copies.

      The public opinion of what copyright should be (People should be able to do it as long as it doesn’t cut into profits that much) matches neither the law (fairly harsh) or what the MPAA and RIAA think the law should be (Infinitely harsh.).

      Which is probably why the RIAA *stopped* making big splashes going against people who had made some random music available. They *intended* it as a threat to force people to stop, what *actually* happened is that everyone got outraged and another few years of that would have resulted in the laws changing.

      Note our laws were *already* dangerously close to allowing music-trading like Napster. It is already, as far as anyone can tell, perfectly legal to trade mp3s with other people if you do it on *music* CDs, which have a tax on them that goes to the music industry. As long as you don’t sell the result, it is perfectly legal to copy a CD onto a blank music CD, or make a mixtape onto a blank music CD…that’s why ‘music CDs’ exist. Sadly for the music industry, the law is from before mp3s, and still *appears* to count if you fill up the entire music CD with mp3s, putting 10 or 20 times as much music on them as the tax is intended to cover. Ooops.

      Whether or not you can legally copy those mp3s to a computer or mp3 player is an open question, though. An open question that’s basically been settled with ‘format shifting’, though.

      But, anyway, the point is we already have precedent for some sort of personal ‘pay a tax, get to copy any random music under it’ (And there’s also mandatory music licensing, but individual people usually can’t do that.), and the solution to Napster could have been something absurd (From the POV of the RIAA) like requiring users to pay ten cents a song downloaded. It is not a completely insane solution, and would have destroyed the music industry.

      …well, I mean, destroyed it slightly slower than just allowing blatant piracy, and destroyed it faster than it’s being destroyed now.

      All of which is to say, the obstacles to cracking down on peer-to-peer piracy are political, not technological. Technologically, it would actually be harder to crack down on piracy if it involved downloading from a web or FTP server in an unfriendly foreign country.

      And there are some people who think this mostly already exists and is called Usenet.

      But, yes.

      And by ‘much harder’, you mean ‘literally nothing done by the American downloaders would be illegal’.

      Oh, BTW, it’s worth pointing out that it would be entirely legal to operate a system of *caches* in America, under the safe harbour provision. You could even have *distributed* caches where people could download pieces from each other. As long as the operators of the system didn’t select the files, and just blindly selected what was cached based on technical rules (Like big files located out of the country) it would be legal. (A personal-level, fairly cheap web proxy designed to only cache large, slow, static files from overseas is not the *dumbest* business model to start with.)

      And if everyone who download pirate stuff selects the same caching provider because that provider just *happens* to be used by a bunch of people who download pirate stuff, so tends to have the pirate stuff *already cached*, well, that’s not illegal either.

      What I think Jim has completely failed to understand is that bittorrent was not created to comply with the copyright law. It does several things that are actually kinda stupid, WRT copyright, in fact. It, and other ways of transferring files, have been *attacked* by copyright law, and responded with changes, but they weren’t *designed* to operate within it.

      You start attacking it in force, you start trying to make ownership of such things *illegal* instead of just specific uses of them, and you *really will* get things designed to operate within the law, systems that are *entirely* legal, in every possible regard, for American end users, and possibly are literally the same as standard internet protocols…except for some tiny piece of technology located in outer Sokovia.

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      • “it is perfectly legal to copy a CD onto a blank music CD, or make a mixtape onto a blank music CD”

        Anyone who suggested otherwise is wrong.

        Note that “make a mixtape” and “give the mixtape to your buddy” are not the same thing.

        Neither is “borrow your buddy’s CD, copy a few tracks into your own mixtape, give the CD back”.

        You can copy and format-shift all you like but you cannot distribute those copies to other people (or permit them to create their own copies from your sources.)

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        • You can copy and format-shift all you like but you cannot distribute those copies to other people (or permit them to create their own copies from your sources.)

          I think you completely missed my point, in that, yes, you *can*, if you use the music CDs with the tax on them.

          https://en.wikipedia.org/wiki/Private_copying_levy#Blank_music_CDs_and_recorders

          There is a 3% tax on blank *music* medium that goes to musicians (No, it doesn’t, but the RIAA pretends it does.), and thus people are *allowed* to make and distribute noncommercial copies onto them.

          ‘No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.’ -17 U.S. Code § 1008

          Or, to remove some of the extra words: No action may be brought under [copyright law] based on the noncommercial use by a consumer of [a digital audio recording medium] for making digital musical recordings.’

          And ‘digital audio recording medium’ equal music CD. That’s why they *exist*, so that consumers can buy the ones with the music surtax on it, and make *legal* mixtapes they can distribute to others. (There actually was a bit of kerfuffle at the start of CD-Rs, because the music industry argued they *all* should have the surtax.)

          And, as I pointed out, there’s nothing about music *format* in there or that the music has to be readable by a CD player. And also blank CDs went down *absurdly* in price, so 2% was, uh, nothing at all.

          So the intent of the law is that you’d pay like 30 cents to give someone a copy of an album, but a combination of dropping prices and the invention of mp3 and 800 meg CD-Rs mean that by the end you could put two dozen albums on the thing and pay 2 cents. Good job, RIAA. Nice lawmaking. You were really on the ball there.

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