net.wars: You can click, but you can't hide

by Wendy M Grossman | posted on 11 February 2005

When last seen, Lokitorrent was the lone holdout from the pre-Christmas Bittorrent raids. Its front page had a plucky yet determined call to arms and a counter detailing the amount of donations it had received towards its budget of $30,000 per month in legal fees. Bravado always sells well on the Net - but not in court, and an early-rising net.wars reader alerted us to the fact that Lokitorrent's site has been replaced by an MPAA notice that looks just like those stupid trophy pages crackers used to leave when they broke into Web sites.

Wendy M Grossman

A Dallas court  ordered Lokitorrent to shut down  yesterday, and the site's owner, Edward Webber, has paid over a substantial fine - unwelcome news to those who donated money to help pay the site's legal bills.

What's really alarming the swapperati, though, is that Lokitorrent has agreed to turn over the server's user logs.  They pretty much had to - there was a Court order.

In a normal situation, you could make the case that agreeing to turn those over is a violation of users' privacy. In this situation, even if you could show that the site's terms and conditions promised never to disclose its users' information, you would almost certainly lose: a court that has just shut down a site for illegal activity is hardly likely to agree to protect its users. Especially not since the Supreme Court decision in Illinois v. Cabbales , which held that sending a sniffer dog to find drugs through a car stopped for speeding does not violate the Fourth Amendment (the one that prohibits search and seizure without probable cause). Around now, the MPAA is probably gleefully poring over the logs, going through IP numbers, and compiling a list of the "hundreds of thousands" of individuals it might sue next. Fun!

(I wish I could complain that all those suits could finance a movie or two, but the fact is that the MPAA has attorneys on staff, so that's just overhead. And most individuals will panic and avoid court; many will settle and hand over some money. The operation is probably self-funding.)

There are, of course, always more sites and new technologies. File-sharing doesn't go away; it just shifts elsewhere. Killing MP3 download Web sites spawned Napster, which inspired Gnutella and P2P, which kicked off Morpheus and KaZaA and then eDonkey and BitTorrent.

But what also doesn't go away is the conviction on the part of many users that they won't be caught.

You may feel anonymous because you haven't given your real name, but in general just about everything you do online - unless you're using Freenet  - leaves a trail back to a numbered IP address. The BitTorrent clients I'm familiar with don't disclose the IP numbers of the people you're downloading from or uploading to, but a quick glance at something like NetLimiter  shows very quickly how easy it is to find. In these days of broadband - and who torrents video files over dial-up? - a specific IP number is usually associated with a particular connection for many months, often years. You could try making the argument that you have an open wireless access point attached to your network and therefore that someone else used your connection…but I don't know how far you'll get with it.

Geeky hair-splitting arguments, such as the claim that the torrent indexing sites aren't really illegal because they don't host actual files, aren't getting far either.

Lokitorrent didn't host copyrighted material; it hosted the seed files that made downloading the real target files, which may or may not have been copyrighted material, possible. Like most Netheads, I would argue that linking should not be illegal. But if your file-sharing boasts how easy it is to find any file you want and a few clicks nets you copies of DVDs and first-run TV shows, a court is unlikely to feel that you're an innocent bystander. Yes, P2P has substantial non-infringing uses (in my view, anyway); but equally, someone who clicks to download season three of Angel knows what they're doing.

It is not sufficient to argue that this is sheer insanity on the part of the entertainment companies, although it is. For every suit they launch, they alienate a few hundred more of their customers. They could be taking advantage of this as a massive insight into what their customers actually want: convenient access, new formats, the ability to experiment, time-shifting, location-shifting, device-shifting. But because the industry is now run by people whose only interest is money, they assume that the only reason anyone would file-share is because it's free.

The fact is that if you want file-sharing to be legal you are going to have to fight for changes in the law and the legal climate.

Ever since the encryption software PGP was released onto the Net and made a mockery of the laws restricting the export of strong encryption, technologists have fantasied that laws do not matter because they can be circumvented. That is not the world we live in. I'm not sure if people think about it closely it's even the world they want to live in, no matter how violently they disagree with some of the  insane laws  that are being enacted around the world.

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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).