You may have seen the recent stories about the “TV show” Pioneer One that was made with the plan all along to release the show on BitTorrent, and to set up a tiered system to fund future episodes. While some people insist that BitTorrent users never download authorized content, after the show was released, it quickly became a top download beating out lots of more “famous” competitors. On top of that, it appears that people are donating. Zubin Madon alerts us to the news that in just about a week, the producers of the show have hit their goal of raising $20,000 to produce the next batch of episodes. This isn’t a “give it away and pray” sort of deal. It’s a recognition that the first episode is the “pilot” and the scarcities that are being sold are the creation of more episodes. This is one of the more complicated scarcities for people to understand: content, once created and released to the world, is infinite. However, content not yet created is scarce. So it’s a perfectly reasonable business model to try to sell the creation of new content, which is exactly what the producers here have done successfully.
And, to cut off the expected usual crew of Hollywood defenders in the comments, no I’m not saying that all TV shows/movies/etc. should or could be funded this way. And, yes, $20,000 is definitely a very low budget. But it is an example of this sort of model working, and there’s certainly no indication that it can’t or won’t scale.
We’ve been noting a whole variety of stories about efforts in the Netherlands by the “anti-piracy” group BREIN to shut down or block access to various BitTorrent search engines and trackers (with some success). And yet, at the same time, TorrentFreak reports that Dutch Public Television is about to test out distributing all of its video content via BitTorrent:
The goal of the trial is to assess the demand for downloadable content and whether it?s possible to effectively reduce the bandwidth costs of the streaming platform currently in use. The decision to use BitTorrent, the most efficient P2P protocol, was an easy one.
Through the current platform NPO streams are watched more than 13 million times per month. With the BitTorrent-powered streams, users will offer their own bandwidth which means that streaming costs could go down drastically.
As the article notes, in Canada, the CBC did something similar with one of its programs, but this effort appears to be much larger. While the situations are obviously different, I do find it amusing that just as the courts are shutting down or blocking so many BitTorrent search engines, claiming that there are no legitimate uses for the technology, the local public broadcasting effort is ramping up its efforts to use BitTorrent for distribution, recognizing the inherent efficiencies.
It does make you wonder, of course, if more content rights holders start recognizing this and distributing content in this manner, will the courts finally recognize that barring such search engines entirely goes way too far?
US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) is the group that famously has sued thousands of people not to actually take anyone to court, but in an attempt to find out who they are so it can send them “pre-settlement” letters, demanding payment of thousands of dollars to get them to drop a potential lawsuit. Of course, for this “business model” to work, it can’t actually get involved in costly lawsuits or even go to the trouble of spending the fees involved in filing lots of separate lawsuits in the location where the defendants actually live. So it lumped them all together into a single lawsuit in DC. Lots of folks quickly pointed out that this seems to violate the law, and the judge in one of the cases has asked USCG to explain why she shouldn’t dump all but one of the defendants from the suit.
THREsq is reporting on USCG’s response, where it tries to defend lumping all of the defendants into one giant case through the somewhat amusing claim that, due to the way BitTorrent works, all the defendants are linked because (who knows!?!) all of the defendants may have actually shared bits of the file with each other! Seriously.
Under the BitTorrent protocol, the initial file-provider
intentionally elects to share or upload a file via a BitTorrent network…. This is called
“seeding.” … Other users (“peers”) on the network connect to the seeder to download…. As
additional peers request the same file, each additional user becomes a part of the network (or
“swarm”) from where the file can be downloaded, which means that such additional user’s
computer is connected not only to the seeder/uploader but also to other peer/downloaders….
Unlike the older P2P protocols, each new file downloader is receiving a different piece of the
data from each user who has already downloaded that piece of data, all of which pieces together
comprise the whole…. This means that every “node” or peer user who has a copy of the
infringing copyrighted material on such a network–or even a portion of a copy–can also be a
source of download for that infringing file, potentially both copying and distributing the
infringing work simultaneously….
This distributed nature leads to a rapid viral spreading of a file through peer users, all of
whom are both uploading and downloading portions of the file simultaneously…. As more peers join the swarm, the likelihood of a successful
download increases… Because of the nature of the BitTorrent protocols, any peer that has
downloaded a file prior to the time a subsequent peer downloads the same file is automatically a
possible, and even likely, source of the file for the subsequent peer…. Essentially, because of
the nature of the swarm downloads as described above, every infringer is simultaneously stealing
copyrighted material through collaboration from many other infringers, through a number of
ISPs, in numerous jurisdictions around the country.
Of course, no one charged anyone with theft here, so it’s a bit odd to see USCG claim that “stealing” happened. If that were the case, why not go to the police? But, more importantly, USCG is trying to argue that because BitTorrent involves little bits shared via a swarm, that it makes sense to link all the lawsuits since they may have been together in a swarm.
I can’t see how that actually makes any sense. Each of the actions were done independently, and there’s no evidence presented that these all were actually a part of the same swarm.
On top of that, I do wonder if calling out some of the specifics of how BitTorrent works could actually do harm to any case that actually goes to court (as if that will ever happen). Some have pointed out that with the way BitTorrent is set up, that anyone doing the sharing is contributing such a minimal part to the whole (something USCG seems to be admitting here), that users have a stronger (though, certainly not concrete) fair use claim, in that the amount they share/receive is tiny and not a large portion of the file.
Either way, this response seems pretty weak, and hopefully the judge agrees.
Well, here we go again with the difference between real copyright law and “file sharing copyright” law. Just as a court in the southern district of California has suggested that Rapidshare is not liable for infringing activities of its users, a court in the central district of California has come down hard on Isohunt, demanding the site wave a magic wand and delete all infringing links. Of course, since we don’t live in fantasy land where that’s possible, it basically means the site needs to be shut down. As with the original ruling against Isohunt, however, it appears the judge doesn’t quite understand the technology at play, and ascribes to Isohunt functionality that it has nothing to do with. For example:
Second, given the way in which
Defendants’ system works, when Defendants’ end-users download one of
Plaintiffs’ works, the end-users automatically and simultaneously
further distribute the work to innumerable others as a required part of
the download process; additionally, at the conclusion of the download,
Defendants’ end-users obtain an unprotected digital copy of Plaintiffs’
work that those end-users can further distribute indefinitely at will.
But, uh, that’s how BitTorrent works. Not IsoHunt. I don’t quite see how it makes sense to blame IsoHunt — which is basically a search engine — for the activities done by its end users and the technology of BitTorrent. The court also takes it as fact that the availability of unauthorized free copies must harm the market, despite no evidence to back that up. It’s faith-based rulings, based on Hollywood (on the heels of its best box office year ever) making claims with no facts, that the judge just accepted:
It is axiomatic
that the availability of free infringing copies of Plaintiffs’ works
through Defendants’ websites irreparably undermines the growing
legitimate market for consumers to purchase access to the same works.
But that’s wrong. It may cause harm, but it’s hardly irreparable. If the movie studios actually, you know, adapted to the changing market (as some are figuring out), they could actually do much better. Why does the judge suggest otherwise with no proof at all?
Finally, the court continues to live in the same fantasy land as the entertainment industry in thinking this injunction will actually slow down or prevent any file sharing:
Finally, the Court agrees that the public interest will be served
with a permanent injunction, since it will protect Plaintiffs’
copyrights against increased and unrestrained infringement.
Except, of course, it will do no such thing. Instead, those users will disperse to other sites, perhaps the same ones that the entertainment industry just helped advertise.
Finally, the actual injunction is incredibly broad and amounts to — as mentioned — demanding that IsoHunt and Gary Fung develop a magic wand to figure out if a link points to infringing material:
Defendants shall be
permanently enjoined from knowingly engaging in any of the following
activities in connection with the Isohunt System or any Comparable
System:
(a) hosting, indexing, linking to, or otherwise providing access
to any Dot-torrent or similar files that correspond, point or lead
to any of the Copyrighted Works;
(b) assisting with end-user reproductions or transmissions of any
of the Copyrighted Works through a tracker server, or any other
server or software that assists users in locating, identifying or
obtaining files from other users offering any of the Copyrighted
Works for transmission; or
(c) hosting or providing access to any of the Copyrighted Works.
This is not to say that Fung is blameless. Clearly, IsoHunt did some things that looked quite bad under the law. But that doesn’t excuse some of this ruling, which seems to go to ridiculous levels, way beyond what copyright law allows. None of this is a surprise given the earlier ruling or the proposed injunction, which included much of the same troubling language (including the bogus “axiomatic” statement). This isn’t to defend Fung or IsoHunt at all. But I do worry when judges get so hung up on how bad a site like IsoHunt must be that they make rulings that will cause trouble down the road for others. Below is the full ruling if you want to read through it:
A decade into the entertainment industry’s massive game of whac-a-mole when it comes to file sharing sites, you would think that people would realize that blocking or banning any particular site doesn’t do a damn thing to slow the pace of file sharing around the globe. Instead, it does two things: (1) informs more people of the social norm of unauthorized file trading and (2) causes people to scatter to more sites, usually further underground and even more difficult to identify and stop. And, indeed, that appears to be the case in Italy. You may recall that the Italian Supreme Court recently decided that it was okay for a lower court to block The Pirate Bay (the lower court is now deciding what to do), but in response, it appears that users have already figured out how to scatter to other sites, as many other torrent sites have seen an influx of Italian users. Another mole whacked, and yet, more keep popping up. It’s difficult to see how this is a particularly good strategic policy.
I was going to ignore this, because based on what’s known there’s not much interesting or surprising, but people keep submitting the research done by a student of professor Ed Felten of a sample of some content available via BitTorrent (erroneously described as a “census” rather than a “sample”) that suggested that 99% of what was available on this particular slice of the BitTorrentsphere was infringing. While there may be some legitimate concerns with the methodology, I have to say that my response to the original was: of course. So what?
Of course the majority of files shared on BitTorrent are infringing. And I don’t see how it much matters if the percentage is 60% or 90% or 99%. I don’t think anyone has ever denied that a ton of infringing content is shared on BitTorrent — and, as some have rightly suggested part of the problem is that those who provide the content haven’t done a good job making alternatives available, and that drives people to these potentially illegal options.
But what I don’t get is the claim by industry lobbyists and lawyers that this somehow proves that BitTorrent needs to be stopped/fixed/held back/filtered/whatever. I read into it exactly the opposite. It shows what a piss poor job so much of the industry has done figuring out how to embrace the obvious demand that’s out there, and how to leverage that smartly. The fact that so much is infringing should be a siren waking the industry up that it’s time to stop fighting what people want, and start figuring out how to serve them. And for those who think this is evidence that BitTorrent needs to be blocked (wow) because so much is infringing, I’m wondering how they defend the legitimate parts that do get tossed out along with that. So just because NBC Universal is too clueless to figure out how to take advantage of a great distribution and promotion mechanism, people who want to use those tools and want to embrace better forms of distribution and marketing shouldn’t be able to? That makes no sense to me.
After already targeting a bunch of users of a popular Lithuanian BitTorrent tracker, Microsoft has apparently now tried suing the owner of the torrent tracker itself, though the guy claims he stopped running it at the end of last year. But, again, it seems backwards to sue the operator of a tracker, when that tracker does not host or transmit any copyrighted material itself. On top of that, Microsoft has sued for $43 million, when Lithuanian law apparently limits the potential damages in this case to $53,000. Either way, due to the case, the (previous?) owner of the site has had his assets frozen — which seems pretty extreme based on just an accusation, rather than a conviction.
He stated that although up until [now] he did not hold a grudge against file sharing, he is heavily disappointed that the leak even happened to begin with. He also stated that “those responsible for the leak will be brought to justice with the maximum prosecution of the law in mind” and that “anyone who is caught illegally downloading the film will also be prosecuted to the fullest”, both statements which are sure to lose him a few fans.
Jackson is definitely a director with a huge and loyal following. These are people will see his movies no matter what — even if they happen to download them. It’s a bit surprising that he would go to such an extreme, even to the point of claiming that those who are caught downloading the film will be prosecuted (though, we wonder how he’s going to figure out who downloads the film). Being anti-fan is no way to build a business these days.
Last month, we wrote about Zombieland director Rhett Reese, complaining on Twitter that the fact that his movie was a top unauthorized download would make it that much more unlikely that there would ever be a sequel. Others picked up that claim and ran with it, as if this was proof that piracy was harming the movie business. The whole thing seemed curious to us, since the movie has been quite successful at the box office, and has made a ton of money. Given that, who cares how much it’s pirated. If it can make a bunch of money, of course it’s ripe for a sequel.
And, guess what? Despite all the doom and gloom about how Sony would never make a sequel, Variety is reporting (you guessed it!) that Sony is about to ink a sequel for Zombieland, which will be done in 3D. Shocking. Even though the movie was pirated so much, the studio still wants to make a sequel? Could it be that there really are some people who recognize that how much a movie is pirated doesn’t really matter if the movie can still make a ton of cash?
With the movie industry’s lawyers recently demanding that ISP Portlane shut down the OpenBitTorrent tracker, claiming (without any evidence) that it was just a rebranded version of The Pirate Bay’s tracker, it seemed possible that the Swedish courts would roll over again. However, in a bit of a surprise, the court has pointed out that it’s a big stretch to hold the ISP liable without more evidence, and has refused to order the shutdown of OpenBitTorrent. Nice to see that the courts don’t always just accept what the movie industry says without further examination.
