It's about piracy, not privacy

IP attorney Nancy Prager says legal niceties can't disguise the blunt facts about illegally transferring creative content over the Net.
Written by Nancy Prager, Contributor
Just in time for the theatrical release of Harry Potter and the Order of the Phoenix, a judge has held that an Internet-based service may not offer its users an invisibility cloak.

The court ordered TorrentSpy to preserve server log data, and make it available to the Motion Picture Association of America as part of the ongoing litigation between them.

TorrentSpy objected to the initial request for the preservation and production of the server logs on a number of grounds. Its lawyers claimed that preserving the data would be an undue burden requiring great technical resources and significant funds.

But the judge was having none of it. She accused the defense either of laboring under a lack of knowledge and expertise or, even worse, a lack of candor. She found that the defense had miscalculated the amount of data that would be stored as a result of the order. The judge further noted that any costs incurred would be significantly lower than estimated.

Contrary to popular belief, digital file sharing has a direct impact on independent artists as well as major label artists.

TorrentSpy tried to stiff-arm the plaintiff's motion, offering policy and legal arguments, ranging from unrelated statutes to the First Amendment. Again, the judge was unmoved. She held that the defendant's privacy policy did not insulate it from having to produce the requested materials in a discovery proceeding.

Finally, the defense claimed that proper jurisdiction resided in the Netherlands, where TorrentSpy located its primary server, and so that nation's laws governing personal data protection should apply. But the judge rejected the argument because the defendants are residents of--and maintain servers in--the United States.

While Harry Potter may need an invisibility cloak to fight evil, the average Internet user does not need a cloak to use the Internet. The anonymity TorrentSpy has offered its users facilitates the mass distribution of content without permission or compensation to the owners of the copyrights in those works.

Since the Napster 1.0 days, people who have chosen to transfer creative content unlawfully over the Internet have used a litany of excuses to justify their behavior. The most popular excuse seems to be that only large corporations suffer from the lost sales. Recently, file sharers have claimed that they are opinion makers and style influencers.

Contrary to popular belief, digital file sharing has a direct impact on independent artists as well as major label artists. As an example, an influential artist in a niche music genre has established that the bulk of his catalog is available on torrent streams. Significantly, he has discovered his digital-only release on the streams. Though he continues to release well-received albums, he is not able to tour so record sales support his music career.

To his surprise, one infringer actually included an e-mail address in his torrent posting of the digital-only album. The artist contacted the poster to request that the album be removed, and nothing happened. The artist resubmitted the request. Responding with a proclamation that he was the artist's biggest fan and a sincere apology, the infringer removed the album.

Not content to apologize and move on, the infringer provided arguments why the artist was wrong not to have his digital-only release available for file sharing for free, including the lack of radio air play available for the artist. While the poster acknowledged in the response that his activity was illegal, he did not offer to compensate the artist for all the albums that had been transmitted through the torrent.

An invisibility cloak does more than just protect the identity of those who use the Internet for illegal or unlawful activity. It encourages individuals from taking responsibility for their actions. And in providing an invisibility cloak to its users, TorrentSpy has been converted from a passive participant to an active collaborator in their activities.

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