What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.

Today on Hatch's Hit List: FreeCache
Tip o' the hat to Scott Matthews

FreeCache is (Internet Archive FAQ: FreeCache):

a demand-driven, distributed caching system. Cooperating caches exchange files without burdening the original site too much.

Basically, the system reduces bandwidth by caching large files nearer the users. Unlike other caches, the various "FreeCaches" distribute information among themselves. This means that bandwidth required for the original site is minimized. This is an excellent means for those without lots of spare bandwidth to distribute larger files.

Of course, if the INDUCE Act as currently written becomes law, lawyers are going to start asking some very disturbing questions regarding why the notorious copyright scofflaws at the Internet Archive developed such a system they knew could be easily abused by infringers. Heck, anyone can come along and make infringing material available via FreeCache.

I see no warning about making copyrighted files available through FreeCache. The website talks about moving large files of "free" content. It doesn't say "authorized" content or "public domain" content, it says "free" content. In this context, "free" is the equivalent of "illicit." After all, when people talk about downloading "free" music, they usually mean infringing files. Nor is there a disclaimer or terms of service. Anyone can come along and create a FreeCache link, as long as the file is greater than 5MB (which many illicit files are).

FreeCache is very insidious as well. It works through a plain vanilla browser. Those who click on FreeCache link see no warning message.

You can get files taken down from FreeCache, but they just get put back up again (FreeCache Forums: Illegal Content):

I was perusing the content in my cache and checking the detailed status page and I noticed illegal content containing videos in one of the caches I run. What is freecache.org doing to stop people from mirroring illegal content. I currently run 2 fairly heavily used caches and it looks like only one of them had illegal content. I cleared the cache to purge the problem, but the user just abused the service again by uploading the content again.

Now you're probably thinking, "aren't the people who run FreeCache protected by the DMCA safe harbor provisions codified at 17 USC 512?" And the answer is probably yes (The INDUCE Act (IICA) and the Safe Harbor Provisions of the DMCA). However, while the DMCA safe harbors probably protect servers that run FreeCache, there is no Safe Harbor for distributing the FreeCache CGI, which must be installed in order for there to be local FreeCaches.

With a few modifications (mandatory DRM, restrictions on who may create FreeCache files, etc.) I'm sure that Hollywood and FreeCache could work out their differences.

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic, including Hatch's Hit List: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.