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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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July 21, 2004

Hatch's Hit List #9 - Darknets

Posted by Ernest Miller

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

Today on Hatch's Hit List: Darknets

I'm using the term "darknets" to refer to closed or private P2P networks, such as WASTE, which is described as:

an anonymous, secure, and encryped collaboration tool which allows users to both share ideas through the chat interface and share data through the download system. WASTE is RSA secured, and has been hearalded as the most secure P2P connection protocol currently in development.
Most P2P systems are open to anyone who joins the network. When you participate in one of the standard P2P services, you are essentially uploading and downloading with everyone else on the system, whoever they might be.

For a number of reasons, some people don't want to share certain files with the world. They would prefer to have private networks that restrict membership and are cryptographically obscured against prying eyes. For example, some may wish to share home videos solely with family and friends. Or perhaps the darknet can be used for ad hoc business collaboration. There are many, many legitimate uses (otherwise known as "substantial non-infringing" uses) for such darknets. Of course, there are just as many illegitimate uses, such as copyright infringement.

Darknets are likely to be particularly disfavored by the copyright industry. Detecting and combatting copyright infringement on well-managed darknets is essentially impossible. Hollywood can't easily go after direct infringers on darknets, so they certainly have quite an incentive to launch INDUCE Act lawsuits against the developers and maintainers of darknets.

And there would be a pretty good case to make. After all, who initially developed WASTE? Why, it was that notorious inducer of infringements himself, Justin Frankel, developer of the initial Gnutella protocol. "WASTE" itself is an acronym that stands for "We Await Silent Tristero's Empire" and is a reference to a subversive, underground mail system in Thomas Pynchon's novel, The Crying of Lot 49. And, of course, there are plenty of articles detailing WASTE's use for copyright infringement (THE ROAD LESS TRAVELED: File Swappers Find Security in Waste; The Invisible Inner Circle: Forget Gnutella. Frankel's Waste is where it's at; and, The Underground Internet).

Darknets are wonderful tools with plenty of legitimate (and necessary) uses. However, that won't keep their developers from getting sued and put out of business if the INDUCE Act passes.

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.

Comments (1) + TrackBacks (0) | Category: Hatch's Hit List | INDUCE Act


1. nusrat on August 8, 2004 08:10 PM writes...

"Darknets are tools with legitimate uses. However, that won't keep their developers from getting sued and put out of business if the INDUCE Act passes."

1. How will they identify developers who have taken the needed rudimentary steps to prevent their role from being identified?
2. If it's OSS, then whom is ther to "put out of business"?

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