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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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August 04, 2004

Hatch's Hit List #19 - Battle Torrent

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: Battle Torrent

Those anti-copyright activists over at Downhill Battle are at it again. Yesterday, they announced a new software development initiative to make using BitTorrent easier than ever. Check out the goals of the Battle Torrent Project:

  1. To make it completely effortless for complete neophytes to download torrent files.
  2. To make it as easy as possible for people who have websites to set up their own torrent tracker.
  3. To make sharing a torrent as fast and easy as posting a file to a website.
The ostensible purpose of this project is to facilitate legitimate filesharing, but that is what all the "bad actors" say:
If we pull this off--and we can-- we'll have made sharing four-gigabyte files as easy as sending an email to your friend [or a million of your closest friends]. And that will change our culture significantly [by destroying copyright]. If distributing large media files becomes easier, people will create more of their own works and will experience more work created by other individuals [create their own, yeah, sure].
The site all but admits that it is about copyright infringement. Notice how they use an example of an infringing work:
Instead of downloading the torrent file, the user downloads an executable that contains a fully functional bittorrent client and the torrent file (say, "The_Grey_Album.torrent"). When the user runs it, the program begins downloading the Grey Album.
As everyone knows, the Grey Album is an illicit derivative work. The screenshot they use also shows the real, infringing use of the system by showing how the system can be used to share a copyrighted work, in this case the TV pilot Heat Vision and Jack, as well as a derivative work, Michael Jackson's Thriller, as realized in Lego (another questionable technology).

And don't even get me started on all the evidence of intention to induce infringement on the main Downhill Battle website. Sure, Battle Torrent might be a great idea for letting people publish bulky files and engage in free expression, but that is precisely why the INDUCE Act will have to outlaw it.

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. Holmes Wilson on August 7, 2004 10:04 AM writes...

Hi Ernest Miller. We really admire the job you've done dissecting the INDUCE Act, and we're regular readers (we even syndicate copyfight on that infringement-inducing front page of ours).

But for the record (and I know we need to be more clear about this stuff) Downhill Battle isn't anti-copyright activism, for two reasons:

First, we're not anti-copyright. Where copyright still serves its original purpose (enriching our shared culture by letting creators profit exclusively from their work) we say leave it alone. Our site advocates flat-fee licensing schemes (a la the EFF's proposal) as the best resolution to the RIAA vs. p2p fight, and that solution depends on copyright. And while we personally believe musicians should be free to use samples however they choose, some kind of copyright-friendly compulsory licensing system--akin to the one currently used for cover songs--would be a perfectly acceptable compromise.

Second, when we encourage people to ignore copyright laws by, for example, downloading music or burning CDs for their friends, these are tactics for achieving a well-defined goal, not ends in themselves. The goal is to build a fairer, healthier music business by removing the major label cartel, and we're confident that mass infringement of the major labels' copyrights is making that happen. Calling us "anti-copyright" because we suggest copyright infringement as a tactic is like calling anti-war activists "pro-sitting" since they sometimes use sit-in's to achieve a political result.

The write-up on Battle Torrent is heavy on technical detail and light on politics, so I recognize the ambiguity there and I can't fault you for misconstruing our motivations. But Bittorrent is not at all our ideal tool for mass civil disobedience; it affords no anonymity to the user, and whoever is running the tracker site has their name and address in the whois. Rather, the idea with Battle Torrent is to bring what's great about blogs to the average persons' TV. On the internet, a good chunk of the content people are reading isn't produced by top-down mass media. But on cable TV, 100% of national programming comes from the same handful of companies, even when you've got 300 channels. Battle Torrent, combined with a project like Torrentocracy (which can browse Bittorrent RSS feeds through a TV interface) and a cheap, open hardware platform could completely change television's role in our culture.

I'm very familiar with how makers of filesharing software cover their asses legally by trumpetting "self-published content", but there's no reason to think that's what we're doing. After all--as you pointed out about our website--we're very comfortable recommending that people infringe copyrights when we think there's a good reason to do so. If our main primary goal here was to get people to download more music, we'd definitely come out and say it, right? Please have another look at our site if you're not so sure :)

Anyway, there are still some parts of our thinking on this that I don't have time to cover here. If you want to talk more about it, please give a call whenever: 508-963-5645. And thanks for all the great work you do on Copyfight.

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