In 2007, a coalition of 31 major media industry groups brought an action against Sébastien Brulotte (HYPERLINKs: http://torrentfreak.com/canadian-music-labels-take-on-bittorrent-trackers-071018/ AND http://torrentfreak.com/backdoor-to-banning-all-canadian-bittorrent-sites-071125/ )). On July 9, 2008, Mr. Brulotte received a permanent injunction from the Superior Court of Quebec, ordering the closing of his site QuebecTorrent, a peer-to-peer (p2p) network used to share files (HYPERLINK: http://www.nationalpost.com/news/story.html?id=648919 )). Rather than fight the injunction, he acceded, to avoid setting a harmful legal precedent for other p2p cases.
In attacking QuebecTorrent, the recording industry is launching an attack on what is, at worst, a legal gray zone. Arguably, in a server-based network, the host is actively involved in distributing copyrighted material. That is not the case with true p2p networks, such as torrents. With p2p, the organizer is merely cataloguing decentralized files. The file provided contains a filename, and locations where the file can be downloaded; the file has no actual content, so the organizer is not actively involved in distributing copyrighted content, merely providing information. Moreover, the cataloging is automated or user directed. The sheer volume and rate of files being catalogued means that the organizer cannot have any real control over which files are made available.
Do the organizers of p2p networks know that networks are being used to share copyrighted material? Certainly. Can the organizers be held personally responsible for illegal file-sharing, or the networks shut down in a bid to clamp down on illegal file-sharing? That should not be the case. Intentionality should play a part here.
At the end of the day, the trigger is pulled by individual users. Individual users may use the network for its legal, intended purposes, such as sharing open-source software, or illegal, such as sharing copyrighted music or child pornography. Similarly, a car may be used for legal, intended purposes, such as transportation, or illegal, such as running down pedestrians. The organizers of p2p networks are no more responsible for what individual users do with those networks than General Motors is responsible for what drunk drivers do with Chevrolet Impalas.
It couldn’t hurt for network organizers to disassociate themselves from illegal activities more clearly. By providing clearer disclaimers and admonishments against illegal practices, the networks can better protect themselves. But so long as the network organizers intend for those networks to be used for legal purposes, the recording industry should not be able to hold the organizers liable for the actions of other users, or shut down the p2p networks on the grounds that they facilitate an illegal activity.
While the pointpersons of the Canadian recording industry are trying to spin the QuebecTorrent case as a rousing victory, the aftermath suggests that it is anything but.
Within days of QuebecTorrent’s shutdown, a clone returned under a new name. This time, with an expanded userbase, and now hosted in Malaysia. (HYPERLINK: http://torrentfreak.com/quebectorrent-clone-out-manoeuvres-music-industry-080716/ )) Because Brulotte did not contest, there is no legal precedent. Finally, the optics of a powerful recording industry using litigation to intimidate small websites is playing badly across the blogosphere.
No helpful legal precedent, bad press, an irate internet community and no real change. Some victory.