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BitTorrent Inherently Illegal?
Posted by
Cliff
on Fri Mar 25, 2005 04:30 PM
from the what-a-misconception! dept.
from the what-a-misconception! dept.
Nohbdy001 asks: "Today I received a letter from my university's network administration advising me that my network access would be terminated due to 'illegal P2P activity.' The P2P activity that the e-mail cited was BitTorrent and the file being transferred was an update to the Azureus BitTorrent client. The letter stated, 'Until the courts decide that student P2P activity is permitted we will continue to block this activity on our network,' implying that BitTorrent is inherently illegal. It seems such misunderstandings are common, but it is particularly frustrating when coming from people in the IT field. How can a student respond to such an accusation in order to defend the validity of BitTorrent and continue to benefit from its legitimate uses?"
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It's unfortunate (Score:5, Insightful)
During the heyday of Napster, the University of Wisconsin - Madison had a difficult decision. As it watched the traffic for Napster consume over 70% of total inbound bandwidth at its peak, we asked ourselves: do we start blocking Napster? After all, it's mostly used for stealing music. Right?
Fortunately, the answer was a resounding "No," but not because we condoned illegally downloading copyrighted material. It was because the university didn't want to become de facto censors of information, in any form it may come. We decided that things like Napster were part of the cost of doing business as a major public research university. The solution was to add bandwidth, and deal with the technical aspects of the problem separate from any social aspects that may exist.
Granted, some smaller institutions might not have been able to afford - economically or legally - to take this stance. But the University of Wisconsin felt it important enough to allow academic freedom and freedom of exchange of information to trump any other potential concerns, real or imagined.
The university does respond on an individual basis to people clearly running warez servers, owned machines used for warez, specific C&D orders or other notices from copyright holders, etc., but we don't take a proactive approach. In fact, ironically, a proactive approach could be more dangerous, because it may mean that safe harbor provisions of some elements of copyright law (e.g. DMCA) won't apply: an ISP can't be held responsible for things it doesn't know about.
Re:It's unfortunate (Score:5, Interesting)
Parent
Re:It's unfortunate (Score:5, Insightful)
For example, in Guckenberger, et. al. V. Trustees of Boston University, et. al, they found the University liable for breach of contract simply by putting out promotional brochures claiming that the university was more accessible to the disabled than it was. In the words of the judge, they "form the basis of an enforceable contractual agreement." This is called "promissory estoppel" [laborlawtalk.com]. Basically, if someone promises something that makes you take actions to your detriment in order to gain that promise (i.e., paying to attend a university under the expectation of having full network services) and then fails to deliver, they're liable to you and you can sue for damages.
If it's the case of a vague threat of RIAA/MPAA lawsuits that haven't materialized, faced with a very real threat of a student lawsuit, I think they might reconsider. If the student is concerned about this more than just a willingness to post an "ask slashdot", they should start a collection among similarly concerned students and retain a lawyer. Just a letter from a lawyer to the University threatening legal action for their stance would probably be enough, since they don't have any direct threats from the RIAA or MPAA to counterbalance it.
Parent
Re:It's unfortunate (Score:5, Informative)
Chances are, the college has some form of student union, and student unions typically have access to legal counsel for when students get in trouble. I think this would qualify.
Parent
Re:It's unfortunate (Score:5, Interesting)
Parent
Re:It's unfortunate (Score:5, Informative)
Given my university's license, about the closest argument that they could make would be "excessive personal use", but even that falls pretty flat on its face, given the letter that the student was sent and the actions that they were taking (downloading a software update) that led to the ban. They certainly weren't doing anything that would fall under violation of local, state, or federal laws; they weren't attempting to disrupt the network; they weren't attempting to invade anyone's privacy; etc. The student didn't fall under any category listed.
Parent
Re:It's unfortunate (Score:5, Insightful)
I'm the guy who reads practially every agreement front to back. Except EULAs and "no change" agreements which I specifcally note to the observer that I did not read it, and signed on the lines they indicated.
Oh, and I've put changes is many "non-changeable" contracts.
Parent
Re:It's unfortunate (Score:5, Interesting)
Of course I agree that universities should not censor information, especially not in such unclever ways as declaring a protocol illegal. But I can understand why some universities have to kneel before the commerical powers that be.
Parent
Re:It's unfortunate (Score:5, Insightful)
i went to the university of connecticut. i worked for resnet at uconn. at the time, they did something similar with the bandwidth, throttled it way down during business hours. increased it a little from 5pm-8pm, a little more from 8pm-10pm, and it was no holds bar after 10. this was to allow night classes and any straggling professors or grad students doing research the ability to do their jobs. however, there was still a problem, so they throttled the upstream p2p bandwidth 24/7. this made everyone happy. i graduated in 2001. i think things are different there now, and they block most p2p all day, every day. things went downhill after certain staff members left there...
i now work for providence college. a much smaller, private school. we don't have the money uconn does. p2p is throttled down completely, along with IRC. those that use IRC can have their ip adresses removed from the block. these blocks are because p2p took over our entire amount of bandwidth and made it difficult to do anything at any tiem of the day (including late night). we also don't have the time/money to deal with RIAA/MPAA issues, but that's not so much part of the reason for the block as the lack of bandwidth.
Parent
Re:It's unfortunate (Score:5, Insightful)
a student downloading legal music, such as concerts from bands that allow taping/trading, is not using the network for academic purposes
It's not? Were my credits in music appreciation not academic? If I downloaded a couple of ditties by Beethoven, was I cutting into the bandwidth of students browsing the Web, no doubt purely for academic purposes?
Making sweeping statements like this without thought leads to poor policies. Mind you, I agree with the rest of your post.
Parent
Talk to your Ombudsman! (Score:5, Informative)
Parent
Re:Talk to your Ombudsman! (Score:5, Insightful)
Parent
Re:Talk to your Ombudsman! (Score:5, Funny)
A professor emeritus? I dunno! That sounds crazy! Maybe it's a professor that emigrated? Let's check his Curriculum Vitae. Wait! What the hell is a Curriculum Vitae? Does it mean he matriculated with his syllabus?
Oh, by the way, when I wanted to pay for classes they told me to go the Registrar's Office, but since that's not a real word, I just left my tuition money in an envelope in the Financial Development office. Close enough, right?
If you're studying a particular subject, you're expected to learn the language of that subject.
If you join an academic institution, you should learn the language of academia and academic institutions. Why is this so hard?
If you don't like it, maybe you should attend a different place of higher learning, such as a barber college.
Parent
Re:It's unfortunate (Score:5, Interesting)
Why is that any more absurd than blocking something such as BitTorrent, especially as BitTorrent's legitimate applications are increasing?
Color me naive, but I never realized BitTorrent had a following of pirates until recently. I always saw it billed as a way to grab large files (e.g. Linux ISOs) in a lot less time than HTTP or FTP transfers. In fact that is the only thing I ever use it for. To see organizations ban or restrict it pisses me off.
Fortunately, the content industries seem to be taking a halfway correct approach: find people violating copyright using a technology, and prosecute those people. Even if BitTorrent gets a bad reputation, there are enough of us using it legitimately that 1) we won't go to jail and 2) BitTorrent will still have a legitimate user base and stay alive (thank you, OSS!).
Parent
Re:It's unfortunate (Score:5, Interesting)
Get together a cabal of linux (or *BSD or whatever) users when a new release comes out. Instead of using bittorrent, you arrange for the whole cabal to fire up http downloads of the ISOs simultaneously. This will drag the university net to a crawl.
When they hit you with a complaint, you nicely explain that you would have used bittorent for the downloads, which would have created only 1% of the load. But the administration has decreed that, if you do that, you'll be treated as criminals, so you didn't.
Also, it helps if you can bring up class- or job-related reasons that you were doing the downloads. If it's required for a class, they can't very well fault you for downloading it from the public repositories.
It might be fun if you could find a bittorrent source for something like the next big MS Service Pack, and arrange for a whole flock of Windows users to attempt to download it at the same time. This will really confuse the dummies in the U's admin. They can't very well object to people installing security stuff in Windows. And if you can make it clear that bittorrent would have greatly lessened the network load if not for their dumb ban on its use, maybe the idea will start to get through their thick skulls.
After all, bittorrent is merely a way to make copying big, popular files a lot faster and a lighter network load. It isn't restricted to just illegal copies; it works just as well for files that it is legal for you to download.
If you can pull it off, let us know how it works.
Parent
Re:It's unfortunate (Score:5, Insightful)
Parent
Neither Legal nor Illegal (Score:5, Interesting)
The file you have is legal and legally distributed. Period. If they wish to limit your free speech rights on legal speech, that is a first ammendment issue and should be dealt with in a separate court battle.
If you can find a lawyer to write a letter to that effect for you, it might get their attention. I'm sure you could find a classmate whose parent relative or family friend is a lawyer willing to put a note like that under his/her firm's name. No explict threats -- just a letter from a lawyer.
Parent
Re:It's unfortunate (Score:5, Insightful)
In the letter I would also cite that when cassette tape recorders first came out the music and movie industries screamed and yelled about these items being illegal for the common person to use. Their reasoning was that people would make millions of copies of songs and soundtracks. People did - but no where near as often as the music and movie industries tried to make it out to be. When VCRs first came out the music and movie industry again went to court and fought tooth and nail to prevent people from being able to use that technology. Then laser discs came and they again filed suit. Then CDs came out and they filed suit again. The United States of America was one of the LAST countries to have DVDs because of the music and movie industries lawsuits and lobbying of Congress. In all cases the technology could be used for illegal as well as legal copying of information. Whether songs, movies, or even games. In every single case the courts and Congress together have made it extremely clear that just because there is the opportunity to use a technology for illegal purposes it doesn't mean that everyone is going to use it for that purpose. (After all - cars are used to help bankrobbers, kidnappers, and others yet everyone still drives cars.) Further, after all of the hysteria, screaming, finger pointing, jeering, hyperbole, accusations, misleading and often outright lies propagated by these industries it has always been found that their fears were nothing more than ignorance of how the technology works. As well as how these industries should use them to increase their incomes. (For my part, I believe they really are just dragging their heels on implementing the new technologies because they don't want to spend the X number of dollars to install the new technology and use it. After all - they've got things pretty well locked up as is.)
So that is what I would do. Write the dean of the college as well as the head of the computing center and lay things out for them. That you feel you are being punished unjustly for a crime you have not committed. Expain to them what the Azureus BitTorrent client does, how it helps to keep the bandwidth usage low (thus saving the university money), and I would imply that it would make everyone who is already using Azureus think less highly of your university (which they probably would). I would also ask those who use Azureus to send an e-mail to you with examples of what they are using the application for and I would include those into the letter to the dean and manager of the computing center.
Hope things work out for you!
Parent
Re:It's unfortunate (Score:4, Funny)
Parent
Re:It's unfortunate (Score:5, Funny)
Parent
Legal Precedent (Score:5, Informative)
Here's a quote from a news story back in August [wired.com]:
"History has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player," Thomas wrote. "Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude."
Re:Legal Precedent (Score:5, Insightful)
Even if they reverse the Court of Appeals on the issue and decide that Grokster can be held liable for contributory infringement, that doesn't make the technology itself illegal - it just means that, if the technology is used to infringe copyrights, the copyright holders can sue the company that made the technology instead of or as well as (not sure the deal on this minor point) the users who actually download copyrighted material.
But the effect of such a decision would be catastrophic on all software used to exchange information. I imagine it would be trivial to show that a given P2P software was used to exchange a copyrighted work. And if so, the companies and/or individuals creating such software would be sued out of existance. Who would step in to write any new software knowing that an unrelated 3rd party could do something to cause them to get sued out of business?
Frankly, I find the whole notion of specifically targeting P2P applications to be stupid - anyone could use email, ftp, or usenet to distribute copyrighted works - what are you going to do, ban ftp? sue the makers of email software? why not just shut down the internet? its ridiculous and I hope the courts think so also, so they can force the media companies to stop living in 1980...
Parent
Well... (Score:5, Insightful)
Re:Well... (Score:5, Interesting)
Which is why I bring the question to the community. Obviously using BT for legit purposes is not anymore dangerous than, say, browsing the web.
Parent
Re:Well... (Score:5, Insightful)
The only real recourse you have is to go to the dean which controls the networking group, and get a Decree From Above.
It might've been he who implemented the policy at the behest of the networking dept, but since you're the victim, it's up to you to set him straight. Go prepared with many examples of legitimate uses of not only BT, but of other p2p applications, and even similar ones such as FTP. Show the obvious falsehoods of calling it illegal, and demonstrate the slippery slope.
If this is a state school, the decree from above can actually come from a legislator. Write a (paper) letter and you'll probably get a response.
Parent
Show them Azureus's Copyright and License (Score:5, Insightful)
A separate issue that you haven't addressed is what other material you've downloaded using BitTorrent. Some people only use it for legally downloadable material like open software ISOs and trade-friendly music like the etree.org stuff (I certainly do; there's way too much stuff I like there to have time for piracy), while other people trade warez and pirated music. If you're one of the latter, please slap yourself on the wrist, clean the stuff off your PC, and be *very* careful when you talk to the university admins. If you're one of the former, you're in a much stronger legal position. There can be a big difference between what legitimate uses you *could* use BT for and what you're actually doing with it.
Illegal downloading is potentially legally dangerous to the university, whether it's done with BT or FTP-over-carrier-pigeon. If they're saying that the *issue* is dangerous to *you*, that sounds to me like a threat, and you really need to talk to your ombudsperson.
Parent
Re:Well... (Score:5, Interesting)
Parent
Easy question: (Score:5, Insightful)
They own the network.. (Score:4, Insightful)
Although their reasoning may be questioned - it is their network, and you are probably going to just have to put up with it.
You have no real alternative (Score:5, Informative)
Still, it's probably worth a polite note to the network administrator to request "clarification". State your case concisely (they're usually busy) and politely, and you may get lucky.
Re:You have no real alternative (Score:5, Insightful)
It's the reason (i.e. need a court decision that P2P is legal) for not permitting P2P that is very odd, even by US standards. A policy based upon that P2P is not permitted due to excessive bandwidth usage is at least understandable.
Parent
Re:You have no real alternative (Score:5, Interesting)
Parent
Not much you can do (Score:4, Insightful)
Good news and bad news... (Score:5, Interesting)
Not exactly. This isn't just a matter of legal versus not legal, it's a question of whether it complies with their own Acceptable Use Policies. And depending on how those policies are written, Bittorrent may be a no-no anyways, "Because we say so." And I'm willing to bet dollars to donuts that when they say "illegal," they don't mean 'criminal,' they mean 'against our own policies.' Good luck to you, man (or woman, whichever).
legitimate uses (Score:5, Interesting)
Keep in mind that your definition of "legitimate use" may be quite different from theirs. University IT departments tend not to consider anything to be "legitimate" unless it has a valid academic application. Do you know of any academic uses for BitTorrent? Not trying to rain on your parade, but "I need it to download X" probably won't cut much ice.
Letter to IT (Score:4, Funny)
The "P2P" traffic you refer to consisted of me downloading updates to legal software. I will also use P2P technology to download Linux ISO's and other legal products.
I am not using P2P to download Movies, music or any other content unless the copyright owners have, as is the case with GPL software, explictly authorized unrestricted digital transfer.
You might as well ban FTP and HTTP traffic, as the materials I download can be legally acquired through those protocols as well.
You have not banned any illegal or debated downloads, only the download of software and content that all parties involved agree is legal to transfer.
Sincerely,
The student seeking a transfer to a more competently run University.
Re:Letter to IT (Score:4, Interesting)
Parent
Re:Letter to IT (Score:5, Funny)
A better letter to IT:
Dear IT Department,
I will discontinue using unauthorized P2P protocols on your network. I appologize if my usage of such protocols has caused any problem for your department of for the University.
From now on, I will only use allowed protocols, such as FTP and HTTP, to illegally download copyrighted material across your network.
Parent
I work at a University (Score:5, Insightful)
But beyond that, it's an expensive utility and the school really can't afford to open it up 100%. So, they are always looking for some way to justify restricting its use. It's sad that they have basically called you a theif, but don't take it personally. They're just trying to save money. It's wrong and it sucks for you, but that's the bottom line.
Don't worry. college is only four years, and then you can get a good job and a real internet connection. For now, just concentrate on beer and girls
and grades of course.
I would try to get some CS profs involved (Score:5, Insightful)
I'm not saying it's impossible (that would clearly be overstating things) but more and more things are being distributed via torrents.
I think the reaction should be that you know they have a problem (traffic and piracy on their network), but that you have a problem (there is stuff that's legal that you need torrents to get), and see if you can come to a reasonable solution.
I would try to emphasize the direction of the trend, too. A couple of years ago, bittorrent didn't factor into downloading linux iso's very much at all. Now I think it's clearly the best way to get most things, although more traditional downloads are still available. But eventually, I wouldn't be surprised if people without torrent access have real trouble getting large legal files.
If your school doesn't want to hamstring its students' ability to participate in open source, they'll have to open up to torrents.
Fighting senseless stuff is not likely to work... (Score:4, Interesting)
Also, it is very unlikely that any court would rule specifically on student P2P activity. Students are strange animals, but in general rulings like this would apply to everyone, not just to students.
They are obviously playing on threatening people, and hiding behind vague statements in an effort to simply avoid the entire risk of people potentially using P2P technology to download (or upload) illegal materials. I'd personally recommand replying back to the university, explaining your legal use of P2P, and explaining that their letter seems to be based on some flawed assumptions, both legally and factually.
But do not expect to win unless you really want to fight this desperately. It's their network and though you pay tuition and all that, it is still their network, and so they get to decide what goes, whether it makes sense or not.
WARDRIVING IS ILLEGAL (Score:5, Interesting)
I heard at my last contract that they didn't use SSH because it was "inherently insecure." They used telnet instead.
Best thing to do, is be patient, try to educate the uninformed, and convince others to do the same.
Just don't get too angry, or they won't want to listen to you in the first place.
Tough luck kid. Use another network. (Score:5, Insightful)
No, they are not implying that BitTorrent is inherently illegal. They are stating that they think BitTorrent *may* be used for illegal activities and they don't want to regulate BitTorrent traffic on their network, and are erroring on the side of caution.
Like it or not, it is the University's network, and they administer it as they see fit. Don't like it? Tough. Use another network.
If the MPAA finds a bunch of students pirating movies on the University network, the University will be held responsible at some level. It could become a massive headache for the Network admins, which is why they are taking this move.
Student Governments (Score:5, Informative)
The other important question is whether this is a state or private school. One poster said you had no recourse because it was "their network"... but such is not the case is if this is a state school. There may be certain laws that protect fair access. Again your student government can be a valuable source of information in this area.
-Sean
Does your school have a judicial board? (Score:5, Insightful)
Our school even had a group of prelaw/political science majors that were certified by the school as "advocates" and could present your case for you. Check with your student government association and find out if such an option would be available to you. This may not solve the problem outright, but it would give you an opportunity to state the facts.
You can't argue with ignorance, but you can go on the record with the facts.
From a ResNet Professional (Score:5, Insightful)
I assume you live on campus. I recommend you take your case to Housing, the Dean of Students, or someone else in Student Affairs. We're generally much more sympathetic and student friendly (it's our job). We're professional student advocates who should be able to help you navigate the processes and translate the language of the higher education bureaucracy.
In particular, if you can make your case to Housing you may be in a stronger position as we are typically a self-sufficient or lightly subsidized auxiliary service and dependent on your rent for our budget. Unhappy residents makes our lives more difficult and if it impacts the bottom line strongly enough it may make our jobs nonexistent. But more than that: most of us are in this profession to understand your concerns and help you convey them to the right people. It's part of the educational process. We honestly believe (and have the research to support) a huge amount of important educational and learning experiences occur outside of the classroom and labratory. This is one of those experiences.
IMHO, there should be a healthy tension between the Housing dept and the IT dept regarding the policies and use of the residential computer network. There is an inherent tension between needing to protect the network and keeping it open for legitimate academic and recreational uses. Unfortunately, it's usually the residents who get caught in the middle between these opposing viewpoints.
I've been involved in similar "fights" and discussions. There's no easy answer particularly in areas where bandwidth is expensive and public support for higher education is declining (i.e. nearly everywhere). And ultimately my responsibility is to all of the residents not just one or two of them. If that means I have to deny access to an application, port, etc. to a few residents to ensure the rest of them can use the network then I'll do that or recommend our network engineers do that. It's a poor solution and I wish we didn't have to do it but sometimes we have to make compromises. We can't afford (more realistically: YOU can't afford) to buy the bandwidth necessary to satisfy all of the academic and entertainment needs of all of the residents.
Best of luck! I hope your campus administration makes the right decision (whatever that is) and you learn something (hopefully positive) from this process. If it helps, I am dismayed by the situation as you have described it and would do my best not to allow a similar situation on my campus.
If I were an Evil Genius (Score:5, Funny)
If I were an Evil Genius
Re:Let the NetAdmin scan your pc.... (Score:5, Insightful)
I thought the whole problem was of being thought guilty until proven innocent, now are you going to sell your right for privacy too?
Parent
Re:Let the NetAdmin scan your pc.... (Score:5, Interesting)
To the parent: whatever you do. DO NOT give up your rights to privacy to get your net connection back. No matter if you did nothing illegal. If you give up your privacy, then you justify it to the administration that it is ok for them to do the same thing to other students.
Parent
Re:You are fighting the University's lawyers. (Score:5, Informative)
But it can be challenged. Are you paying for net access? Is it included in the cost of whatever it is they charge you for your education?
Read their TOS. Find legal precedent where it says that p2p is not illegal. Collect signatures. Petition, campaign, etc.
Sounds like too much work? If you are not up to it then I advise you to get another ISP (and read the TOS before you sign).
If you decide to "walk around" their filters (tunneling, etc), don't complain later on if they somehow bust you. If you decide to simply ignore their warning and BT files anyway, notify them of your reasons for this. In writing. This way you get an air of legitimacy.
WARNING: The above is not legal advice and I'm not a lawyer. Talk to a lawyer and be prepared to walk into whatever situation you choose with your eyes wide open. You might not be doing anything illegal, but that's never stopped anybody from suing anyway.
Parent