[svlug] [Fwd: EFFector 19.13: Copyright v. Indexing, Part 1: TorrentSpy]

Darlene Wallach wallachd at earthlink.net
Sat Apr 8 23:37:29 PDT 2006

fyi ... thought this might be of interest ...

Darlene Wallach
-------- Original Message --------
Date: Fri, 7 Apr 2006 12:16:42 -0500 (CDT)
From: EFFector list <editor at eff.org>
Subject: EFFector 19.13: EFF Files Evidence to Stop AT&T's Dragnet 

EFFector Vol. 19, No. 13  April 7, 2006  editor at eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 374th Issue of EFFector:

  * Copyright v. Indexing, Part 1: TorrentSpy
  * Administrivia

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effector: n, Computer Sci. A device for producing a desired

: . : . : . : . : . : . : . : . : . : . : . : . : . : . :

* Copyright v. Indexing, Part 1: TorrentSpy

A prediction: the world of copyright law is about to collide
with the world of digital indexing and search, and the
collision will be among the most important digital copyright
issues of the next several years.

A few weeks ago, the major movie studios filed a lawsuit
against the operators of TorrentSpy.  Although the
TorrentSpy suit has been characterized as just the latest
chapter in the MPAA's attack on the Bit Torrent file sharing
software, on closer examination it looks more like a
wholesale attack against Internet indexing generally.

In the complaint, the studios level claims of contributory
infringement, inducement, and vicarious liability against
TorrentSpy for maintaining an index of "dot torrents."
These files are functionally similar to links, pointing to
files hosted by others.  Unlike some other sites, TorrentSpy
neither maintains a "tracker" nor hosts any infringing
files.  (Wikipedia has a good entry, linked at the bottom of
this post, about the bit torrent protocol, explaining the
relationship between dot torrents, trackers, and files being

In its motion to dismiss the suit, TorrentSpy puts the
question crisply: how is TorrentSpy different from Google?
After all, Google indexes dot torrent files, too (just
include "filetype:torrent" in your search string).  For that
matter, how is TorrentSpy different from the search index
maintained by Bit Torrent's creator?  A search for
"battlestar" there turns up Battlestar Galactica results
that look a lot like those at TorrentSpy.  Google,
TorrentSpy, and Bit Torrent all have DMCA "notice-and-
takedown" procedures that allow copyright owners to demand
the removal of links from the index, if those links lead to
infringing content.

The complaint gives little guidance about what the studios
think separates TorrentSpy from any other index.  It alleges
that "the predominant use" of the index is for infringement
(shades of MGM v. Grokster!).  It claims that "indexing
files according to specific titles of copyrighted television
programs" is evidence of inducement.  It argues that
TorrentSpy "favorably compare[s] its website to other peer-
to-peer services widely used for infringing activities."
The plaintiffs will surely further develop their "TorrentSpy
is different" themes as the case goes forward.

But that's the important question raised by the TorrentSpy
lawsuit: what's the difference between a "good" index and a
"bad" index, and is that a distinction that copyright law
can effectively make?  In 1998, when Congress passed the
DMCA's "safe harbor" provisions, it seemed to be saying that
indexes should be shielded from copyright claims, so long as
they implemented a "notice-and-takedown" procedure.  The
TorrentSpy suit (as well as the lawsuit against search tool
MP3Board.com) suggests that the entertainment industry wants
to renegotiate that bargain in court.  The result could have
important implications not just for torrent indexes, but
also for all online index and search services.

To learn about how Bit Torrent works:

For TorrentSpy's motion to dismiss:

For the movie studios' complaint:

For the original version of this post:

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* Administrivia

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