7/26/2005

Is the creator of BitTorrent being leeched dry?

BitTorrent programmer Bram Cohen may be in legal jeopardy after the discovery on Wednesday of an old agenda buried on his website saying he creates programs to "commit digital piracy." The polemic would have been of little interest a week ago. But on Monday, the Supreme Court ruled that the intent behind a file-sharing program can be a decisive factor in determining whether the creator can be sued for its users' copyright infringement.
Cohen said the agenda was written years before he started work on BitTorrent, and that it was written as a parody of other manifestos. "I wrote that in 1999, and I didn't even start working on BitTorrent until 2001," Cohen said. "I find it really unpleasant that I even have to worry about it." Undated and less than 200 words long, Cohen's "Technological Activist's Agenda" says he creates and gives away software in furtherance of laissez-faire political objectives. "I further my goals with technology," the manifesto reads. "I build systems to disseminate information, commit digital piracy, synthesize drugs, maintain untrusted contacts, purchase anonymously and secure machines and homes."

In a unanimous ruling penned by Justice David Souter, the Court found that file-sharing software companies Grokster and StreamCast Networks can be sued because "the record is replete with evidence" showing the companies took steps to encourage infringement. The case has been returned to the lower courts for trial. Cohen has never publicly encouraged piracy, and he has consistently maintained that he wrote BitTorrent as a legitimate file-distribution tool. That would seem to make him and his budding company, BitTorrent, safe under the Grokster ruling.

But legal experts worry the newly discovered manifesto extolling "digital piracy" could put him on less certain legal ground. "Before I saw the manifesto, it always seemed clear to me that he's had a very clean record," said Mark Schultz, a law professor at Southern Illinois University Law School. "A good lawyer will try to nail him to the wall with that, and any other statements they can find. It's circumstantial evidence of intent. It's not a slam dunk but it hurts his case a little." Cohen said although he contributed to an earlier peer-to-peer tool, MojoNation, the text wasn't alluding to that system either.

Cohen said he's unhappy that the Supreme Court's decision is forcing him to confront something he wrote more than five years ago. "The way they talked about intent is so vague that it can cause people to pay attention to things that they wrote years and years ago, having nothing to do with what they're doing right now," Cohen said.

"Anybody who thinks that they might produce technology at some point in the future that might be used for piracy has to watch everything that they say," he added. Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation, which represented StreamCast Networks in the recent case, said Cohen has a good point. "I don't think it's anything that Bram needs to worry about but the Supreme Court seems to think that everything is relevant to the discussion," he said. "It raises the question of (whether) anything you've ever said can be used as evidence against you later." But von Lohmann said if the Motion Picture Association of America wanted to go after Cohen, it would have done it a long time ago.



Bram Cohen
1166 Pine #11
San Francisco, CA 94109
415-775-6963
bram@bitconjurer.org

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