Usenet – The new(old) target? – Newzbin fails to convince court?

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Usenet is now looking to be the new target for those seeking civil recourse for their material being shared without authorisation.

Ive commented in the past that the current tactics (and proposed DEB) could see a mass migration away from P2P and onto the binaries as their main source of copyrighted material.  It to me seems like no coincidence that there are reports of increased Usenet use and the interest in the (old) technology.

As Ive said before though Usenet poses a particular problem to the company wishing to recoup revenue from sharers.  Why? because as Im sure any old timers here (like me) or anyone with a keen knowledge in technologies will know that Usenet effectively removes the sharing element from the masses.

If you look at a file sharing case, it seems to hinge on the fact that the user in a swarm is either distributing the material to numerous people as a peer, or has infact completed the file and doing it as a seeder.  To me then, the case would be argued that the “distribution” of the material is covering a wide audience (dependent on the size of the swarm).

Usenet is different though.  For the downloader, the material is only coming to them, they are not uploading anything and certainly not sharing, which poses the average law firm with a problem.  The identifiable loss (in respect of that one user) would be that one title and ergo the case would seek to recoup only that one “infringement”, realistically that would only be the price of the film, unless it could be proved that the person had then gone on to distribute it to others.  Another problem with Usenet is that there is no “public swarm” and without someone authorising deep packet inspection of an none BT protocol on individual users, it would be impossible to merely “fish” for users downloading the material you were trying to protect.

Whilst for the downloader this sounds great, indexers of the material on Usenet may now come under fire as its been reported that Newzbin have just lost their case in court, where the judge agreed that infringement had taken place, saying:

….As a result, I have no doubt that the defendant’s premium members consider that Newzbin is making available to them the films in the Newzbin index. Moreover, the defendant has provided its service in full knowledge of the consequences of its actions. In my judgment it follows from the foregoing that the defendant has indeed made the claimants’ copyright films available to its premium members and has in that way communicated them to the public…..

Now a few interesting points come out of that (for me) defendant’s premium members” which to me suggests (yet again) that the matters that seem to be running to court are the ones where money is involved.  Newzbin is not the only NZB tracker out there, many of which have no fee system.  Add to that there are “un-indexed” Usenet listers which act a little like Google and whilst the output is not indexed and organized like a “proper” NZB site, its hardly difficult to tell what you are downloading.  NZB Indexers to me appear more like social networking sites with the ability to find the best “warez”

Your average NZB indexer appears much like a BT tracker at first glance (and certainly in respect of download) however Newzbin was said to have encouraged copyright infringement by allowing comments on the material listed (amongst other activities).  So whats your view?  and how far does the responsibility go for encouraging copyright infringement.  Type “Harry Potter NZB” into Google and see what I mean.  Should Google also be challenged, or would the argument be that Google is merely listing the sites that list the NZB’s?

When the fury over bittorrent was at its peak, I warned that this might happen.  I stated at the time that unless a solution was found, rather than piracy stopping, users would merely look for alternatives with less risk.  I would challenge ACS:Law or anyone else to track down someone who was facilitating Usenet to get the latest Harry Potter film.  Another interesting point came when I did a speed comparison of a download.  I downloaded a Linux distro from a well seeded swarm over on Linuxtracker and the identical distro from the binaries.  The average speed of the binaries blew the BT protocol out of the water, with even a swarm of 15 seeders and one peer (me) it could only achieve a max of about 290k per sec.  The binaries on the other hand rarely dipped below 420k per sec and had be questioning why people ever bothered with bittorrent in the first place.

Of course, regardless of if there is sharing involved or not, piracy is wrong.  I cannot and will not condone any distribution of copyright material without the owners consent.  As a Linux user and FOSS advocate it would be hypocritical of me if I was to say otherwise.  I believe end-users should be able to freely choose between proprietary or FOSS solutions and conversely those that provide proprietary solutions should be free to release them in anyway they wish without their rights being infringed upon by people who share their work without their consent.

Over at Technollama they have this to say about the Newzbin case:

This is an interesting result contrasting it with the earlier OiNK criminal case. I commented at the time that it seemed like the service was definitely infringing, but that the copyright holders had sought criminal liability instead of civil. If they had gone the civil way, the case might have looked similar to Newzbin. It is even more interesting that an uploader involved with OiNK has seen his case dropped by the Crown Prosecution Service.

To which I would agree completely.  For starters its argued that the burden of proof in a civil case (balance of probabilities) is less than that of a criminal court (beyond all reasonable doubt)  I’ve said before that the criminal route for the cases I have seen on the Net are wholly inappropriate both for the defendant and for the company concerned in my opinion.

So we repeat the cycle (yet again) of sucess, failure, sucess, failure (in respect of filesharing cases) and whilst both sides take their delight in their respective victories, the filesharing issue continues and damages the industry.  Mark my words as we see more aggressive attacks on filesharing, we will merely see a change of technology, I don’t think the industry can keep up with the innovation nor can law have the remit to cover all facets of modern tech.

Goblin –

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