Several weeks ago, former BitTorrent Inc. executive Simon Morris published a series of articles on Medium, discussing his time at the company and thoughts for the future.
By any standard, his articles are absolutely first class and a must-read for anyone interested in the resilience of the BitTorrent protocol, decentralization, and how ‘breaking rules’ can create both winners and losers.
The third piece in the series raises an extremely important issue – that of initial intent when creating disruptive platforms or technologies.
Perhaps most notably and despite his technology facilitating the sharing and downloading of billions of dollars worth of content, BitTorrent protocol inventor Bram Cohen was never sued for his work. Cohen set out to solve the problem of transferring big files in an efficient way, there was never any talk of piracy.
The same can be said of BitTorrent Inc., which despite controlling uTorrent, the world’s most recognizable file-sharing client, has never been taken to court for its activities. Considering the scale of infringement that’s now accidentally associated with the work of Cohen and his now-former company, it’s notable – but not that surprising – that the lawyers have stayed away.
That didn’t happen by chance. Neither Cohen or his former company have ever advocated the use of their technologies for infringing purposes.
This valuable lesson, of not promoting a tool or service for illegal uses, should never be underestimated. Intent, as mentioned earlier, is almost everything. No matter if a product passes the test of having “substantial non-infringing uses”, incriminating statements made by its creator (even before a project even gets off the ground) can come back to haunt – indefinitely.
Regularly, on various online discussion platforms, technically gifted individuals report that they are about to launch a new torrent site, streaming service, app, or similarly functional platform. Invariably they explain their project’s progress thus far (sometimes with links to Github) and then seek opinions on what users might find useful in a finished product.
However, more often than not, they also shoot themselves in the foot by talking about piracy-related matters. While it’s undoubtedly useful to consider how the law might view such a platform in the future, very often the conversations step over the line, with the effect of forever associating the finished product with copyright infringement.
Admittedly, the odds of site/service/app operators getting sued are relatively small, given the large number of sites out there that continue to operate both blatantly and with impunity versus the number of lawsuits filed.
However, given the importance of intent, especially that which is made public in discussions when a project is getting off the ground, the chances of any subsequent prosecution being successful increases exponentially.
Given that people launching such sites and services must be pretty familiar with the hostile legal environment surrounding these platforms, it seems entirely counter-intuitive to state from the outset that the intent is to infringe, or at least assist others in their infringing activity. But herein lies the problem.
As Morris suggests, those who set out to break rules (disrupting big business or even governments with cryptocurrency, to take his example) essentially have two choices.
They can either do so without displaying ‘evil’ intent while throwing plenty of positive reinforcement into the mix (promotion of legal activity). Or they can do so anonymously, so a potentially incriminating past doesn’t catch up with them later.
While anonymity is an option for those intending to create piracy-focused platforms, it isn’t a simple position to maintain long-term, especially for those whose aim is to generate and ultimately enjoy revenue.
Also, not promoting a ‘pirate’ service for piracy purposes means that the intended audience won’t easily flock aboard to make the site or service a success, since there are so many competitors obviously doing so already.
So, while the headline of this piece states that ‘intent’ is almost everything, in today’s environment it could be argued that for prospective ‘pirate’ site operators, anonymity is even more important.
A third option, which is generally underrated, is obscurity – but that’s way too boring for those seeking notoriety on the high seas.
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Written by David Minister
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