Anthony Doesburg: Pirates will cover their tracks to get to online treasure

The latest attempt to legislate an end to online music and movie piracy will spark an arms race, according to a figure at the centre of New Zealand internet governance.

Pitted against the pirates is the Copyright Amendment Bill, introduced to Parliament last week, which could see them cut adrift by their internet service providers if they don't mend their ways.

But according to one source who did not want to be named, that will only encourage the illegal file-sharers to cover their tracks so copyright owners won't be able to identify them.

The introduction of the Copyright (Infringing File Sharing) Amendment Bill by Commerce Minister Simon Power is another skirmish in the long-running war between copyright owners - chiefly groups representing the music and movie industries - and the pirates, among whom are millions of the world's young.

Influential voices say it's a war that shouldn't be fought.

Lawrence Lessig, a Harvard law professor, says treating young file-sharers as law-breakers corrodes respect for the law. A better remedy would be coming up with new licensing arrangements for copyright material.

Jordan Carter, internetNZ policy director, says while it's an improvement on the law passed by the Labour-led Government, he doesn't support the bill's provision for suspension of repeat copyright infringers' internet accounts.

On the one hand, it's disproportionate to the crime and on the other it's daft when there's nothing to stop the terminated account-holder signing up with another ISP.

Pirates and copyright owners are already going at each other with an assortment of weapons.

The cutlass of choice for file-sharers is BitTorrent, a sophisticated system for peer-to-peer exchanges of small chunks of large files.

BitTorrent is the latest in a succession of file-sharing methods that are used for legitimate and not-so-legit purposes.

The software's genius is the way it tracks the numerous fragments of a many-megabyte multimedia file and stitches them all back together again, meanwhile uploading to and downloading from dozens of "swarming" computers, or peers, all in pursuit of the same movie or album.

Justice Dennis Cowdroy of the Australian Federal Court described the constituent parts of BitTorrent using suitably swashbuckling imagery in a judgment last month that could prove to be important wherever pirates and copyright owners are doing battle.

"The file being shared in the swarm is the treasure, the BitTorrent client is the ship, the torrent file is the treasure map, the Pirate Bay [website] provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map," Cowdroy wrote.

He was giving his ruling in a case brought last year by the Australian Federation Against Copyright Theft (AFACT, whose New Zealand equivalent is NZFACT) against Perth-based ISP iiNet. AFACT, representing 34 film companies, lost the case in which it was claimed iiNet effectively authorised illegal downloads by its subscribers by not stopping them.

Last week AFACT promised to appeal. What wasn't in question was that piracy had taken place.

The significance of the case lies in the court's acceptance of evidence from DtecNet, a Danish company hired by AFACT to track pirates' IP addresses.

Every computer on the internet has an IP address that can usually be linked to the user's ISP. It's harder to link the IP address to a particular ISP account holder.

With its list of illegal downloaders' IP addresses - harvested by masquerading as a pirate - correlated with iiNet account-holder records, DtecNet identified 20 pirates to Cowdroy's satisfaction (he left their names out of his judgment).

IP address evidence has previously been questioned in a number of jurisdictions, says Auckland copyright law specialist Rick Shera, who watched the iiNet case. DtecNet is in use in New Zealand, he says.

A feature of the bill introduced last week, and which Power wants passed by August, is that ISPs will be required to keep "information" going back 40 days on subscribers' internet use. Exactly what that means is unclear, says David Diprose, copyright policy working party leader of the Telecommunications Carriers' Forum, whose members include large ISPs.

But presumably, armed also with DtecNet data, it opens the way for local copyright owners, such as NZFACT and the Recording Industry Association of New Zealand, to pursue pirates in these waters.

Another thing it is sure to mean is that file-sharers will turn in greater numbers to tools that hide their IP address. Adept as they are at finding illicit treasures on the internet, they'll have no trouble hunting down new weapons with which to fend off the copyright owners.