IP: An Open letter to Dave Farber on the RIAA suit

[Dave Farber <dave () farber net>]

Even though (or maybe because) this note is critical of me, I am forwarding
it to IP. I have only one comment at this time.

Cook says:

> am not aware that a person from the internet side of the block and
> > the civil libertarian side of the bloc such as you would claim to be
> > has EVER publicly and legally sided with the intellectual property
> > folk....in any way shape of form....sided with them by saying the
> > way the net is run should be changed to accommodate them. Now you
> > have done so. Why?------

I doubt I am the only one. Civil liberty is a lot lot more than the right to
access some one else's music for free. To confuse these issues is, in my
mind, to seriously damage the cause of civil liberty especially in light of
the course the nation is going down.

As I said in my initial response, I believe that the egregious example of
that Chinese web site both exceeds any definition of fair and  provides an
test case for the use of DMCA (which I have stated often is a bad law). I
want the net to be the mainstay for future commerce and communications. If
it is to be that it needs either conform to current laws and or get those
laws changed. 

Dave

Ps I have not agreed to be an expert witness nor was I paid to do the
affidavit,



Forwarded Message
From: Dewayne Hendricks <dewayne () warpspeed com>

[Note:  This item comes from reader Gordon Cook.  DLH]

At 20:17 -0700 8/17/02, Gordon Cook wrote:
> From: Gordon Cook <cook () cookreport com>
> To: Dewayne () warpspeed com
> Subject: An Open letter to Dave Farber (for your list Dewayne)
> Date: Sat, 17 Aug 2002 20:17:53 -0700
> MIME-Version: 1.0
>
> Dave Farber has filed an affidavit on behalf of the  the position
> taken by the RIAA in a lawsuit against the major Internet backbones
> seeking to force them to bloc access to an infringing provider in
> China.  I would have expected an action like this from Jack Valenti.
> But not from him.  For the first time we have a person who
> participated in the Internet saying to a court that it is reasonable
> for it to order changes in the way the net is operated to satisfy
> the request of an owner of content.
>
> Here is my summary of this story as it has developed during the past 24 hours.
>
> ========
>
> Today a person on a private list wrote: This might interest some:
> the record labels go to war with the Internet infrastructure. Fred
> [von Lohmann] is EFF's Senior IP Attorney. [He writes: to a public
> list]
>
> I can't count the number of times I've seen posts on Pho speculating
> that infringers will relocate overseas, and thus escape the clutches
> of the RIAA. Each time, I've tried to remind everyone that the RIAA
> forsaw that eventuality and had 512(j) of the DMCA enacted, which
> allows them to force U.S. ISPs to block the IP numbers of foreign
> infringers.
>
> Well, it's happened. A collection of major recording labels have
> filed suit against U.S. Internet backbone providers (AT&T, UUNet,
> Cable & Wireless, Sprint) under 512(j), demanding that they block
> the IP addresses for www.listen4ever.com (based in China). Action
> filed in Southern District of NY, preliminary injunction requested.
>
> Complaint and preliminary injunction motion available at:
>
> http://homepage.mac.com/fvl
>
> A shift of venue to Nanaog where On Fri, 16 Aug 2002, Richard A
> Steenbergen wrote to the list: Ok here's a question, why are they
> suing AT&T, CW, and UU? I see Listen4ever behind 4134 (China
> Telecom), who I only see buying transit through InterNAP. Wouldn't
> it be simpler for them to sue InterNAP? I guess it would sure be
> nice precedent, if they could make some big tier 1 providers do
> their bidding to filter whoever they want whenever they want.
>
> Sean Donelan  then replied: The problem with BGP is you only see the
> "best" path more than one hop away. The network in question is
> reachable through transit providers other than InterNAP, such as
> Concert.
>
> http://www.nytimes.com/2002/08/17/business/media/17MUSI.html
>
> The New York Times says the companies named in the suit are AT&T
> Broadband (not AT&T's backbone?), Cable & Wireless, Sprint
> Corporation and UUNet technologies.
>
> "David Farber, a University of Pennsylvania computer scientist and
> an early architect of the Internet, filed an affidavit in the case,
> saying it would be relatively easy for the Internet companies to
> block the Internet address of the Web site without disrupting other
> traffic.
>
> "It's not a big hassle," Mr. Farber said. "There's no way to stop
> everybody, but a substantial number of people will not be able to
> get access."
>
> Cook:  What is going on here?  Here is Dave Farber ostensibly net
> civil libertarian saying to a court that it is OK to order the big
> backbones of the net to change their routing on behalf of a content
> provider. What has earlier looked like common carriage now
> potentially becomes muddied by asking a court to get involved with
> the routing structure of the net on behalf of content. ICANN will
> love this.
>
> WHY in heavens' name would Dave Farber do this?
>
> Here is HIS explanation of why he did it.
>
> Farber to his IP list on Aug 17: Since I provided an affidavit to
> this filing, I thought a bit of explanation might be illuminating.
>
> I have long resisted and will continue to resist the attempts of
> organizations to block access to the net in an attempt to restrict
> the freedom of speech and the fair use of information on the
> internet.
>
> I am strongly opposed to any attempt to control the fair use access
> to music, text, pubs etc. This does not seem to [be] the issue in
> this case.
>
> This case was interesting for several reasons to me. First the site
> is an egregious example of a site that exists only to hold
> copyrighted music and offers a unreachable contact address and false
> advertisements in an attempt to look proper. Second, the aim of the
> case is the backbone suppliers not the local ISPs.
>
> I have always felt that the law we have on the books should be
> followed until the law is changed by the congress or the courts
> unless there is a much much higher ethical imperative that holds.
>
> This case seemed to be to be a good case to test the issues raised
> by DMCA ( a law I believe was fatally flawed in concept and should
> be repealed) part dealing with copyrighted material on off-shore
> sites. [Cook: but Dave if you wanted to test the issues involved
> with the DMCA which did you file an affidavit on behalf of one of
> the SPONSORS of DMCA?]
>
> I will be happy to send any Iper the affidavit on request. The
> affidavit addressed a set of technical issues and did so in a very
> limited context.
>
> Dave
>
> Cook: Wouldn't it have been smart for him to get both technical
> advice on routing issues and legal advice on free speech issues?
>
> I see nothing constructive in this and plenty that is destructive.
> Consider the can of worms even on the technical routing side:
>
> Sean Doan wrote on NANOG: Hm, why stop with just backbone networks?
>
> Why shouldn't edge networks, corporate networks, and household
> networks chip in to uphold civil judgments against infringers?
>
> Surely I should not object if the RIAA insists that I block access
> of my small collection of computers to hosts which exist solely to
> distribute infringing material? Surely Dr Farber has already
> volunteered to adjust his own border filtering, since it is no great
> inconvenience to do so, the case is clear-cut, and this bad law is
> still on the books and therefore should continue to be followed.
>
> Sean Donelan replied: The record labels don't want to give you that
> choice. If you read the complaint you'll notice the record companies
> never attempted to contact the immediate upstream ISP in China.
> Instead of following international treaties for the service of
> process, which would take "months," they are forum shopping for a
> "less burdensome" (to them, more burdensome to everyone else) forum.
>
> It is much easier to get on a "blackhole list" than it is to get off
> of one. If you are a non-US ISP, you could find your address space
> null routed by major US backbones without notice to you. Even if you
> later get rid of the customer, how does the non-US ISP get off the
> US court imposed blacklist? Will China Telecom, or the Chinese
> government need to hire a US lawyer to petition the US court for
> permission to have address space assigned by APNIC to China routed?
> Will RIPE and APNIC issue additional address space to a non-US ISP
> because their previous address space became unroutable due to US
> court orders?
>
> Will backbones be expected to only null route addresses within the
> court's area of jurisdiction? Worldcom, AT&T, Sprint and C&W operate
> world-wide routing domains. How far will the US court's order
> "leak?" Will Canada and Europe still be able to reach
> www.listen4ever.com in China over the portions of the companies
> backbones not located in US jurisdiction? Likewise when German and
> French courts order backbone providers with assets in those
> jurisdictions to block access to illegal websites, how far will
> those orders leak? AOL/CompuServe has experienced this in Germany
> already.
>
> Dr. Farber's statements to the contrary, I don't think this is
> trivial to implement. We have experience with AGIS, Napster, RBLs,
> etc. Cook: I sent an expression of amazement to Dave Farber who
> replied presumably with regard to his earlier statement that "The
> affidavit addressed a set of technical issues and did so in a very
> limited context": Gordon, I do completely understand the limits of
> what I said and did so with complete understanding of those limits.
>
> Judge for yourselves: Here is the affidavit which Dave sent as he
> promised he would:
>
> Defendants' Routing Services Allow Internet Users in the United
> States to Access the Listen4ever Site
>
> 1. I understand that Listen4ever.com ("Listen4ever") has built,
> maintains and controls an integrated computer system and service
> accessible through a website http://www.listen4ever.com
> <http://www.listen4ever.com/> (the "Listen4ever Site"). Further, I
> understand that the Listen4ever Website is hosted on servers located
> in the People's Republic of China. I also understand that by using
> an easily used, web-based system, the Listen4ever Site enables users
> to connect to its central servers and encourages and enables them to
> download music from a centralized location containing millions of
> such files, thereby making unlawful copies of any and as many
> recordings they choose.
>
> 2. Cable and Wireless USA, AT&T Broadband Corp, UUNet Technologies,
> Inc. and Sprint Corp. - Advance Network Services (collectively,
> "Defendants") are in the business of providing Internet backbone
> routing services. Defendants provide routing connections to and from
> a website's host server, through which communications from a user's
> computer travel to the host server. Via Border Gateway Protocol
> ("BGP"), Defendants' routers exchange information about other known
> routers, the addresses they can reach, and the best available route
> between the addresses. Defendants' routers recognize addresses by
> reading the Autonomous System Number ("ASN"), or grouping of
> Internet Protocol ("IP") blocks, associated with the batch of
> addresses. The routers then determine the best pathway between the
> computer requesting a connection with a particular address and that
> address's host computer. Defendants essentially coordinate and
> provide the most efficient connection between computers on the
> Internet. Defendants' routing services are the principal means
> through which users in the United States can reach Listen4ever's
> servers in China.
>
> Defendants Have the Ability to Block Access to the Listen4ever Site
>
> 3. Defendants readily have the technological capability to
> significantly limit access to Plaintiffs' copyrighted works via the
> Listen4ever Site. By disabling the connections that allow users'
> computers in the United States to communicate with Listen4ever's
> servers in China, Defendants can significantly diminish the
> continued illegal copying and distribution of Plaintiffs' sound
> recordings. Defendants can arrange this blocking to ensure that only
> direct communications with Listen4ever's servers are blocked, and
> that communications with all other websites whose traffic flows
> through Defendants' backbone routing network proceed unhindered.
>
> 4. Defendants can block access to the Listen4ever Site in order to
> prevent copying and distribution of Plaintiffs' protected material
> by programming their routers to: (1) direct all traffic addressed to
> Listen4ever's ASN to an alternate site notifying them of the block,
> or (2) direct all traffic addressed to Listen4ever's IP addresses or
> IP blocks to an alternative site notifying them of the block. As it
> may be possible for Listen4ever to change its IP address, any
> injunction should also provide that if Listen4ever does so, then the
> new IP address shall also be blocked after notification is given to
> Defendants.
>
> 5. The processes by which Defendants can block access to the
> Listen4ever Site, as described above, are simple and technically
> well understood by Defendants. Blocking access to the Listen4ever
> Site would require Defendants to perform simple administrative and
> technical tasks, which would not place an undue burden on them or
> their networks.
>
> Cook:  Now the next paragraph of the above quoted Times article said:
>
> The companies named in the suit declined to comment. But a person
> who works closely with Internet providers said that they were
> concerned about how easy it was for a Web site to change Internet
> addresses. If copyright holders began asking them to block sites in
> large numbers, and to keep track of every new address, it could
> divert resources from running regular Web traffic.
>
> Cook: This is giving a court the opportunity to tell an ISP or big
> backbone get involved in content. Why can't Farber see the danger of
> doing that!!??
>
> I wrote back to Dave quoting his remark about understanding limits:
> "Gordon, I do completely understand the limits of what I said and
> did so with complete understanding of those limits."
>
> Cook: I wish that you would elaborate.... on that above sentence. It
> makes no sense to me.
>
> I don't think you made a good move....but I also need to be sure
> that if I criticize what you have done I understand what you were
> doing and why...... So let me ask...you talk of limits....what
> limits? Is it really your belief that what you have said can be
> expected not to extend beyond the "limits" of this case?
>
> How can that be? Law is built on precedent.... should the court find
> against the backbone you have the precedent established that it is
> OK for a content provider to ask a court to block an IP number of
> something it doesn't like..... Why OK?....well this guy Farber one
> of the architects of the net says its ok ..... Where does it stop
> Dave?
>
> I am not aware that a person from the internet side of the block and
> the civil libertarian side of the bloc such as you would claim to be
> has EVER publicly and legally sided with the intellectual property
> folk....in any way shape of form....sided with them by saying the
> way the net is run should be changed to accommodate them. Now you
> have done so. Why?
>
> How did you hear about this in time to do an official affidavit in
> time for the filing of the case? Are you an expert witness for the
> RIAA? It is your right to be such but shouldn't you disclose that if
> this is the case?
>
> Given the positions you have espoused in the past, what you have
> just done makes no sense. I think you owe the net a detailed
> well-reasoned explanation. In my opinion the explanation you sent to
> you IP list is subject to severe criticism. As Sean Doran and Sean
> Donelan have pointed out your affidavit to the court left much to be
> desired.
>
> The content owners are determined to break the end-to-end model of
> the Internet and grab control for themselves. Whose side are you on?
> Dave. Theirs or the Internet's. And why?


------ End of Forwarded Message

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