30.7.07

Police shuts down Portuguese Trackers

This blog post talks about the news that the Portuguese Police shut down three Portuguese BitTorrent trackers. The whole issue arised many coments in the media and in the blogosphere. All my comments in this post are based on the press releases from four entities, PJ, FEVIP, ASAE and AFP, and the statements they've been giving about this issue (that I had access to, not everything). Also, I'm afraid I'm not using the correct English legal terms in some cases - sorry. Also, I'm not saying here that I approve the actions of those behind the websites and trackers that were shut down. What I am saying is that I abhor disinformation, specially at this level.

The press releases



FEVIP tells that there were two crime claims that led the Police to start this process, one from AFP with FEVIP, and other from FEVIP only. That led PJ and ASAE to start at the 24th of July a fiscal operation on illegal share of music, movies and games via Internet, using six search warrants.

Discrepancies start. According to the Police, the operation was a "fight against Piracy", and they then define Piracy as the reproduction of content that is protected by Authorship Rights via Internet. For that, they claim, they used human and logistic resources, including "digital proof supports", whatever that is (I really wonder what they mean with that). They say that they did this operation to reply to two enquiries (and not crime claims as FEVIP tells about). ASAE's press release complies with Police's, including their definition of "digital piracy".

FEVIP tells us that the operation stopped the illegal sharing of contents using P2P programs and websites, such as www.btuga.pt, www.zetuga.com and www.zemula.org, that were being used by more or less 200.000 users to swap material protected by authorship rights without consent.

The Police talks about a program named P2P (which I don't know of, I only know P2P technology), and also talks about more or less 200.000 users swapping material protected by authorship rights without consent.

ASAE goes further, and talking about the illegal sharing of "the contents of the program P2P", and about the more or less 200.000 users swapping material protected by authorship rights without consent.

FEVIP then talks about a protocol named "Bit Torrent". Goes on saying that Btuga.pt was developing for a long time a service for illegal sharing of files (I would love to see evidence on that).

The Police press release says that they apprehended servers, computers, DVD's, CD's, hard drives and documentation, and then saying that they made a high value apprehension that will change the act of reproducing and swapping content protected by authorship rights. They end asking parents to be alert on their children's usage of the Internet, even if inciting values is something that is really out of their action scope. Investigation follows.

Facts



A lot more could be said about this press releases, but let's stop with that. Here are some facts, for a change:

1) You should ignore almost everything about the media is saying about the case. The piece in the "SIC" TV channel is one great example - don't believe in a single word of what they said.

2) All this case isn't about "sharing illegal content". If the content was illegal, there would be no Copyright laws to be applied about. There's an huge difference between "sharing illegal content" and "illegally sharing content".

3) From the statements given from the three entities involved in this case, there's nothing about "illegally sharing content".

4) There's nothing illegal in the concept of a BitTorrent tracker, as proven in similar cases in other European countries. A BitTorrent tracker provides a number of .torrent files, and those files aren't copyrighted in any way. That being, there's nothing illegal in providing .torrent files, and since a BitTorrent tracker is just something that provides .torrent files, a BitTorrent tracker is not illegal.

5) The press releases talk about the apprehension of copies of copyrighted content (in CD's, DVD's and hard disks). If they can prove that those aren't private copies (please see the concept of private copies in the Portuguese law), then they might have a case.

6) It seems that some of those websites, besides being trackers, were selling software (clients for their trackers). That activity might have been illegal (just speculation here, mind you), but that activity is not directly related with operating a BitTorrent tracker.

7) Some people speculate that BTuga's software was a fork from Azureus. If that's proven to be truth, then that software was illegal because Azureus is based on a GPL license, and BTuga was selling closed-source binaries of the client, which would be in clear violation of the GPL license. Note that I don't know if the client was or not based on Azureus, and since I don't have a copy of the client I can't get that straight. If you can help me on this one, I would be thankful.

8) Illegal or not, if I was one of the persons behind the shut down trackers, I would be preparing myself right now to sue a hell lot of entities for defamation.

9) We have to assume that the Police press release is wrong, and if it is the case it would be good to have it corrected. There they consider "piracy" as "the reproduction of content that is protected by Authorship Rights via Internet". If that's the case, than piracy is not illegal, since the reproduction of content that is protected by Authorship Rights via Internet is not illegal. It that's to be right, then I would like to know why isn't the Police doing an operation to "fight piracy", since that would be "fighting something legal", which obviously is way beyond the scope of the Police.

10) In P2P trackers you don't swap, you share.

11) In the Internet, you don't have transition of materials, you have transmission of content.

12) You don't need explicit consent to get most of the copyrighted content (see more on the Portuguese law on this).

Since the Police says that the investigation ensues, I'm just waiting for the next set of press releases, and hoping that, in there, the story is set straight. Yet, there is lot's of stuff to talk about this issue, so I might come be back on this issue sooner than that.

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