LawFont.com

Recently, there has been a considerable amount of attention given to this announcement by Piratpartiet (the Pirate Party of Sweden), which says it has:

launched a new Internet service that lets anybody send and receive files and information over the Internet without fear of being monitored or logged. In technical terms, such a network is called a “darknet”.

The promise seems to be that people can send or receive copyrighted files without breaching copyright.

On the technical side, this looks to be a neat piece of coding. However, on the legal side, sadly for the Piratpartiet, I don’t think it will do what they think, for two reasons.

The first, more minor one, is that it’s a subscription service, hosted by an entity called Relakks. This means that there will be payment records and billing details available to be subpoenaed–especially if the user pays by credit card, cheque, or any online payment service connected to a credit card or bank account. If the aim is to conceal evidence of infringement, it probably won’t work. This however is merely a practical flaw.

The second, fundamental flaw, is that the concept is based on a flawed understanding of copyright law. According to the overview page for the project, hosted at SourceForge the DarkNet is conceived to work as follows:

A computer file is simply a number. Normally it is a really big number, but it is otherwise just like any other number.

…

If for some reason we were to allow 12 to be copyrighted by Brittney, she would still have no claim on the numbers 5, 7, 13 and 25. I could still copy these numbers and pass them around as I saw fit. As long as I didn’t copy the number 12, I should have no problems with the law.
So what happens if I transmit the “formula” (5+7)? Am I allowed to do that? What about the formula (25-13)? What if I only transmit (5,7) or (25,13)? What is the “meaning” of these transmissions?

…

Are these numbers copyrighted? Can I store them on two separate computers? Would that break the law? What if they were never added together? Would their existence still break the law?

What if I give you two other numbers? Again, and again.

There are two consistent ways to answer the above questions. One leads to the conclusion that “All numbers are copyrighted.” The other leads to the conclusion that, “There exists encodings of copyrighted number that are NOT copyrighted.”

If the first conclusion is true, copyright is pointless. If the second is true copyright is meaningless.

In other words:

1. Any digitised copyright work can be expressed as a number — a very long number, in most cases, but still a number.
2. Any number can be expressed as the sum or difference of any two other numbers
3. Those other two numbers are meaningless on their own. They can be transmitted from computer to computer without breaching copyright, because they are not copyrighted
4. When you recombine those two numbers, incidentally happening to form the original work, you have not breached copyright, because all you have done is send uncopyrighted numbers.

So if a cool song by The Clash can be represented as 444444444, you could send 333333333 and 111111111, neither of which is the original song, but which can be combined to form that song. (Equally, you could send 222222222 and 222222222, or 232323232 and 212121212, or any other permutation.)

The problem is this: copyright prevents a person making a copy of a work. It does not matter what process is used. All that matters at the end of the day is whether a substantial part of the copyrighted work has been reproduced. The emphasis is on the result, not necessarily the method.

So the neat technical means of breaking a work up into chunks of numbers, and eventually recombining them, that lies at the heart of this DarkNet is irrelevant. The copyright status of those chunks is irrelevant (although, it has to be said that there is a good argument that they are themselves an adaptation of a copyright work, because all you have done is create a rendition of the original losslessly through an algorithm that can be reversed; in other words, the Piratpartiet’s second conclusion is wrong). If when you recombine them, you produce a copy of the original work, you infringe.

You could reduce the method ad absurdum: say you had B on the telephone looking at the digitised representation, and C on the other end of the phone, typing out what B says, number by number^*. There may be no copyright in each individual number read out, but there will be infringement if they are combined by someone to form the original work.

If it were otherwise, you could similarly copy a song note by note, or a book letter by letter (or word by word, as there is no copyright in words in nearly all cases) without infringing, on the basis that each note or letter is not copyrighted/coprightable. No judge would accept such an argument.

The technical side of this DarkNet may well obfuscate the activities, making them hard to detect. But this is a practical matter. Anyone signing up to this service should expect to lose any copyright infringement suit they are faced with.

*. Note: I do not address the case where this rendition of the work orally as a series of integers actually sounds better than the original work, although many such cases can be conceived of. :-)