Picscout / DMCA question

[Robert Krausankas (BuddhaPi)]

 I just read this little snippet ( no link to the site as there wasn't much else there worthwile)

"Copyright owners have the legal right under the DMCA to reserve the right to view content only to website visitors. Webmasters have the legal right under DMCA to block access to anyone who wants to store or copy website content. It is also a crime under US law to use any trick or false information to gain access to a computer system. Running a robot that pretends to be a user by faking its useragent is crime under US Law because it is using false information to gain access to a computer system."

Can anybody point me to this specific area of the DMCA statutes? I'm going to start looking thru the entire thing. If this is indeed in the law, then I would venture to guess that Getty images will keep operating picscout out of Israel, to skirt US laws..

[SoylentGreen]

Interesting tidbit there.

I think that the answer's in the DMCA; it'll just be a little bit of work to read it all and understand it.

It would be good if "robots" could be legally precluded from accessing sites.
If this is, in fact, the case:
I don't think that it would help the copyright trolls if they collected data in countries other than the US.
Because, while they may be able to detect infringements in this manner, I can't imagine them bringing such data to court as evidence.
It would certainly seem odd to arrive in a US court with evidence collected "legally offshore", that would have been "illegal" to collect on US soil.
Again, that's assuming that the DMCA prevents the trolls from ignoring attempts to block "robots".

I'm quite interested to hear more...

S.G.

[SoylentGreen]

I've been scanning through the .PDF of the law:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ304.105.pdf

I think that "‘‘CHAPTER 12—COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS" ~ ‘‘§ 1201. Circumvention of copyright protection systems" (PAGE 5) might be the section to look at first.

One could assume, for argument's sake, that the "copyrighted material" is one's web site, and the "copyright protection system" would be the "robots.txt" file, or other measure.

S.G.

[Robert Krausankas (BuddhaPi)]

Again great minds think alike...except I'm kinda brain dead..If this is how the law is interpreted, and say HAN, Getty or one of the other trolls brings it to court, it could be shown that they did collect the "evidence" from another country, and I was also thinking along the lines of my site being the copyrighted material... I'll keep plugging along and reading more, see if i can drudge up anything else starting with Chapter 12 as you suggest..my main problem is understanding all the legal jargon, it generally takes me 2 or 3 times reading it before the perverbial light bulb goes off..

[lucia]

I can't imagine them bringing such data to court as evidence.
It would certainly seem odd to arrive in a US court with evidence collected "legally offshore", that would have been "illegal" to collect on US soil.
Again, that's assuming that the DMCA prevents the trolls from ignoring attempts to block "robots".

I'm curious how, as a practical matter, you are every going to be able to demonstrate that any evidence that might be presented was collected illegally. 

[SoylentGreen]

Yes, buddhapi, I agree it's pretty involved reading.
I'll also have to read it many times, highlight parts and take notes.
It appears that the law wasn't specifically written with our intent in mind.
But, the question is, could it be used as a legal defense anyway if it was presented in a compelling manner?

Lucia, I don't think that the likes of Getty would reveal exactly where or how they collected evidence to an alleged infringer.
But, if a dispute actually became a case for the courts, the question could be brought up.  Getty's counsel would have to respond.
If ignoring a "robots.txt" file is illegal in the US, and Getty stated that the data was collected in the US, then Getty would likely lose.
In a similar scenario, but wherein Getty stated that the data was collected legally from Israel for example, a US judge might still frown upon the evidence.

Just my thoughts...

S.G.

[lucia]

I can't begin to guess on the legalities but my hosting service is in the US. So, any intrusion is into a machine physically  located on US soil.   

As for the difficulty proving something, I guess I was thinking more along the lines of hand offs. It could be that picscout might find things on Google's image base. Then, afterwards, someone sends an email to someone somewhere else: that is "person B". That person might not be excluded in robots.txt.  Anyway, they aren't a robot so you don't expect them to read or obey robots.txt.  If asked the lawyer says the evidence was obtained when "person B" visited google, clicked a link and then got a screen shot. Maybe they saved the html for the page and so on. It would be true enough.  Even if something illegal was done and even if it would matter, getting back to how 'person B' knew to do anything and tracing it to anything illegal and demonstrating it in court might be pretty hard.

That's not to say you shouldn't look into it.  After all, I could be wrong and it might be that 100% of the evidence came from a picscout bot prowling around disobeying robots.txt.

[Robert Krausankas (BuddhaPi)]

While I agree this scenario is certainly plausible, I doubt Getty or any of the other trolls would go to far, and I could be wrong on this, but I think it is more of an automated system, and they would not go thru the trouble of actually sending someone somewhere or sending emails to "alert" someone they have a possible hit. I have since made it standard procedure to not have my images indexed, nor my pages cached by any of the major search engines. If nothing else it makes it a little harder on the trolls..

I'v been seeing this little gem and some variations popping up more and more on sites as people get wind of the troll activity, I don't know if it would help in a court of law, but I don't think it could hurt..

"With the exception of the main search engine bots, the use of data-mining/extraction software or bots by any company that is not collecting data for a search engine is strictly forbidden. In particular the use of Picscout will be treated as 'hacking' and as such will be prosecuted."


The links are below are a bit more in depth, again the problem would be proving picscout was sucking your bandwidth, the RIAA fiasco has made it difficult to use IP's as any sort of evidence..not to mention the issue with them being in Israel as well.

http://dcdirectactionnews.wordpress.com/legal-notice-to-getty-images-scanning-robot-picscout-is-not-authorized-to-access-this-site/

http://newsdata.info/terms/terms.htm

[lucia]

The links are below are a bit more in depth, again the problem would be proving picscout was sucking your bandwidth, the RIAA fiasco has made it difficult to use IP's as any sort of evidence..not to mention the issue with them being in Israel as well.

Sorry, but I'm not up to speed. I did a little search on RIAA, but I'm not sure which part you consider the fiasco and I don't know what it makes it difficult to use IPs as any sort of evidence.  Could you elaborate? Thanks!

[Robert Krausankas (BuddhaPi)]

Basically what it boils down to is the movie / music have been on a mission filing suit for millions of illegally downloaded movies, music, and more specifically porn movies,  via torrent sites, they would base the accusations on IP addresses, two problems arise here. 1 most users have dynamic IP's which change frequently, and 2. an unsecured network allows anyone within reach of that network to download from that IP.

One case comes to mind is that of the 85 year old lady, who supposedly downloaded a slew of full lenght porn movies.. who's to say her network was not secure and i sat at the curb in front of her house and downloaded the movies??...another item to mention is the use of proxy's, with a little know how it is very easy to hide behind multiple layers..

My guess is Picscout is probably using static IPs, but sending out their dirty little bot behind a proxy, making it nearly impossible to lead back to them..

[Lettered]

Regarding circumvention and robots.txt and archive.org  this case addresses a lot of those issues:

http://www.paed.uscourts.gov/documents/opinions/07D0852P.pdf

i first heard about it here:

http://lawmeme.research.yale.edu/modules.php?name=News&file=print&sid=1543

[lucia]

Lettered--
I think that case is interesting, but I don't think it's what budhappi is talking about.  In that case, as far as I can see Harding just didn't do anything to violate robots.txt or access Healthcare advocates server illegally.

What's discussed further upstream are things like this:

1) Server X includes a "disallow imagecrawler" in their robots.txt.  But image crawler crawls anyway. Their crawling would be violating robots.txt. (Lots of bots violate this because robots.txt is like a verbal 'imagecrawler, please go away'.  This violation didn't happen in Healthcare Advocates v Harding. )

2) Server X excludes 'imagecrawler" useragent in .htaccess.  This is a little harder for agents to get around because .htaccess is more like a bouncer that picks up the agent and kicks them out. But a browser or bot can 'fake' their useragent. That is: it can present a type of fake id.  So, maybe imagecrawler presents a fake ID. The bouncer can't recognize them, and lets them in.   This didn't happen in Healthcare Advocates v Harding.

3) Server X excludes everything from the server or ISP where 'imagecrawler' operates. (Example: if you wanted to keep everyone who surfs using a comcast out, you can exclude comcast.com)  This is a bit like the bouncer too.  It just looks at a different thing. The image crawler just goes to find another ISP. Maybe they go to ATT.  Now they aren't excluded.

None of these three things happened in Health Advocates v. Harding.  But some suggests picscout might do them.  (I don't know if there is any evidence picscout does do them.)

It seems to me the Health Advocates v. Harding can't tell us anything about the legality of 1-3 because none of those things happened.

[SoylentGreen]

I found Lettered's posting to be quite interesting.
I'm going to read every single word of those documents when I have a little time.
It's the closest thing that I've seen so far as to a defendant testing a defense based on Internet archives and also robot spiders.
Just my opinions, and I wanted to take the opportunity to thank Lettered for the post.

S.G.

[Lettered]

Starting on page 25 of the above link I posted, the court seems to me to say that

1) ignoring robots.txt to gain access to an otherwise public web page does not violate the circumvention clauses of the DMCA
2) circumventing the wayback machine's protocol to gain access to user blocked history could constitute a violation of the circumvention clauses of the DMCA

thats the way I read it anyway.

[lucia]

Lettered,
Other than with some pedantic nitpicking , I don't disagree with your interpretation of what the court might be saying about robots.txt.

But the reason I was saying that I don't think this is what buddhapi started out discussing is that in his introductory comment, he bolded this from the law:

It is also a crime under US law to use any trick or false information to gain access to a computer system. Running a robot that pretends to be a user by faking its useragent is crime under US Law because it is using false information to gain access to a computer system."

Notice the bit he quotes says nothing about robots.txt. It says something about faking a user agent.

What I'm going to say next has nothing to do with legalities. It has to do with nuts and bolts of running a web site:

Nothing needs to fake a user agent to get around robots.txt.  This is because robots.txt is not a block. (In fact, the reason the court seems to recognize disobeying robots.txt isn't necessarily violating DMCA is that robots.txt is not really a block.)

Faking user agents is a way to get around a real, honest to goodness block like the kind in .htaccess on Apache.  Also: In discussions above and on other thread, people have been talking about picscout faking useragents.

So while I think a case discussing robots.txt especially as it involves the Wayback machine is interesting, I think maybe people are getting distracted by an interesting discussion of robots.txt and forgetting about the issue of faking useragents.