But what — exactly
— is an “illegal file”?
As Leo Bicknell astutely pointed out in this thread:
“Also, when using a hashed file store, it’s possible that some uses are infringing and some are not.”
His example goes on to explain how this is so. (And I’ll point out that his example applies, for example, to Amazon. There are coprighted files there — e.g., books, music — which may be used legally by those who have purchased them. Do they become infringing if someone finds a way to access them without authorization/payment because Amazon’s programmers made an error and left a backdoor open that allow them to be retrieved via static links? No, they don’t. Should Amazon delete them in this instance? No. Amazon should fix the backdoors, i.e., remove the spurious links.)
Suppose that Joe and Jane are photographers. Joe has produced image X (to which he holds copyright) and Jane has produced image Y (similarly). Digital images X and Y are used as inputs to program P which produces output Z that is visually unrecognizable — that is, anyone who looks at it sees what appears to be random noise.
Does Z infringe on Joe or Jane’s copyrights? How? Why?
How does this change (or does it change) if program P’ which can reverse the actions of P exists?
Let me give another example, this time using content that is intrinsically illegal — and to avoid triggering hot-button responses, I’m going to posit a hypothetical: marshmallow peep dioramas. Let’s suppose that these are illegal in every country on the planet, that those responsible for them are universally reviled, that it’s a crime to photograph them, possess photographs of them, etc.
We thus conclude that a file consisting of a picture of one of these is always illegal: that is, it’s illegal no matter where it’s found.
Now what happens if that picture is decomposed into individual files, each consisting of one row of pixels from the original? None of those files contain anything recognizable as a marshmallow peep diorama. The original cannot be reconstructed from any one of them.
Is any one of them illegal?
Further: reassembling these will require something: an index, an algorithm, some construct that allows the individual files to be recombined. (This construct contains no content of any kind, marshmallow peep or otherwise. It’s merely a recipe for putting together files.) Is that construct illegal?
If those individual files are spread across a multitude of hosts, are any of those hosts holding an illegal file? How would they know?
(If you’re going to argue that those individual rows of pixels are illegal because the original is illegal, then replace the above with “individual pixels”. I trust nobody will argue that a single pixel is illegal. Ever.)
One more scenario: a photo of a marshmalllow peep diorama is encrypted and uploaded onto server A. Does server A hold an illegal file? How would the operators of server A know? How would anyone (other than the uploader) know? Now suppose that the uploader, the only person on the planet with the decryption key for that file, dies; therefore, the file is reduced to — for all practical purposes — a random collection of bits. Is that file still illegal? Why? How? Who will be able to determine this? (Schrodinger’s cat paradox in 1…2…)
I posit these thought experiments (and I’ll stop here, although many others suggest themselves) to highlight some serious problems with terminology, and with the law: it’s an attempt to apply the principles of the physical world to the digital one, and it’s a total failure. The putative sharp dividing line between “legal file” and “illegal file” doesn’t really exist — although many people would like it to exist, hope it exists, etc., because it serves their agendas or would make things easier for them. That doesn’t make it so.
Sometimes the world changes, and sometimes when it does, it’s time to discard outdated philosophy that no longer applies to current reality — because stubborn attempts to hang onto it at all costs, especially by warping it into something completely unrecognizable from the original framework, really DO cost, often dearly. (It’s 2012, and there are still inferior people living on this planet who assign more credibility to astrology and ghosts than to evolution or anthropocentric global warming. This isn’t funny or quaint any more. It’s stupid and dangerous.)
Schneier famously said “Trying to make bits uncopyable is like trying to make water not wet”. What we are witnessing is precisely an attempt to do that, via a combination of anti-security technology (e.g., DRM) and purchased legislation, orchestrated by failing, legacy companies run by insatiably greedy people. These people simply don’t care how much damage they do, how many lives they destroy, how much they hold back civilization, how much they twist the law, — as long as they get paid. They are exactly like one of their own famous characters:
“It can’t be bargained with. It can’t be reasoned with.
It doesn’t feel pity, or remorse…