ICARUS report

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This document is a draft. Please make comments on the talk page or email them to ffc-discus-l. Minor and non-controversial edits may be made to this page; please use a descriptive edit summary. Please do not quote or circulate this document for public consumption until a discussion draft is released.

Contents

[edit] Executive Summary

[edit] Background

[edit] Peer-to-peer filesharing, college students, and the entertainment industry

brief background on p2p and MAFIAA lawsuits
brief background on ICARUS; see ICARUS

ICARUS was one of the first subjects that Florida Free Culture co-founders Eldo Varghese and Gavin Baker sought to address when they started the chapter in 2005. It was the subject of our first press coverage, which made the front page of the Gainesville Sun, even before our first meeting.[1]

Since then, we've discussed ICARUS informally. In October 2006, GatorLUG hosted a speaker on the subject, mainly on the technical details; several Free Culture members were present with questions.[2]

[edit] Recent actions

In February 2007, reports surfaced that the Recording Industry Association of America (RIAA) was ramping up enforcement efforts against illegal filesharing on college campuses. Reports also identified the colleges which had received the highest number of copyright complaints from the RIAA.[3][4]

Additionally in February 2007, the RIAA launched a Web site for collecting "pre-litigation settlement" payments from illegal downloaders, allowing identified users to pay off the RIAA before a lawsuit was filed.[5][6] An initial round of letters sent to ISPs included several universities.[7][8]

On March 8, 2007, the House of Representatives' Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Judiciary held a hearing on piracy on college networks.[9][10][11] Among the witnesses was the president and CEO of RedLambda, the start-up company that licensed UF's ICARUS technology, which it markets commercially as cGrid.[12]

As college students concerned about the harmful effects of the RIAA's pressure tactics and unbalanced copyright law, and specifically as University of Florida students with first-hand experience with the ICARUS system, we felt compelled to respond.

[edit] A better path forward

This document represents our analysis of ICARUS as currently implemented, within the context of current copyright law, and recommends a better path forward.

[edit] Analysis

The justifications given for ICARUS by its supporters are numerous and complex. However, many common arguments for ICARUS are flawed, misguided, or misunderstandings of the law or technology.

[edit] Network load

The claim is usually made that ICARUS was instituted to reign in network load from p2p. I have no doubt that a large percentage of network traffic was p2p, but I've never seen evidence that the network was actually at capacity before ICARUS was instituted.

Moreover, I see nothing particularly troubling with the fact that a lot of traffic is p2p. Just because a lot of traffic comes from Service X doesn't mean Service X is bad, any more than Car X is bad because a lot of the cars on the road are a Car X model. This fact mainly seems troubling to those who contend that most of this traffic was copyright infringing. (Again, I'm sure much of it was, but have seen no evidence that it was so. Even if it was, the proper response is not to block the service, but to fix the legal status of p2p. More on this later.)

Even if the network load from p2p was so significant that it was clogging the tubes, I don't agree that the solution is to ban p2p. If we can somehow decide that p2p is "lesser" traffic than any other bits on the network -- which itself is a problematic assumption -- then the proper response should be not to ban the service, but to limit it. This could either come in the form of hard limits on bandwidth (i.e. only so much total traffic can go to a particular user) or via traffic shaping (i.e. limiting the speed of p2p traffic). In my opinion, either path should also be accompanied by an option for users to pay for more bandwidth, allowing demand to allocate supply, as well as generating revenue for network enhancements.

Many, many other universities use traffic shaping -- certainly more than use ICARUS. So I am unswayed by arguments that traffic shaping doesn't/can't/wouldn't work -- and definitely without actually trying it (at least as a pilot program). Cain will make the argument that BitTorrent, in particular, is a nasty protocol w/r/t network load, but I remain unconvinced that this can't be solved at the network level without resorting to banning the service outright.

[edit] Safe harbor for Internet service provider

The claim is also made that ICARUS shields UF from legal liability for filesharing on its network. This is bollocks. The DMCA is clear on the requirements for a network operator; if UF follows these requirements, none of which involve blocking services or attempting to influence user behavior, it has no liability.

Personally, I think the MAFIAA was lying to universities about this, and UF either believed it or didn't want to test it. I don't have any proof of this, but if anyone knows of any evidence of the MAFIAA saying this, I'd love to see it.

FWIW, RedLambda's Web site makes claims like "avoid legal liability for your users!" -- which is, as aforementioned, bullhockey.

I would also like to learn more about the possibility that by meddling with user's traffic, UF could actually incur *more* liability -- can anyone confirm/deny this?

[edit] Illegal filesharing

The argument is made that ICARUS blocks p2p because p2p is illegal and bad. Of course, not all p2p is illegal (and there's no way to tell from looking at the traffic or even the content). Even if it were, I'm not sure I see the moral onus on UF to block it. I mean, there's all sorts of materials that are illegal; we don't station security guards at the entry to every dorm 24/7 to prevent residents from bringing them in.

Moreover, even where currently illegal, I think that p2p should be legalized; again, see below.

[edit] Immunity from prosecution for students

The argument is made that ICARUS shields UF students from being sued by the MAFIAA. Well, yes and no.

Yes: No UF student, AFAIK, has ever been sued by MAFIAA. I think we can all agree this is a good thing, and if ICARUS has anything to do with that, then ICARUS is good in that regard. However, it's very questionable whether ICARUS does have anything to do with it, e.g.:

No: Even before ICARUS, AFAIK, no UF student was ever sued by MAFIAA.

No: ICARUS only exists on Housing network -- not on the rest of campus, and certainly not off campus. So unless the presence of ICARUS on a network where only 20% of students live extends a truce to the other 80%, the "shield" doesn't cover the other 40,000 UF students.

No: It's still possible to infringe copyright on DHNet, i.e. with non-p2p protocols -- so it really doesn't even shield campus residents.

Moreover, there is an argument to be made that even if ICARUS is a lawsuit-shield, that UF should get out of the way and let students do what they want and, if it comes to it, face the consequences. This is a pretty hard-shoulder argument to make, though. But I think it would still be preferable to do something else than ban p2p: whether it's requiring students to sign a statement that they understand that using p2p to infringe copyright could result in legal liability, or some other user education, I don't think a ban is the right way to go.

[edit] Security

The claim is made that ICARUS protects users from Internet nasties. Again, yes and no. It does shield users from some nasties, but not everything (e.g. phishing). It could even lull users into a sense of false security if they're told that ICARUS keeps all the nasties off the network. (And we should remember just the level of myth that exists around ICARUS. Communication with average students is pretty much nonexistent.)

Moreover, I think the "security" functions of ICARUS should be separable from the p2p ban. Even if somehow this were not possible, I still think it would be preferable to let users opt out of the security "feature".

[edit] Services

The claim is made that nobody has a "legitimate" reason for using the services banned by ICARUS. I am sure we can compile a long list of counterexamples. The administrators respond by saying, "Well, if you have a legit reason, you can always ask for an exemption." What is never printed in the newspaper, though, is how this "exemption" process is not published in any of the docs about ICARUS, and is certainly not prominently communicated to users. Moreover, we are never told what are the standards for deciding what is a "legitimate reason," nor who makes the decision, nor how long to expect for a response, nor how to appeal a decision we disagree with.

Even if we were: is this the network we want? A permission culture where UF's network administrators decide what you can do with the tubes you pay for, regardless of their technical capacities? Network administrators who have to decide each individual case of what is a "legitimate use"?

[edit] Judicial referrals

The claim is also made that there were many, many judicial referrals for using p2p before ICARUS. To me, this suggests that the judicial process was broken.

Relevant documents:

[edit] Recommendations

[edit] Clumsy technological solutions for nuanced legal questions

  • Peer-to-peer technology is sometimes, but not always, used to download copyrighted material without authorization of the copyright holder. However, p2p protocols are also used for many uses authorized by rightsholders, including to distribute FOSS and CC material, and can also be used for material not subject to copyright (e.g. government material, works that have passed into the public domain). Students should not be arbitrarily denied the ability to use a protocol because it is sometimes used to download copyrighted material without permission. No technology is capable of determining if particular content is subject to copyright. In the case of copyright content, no technology is capable of determining if particular is being downloaded without the owner's permission.
  • Unauthorized downloading of copyrighted material is sometimes illegal. Under certain circumstances, however, it may be a "fair use" under law (e.g. the Diebold memos which Nelson distributed). Students should not be arbitrarily denied their right to fair use. No technology is capable of determining if a particular use is fair under law.

[edit] Industry failure

  • A system of voluntary collective licensing, e.g. as proposed by the EFF, would eliminate the vast majority of currently-illegal downloading. The system would also expand the legal availability of content, create more efficient legal distribution mechanisms, provide fairer prices for consumers and fairer payments to artists. The content industry should turn its attention away from "piracy" on college campuses and instead focus on legalizing p2p -- by monetizing new distribution methods and actually providing value to consumers rather than simply rent-seeking. The MAFIAA should agree not to sue any more students until they work out VCLs. If they don't, Congress should step in.

[edit] Liability for network provider and users

  • UF can comply with the law and face no legal liability without banning services or restricting its users. The existing system does little to shield UF students from liability for illegal downloading.

[edit] Security

  • While the existing system provides some additional security for users, these features can be preserved when separated from the p2p ban. (We may want to say something about "UF should provide more security education for users," but we have to be careful not to step on any toes in so doing.)

[edit] Network load

  • Form a committee to investigate alternatives to banning services to manage network load. The study should include a consideration of the policies of similar universities.
  • If services are banned, an exemption process should be prominently publicized. Applying for exemptions should be clear and straight-forward. A committee, including student representatives appointed by IRHA or SG, should review exemptions. The committee's membership, meetings, and decisions should be public. Standards for decisions should be promulgated. Decisions should be made in a reasonable period of time and should have a clear appeals process.

[edit] Transparency and accountability

  • DHNet should create a written policy for ICARUS describing the goals of the system. This will provide students with an official rationale for the implementation and allow them to evaluate the system on its merits.
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