Can online posts to user communities draw unwanted attention?
I have thought about this issue a lot recently, especially in light of some of the recent legal activity surrounding weblogs and other online publishing. I asked myself whether certain comments online that point to allegedly infringing activities could put the writer (or the forum) at legal risk?
Now before anyone becomes paranoid, let's put this in proper context. I'm not trying to alarm anyone and want to examine this from a reasonable, cool-headed point of view. I'm not talking about anyone's free speech being chilled or the threat of legal action against the speech itself. I am talking about online discussion that promotes some infringement, or provides evidence of an infringing act. Speech that could be used as evidence to help copyright owners make a case against others (or yourself if you're the one infringing).
Yesterday my curiosity led me to the site for MediaDefender, one of the companies retained by the entertainment industry to try to stem file-sharing activity. This company is believed to be one of the sources of bogus files found on P2P networks (Overpeer being another likely source). In addition to spoofed files, MediaDefender also offers
a number of other services to the entertainment industry, including one called "Media Scan," which combs through various websites, chat channels and P2P-related user communities. Select the "Media Scan" link from the little pie-chart thingy. I long suspected that they were sifting through online discussion boards, but never knew for sure until now. It appears that MediaDefender is using the Media Scan service as a measuring tool, but it's not too far-fetched that they may find other uses for the data they collect. Check out their "Media Target" link while you're at their site. (BTW, the link to their site is kind of iffy. The link worked yesterday, but it didn't work today when I tried it again. They're sort of a shadowy company.)
Here is a reprinted N.Y. Times article that MediaDefender has posted.
This is a really good reason why we all must be careful what we do online. No doubt these people are tracking many online discussions and are likely compiling huge amounts of data. I don't intend for this warning to suppress free speech; on the contrary, we should continue to freely discuss ideas in chats, blogs and user communities. But be very careful about any communications that directly point to or suggest infringing activity. For example, a request or offer of files, or an open discussion leading to specific sources, hashes, torrents, etc. Any discussion that leads to infringing activity or encourages it could very well be monitored and draw the attention of the wrong people. If you maintain or operate a website, weblog or discussion board, be very vigilant of the material posted there. There may be lurkers combing some of the chat rooms. Of course, encrypted communications are better protected from this monitoring, and the risks there are much lower.
In recent months, a few prominent court cases have had some rather chilling effects on online speech. If you read weblogs, you're probably aware of the fact that many bloggers have been a little uneasy lately. Perhaps the most notorious case is the Apple blogger decision handed down a few days ago. A California court ordered a number of bloggers to turn over their information sources to Apple, stating that any free speech right or journalistic protection of sources is trumped by trade secret law. The First Amendment is not absolute. See:
http://www.eff.org/Censorship/Apple_v_Does/
http://management.silicon.com/governmen ... 658,00.htm
What does this have to do with us? It could mean that, if the RIAA/MPAA and their merry stooges discover some online discussion leading to specific infringing activity, they may be inclined to pursue that information along with the identities of the persons who made the discussion in order to prosecute the infringement. When you contribute to a discussion board, you may wish to reconsider what, if any, personal information you choose to disclose to the board's operators, and to the Internet at large. If the board's operators are served with a subpoena, they may have no choice but to hand over any data relating to the person in question. And if you want to discuss offers or requests for files online, be very careful, as you may have an unexpected audience out there. Something better done through private channels or encrypted networks.
Cheers.