A Case for BitTorrent

I'm going to come right out and say it, BitTorrent is a tool of massive copyright infringement.

But so was the VCR, and the cassette recorder. Even the Kodak Brownie, the first popular consumer camera, was ridiculed for copyright infringement, as well as privacy concerns.

But the reason the above technologies survived, and flourished, was not due to their copyright infringing abilities. It was due to their usefulness within the law.

BitTorrent is extremely useful, and more so every day. It is a decentralized way to store and transmit large files. A user downloads a small seed file that identifies the target file. The user then runs an open source BitTorrent client, which searches across the Internet for other peers, other users operating the client and possessing the seed file. As peers are identified, the target file is copied and transferred to the user from each peer. But the whole target file is not transferred from any one user to another. The large file is broken up into tiny chunks, or bits. This way, a small portion of the file is transferred from each peer, until all the bits comprising the entire target file are downloaded by the user.

Upon first glance, this may seem like an overly complicated way to transfer files. How could this possibly be useful?

Here are two reasons. The first is that the traffic load is distributed across peers. Since the file is coming from multiple peers across the globe, it is only relying on a relatively small amount of data from each peer. This lessens the burden on each user's system and internet connection. Additionally, since the load is distributed, if one of the peers goes off line, or the internet connection is lost, those bits can come from other peers. Once the target file is downloaded, the user may become a peer for others to acquire the file.

This is what the Internet was designed to do. The original application of the Internet was a command and control system created by the Defense Advanced Research Projects Agency (DARPA) for the US Department of Defense. It was intended to be the controls for launching nuclear weapons, and a safe guard against nuclear attack. If one of the command centers was hit by a bomb, the others would maintain their connection to each other and the weapons.

This is how the internet works for most communication. Each transfer of data, in the form of a packet of bits, is sent through one of several routes in the network. The web page you are looking at now may have come through dozens of different routes to get to your browser, all originating from the data center in San Francisco where this site is hosted. The difference is that BitTorrent files are coming from multiple hosting sites, adding another dimension of reliability to the transmission.

The second reason BitTorrent is useful is because it delivers high quality content. When a user selects a seed file, the number of peers is often estimated. By selecting a seed file with a larger number of peers, a user can be more confident of the quality of the file. Peers are virtually anonymous. It is possible that some peers would share corrupted files, on accident or on purpose, but it is much less likely that a large number of peers would. If a user downloads a file through BitTorrent and discovers its corrupt or inferior, the likely reaction is to delete the file, not to share it with others. When there are a large number of peers seeding the same file, the user knows that multiple anonymous people have all downloaded and found that file useful. This is distributed anonymous quality control.

Technology is always ahead of the law, and plaintiffs have not consistently and successfully prosecuted copyright infringers using BitTorrent, but there are several examples out there. The predominant legal tactic is to gather IP addresses from peers seeding a copyright protected file, subpoena the Internet providers associated with the IP addresses for customer names, and then sue the individuals. Some defendants have successfully removed the cases on various grounds, but may of them settle out of court for a few thousand dollars.

I do not condone the use of BitTorrent for illegal purposes. Similarly, I do not condone the use of any other legal technology for illegal purposes. Don't speed in your car either.

But I do encourage you to check out BitTorrent, learn what it is about and use it for legal purposes. What are the available legal purposes? The transfer of large files by the copyright holder, or in the public domain. Click this link and this link for information about legal BitTorrent sites.





The Apache License, Version 2.0 and the Anti-Patent Treachery Clause

Apache software helped build the web. Beginning in the mid-nineties a decentralized group of programmers built a free and open source web server that anyone could download and use. They were not the first programmers to offer FOSS, but their product was, and still is, hugely successful, demonstrating the power of open source software. It is estimated that more than half of all websites use an Apache server.

As part of their effort, Apache created a software license, which spells out the terms and conditions of using their software, and basically what the people of the Apache Software Foundation consider optimal from a development and public policy point of view.

Any programmer may also use this license to designate the terms of using their software, whether it is related to Apache products or completely independent. All you need to do is insert the following text in the comments at the top of your source code.


Copyright [yyyy] [name of copyright owner]  

Licensed under the Apache License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at

Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.


If you go to the link and read Section 3, you will see the anti-patent treachery clause. It is not called “patent treachery” in the text of the license, but it is sometimes referred as such by third parties, and it was probably the hook that got you to read this far.

The clause does two things. First, it licenses all patents related to the Apache-licensed software, owned by any contributor, to everyone. Second, it creates a disincentive for any contributor to sue for patent infringement over Apache-licensed software. If a contributor sues, he forfeits his patent licenses from other contributors spelled out in the first sentence of the clause.

What is the effect? I assume the intended effect is to limit software patent law infringement law suits. But I’m not sure that this is the case.
Basically, if a contributor sues for patent infringement, he will effectively be barred from using any Apache-licensed software, under threat of patent infringement from other contributors.

It gets confusing here. If a second contributor sues the first aggressor, will the second contributor also lose all patent licenses granted under the clause? (Notice that all “cross-claims and counterclaims” are included.) Also, what incentive will a plaintiff have in suing the first aggressor for patent infringement? Remember, the proposed plaintiff would be suing over software that he contributed with the intention of sharing it with the world, and is likely not interested in litigating.

I don’t think the clause will directly prevent any software patent litigation. The majority of plaintiffs are either non-practicing entities (trolls), or large corporations that produce proprietary software. The trolls will not be affected, as they don’t actually create software and thus do not use Apache-licensed code. The large corporations are sophisticated and wealthy enough to avoid the issue. They can develop or license commercial software that performs similarly to the Apache-licensed software.

The real impact of the clause is as an affirmation of open source culture. It notifies all who use the Apache-licensed code that software patents are an issue, which inhibit the development of open source platforms. When a programmer licenses his software under the Apache license, he is clearly standing in opposition to software patents.