Well, it was bound to happen. It appears as if someone was using Bittorrent over TOR to copy copyrighted material through my gateway. Yesterday afternoon, I received two emails from Slicehost. They both started:

We have received a notice pursuant to the Digital Millennium Copyright Act (“DMCA”) from Bay TSP regarding certain content appearing at the above-referenced website (the “Website”). This company alleges that material posted on your company’s website infringes on their copyright. Please remove the content claimed to be infringing from the Website and confirm to me in writing that you have done so by 8:00 A.M. Central Time, Thursday, June 25, 2009. If the allegedly infringing content is not removed and/or I have not received your written confirmation by that time, Rackspace will suspend network access to the server(s) hosting the Website.

Please note that you may provide a counter notification, stating that the posted material is not infringing the alleged copyright, in accordance with the provisions of 17 U.S.C. §512(g)(3) to Rackspace’s designated agent:

I responded using the Response template for Tor relay maintainer to ISP that was written by the Electronic Freedom Foundation. The gist of the response is that there is no infringing material posted on the website, and it just appears that way because of the way TOR works as a conduit.

Slicehost responded:

Unfortunately, as you have stated your intention to take no action over this incident we have had no choice but to suspend your account. Please do note that running a TOR is not against our ToS, however, seeding and sharing copyright material is.

Unfortunately, I never received that email until after my account had been suspended. I contacted support and they re-sent the email. I responded pointing out that I am not seeding or sharing copyright material, so there is no action, other than shutting down TOR that I can take.

Slicehost responded:

I reactivated your account for the time being. In other cases similar to yours, we have had customers block the ports being abused through the torrent service. We need some way of ensuring that copy written material is not being served from your slice. Regardless of where the content is hosted, Bay TSP and Warner Bros. were able to download their material through your IP address. You need to find a way of blocking these from happening again. Please update this ticket with your plan of action. I need to know that this issue has been resolved and we will receive no further complaints.

Based on this, I followed the advice of Chris Brunner on Why You Shouldn’t Run BitTorrent Over Tor and disabled the most common BitTorrent ports. Ideologically, I’m a little uncomfortable with this. While BitTorrent is often used for illegal copying of music or movies, it can also be used to copy important open source software which could be used in promoting democracy and free speech.

From a practical stand point, if what I have to do is shut down the most common BitTorrent ports to be able to keep TOR up, so be it. In addition, it may allow me to keep TOR active for longer periods without using up too much bandwidth. Yet there is another concern here. While this is likely to significantly limit the chances of someone illegally copying content, as long as you run TOR or any sort of proxy, people will be able to access copyrighted material.

This is why one section of the Digital Millennium Copyright Act is so important. The EFF letter puts it this way:

The "takedown notice" provisions do not apply when an ISP merely acts as a conduit. Instead, the "conduit" safe harbor of DMCA 512(a) has different and less burdensome requirements, as the D.C. Circuit Court of Appeals held in RIAA v. Verizon (see http://www.eff.org/legal/cases/RIAA_v_Verizon/opinion-20031219.pdf) and the Eighth Circuit Court of Appeals confirmed in RIAA v. Charter (see http://www.eff.org/IP/P2P/Charter/033802P.pdf).

TOR acts merely as a conduit. In light of this, I believe that Slicehost was incorrect when they suggested that the access of copyrighted material via TOR was a violation of their Terms of Service. However, one of the problems with Terms of Service and Acceptable Use Policies is that there is normally no due process or recourse available to clients of a hosting service when a dispute occurs.

In light of this, I will do whatever I can to keep TOR up and running in a manner that is acceptable to those in charge of AUP at Rackspace and Slicehost.

Yet why am I running TOR anyway? Friends have been asking me that, and I thought the best starting place to explain this is to look at recent blog post on the TOR Blog. In Measuring Tor and Iran they note that prior to the disputed election in Iran, there were normally less than 200 TOR clients in the Iranian IP space. Since the election and the ensuing turmoil, this has rapidly climbed to around 1000 TOR clients.

I believe this illustrates why TOR is so important, especially now. Related to this is NedaNet. Regular readers of my blog will already know the story of Neda Soltani, twenty-six year old Iranian woman whose death has caught the attention of the world.

NedaNet’s “mission is to help the Iranian people by setting up networks of proxy severs, anonymizers, and any other appropriate technologies that can enable them to communicate and organize — a network beyond the censorship or control of the Iranian regime.”

I would appreciate thoughts and suggestions from everyone on best ways of helping keep the Internet open in all countries. In particular, if anyone who has run into issues with the TOR and hosting services, especially if it involves BitTorrent, I would love to hear how it has been dealt with in your situations. I have also contacted counsel at the Electronic Freedom Foundation to get any guidance they can provide.