DMCA § 512 Safe Harbor for Anonymity Networks Amid a Cyber-Democratic Storm: Lessons from the 2009 Iranian Uprising
Northwestern University School of Law
May 14, 2011
Northwestern University Law Review, Vol. 106 (Forthcoming 2012)
In the summer of 2009, the world watched as Iranians took the online services that some of us have come to regard as tools of procrastination — services like Twitter, Facebook, and YouTube — and turned them into the tools of cyber-democratization. When the Iranian government banned foreign journalists, grainy cell phone footage of peaceful street protests and the government’s brutal response filled the void and kept the world informed. But news did not escape Iran’s borders unaided. Liberation technology, particularly the popular anonymity network “Tor,” helped Iranian protesters bypass government censors while remaining undetected.
Today, the U.S.-based volunteers who comprise a significant segment of Tor’s operator network face an uncertain legal landscape because Tor technology can facilitate copyright infringement. I foresee that Tor operators will soon find themselves defendants in copyright infringement actions arising from file-sharing activity, most likely in connection with the popular BitTorrent protocol. The typical plaintiff’s strategy of subpoenaing Internet service providers (ISPs) to identify users based on Internet Protocol (IP) address can mistakenly identify Tor operators who, because of the nature of this technology, will appear to be the sources of any infringing activity passing through their virtual tunnels.
Using the Iranian uprising as case study, I argue that Tor operators should be shielded from secondary infringement liability so that they can continue to facilitate speech in heavily censored nations thereby improving U.S. access to world news and nurturing the development of democratic habits abroad. Specifically, volunteer anonymity network operators should enjoy protection under DMCA § 512(a), a provision allowing safe harbor for transitory digital network communication providers.
Number of Pages in PDF File: 38
Keywords: DMCA, Iran, anonymity, Tor, copyright, safe harbor
JEL Classification: K10
Date posted: May 15, 2011 ; Last revised: December 24, 2013