Bram Cohen, developer of the BitTorrent file distribution software, has opened a search engine for finding content available via the BitTorrent protocol. Other search engines for BitTorrent content already exist; some have been shut down due to legal problems. The new site appears to be intended to take advantage of the safe harbor for information location tools in section 512(d) of the Copyright Act.
I have two observations. One is that, as a legal matter, Cohen may have a hard time relying entirely on a requirement that copyright holders notify him of infringing torrents using the 512(c)(3) take-down procedure. Everyone at BitTorrent (which, I realize, may be only a handful of people) will have to remain entirely blind to all of the infringing torrents available through their engine. For example, if a BitTorrent employee ever clicked on this link, they’d be “aware of facts or circumstances from which infringing activity is apparent”, and they’d have to take down all of those links. I suspect that they are simply very careful never to type certain queries into their own search engine, preferring to wait for 512(c)(3) notice from copyright holders. But that’s unlikely to work as a long-term strategy; wouldn’t it be amusing if someone started sliding printouts under the door of the BitTorrent office over in SoMa, or holding up placards for employees to see on their way in and out of work? If I were a lawyer for a large copyright holder whose works were readily available through the search engine, I’d be drafting a complaint right now.
The second reason I think this is a bad idea is not really a legal reason at all. Until this point, Cohen has been able to say — and has said, repeatedly — that BitTorrent is just a tool for distributing large files, and that he doesn’t really know or care about the uses to which it’s being put. Cohen as the maker of a general-purpose data distribution tool is much easier to defend, as a matter of politics and rhetoric, than Cohen as a direct facilitator of infringing downloads. This is entirely apart from any legal arguments about the Betamax doctrine; I believe that it is simply a dumb rhetorical move to have this search engine come from the same organization that developed the BitTorrent software and protocol.