In Revision3 DOS outage, has Hollywood gone too far?

A company that legitimately distributes its video programming via peer-to-peer is shut down for three days last weekend after being pummeled with traffic. The likely culprit: a company paid by the major movie studios and record labels to fight piracy. What's wrong with this picture?

It was Memorial Day weekend and Revision3 was scrambling to get its Web TV network back up. Its servers were being bombarded with so much traffic, they were shut down in what is known as a denial-of-service outage. That meant no Diggnation or Tekzilla--popular Web shows for a generation of tech-savvy consumers who get their news and entertainment from the Internet instead of TV.

The attacks led to hundreds of thousands of disgruntled fans and tens of thousands of dollars in lost ad revenue for Revision3, estimates Revision3 Chief Executive Jim Louderback.

In the following days, Revision3 was able to trace the majority of the packets overwhelming its torrent index server to a company called ArtistDirect, which acknowledged to Louderback that the IP address generating the packets belonged to a Los Angeles-based subsidiary called MediaDefender.

MediaDefender offers Internet piracy fighting services to clients including "every major record label and every major movie studio, video game publishers, software publishers, and anime publishers," according to its Web site. The company markets "non-invasive technological countermeasures" it uses on peer-to-peer networks that are designed to "frustrate users' attempts to steal/trade copyrighted content."

Among those methods are decoying and spoofing, in which they send blank files and "data noise" that make finding pirated content on the Internet as hard as finding a needle in a haystack.

MediaDefender Chief Executive Randy Saaf says he has found evidence that Revision3's tracker has been used to index pirated content for at least four years.

"They are running an open tracker that had (links to) a lot of pirated content on it," Saaf said. "We didn't know they were running it. We were targeting the pirated content."

But Louderback says that since April 2007, Revision3's tracker has only linked to its own content, except for during the five weeks leading up to Memorial Day. Last month, the company switched tracker software as part of a move to stabilize the server because it was crashing, and that left the server open to the public to post links to outside content, he says.

"We didn't advertise it was open. It's like leaving your garage door open," and people can't legally just walk in, he said.

Things came to a head after Revision3 closed what Louderback described as a "back door" to its tracker server. The MediaDefender packets--arriving as fast as 7,000 packets a second--backed up and Revision3's operations were offline for about three days, according to Louderback.

"They were either grossly negligent in how they program, or programmed (the traffic) to be obnoxious," he said. "I can't impugn their motives. All I can say is the behavior we saw."

"They said they are changing their process and procedures," he added. "That still doesn't give me my weekend back."

MediaDefender's Saaf sees it differently. "In our mind we were not targeting a legitimate company. All we saw was a public tracker with (links to) pirated content, he said.

Going forward, MediaDefender will look to see if any public trackers it finds are associated with a company, and if so will contact them before acting, Saaf says.

The legal issues are unclear. Putting aside any discrepancies over whether there were links to pirated content on Revision3's tracker and for how long, there are questions about whether by transmitting so many packets at once, MediaDefender knowingly caused a denial-of-service outage. In addition, anti-competition questions could be raised since ArtistDirect promotes videos and music and could be seen as a rival to Revision3.

Using a back door to a server without permission of the owner could make MediaDefender liable under the Computer Fraud and Abuse Act and could violate Revision3's terms of use, which typically prohibit creating unreasonable loads on the servers or accessing servers without authorization, said Ira Rothken, an attorney who recently defended TorrentSpy against copyright claims.

Louderback, who wrote about the situation on his company blog early on Thursday, said he probably won't sue because of financial constraints.

MediaDefender's behavior has crossed a line, Rothken says.

"Hollywood goes too far and loses all credibility when their investigators, in the name of antipiracy, act like lawless pirates and hack servers and force law abiding services off the Internet," he said.

"It's ironic for a company that is supposed to be helping major Hollywood organizations in getting legal compliance, that they would use techniques that at least optically appear to be in violation of the law," Rothken added.

To others, including my CNET News.com colleague Charles Cooper, Revision3 is more like a civilian casualty in an escalating cold war over how to protect and distribute copyrighted content in a digital age.

"You'll find over time more and more examples of Hollywood, big music and their agents being overzealous, overreaching, and overprotecting," said Eric Garland, chief executive of peer-to-peer file-sharing tracking firm Big Champagne. "If they are going to compete and defend their content aggressively enough to put a meaningful dent in piracy, they are going to be overinclusive and make mistakes."