.torrent files make that content available. The simplest counterargument is that if his actions didn't make that content available, what were all the visitors to his site doing?

Should a person be able to successfully defend with "What's the problem, I was only giving copies of the vault key to the people who I knew would burgle it. I never handled any of the vault contents myself!"?

Herein lies the problem. While your vault example makes sense, you can also say that someone selling knives or guns can't be responsible for people using them to murder someone else. Where do you draw the line? If you are merely providing something, where is the line where suddenly it's my fault instead of the fault of the user?

I think the difference here is that information and objects have an intended purpose - a knife is usually for chopping food, a gun is usually for... erm - however a vault key clearly can't have a use outside of using it to get into the valut. Where to .torrents fall in this? It's not the vault key situation, because there are definite good uses for them (linux distros, I believe Blizzard uses bittorrent to distribute updates?). However, the majority of torrent usage is for piracy [citation needed].

So I guess what I'm saying is that all objects have a potential for negative usage and a potential for positive usage, and we're trying to draw the line somewhere in a rather undefined way.

To me, it seems unfair and harsh to be imprisoned for something that by another interpretation seems okay. I have a reasonable expectation not to be imprisoned for creating a site where people can post content. If it's coopted by the community into a place where people post torrents, it seems that right now I could be sent to jail for that.

The problem here isn't the intention of the owner of the site, just like it isn't about Kim Dotcom's intention. I don't disagree that they were completely aware that they were profiting from other people's desire to pirate. My problem is that all of these legal cases against these people seem to be brought in a way that doesn't feel 'just'.

The key part of my analogy is "that I knew would burgle it". It's exactly like being an accessory to a crime. Drive a getaway car and you're not going to be able to use "hey, driving is completely legal, you can't charge me!"

.torrents themselves are perfectly fine, just like knives. I'm not making the argument that the object should be banned. But if a frothing hooligan runs up and asks for your knife because he's going to stab that guy over there, it's pretty clear that if you hand it over you've facilitated a crime.

So it's not the innate nature of the .torrents themselves, but the use of them as a nexus to set people up with illegal content. Like being a middleman selling stolen property, perhaps. You didn't steal it, but you did make it available.

What is your ISP doing, if not "making things available".

Let's stop arguing about whether or not torrents are copyright infringement, and move on to the second point: can one be expected to show remorse for what amounts to computing a mathematical function over an encoded movie file? Even if it's wrong, my human emotions aren't programmed to respond to that.

Do you support the eradication of 'accessory to' crimes, like my getaway driver example below? Intent is an important part of the law. Drive into a pedestrian, killing them - if you didn't intend to, it was an accident, a sad event. If you did intend to, it was murder.

The ISP is providing me with access to the internet, and is not providing me with a list of links to copyright-infringing material, constantly updated for my convenience.

If instead of the .torrent file, it was a list of stolen credit card numbers, the situation would be much clearer. It would be stupid to hold the ISP as equally accountable as the website owner. To hold ISPs as having the same intent as every website owner in the world would make them legally liable for all online fraud. Clearly there's a difference.

Totally right. Google makes copyrighted material available too.. Lock 'em up!

For something like a movie they mostly consist of a hash list which is clearly a derivative work based on the original so probably. http://en.wikipedia.org/wiki/Torrent_file

EX: A 4GB file using 4MB pieces would have 1000pieces x 20 byte hashes or 20k of 100% derivative work. And ~2k for all other meta data.

By your logic a plot summary would be a derivative work.

You can't recreate a movie from a plot summary, same way you can't recreate a movie from a torrent file.

A summary is not created though a purely mechanical process, but a torrent is.

PS: If you created a random file that happened to contain a movie's hash your free and clear. If you keep generating random files and comparing them to a movie until you get the one you want your not free and clear. Same bit's, different process different result.

Being able to recreate the original work is not a requirement of "derivative work" under U.S. Copyright law.

A Torrent file's hash is representative of the movie or music's binary data, much like a synopsis or summary is representative of the plot line. You can't recreate a movie 100% from a summary, and it's even more difficult to recreate a movie from a hash.

The only infringement would come from downloading the movie itself (as a separate action) and comparing it to the hash or summary to ensure you have the correct movie.

That's not how copy write works. A summery involves creativity and factual information, and hash is a purely mechanical transformation without creative input. For much the same reason if you ran someone else book though a language translation software you could not prevent them from selling copy's of their work after being run through that same software translation. However, if you paid someone else to translate a book you could not sell it, but you could prevent the original author from selling that translation.

PS: There is a great post on copywrite that basically talks about bit's having color. It's not a physical process but legally the way there created creates a 'fingerprint' that matters.

Do you have a link to the article about color? Google isn't turning up anything in regards to "copyrighting color" that seems remotely relevant.

And me being pedantic: It's copyright, not copy write, because this is a form of law, like "the right to bear arms", or "the right to an attorney". Conversely, a work cannot be "copywritten", it is "copyrighted", or more appropriately "to secure copyright for [a work]".

I've heard the phrase "color of bits" before in reference to matters involving copy laws, and I vaguely remember reading something about it. I think the following link/post from 2004 is what you're after, but it might be the wrong reference. I'm not entirely certain, but ya, finding something like this with a search engine can be painful if you don't know exactly what you're looking for.

"What Colour are your bits?" http://ansuz.sooke.bc.ca/entry/23

Retric's other comments explain why this is legally and factually accurate based on the current state of US and UK copyright law.

Basically, a "derivative" work product that is mechanically (i.e., algorithmically) created from another copyrighted work is infringing because there is no creativity in the second work and the torrent hash's sole use is distributive. The selection of algorithms or parameters generally is not sufficient "creativity" (but can be, in very limited circumstances).

Ergo, a torrent is an infringing derivative work.

A summary requires some creative thought, specifically, what plot elements to discuss and which to leave out, how to state the plot, etc. The summary generally also has a non-distributive use in its own right. Consequently, a summary is also a derivative work but is not infringing.