The Interplanetary File System, more commonly known as IPFS, has been around for almost a decade.
Although the name may sound foreign to the general public, the peer-to-peer file storage network has a growing user base among the tech-savvy.
In short, IPFS is a decentralized network where users make files available to each other. The system makes websites and files resistant to censorship and insensitive to regular hosting outages; as long as at least one user in the network continues to share.
These advantages enable archivists, content creators, researchers, and others to reliably distribute large amounts of data over the Internet. Many developers support the project, and some actively do so, by launching an IPFS gateway that the public can freely use to access IPFS stored content.
IPFS DMCA Notices
The operators of these gateways are not aware of how people use them; they simply enable technology. However, this has not stopped copyright holders from filing complaints urging operators to prevent alleged copyright infringements.
In recent years, several gateway operators have received DMCA requests to remove content that is accessible through, but not hosted on, their service. These complaints are not only made against small players. Cloudflare also received thousands of takedown requests.
Although Cloudflare has in-house legal experts to rely on, these notices can be a challenge for smaller developers who tend to run IPFS gateways as hobby projects. This also applies to computer scientist Mike Damm, who runs Hardbin.com.
IPFS & JetBrains keys
Hardbin is an encrypted pastebin that allows users to share text. The service relies on IPFS to store content and provides a gateway through which it can be viewed publicly.
Technically speaking, Hardbin does not store any third-party material, but it can be published and accessed through the site. Not all rights holders are happy with this and Czech software company JetBrains shared their concerns with the operator last October.
JetBrains sent the site a takedown notice requesting that the content be removed. In response, Mr. Damm explained that Hardbin.com is an IPFS gateway that does not store content, hoping that would solve the problem. It’s not.
Although JetBrains now understands that IPFS gateways do not store content, the company has proposed disabling the Hardbin.com URL through which software keys can be accessed. Otherwise, the operator could be liable for copyright infringement under the DMCA, the software company warned.
“Knowingly providing access to cracks, activation codes, or other methods intended to circumvent measures to protect JetBrains products against unauthorized use, you are directly liable, even if you did not directly participate in software piracy activities.”
“Furthermore, by knowingly encouraging or providing links to tools that are then used to gain unauthorized access to JetBrains software, you may be liable for participating in copyright infringement,” JetBrains added.
Note: Although Hardbin had the “write” function active, TorrentFreak was informed that the HTML file in question was not uploaded to the IPFS network using Hardbin. It was uploaded by third parties using an external service, but is available through Hardbin’s gateway.
EFF Steps Up
Faced with this legal conundrum, Mr. Damm turned to the Electronic Frontier Foundation (EFF), which came to the rescue. The EFF responded to JetBrains on behalf of the operator of Hardbin.com, noting that the service is not legally responsible for the alleged availability of pirated software keys.
“That proposal is unfounded. As Mr. Damm explained, an IPFS gateway is a conduit similar to VPNs, Internet access services, or Tor nodes,” EFF attorney Kit Walsh said in a letter.
“MR. Damm does not present the public with a disputed relationship; the link is only generated when the user enters a hash that identifies the file they want to retrieve. This step is analogous to providing a domain name to an ISP’s DNS server to obtain an IP address corresponding to that domain…,” adds Walsh.
JetBrains’ suggestion that Hardbin is in violation of the DMCA is incorrect, according to the EFF. The letter points out that the IPFS gateway is not a hosting service, but a general purpose channel for information, which should not be held liable.
The software company sent its letter under Section 1201 of the DMCA, which deals with trafficking in circumvention technology. This is different from traditional Section 512 removals. However, the EFF sees no reason why liability should apply in this case.
“It would be absurd to suggest that Congress granted channels special immunity from copyright claims based on the activities of third parties, but then, in the same statute, made them liable for Section 1201 pseudo-copyright claims,” Walsh writes.
Responsibility is complex
The EFF’s response does not necessarily mean that all IPFS gateways are immune from liability. Speaking to TorrentFreak, Walsh explains that there are several aspects operators might consider before sending a similar-style response.
This includes whether they make money by offering a gateway service to users with accounts, whether they have made any statements encouraging people to use their service for copyright infringement, and whether they host the files they complain about.
So far, responses from IPFS operators have been mixed. Cloudflare, for example, disabled access to thousands of files stored externally through its IPFS gateway, and other gateways have reacted similarly in the past.
UK developer James Stanley, who previously ran Hardbin.com, temporarily shut down the entire service when he received requests to remove thousands of links. Legal threats and uncertainties make running these projects less fun, he noted at the time.
Hardbin’s current operator sought help from the EFF and the site is still online. To hear the other side of the story, we also reached out to JetBrains, but the company has yet to respond.
While IPFS gateway operators may feel empowered by the position the EFF takes in its response, legal uncertainties always remain. EFF’s Kit Walsh informs us that he will consider writing an FAQ to address these legal aspects and nuances, similar to the legal FAQs for TOR relay operators.
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A copy of the second takedown notice Jetbrains sent to Mr. Damm is available here (pdf) and the EFF’s response letter can be found here (pdf)