Collateral Damage: A talk with Desicanuk and Nessence

On December 21st, C-Net broke the news that Apple was filing suit against three people for posting a developer build of MacOS 10.4 via BitTorrent, seeking a jury trial and damages. Soon after, a Mac website started posting their names and relative whereabouts online.

As it turns out, someone involved in the situation was a reader of the site. They got in touch with me, one thing led to another, which led to this interview. Our participants:

Desicanuk
One of three defendants named in the suit, with the rest being "John Does".


Nessence
One of two administrators of MacTKA, a Macintosh-oriented BitTorrent tracker where the initial leak occurred.

Could you give us a sense of who you are? Your age, your background, and what you do?

I'll try without sounding too, pompous. I'm a Canadian living in the good ol' American south. Allot of friends back home in Toronto find it funny that a Canuk like me decided to go to school in the deep south. Anyway, I'm a junior in college - and despite popular belief I'm not a programming major or computer science aficionado; I'm just a plain ol' pre-med student.

My passion lies in medicine. I'm one of those hippy-save-the-world Canuks. I suppose that's due to committing myself to life as a perpetual student - but I have no problem with that. Non-stop school between the age of 4 and 30 isn't so bad, when you get to feel like you're making a difference in peoples lives.

I'm 23 years of age and I make a living as a freelance application developer/consultant. IRL I have a wonderful girlfriend and enjoy riding and playing WoW. I am known as nessence and run Mac TKA with dmacman.

There are two other defendants named so far: 'Merkin' and 'dmsmac'. I know you both know dmsmac, but Merkin seems to have gone off the grid. Do you know him, and have you talked with him since this happened?

I do not know him and he has chosen to remain silent.




No. I wish I had though. This whole situation is somewhat dali-esque. I haven't spoken to him, though if I had, I'd tell him not to worry, that he isn't the only one going through this. It's surreal being involved in something like this. You read about situations like this happening to other people.

It's easy to say they probably deserve to lose everything for screwing up, but it's really different when you're the one that screwed up. I can't say for sure what Merkin is going through, or how he is dealing with the news, but as a fellow student going through this, I just want to tell him to hang in there.

Did you do what Apple says you did? What exactly did you do?

So the tough questions start now, and here I thought you were going to take it easy on a fellow canuk. Let's see, did I do what they say I did? Yes and no.

Let me start from the very begining, but before I do I would like to mention the previous pre-release leaks. It seems that the documents I've seen accuse me of uploading/downloading previous releases of Tiger as well as 8A323. I can honestly say this much is NOT true. I've not uploaded or torrented or shared in anyway, previous releases of Tiger. That said, let me tell you how this began.

Like every other mac fanatic, I frequent rumor mills and message boards all across the internet. I always figured participating on these boards and checking out the rumor mills was routine for any mac fan. I saw it as a way to meet fellow Apple afficienado's, discuss topics relavent to the world of mac, etc.

Some time back I met a developer who implied he had a friend who didn't mind sending me a copy of Tiger, so long as I signed up for an ADC account. From what I understood about the ADC, you had to pay $500 to become a member to get Tiger. As a student, $500 is a lot of money. I barely have enough to pay for college expenses that aren't covered by my scholarship. I was then informed that it was possible to obtain a "free online ADC account". I figured that there couldn't be any harm in signing up for one, so I did.

I later found a seed-key sitting in my ADC account, sent by that individuals friend. I used it to download the Tiger build 8A323. When I mentioned it to a few people in various IRC chat rooms, they had asked if they could get a copy too. I made the foolish assumption that since I wasn't a developer, and I had a copy that it would be ok if I shared it with 5 or 6 fellow mac fanatics.

It was suggested that I used MTKA, an invite-only bittorrent community to share it. Since the community was invite only, and the majority of the people who frequent the boards were hardcore mac fans I couldn't see harm in uploading the file.

The problem was, I never torrented anything before. I never uploaded anything to the site, and I had to have someone walk me through the steps on how to create a torrent, etc. Don't get me wrong, I have downloaded using bittorrent - but never anything illegal. I suppose that streak's over.

After about 3 hours of seeding, a Mod for the site disabled the torrent. I assumed that there must have been something wrong with the file I uploaded, so I stopped my seed and deleted the file. I didn't even get a chance to install it. By that time, however, a few people who already had the file prior to me uploading, jumped on and "buddy seeded" my torrent. I found out later that the torrent was disabled because the Moderator of the site recieved a letter from Apple legal.

After the torrent was disabled, some individual leaked it to an open, non-mac site, something I hadn't expected to be done. Its from this point that December 2004 became a horrendous month for me.

As to the question, did I do exactly what Apple is accusing me of doing? I did share the file. So in that regard yes. But there was no malicious intent. I've never done anything malicious in my life. It was a piece of beta software, that I thought a few other fanatics would love to play with. I thought that we'd mess around with it for a day or so and then trash it.

Were you contacted by Apple before you found out you were being sued?

Yes. Before I found out I was being sued, they called me up to let me know they were doing an investigation. To be perfectly honest, the individuals who contacted me were polite and respectful. When I asked them if they were suing me, they let me know that if I cooperate, that Apple has a history of being a generous company.

I answered all the questions they asked regarding how I got the torrent, how long I had seeded it for etc. I was honest and as helpful as I possibly could be. I suppose sometimes, honesty has a way of kicking you in the arse.

When were you actually served?

The court clerk / private investigator showed up at my door Christmas Eve. I wasn't home at the time, so he came back on the 27th to serve me. It's kind of funny, I pretty much relegated myself to my room after finding out about the whole investigation - and the one-day my friends convince me to go out for lunch with them, the courts try to serve me.

Let me tell you, this isn't exactly how I pictured my Christmas to be. I've never been in trouble with the law before. I've never had a speeding ticket; I've never even been pulled over - so you can imagine how scared I was when he handed me those documents. I pride myself in being a decent person, but when you're handed official documents that state you are being sued, it makes you feel like the absolute worst criminal there is.

Sometimes it seems like this entire month has been one giant joke being played on me by God. Oh well, maybe I'll get to laugh along when I look back on all of this.

Your names have been plastered all over the Mac web... what have the last few days been like? How have your family and friends reacted?

This is the oddest part. I have a morning routine that I follow. After waking up, showering and getting ready, I like to read the Toronto Star and New York Times. I then scan the rumor mills to see if there is anything going on in the Mac world. I consider myself an active member of several communities from MacRumors, MTKA and MacNN. You should have seen how surprised I was when I found out I was being sued by reading it on the rumor mills.

After contacting Apple and subsequently their lawyers and finding out I was being sued, I went back to the Mac-web as you call it, and gauged the reaction of fellow fanatics. It's a little odd to find yourself the topic of discussion. I found it a little horrifying that so many people already passed judgment on the situation. It was made worst by the fact that so many people knew I was being sued before I did.

Suddenly I found myself as that "punk kid" who "stole Tiger". Or I was the "thief" who should be "sued for all he's worth". I always figured I was a pretty decent kid, I mean, I spend my holidays volunteering at the local hospital, I've never downloaded movies or music (well atleast not since the days of Napster), or uploaded anything in my life - but all of a sudden I'm being demonized. I'm no angel, and I'll be the first to attest to that, but I wish people would just wait a bit until more information is released before condemning me and wishing me the worst.

As much as I wish I could say the opinion of other people don't matter but I can't. I take a lot of the viciousness personally. That being said, there have been many people, my family, my friends and random members of the Mac community who've either messaged me or lent me their support. I expect my family and friends to stick with me, but having other Mac fans do so is comforting. To be perfectly honest, the messages of "hang in there" and "we all make mistakes" from Mac-fanatics helped facing this a little less difficult. I can't tell you how much I appreciate the sentiment.

While my name hasn't been plastered all over the web, I have discussed these events with my family and closest friends. It's frightening to see users being sued. As the site has grown, I have no doubt seen all of the events take place with the RIAA, MPAA, and recently Apple filing suit for the release of information regarding Asteroid. It occured to me a long time ago that our users could be approached by the legal system. What did not occur to me was that it would be so aggressive and occur during the holidays - a time when most are spending time with their families.

Apple is asking for a jury trial, and seeking unspecified damages it will later name... Do you think you're being made an example of?

A lot of people say that. I'm not Apple's legal team and I don't want to speculate what they are or aren't trying to do. It will be interesting to see if they name the 25 John Does, or if they are just sticking with us three. If this whole deal is a scare tactic and we are being used as an example, then its worked. It's worked marvelously. I'm terrified. I'm sure allot of other people are too. But "if's" and hypotheticals are a tricky business, so I'll try to stick with what I know.

What I will say is this. I'm on scholarship, and have about $200 left in the bank. Other then that, I don't really have much else of value. I'm not exactly sure how they would get millions of dollars for me, if they decide to sue for a sum that large. If need be, I'll sell of my textbooks and my Mac to raise some sort of funds. I don't want to run away from punishment, if punishment is what's deserved. I actually want to own up to any mistake I've made. If they want me to pay, I will. I just want it to be something fair.

Why did you leak the Tiger build?

This is a tricky question to answer. In all honesty, I assumed that it wouldn't be a big deal if I shared this with like minded mac fans. From what I understood, other pre-releases were being uploaded to the site, so I figured mine wouldn't be any different.

The whole point was to just let a few other people play around with some nifty features. It was a beta, something that would keep our minds occupied until we could buy the final version. I suppose my impatience got the best of me.

Do you think what you did was wrong?

At the time, no. If I did think what I was doing was wrong, I wouldn't have done it. Looking back on it, realizing that I did break an NDA, and I was part of a scandal involving one of my favourite companies, yes I do think what I did was wrong and I understand why they are suing me. It sucks being the bad guy in a situation, and I honestly do regret what I did. But hindsight as they say is 20/20.

You did violate your ADC agreement... Do you think what Apple is doing is wrong?

When I signed up for the free ADC account, I didn't read the agreement. I suppose a lot of us don't read word for word every thing you agree to.

I never read agreements that I signed when I install other software or when I sign up for things like Hotmail, etc. I did violate the NDA (a term I've become incredibly familiar with over that last few days), so in that regards I think Apple isn't in the wrong. The violation of the NDA isn't my qualm with this whole mess. My problem is their accusation that I did so maliciously.

My intent was never to hurt the company in anyway and if I did, I'm truly sorry. Like a lot of people, I just wanted to mess around with a few cool features (i.e. Dashboard, etc.) in Tiger, and was too impatient to wait until the final release. Was that a mistake? Sure. But it was one made without some agenda to inflict harm.

I've never been one to avoid owning up to my mistakes, and I'm not about to start now. I do hope that whatever punishment they come up will be fair, and that they keep in mind that I am in college, a year from medical school, and have limited resources.

Have you talked to Apple since you were notified you were being sued?

I spoke to their legal team only to find out I was being sued. I haven't spoken to them since. I've seen some pretty horrible things at hospitals and HIV clinics, but nothing makes me more nervous then having to talk to lawyers.



drunkenbatman intermission:
Since all of this occurred on MTKA, I wanted to get some more context on what went down behind the scenes from the admin of the tracker and the community there as a whole, so the rest of the questions were directed at nessence.

You run the tracker the torrents were seeded from, and where all of this occurred. Why do you think you weren't sued?

I don't have any influence over what the users do, don't do, or who does or doesn't have access. I also didn't participate or access the Tiger torrent as I currently don't have enough time to spend testing the pre-released software. Had I been a peer, I probably would have been served as well.

Since you are one of two people running the tracker, the idea that you just have zero control is going to give some people pause. Could you walk us through how your tracker works?

When the site started, we invited 316 people to the tracker via email address and gave them each 9 invitations to give out to friends. This is how the tracker started. We are currently just shy of 30k accounts. First a user is invited by a friend or form the forum or if the person had previously donated. The user then creates an account.

The user then creates a torrent from content and uploads it to the tracker. The user then re-downloads his torrent from the tracker and starts seeding the content. If he wishes, the user can tell other peers about the torrent he uploaded and they can download it from the tracker and participate.

Can you give us some insight into how Apple was able to single out these three individuals from the swarm of seeders and downloaders?

BitTorrent is not anonymous; in order for the protocol to operate it requires a list of 'peers' to connect to. A peer list consists of IP address information for other peers which are interested in the content. From that information, based on what we know, Apple linked IP addresses from the tracker and usernames from the forum to information from Apple's ADC site.

In other words, these users accessed their ADC accounts with the same IP address which they connected to the Tiger torrent with. Why did they single out these three? I can only ascertain that these were the only users with similar ADC usernames and an IP address history.

Were you involved in helping Apple track down the users? The obvious questions that come to mind is if you keep log files, if Apple asked for them, and if you turned them over?

Yes. Yes, yes, and yes.

This was a mistake in hindsight. We were given 'Door #1': "If you don't co-operate we'll sue you". We replied and upon replying received 'Door #2': "We understand it's P2P, but if you don't co-operate we'll sue you" or 'Door #3': "We are all adults here, cooperate and we assure you we won't sue all your users but we can't tell you what might happen to the uploaders".

There were two factors to taken into consideration. First of all, BitTorrent is not made to hide who you are or your IP address, and your IP address is telltale of who you are (optionally requires subpoena or nasty-gram from a lawyer to your ISP). Second, we have thousands of users who have nothing to do with Tiger. Do we [a] go down in a ball of flame and get sued, or [b] cooperate, cross our fingers, and pray for the best?

We chose [b] (aka Door #3). We wanted to keep the tracker up and not get sued. Considering the way BitTorrent works and the fact the lawyers had the information before we gave them any logs the damage from cooperating weighed in less than the damage of not cooperating (for the users, not ourselves).

Why did we have logs in the first place? We are geeks, nerds, whatever you want to call us. We are obsessed with statistics, pretty graphs, etc. What do the users do? What do they like? How many users do we have and how times have they done X? How many users invited other users, how much do they upload? How does this all tie into server load and what is our capacity?

We even created graphs of bittorrent specific information. We didn't post any publicly because our method of generating them is currently slow and the server load would be painful. We purposely keep our stats page public.

Second, BitTorrent was young when we started with it. We've worked diligently with the creator of BNBT for a long time now to create a very stable, fast, and reliable BitTorrent tracker. A part of that required us to keep logs to debug BNBT and help the developer make it the best BitTorrent tracker out there. (BNBT is a BitTorrent tracker developed in C++, it also supports MySQL for data storage)

We've now disabled logging. We assumed companies would follow the typical 'DMCA' system wherein a company demands you disable the content and everybody is happy after it gets disabled. What we didn't think about was a contract like the ADC agreement which takes the infringement beyond the bounds of the DMCA. In that case, logs aren't much of a liability. The way BitTorrent works, it doesn't matter much, but we have disabled logs.

Bittorrent is used for all sorts of things, everything from linux distributions to home movies to piracy. While I've never seen it, your tracker is highly Mac-specific, which leads me to ask what the ratio of pirated files is?

I really don't know the ratio, but the tracker isn't built on pirated files. Drivers, service manuals, user guides, and old games which are not available anymore or are from companies which no longer exist. There are videos of recent events and old favorites which you can't buy. I have never seen the tracker without a significant amount of files which aren't pirated.

If it's not a 'den for pirates', or at the least warez-only, people are going to be curious as to why access is limited to invite-only? With the way bittorrent works, the more who are downloading the better... who exactly are you hoping to keep out?

Invite only was used for three purposes, server capacity and load, keeping a social appeal (eg, a community, not blind leading the blind), and for future features to create interaction between users and develop a system of trust for the users.

By controlling how many invites exist we can control how many accounts can be created, thus controlling load. Additionally, abusive users will think twice before trying to infiltrate a system of peers. The concept is not to create a safe harbor for pirates, it is to create a community of users who at least know each other one way or another.

The impression I've gotten from talking to a few of the users who have used MacTKA is that they're some of the most hardcore Mac fanatics you could find. At the time time, many of them seemed to be there for the warez and there was no shortage of people downloading the Tiger build. Do you think there's a mental dichotomy here?

Definitely. This is a chasm currently faced between the Internet and content authors. We are no different, except maybe somewhat of a catalyst. We have all types at MacTKA. There are a great number of mac fanatics.

There are some who may be there for warez and others who are in between. There are also a lot of switchers trying to find better value in their mac through the content they find on the site. We even have users who only use our forum because it's users provide such a great community.

We have had a few incidents with some users who look at the site as a place for warez. They suggest creating systems to keep people out and to hide things and have even suggested not allowing legal content! I've found that most of these users who are a little extreme, are also adolescent. I don't think they understand the impact or risks of their actions and in most cases are just trying to be social by sharing their discoveries with others.

Software and digital content is a very difficult medium and the lines have been blurred as to what is right or wrong, legal or illegal. Some users ignore, some take advantage, some follow the rules, and some get caught in the middle. The site is a platform for which the users (including Apple), will make of it what they want.

The nature of BitTorrent makes it very easy to 'share' anything in an incalculable manner. The Internet makes it very easy to make any number of friends. Combine the two and we have a place where users can share anything they want with each other but at the same time they can easily make any number of incalculable mistakes.

Have you seen a drop in traffic since Tiger hit the proverbial fan?

The traffic has stayed about the same. I think it may of even increased a slight bit on the forums. Temporarily, we weren't generating anymore invites for the site. I will generate invites again and see if anything changes. I think there were about 500 users who stopped using the system across the seven days following the Tiger event, however I can't say what part the holidays played.

For the last seven days from today [2004.01.04], there were 15k active users on the website and the tracker carried an average of about 3k peers (24/7). These are figures are typical and really haven't decreased or increased.




drunkenbatman Addendum:

Over the last week I've had two text files opened on my screen: one for the introduction, and one for the addendum. Both were empty until 20 minutes before I published. I've been mulling it over in my head while showering, brushing my teeth, shaving or walking, and the words just would not come.

Part of it is just what isn't said in this chat - bits of context picked up during conversations over the last week that you haven't been privy to that have jumbled my head. Like watching one kid try to find a lawyer licensed for California and the only one who says yes requires a $25,000 retainer. Or watching another 21 year old, who lives with his parents, come to a growing realization of just how this might play out and coming dangerously close to a mental breakdown.

I'm unable or unwilling to call either side in this situation good or evil, and I'm certainly not prepared to say "Bad Apple" or use the term 'evil pirates'. I don't condone what was done in any way, and Apple has to protect its intellectual property. However, it's hard for me to watch the potential of a bunch of kids lives be obliterated while holding a smile.

The term that keeps bubbling up into my mind is 'collateral damage', which is a military term used to describe the inadvertent casualties and destruction inflicted upon civilians as the result of military action. I have to wonder if, with a little creativity, there isn't a better way.



Update: Steve Wozniak and developer opinions have been posted.


yummy alcohol posted button Posted by drunkenbatman
    January 08, 2005, at 06:59 AM


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