In 2009, the world watched as Iranians took the online services that many have come to regard as tools of procrastination—services like Twitter, Facebook, and YouTube—and transformed them into tools of cyber-democratization. When the Iranian government banned foreign journalists, citizens disseminated cell phone footage of peaceful protests and the government’s brutal response, keeping the world informed. But news did not escape Iran’s borders unaided. Liberation technology, particularly the popular anonymity network “Tor,” helped Iranian protesters bypass government censorship while remaining undetected. Today, the U.S.-based volunteers who comprise a significant segment of Tor’s operator network face an uncertain legal landscape because Tor can facilitate copyright infringement. I foresee that Tor operators will soon find themselves defendants in copyright infringement actions arising from filesharing activity, likely in connection with the BitTorrent protocol. The typical plaintiff’s strategy of subpoenaing Internet service providers to identify users based on Internet Protocol address can mistakenly identify Tor operators who, because of the nature of this technology, will appear to be the sources of any infringing activity passing through their virtual tunnels. Using the Iranian uprising as case study, I argue that Tor operators should be shielded from secondary infringement liability so that they can continue to facilitate speech in censored nations, thereby improving U.S. access to world news and nurturing democratic habits abroad. Specifically, volunteer anonymity network operators should enjoy protection under the Digital Millennium Copyright Act (DMCA) § 512(a), a provision allowing safe harbor for transitory digital network communication providers.
