Finally! I have finished my paper with even one day to spare! Prepare to be baffled (or at least slightly amused....)
Fanning vs. the music moguls
Looking into the entertainment industry's battle against illegal file sharing
Introduction
A few weeks ago it turned out the building I’m living in was one of the largest hubs of illegal activity in the world. Having introduced ‘almost lightning speed’ Internet in the student flats of it’s Tuindorp West complex, housing corporation SSHU found itself the target of a large scale international CIA operation. The final week of April saw a number of police raids on student houses. One particular confiscated hard drive held more than 250 GB of downloaded, and downloadable, files. Aided by peer-to-peer software such as Kazaa and Gnutella it was possible for the hard-working students of the city of
Although it is understandable why the entertainment business would want to stop pirate material spreading through the Internet – let’s face it, it is copyright infringement – it might be worth everyone’s while to look for other options to implement P2P technology into the so-called Establishment. Instead of spending thousands of Dollars, Euros and Pounds, not to mention valuable time and energy, on trying to stop people from downloading copyrighted files it might be more efficient to find ways in which the entertainment business and their consumers can work together in creating a structure of P2P which is beneficial for both parties. Why try to prevent people from using P2P software when you can make a quick buck out of it?
This paper looks at some of the implications of P2P technology from both a technological and a social viewpoint. Part I concentrates on some of the free P2P software that is already out there, such as Kazaa and Gnutella, to answer the question what exactly constitutes as P2P. Part II will examine what kinds of alternatives have already been established in terms of paid file sharing. How has the entertainment industry tried to stop P2P technology and what are the alternatives they have come up with? Here we will look at the famous Napster injunction and P2P networks such as I-Tunes. In Part III we will turn to future developments. What does the future hold for P2P and what kind of solutions are possible to keep both the recording industry as well as entertainment consumers happy?
PART I – P2P: Peer-to-what?
In order for us to appreciate exactly what it is that we are discussing here it is important to come to an understanding about what constitutes as peer-to-peer. Basically any interaction between two people without the interference of a third party, be it a moderator or a computer server, could be perceived as P2P. Two people having a conversation, exchange thoughts and information without the involvement of an external medium and are therefore communicating on a P2P level. Obviously this is not the kind of P2P this paper focuses on. Fortunately, having a conversation isn’t considered illegal whichever way you look at it in our Western society. P2P within the context of computer technology more often than not, is associated with felonious activity. When defining what P2P is in the context of the Internet and software technology it becomes a little bit trickier. There are a number of ideas and theories surrounding the definition of P2P.
According to Lechner, Hummel and Eikemeier there are three ways in which to talk about the meaning of P2P (Lechner, Hummel and Eikemeier, 2003). In their article, Business Model Peer-to-Peer – Is there a future beyond file sharing?, they divide approaching P2P into three separate components: technology, service and content, and organisation. In my opinion P2P can’t be placed simply in one or the other category, but is a mixture of the first two elements. My reasons for excluding the final factor will be explained later.
From a technological point of view P2P is the opposite of server-client networks: “In a P2P system all nodes dispose of resources and contribute to the network, peers interact unintermediated with peers, and contents, connections and members are nonpersistent.” (
Oram explains P2P in the following way: “Peer-to-peer describes a decentralized network in which all computers function as equals.” (Oram, 1998). Although rightly labelling P2P as decentralized, Oram’s claim that all computers are equal is a little of the mark. Bandwidth, hardware and implementations differ between users of the same network. Using a modem to download files is going to take a lot longer than the use of a cable connection will. While everyone has equal access to the network it remains to be seen whether everyone is equal within its framework. It seems all computers are equal, but some are more equal than others.
Shirky approaches P2P slightly differently. He sees it as “a network topology with dynamic configuration and (…) dynamically changing network addresses.” (Shirky, 1998). Change is the keyword in Shirky’s description. Shirky considers Napster to be P2P, because
“the addresses of Napster nodes bypass the DNS system [Domain Name System, which translates a www.-address into an IP address], and because once the Napster server resolves the IP addresses of the PCs hosting a particular song, it shifts control of the file transfers to the nodes.” (Shirky, 2000).
In our discussion of what P2P is, this complements the earlier assumption of P2P networks being decentralized perfectly.
However, there are more factors to be taken into account. Having dealt with the technological aspects of P2P, we now turn to the second characteristic: service and content. As stated above I find service and content to be only one part of the equation, but Lechner, Hummel and Eikemeier judge systems solely on this criteria to see whether they are P2P: “(…) what matters to the customer is the value proposition ‘access to contents’ and the interface to the service”. (Lechner, Hummel and Eikemeier, 2003). Instead of an outside body (i.e. a record company) producing, marketing and distributing the material, all this is done by the consumers themselves using a P2P network. In case of music recordings, the artist produces a song, which is then spread by a P2P system, which produces copies. Via word of mouth or viral marketing the files are distributed through the network, where consumers are able to comprise their own databases of music or even alter recordings, creating new audio files. Granted, this does constitute P2P, but to call it the sole definition would be insufficient.
Lechner, Hummel and Eikemeier introduce a third category by which to identify P2P: the organisational view. This aspect deals with peer motivation, peer rights and peer obligations. Although thought-provoking it is largely impossible to answer the question as to why people share files. Reasons for sharing a file or even knowledge don’t qualify a network as being P2P. There are an infinite number of reasons to share. People might want to feel part of a community and join a P2P network. Then again, some people watch television to feel part of a group; that doesn’t mean television is P2P. Furthermore, peer rights and obligations can differ from network to network. Most networks allow their peers to download as many files as they want without having to upload data, some require peers to trade files in a ‘tit-for-tat kind of way’.
What these objections to the organisational view boil down to is the fact that a network qualifies as P2P according to its technological and architectural structures. Kazaa for instance works in the following way:
“Kazaa uses peer-to-peer technology. This means that individual users connect to each other directly, without need for a central point of management. All you need to do is install Kazaa and it will connect you to other KMD users. (…) Kazaa Media Desktop allows you to search and download content that is shared by (…) other Kazaa Media Desktop users. [And] ‘kreate’ your own files and distribute them using Kazaa Media Desktop. (…) The P2P searches occur through users with fast connections, called Supernodes. Once located, the file is sourced for downloading directly from the user who has it.” (http://www.kazaa.com/us/help/quickstart.htm,
Although Kazaa requires the use of super nodes, everyone in the network can reach each peer. This makes the network decentralised and enables the use of dynamic addresses. In addition, users can upload their own files, thus creating autonomous consumers as discussed in the service and content characteristic.
While these technologies can be extremely useful to the music-loving public, the entertainment industry is less enthusiastic. The next section deals with the reasons why and what the industry has done to try and regulate P2P networks.
PART II – Industry-to-peer-to-peer-to-industry
The major issue concerning file sharing is, of course, copyright infringement. Although laws vary from country to country, most nations adhere to regulations similar to those of the
“Copyright is the protection of the original expression of an idea, whether it is expressed in the form of music, a painting, or written material. (…) In civil cases copyright infringement can occur whether or not money was exchanged for the music, and in criminal cases there only needs to be a possibility of financial loss to the copyright holder or financial gain to the infringer.” (http://www.riaa.com/issues/music/downup.asp,
“Where the infringing activity is for commercial advantage or private financial gain, sound recording infringements can be punishable by up to five years in prison and $250,000 in fines.” (http://www.riaa.com/issues/copyright/laws.asp,
The record industry’s initial response to the popularity of P2P file sharing programs was to sue the living daylights out of Napster. On
“(…) record labels would be held responsible for informing Napster of the artists and song titles to which they held copyrights. Upon receiving notice of a particular copyrighted file, Napster would be given three business days to remove the file and all identical files from its directory.” (Strahilevitz, 2004).
However, this didn’t make its users “second-guess the morality of their actions.” (
The prime audience of Napster consisted of teenagers and college students. For them being part of the Napster community felt like a natural thing to do. For this generation Napster provided them with a method of rebelling against the Establishment, the way their parents had done through protest rallies and sit-ins. What better way to do this simultaneously with millions of like-minded people? Consequently, herein lies the crux of the matter:
“Because the law and the federal judges who interpret it command less respect among teenagers than among the public at large, the [court’s ruling] could not tap into a base of good will among many Napster users. (…) On the basis of the injunction-circumvention experience, many of these teenagers have been socialised to believe that the copyright laws and courts are largely ineffectual, and that non-compliance with the spirit of the law is socially acceptable.” (
Apparently, court action wasn’t the way to go. Looking back at the days of the Napster ruling, the record industry has learned if nothing else:
“[That t]he porous Napster injunction emboldened hackers and users alike, convincing them that while the courts could deal a setback to the file-swapping movement, the government could never eradicate it.” (
Instead, the entertainment industry had to search for different means of eliminating the downside of P2P file sharing. The first sabotaging of P2P networks by the industry in conjunction with the RIAA (Recording Industry Association of America) worked by uploading incomplete or inferior copies into the network. Although many people who use P2P networks on a regular basis come across these files from time to time, to the disappointment of the entertainment industry, they haven’t led to the abandonment of the technology. Again it seems the Establishment will have to look for other means to compete with free downloading.
One way of doing this has been to launch alternative hybrid-P2P networks controlled by the record companies themselves. One such network is I-Tunes which consists of a large database of audio material available for downloading at 99¢ per song. What the music industry has tried to do here is to entice people into paying for the music they download instead of hijacking it. Although this network does provide a legal means to download copyrighted files, I think it unlikely this will become a serious competitor for P2P networks such as Kazaa and Gnutella. Why pay for something, when you can get it for free? Despite threats of legal action and ‘dirty files’, P2P software such as Kazaa is still more attractive.
To this end, let us look towards the future to see some of the possible solutions for this conundrum.
PART III – Peer into the future
Finally realising that P2P is here to stay, the entertainment industry started looking for solutions to the conflict between their desires and those of the downloading public. A research initiative of the Berkman Centre for Internet & Society at
Consequently, the other four scenarios are much more interesting, starting with the ‘speedbumps scenario for digital media’. This scenario “forecasts that a combination of technological, legal, and social restrictions can be implemented to allow for the commercial success of online media services” (http://cyber.law.harvard.edu/media/scenario2,
According to their own words the way the speedbump scenario works is fourfold: “(a) offer entertainment products on terms that no longer leave many people feeling like suckers, (b) create tech impediments to unauthorized copying which, though not perfect, at least impose speed bumps sufficient to make illicit free file-sharing difficult for those who lack skill, time and determination, (c) set legal risks credible enough to deter the timid and affirm the instincts of those who are normally law-abiding, and (d) educate public designed to sensitize consumers to the viewpoint of artists who need to make a commercial return on what they produce.” (
The third option would be a variation on the speedbump scenario, namely the ‘technological lockdown scenario’, which “forecasts that legal constraints and DRM [digital rights management] systems result in copyright holders’ total control of digital media.” (http://cyber.law.harvard.edu/media/scenario3,
The ‘alternative compensation system scenario’ uses a system of taxing people for their downloads. “The system has two basic premises: first, registration of a creative work, and second, a tax to generate funding for the initiative.” (http://cyber.law.harvard.edu/media/scenario4,
The final scenario, called the ‘entertainment co-op scenario’ “mirrors the idea of a state-run alternative compensation system except that participation would be voluntary: creators would choose to register their works with a private organization, and the system's funding would come from members' subscription fees.” (http://cyber.law.harvard.edu/media/scenario5,
Conclusion
In this paper I have tried to give a brief sketch of the wonderful world of P2P file sharing. Part I focussed on the definition of P2P, settling on decentralised networks that create autonomous users through dynamic IP-addresses. As an example we looked at the P2P software of Kazaa.
Part II dealt with the legal complications springing from the mass use of P2P file sharing. The entertainment industry sued Napster for contributory and vicarious copyright infringement. Unfortunately for the record companies, the media hype surrounding the Napster court case caused people to start using P2P software on a much larger scale than was previously the case. Although Napster eventually collapsed because of rules and regulations that were set after the court’s ruling, the industry realised something different had to be undertaken to deal with the popularity of P2P.
Part III tried to give a short outline of possible scenarios for the future. Digital Media Project’s Alternative compensation system scenario seems to be the best one
Reference List
Lechner, U., J. Hummel and C. Eikemeier, (2003) Business Model Peer-to-Peer: Is there a future beyond file sharing?.
Oram, A., (ed) (1998) Peer-to-Peer: Harnessing the Power of Disruptive Technologies. O’Reilly.
Shirky, C. (1998) Listening to Napster. In Oram, A. (ed) Peer-to-Peer: Harnessing the Power of Disruptive Technologies. O’Reilly.
Shirky, C. (2000) What is P2P… And What isn’t (http://www.openp2p.com/lpt/a/472).
Strahilevitz, L.J. (2004) Charismatice Code, Social Norms, and the Emergence of Coopertion on the File-Swapping Networks (http://www.law.uchicago.edu/Lawecon/index.html).
http://cyber.law.harvard.edu/digitalmedia/nesson_hsia_overview.html,
http://cyber.law.harvard.edu/media/scenario2,
http://cyber.law.harvard.edu/media/scenario3,
http://cyber.law.harvard.edu/media/scenario4,
http://cyber.law.harvard.edu/media/scenario5,
http://www.kazaa.com/us/help/quickstart.htm,
http://www.riaa.com/issues/copyright/laws.asp,
http://www.riaa.com/issues/music/downup.asp,