Column: Kazaa fight continues

Here’s a column I posted at about the Kazaa lawsuit:

“What a hydra-headed monster Shawn Fanning gave birth to. The Napster founder’s company didn’t single-handedly create the digital music revolution — German researchers arguably did that when they came up with the MP3 standard — but the Napster network poured fuel on the flames, and helped to make the terms “peer-to-peer” and “file-swapping” part of the public consciousness.

By the time Napster was crushed by a U.S. court, of course, it had already been usurped by Kazaa and Morpheus, a new breed of file-sharing network. And as the record and movie industries have shifted their focus to those newer threats, those networks too have been overtaken, by BitTorrent and eDonkey and Limewire, and other P2P systems that are still in their infancy. Like nailing Jell-O to a wall or trying to push a string, getting a handle on digital file-sharing is something that’s easier said than done.
The recent ruling against Kazaa by an Australian court is the latest attempt to grapple with the P2P threat, and like a similar decision by a U.S. court earlier this year it tries to walk a fine line between dealing with illegal activity on one hand and criminalizing an entire technology.

The U.S. Supreme Court ruled that Grokster and Morpheus could be sued for helping file-swappers evade copyright laws, the culmination of a case that has been working its way through the courts for several years. The record and movie industries appealed an earlier ruling that had found the file-sharing networks not liable for infringement, based on the so-called “Betamax” defense, which holds that the maker of a technology that is capable of “substantial non-infringing uses” isn’t liable for illegal activity involving its technology.

The U.S. Ninth Circuit Court also found that Grokster and Morpheus “had no actual knowledge of infringement owing to the software’s decentralized architecture,” and that “they did not materially contribute to their users’ infringement because the users themselves searched for, retrieved, and stored the infringing files, with no involvement by” the networks. The court also held that the P2P systems “could not be held liable under a vicarious infringement theory because they did not monitor or control the software’s use, had no agreed-upon right or current ability to supervise its use, and had no independent duty to police infringement.”

This seems sensible enough. After all, we don’t shut down gun companies because their products are used to commit crimes, nor do we outlaw iPods because some people choose to put illegally-acquired music on them. And we don’t impose any duty on gun makers to somehow prevent their products from being used to kill people either. But how then are record and movie companies supposed to deal with file-swapping networks such as Kazaa?

In effect, both the U.S. Supreme Court and the Australian Federal Court have tried to balance the interests of copyright holders with those of technology users, by saying that networks such as Grokster and Kazaa are not in themselves illegal, but can be found guilty of contributing to copyright infringement if they act in certain ways. For example, the U.S. court said that the Betamax defence had to be balanced by the rights of copyright holders and owners, and said P2P systems could be sued if they specifically designed and promoted their networks as being tools for copyright infringement.

While Kazaa and some others appear to meet that test, according to the U.S. court, some other P2P networks might not. BitTorrent, for example, was created as a way of distributing large files more easily — by sharing those files among a number of different users — and has been designed and promoted as a way of doing that, by allowing people to download new versions of Linux and other software. Should it be made illegal simply because people also use it to download movies?

The Australian court went further than the U.S. court and said that Kazaa must take action against those who use its network illegally, by installing filters of some kind to actively block copyright infringement. This is closer to the ruling that was made in the original Napster case, in which the court ordered the network to shut down and find a way of preventing illegally-copied files from being shared. The expense of doing so effectively drove Napster into bankruptcy, and it was eventually reborn last year as a for-pay downloading service.

As the court cases against Kazaa and BitTorrent continue, meanwhile, file-sharers are more than happy to switch to newer networks such as eDonkey (currently the leader in P2P traffic, according to a recent survey by consulting firm CacheLogic). And as many file-swappers have pointed out, there are other methods that are all but impossible to stop, including e-mail, Internet Relay Chat and raw FTP transfer.

All the more reason, it would seem, for the “content” industries to focus on riding the tiger rather than trying to find ways of killing it.”

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