P2P Networks: Online Piracy of Music, Films and Computer Software

Journal of Intellectual Property Rights Vol 9, September 2004, pp 440-461

Raman Mittal† Indian Law Institute, Bhagwan Dass Road, New Delhi-110 001 Received 1 June 2004

With the aid of P2P technology, the vast and ever growing cyber populace has the competence of unauthorized sharing of digitized copyrighted works such as music, films and computer software without bothering to pay for them. This unauthorized sharing of copyrighted works, which is termed as online piracy, has led to massive distribution and exchange of valuable stuff, which was hitherto unknown on such a scale and magnitude. When such piracy takes place at the instance of ordinary people, copyright law is once again challenged by the latest in the series of technological innovations, i.e., digital and communications technology. In an environment where the producer-middleman-consumer chain has reached a fragile point, it becomes imperative to find a legal solution to promote creative activity in an organized manner, which secures the interests of both producers and consumers. Towards this end, this paper focuses on the sharing of works through various P2P networks such as Napster, Gnutella and Kazaa and tries to explore their social, economic and legal implications. Keywords: P2P networking, MP3 movement, Napster, Internet, Gnutella, Kazaa, online piracy, copyright industries, audiovisual industry, fair use, copyright law

Peer-to-Peer (P2P) network is defined as link, the file is being directly transferred two or more computers connected by from one computer to the other and is not software, which enables the connected going through any mediating server. computers to transmit files or data to other Napster and Gnutella are examples of this connected computers. It describes kind of P2P software. applications in which users can use the P2P is a communications model in Internet to exchange files with each other which each party has the same directly or through a mediating server. capabilities and either party can initiate a Thus, it is a type of transient Internet communication session. Other models network that allows a group of computer with which it might be contrasted include users with the same networking program the client/server model and the to connect with each other and directly master/slave model. In some cases, P2P access files from one another's hard drives. communications is implemented by This connection means that it is a direct giving each communication node both 1 ______server and client capabilities . This model † Email: [email protected] essentially comes in three distinct modes: MITTAL: P2P NETWORKS 441

the file download functions which gained industry itself, but with a huge audience recent notoriety with the music of music lovers on the Internet. The MP3 downloads offered via Napster, the format for digital music has had, and will underground extension of this capability continue to have, a huge impact on how found in such sites as Gnutella, and the people collect, listen to and distribute instant messaging capabilities music5. exemplified by such applications as MP3 was developed in Germany in Microsoft's Instant Messaging. Each has 1987 at the Fraunhofer Institut Integrierte its own characteristics2. P2P is bleeding- Schaltugen and was named EUREKA edge technology, and its capabilities are project EU147. Professor Dieter Seitzer so attractive that it is being adopted very of the University of Erlangen aided in rapidly for a wide number of uses. The development and it eventually became recent notoriety of Napster, Gnutella, known as ISO-MPEG Audio Layer-3 Morpheus and similar sites, the increasing standard. MPEG stands for Moving use of broadband3 technologies to deliver Pictures Experts Group, a subcommittee real-time audio to the desktop and the which helped develop the MP36. utilization of video streaming techniques, MP3 is a technology and format for all reflect the popularity and rapid compressing7 a sound sequence into a implementation of P2P communications very small file while preserving the protocols. original level of sound quality when it is P2P technology was not originally played. The compression is achieved by created to facilitate copyright the systematic removal of sound waves infringement. It was in fact envisioned as outside the human audible range so that a means to avoid the ‘bottlenecks’ that there is no noticeable change in the occur when many users try to access a quality of sound. To create an MP3 file, a server at the same time. However, P2P program called ripper is used to get a technology did not become popular until selection from a CD onto the hard disk Napster used it to facilitate file sharing4. and another program called an encoder is And with the emergence of new P2P used to convert the selection to an MP3 networks like Gnutella and Kazaa, P2P file. Most people, however, simply technology itself is being blamed for download MP3 files from someone and piracy. Actually, it is not the technology play them. MP3 files (identified with the but its use, which could be blamed. file name suffix of .mp3) are available for downloading from a number of web sites. MP3 Movement Many Windows 98 users have a player The MP3 movement is one of the most built into their operating system. amazing phenomena that the music Otherwise, one can download a player industry has ever seen. Unlike other from one of several popular MP3 sites. movements - for example, the introduc- MP3 files are usually download-and- tion of the cassette tape or the CD - the play files rather than streaming sound MP3 movement started not with the files that are used to link-and-listen-to 442 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

with RealPlayer and similar products. agree upon. Several web sites are However, streaming MP3 is possible. promoting MP3 as both a high-quality One can download MP3 files from the audio format and as a way in which self- Internet and play them on one’s publishers can gain ready access to an computer, listen to them on a portable audience. However, not much mainstream MP3 player or even burn one’s own CDs. copyrighted material is available except The advantage of the MP3 format is that as an illegal download. MP3 is not illegal it makes song files small, one-twelfth the in itself, but the same can be and has been size of the original file, to move around used illegally or for distributing illegal on the Internet in a reasonable amount of material. time. People with a computer, a CD-ROM The initial MP3 craze was fuelled by drive, and audio CDs were capable of sites like mp3.com. On these sites, creating their own MP3 collection. MP3 anyone can upload a song. However, the software is available free on the Internet sites cannot legally store or distribute and is easy to download and operate. The copyrighted material - that would be small size of the MP3 files made it easy copyright infringement, which is illegal. to store lots of CDs on hard drives or All the songs available on mp3.com (and blank media. The growth of MP3 sites like it) are either public domain required a system to transfer the files over songs, songs uploaded by artists who are the Internet, which led to the birth of trying to get exposure, or songs released Napster8. by record companies trying to build interest in a CD. So the format becomes a Napster powerful tool for distributing music on Napster, created by 19-year-old Shawn the Internet. But the ‘limitation’ is that Fanning in 1999, quickly became popular such sites can upload and distribute the around the world pioneering the concept music, which is either in public domain or of P2P file sharing. With Napster, with the consent of the copyright holder. individual people stored files that they Since it is relatively easy to create MP3 wanted to share (typically MP3music files from CD selections and make them files) on their hard disks and shared them available on web sites for downloading, directly with other people. companies and sites that promote the The Napster model functioned by MP3 format are sometimes accused of having users contact a central server that encouraging copyright violations. On the brokered their searches and established other hand, MP3 enthusiasts claim that direct sessions between connecting peers. what CD publishers are afraid of is any Napster users had to register to a server kind of non-CD distribution. While there when they came online. are several proposals for discouraging In Napster, MP3 files are distributed such piracy, there is currently no secure differently. Instead of storing the song distribution and copyright management files on a central computer, the songs standard that publishers and other parties were stored on user's machines. When a MITTAL: P2P NETWORKS 443

song is to be downloaded using Napster, music nor pay for it. Further, it is no it is downloaded from another person's longer necessary to worry about cuing up machine, and that person could be the a CD and finding a cassette to record it next-door neighbour or someone halfway onto. And nearly every song in the around the world. universe was available. At its peak, The creator of Napster had a couple of Napster was perhaps the most popular reasons for this approach: (i) he expected web site ever created. Napster grew to Napster to have billions of songs. A having 57 million users of its service in central server will not have enough disk less than a year with a consistent 1.6 space to hold all these songs, or enough million using the system at any given bandwidth to handle all the requests, (ii) time10. Napster was trying to take advantage of a loophole in the US copyright law that The fall of Napster allowed friends to share music with The problem with Napster was that it friends. The legal concept behind Napster was a big, automated way to copy was that all these people are sharing the copyrighted material in an unauthorized songs on their hard disks with their manner. The music industry was against friends. The courts did not agree with this Napster because people could get music logic, but it gave Napster enough time to for free instead of paying for a CD and prove the concept and grow to massive any music downloaded was considered a size. loss of business opportunity. The major Individuals tend to be less concerned events in the downfall of Napster are: about copyright laws than businesses like In July 2000, US Judge, Marilyn Hall mp3.com have to be, so individuals make Patel, issued an injunction against all sorts of copyrighted songs available to Napster, ordering the company not to the world from their personal machines. allow the trading of copyrighted material This means that anyone can download, on its system. The injunction is stayed by for free, any song that someone has taken the 9th US Circuit Court of Appeals the time to encode in the MP3 format. allowing Napster to continue to This approach that Napster adopted operate. The record labels appealed to the worked very well and made fantastic use 9th US Circuit Court of Appeals to re- of the Internet's architecture. By instate the injunction in October 2000. spreading the load for file downloading Napster claimed it was just the industry across millions of machines, Napster trying to keep total control of music accomplished what would have been distribution. impossible any other way9. Napster Bertelsman AG, a record company became so popular so quickly because it involved in the Napster lawsuit, formed a offered a unique product - free music that partnership with Napster to start a fee- anybody could obtain nearly effortlessly based music downloading service in the from a gigantic database. There is neither same year. The fee service was to start in a need to go to the music store to get summer 2001. 444 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

In February 2001, the 9th Circuit Court Napster to stop the distribution of of Appeals ruled Napster knew its copyrighted music and shut down its site members were trading copyrighted music. as it was promoting copyright The Court found Napster was involved in infringement. ‘contributory and vicarious infringement,’ The recording industry sued Napster and had full knowledge its members were under a claim of copyright infringement. infringing on copyright laws. Napster had Napster argued that none of the music knowledge of the activity because files were on Napster’s site and hence no Recording Industry Association of copies had been created at that end. If at America (RIAA) had provided a list of all anyone was liable for infringing the 12,000 infringing files to Napster, which copyright, it was the person who had made no efforts to remove them. Napster downloaded the music or the person who even had well-known song titles in some had offered his music to be downloaded. promotional screen shots. A document The user who had requested the music authored by Napster co-founder, Sean was ultimately the one who was Parker, mentioned 'the need to remain downloading it and making a copy and ignorant of users' real names and IP the other person was making it available. addresses since they were exchanging The US Copyright Act says that every pirated music11. Napster executives had copyright owner has the exclusive right to experience in the record industry and had copy, to distribute, and to make it enforced intellectual property rights available to the public. When a user before. Napster executives had downloads the Napster software, he, with themselves downloaded copyrighted the aid of that software, is telling Napster songs from the Internet. about what music is available on his Napster proposed a US $ 1 billion computer and thereby making it available settlement with the five major record for other Napster users to download it labels as well as independent labels and because then anyone who is a Napster stated that they could serve as a user can access the site and get it from his subscription based service in February computer. So he is committing an 2001. The offer was rejected. In June infringement because he is making it 2001, Napster was taken off-line by available or he is communicating that Judge Patel for copyright infringement. particular music file to the public. The All copyrighted material was removed person who thus obtains the music file is from its network. The sale of Napster was infringing because he has downloaded the blocked in September 2002 ending its copy, and has made a copy on his chances of returning as a file-swapping computer. So, Napster said that both the service. types of users are the real infringers but Napster was distributing an illegal not Napster itself. product and its key weakness lay in its Reflecting the intention, the court said architecture - the absence of a central that Napster is a secondary infringer database for song titles. The court ordered because the Copyright Act punishes not MITTAL: P2P NETWORKS 445

only those who copy, distribute, could never be downloaded. The Napster download, or make available, but also the court found that the ability to terminate person who enables copying, download or user accounts or block user access to the communication with the public. Without system was enough to constitute control. Napster, the individuals could not have Napster was an excellent technology, but done this. Putting the list on the web site had to be stopped because it violated the was akin to running a huge distribution law at some point. network. Napster got more users thronging its web site and hence got more Gnutella advertisements. The Napster court found The fact that Napster promoted the benefit can be gained by having the copyright violations did not matter to its infringing material, which attracts more users and so most of them turned to the customers, which in turn will make the new file sharing architecture, Gnutella13. company more attractive to investors. P2P services that came after Napster Napster invoked the Internet Service have no central server maintaining direct Provider (ISP) safe harbour provisions file listings of all these music files and under Section 512(a) of the DCMA12, that this made enforcement very tough. basically provides that an ISP shall not be Another distinction is that, while Napster liable in XYZ circumstances only if it has relates to music files and specifically no knowledge of the infringement taking MP3 files, most of the new softwares like place through its facilities. The court did Morpheus, Kazaa, etc., allow all types of not allow this defence as RIAA had given files (audio, video and html) to be notice to Napster regarding 12000 transmitted and downloaded. infringing files and Napster had made no The two main similarities between attempts to take them out of its database. Gnutella and Napster are: (i) users place The averment of fair use was also rejected the files they want to share on their hard because the defendant ate into the disks and make them available to plaintiff’s market, especially digital everyone else for downloading in P2P market, as the plaintiffs showed that CD fashion and (ii) users run a piece of sales had fallen. Besides, it was different Gnutella software to connect to the from lending a CD to a friend - if you Gnutella network. provide a CD to a friend it is fair use The two big differences between under US laws- but in case of Napster, all Gnutella and Napster are: (i) there is no were anonymous requesters. You could central server that knows all of the files have people sitting anywhere in the world available on the Gnutella network. and getting access to your files. So it is Instead, all the machines on the network almost like you are running a distribution tell each other about available files using network. Napster also had the ability to a distributed query approach and (ii) there control and monitor, because, if Napster are many different client applications did not give the listing on its computer, available to access the Gnutella network. the file could never be located or the file Napster had one piece of ‘client 446 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

software’-the software that users daisy-chain process creates an enormous implemented on their computers to access cascade of messages and responses across the Napster servers. Gnutella has dozens the entire online community16. A request of clients available. Some of the popular has a time to live (TTL) limit placed on it. Gnutella clients include: BearShare, A request may go out six or seven levels Gnucleus, LimeWire, Morpheus, deep before it stops propagating. If each WinMX, XoloX. machine on the Gnutella network knows of just four others, then a request from Working of Gnutella one machine might reach 8,000 or so As there is no central server to store the other machines on the Gnutella network if names and locations of all the available it propagates seven levels deep. files, how does the Gnutella software find It is an extremely simple and clever an audiovisual work on someone else's way of distributing a query to thousands machine? The process goes like this: of machines very quickly. This approach Install one of the versions of Gnutella has one great advantage - Gnutella works on the user computer (node), which then 14 15 all the time. As long as at least one other becomes both a client and a server . machine running Gnutella software is Type in the name of the song/film or any available, it is possible to query the other file required. The computer finds network. But Gnutella has at least four another Gnutella user and establishes disadvantages: (i) there is no guarantee connection with that computer. The user that the desired file is on any of the 8,000 machine sends the file name typed in to machines you can reach, (ii) queries for the Gnutella machine(s) it knows about. files can take some time to get a complete These machines search to see if the response, (iii) it may be a minute or more requested file is on the local hard disk. If before all the responses, seven levels so, they send back the file name (and deep, come in. The user machine which is machine IP address) to the requester. At part of this network answers requests and the same time, all these machines send passes them along, and in the process out the same request to the machines they routes back responses as well thereby are connected to, and the process repeats. giving up some amount of the bandwidth When all the search results are obtained to handle requests from all the other users and the found file that is to be and (iv) it does not know when the search downloaded, the user peer directly is finished. Since computers that do not contacts the computer that has the have the desired file do not respond to required file with an http request, the kind your computer, your computer can not used by browsers to request web pages. tell if other computers simply do not have This is why Gnutella networks are so the file, or if they just have not responded hard to shut down; their file transfers look to the request yet. just like regular web traffic. In a large community (in this instance, thousands of Apparently, these disadvantages are peers and millions of shared files), the minor because people have downloaded MITTAL: P2P NETWORKS 447

hundreds of millions of copies of and e-mail address as prompted by the Gnutella clients. wizard, (iii) put the files for sharing in the Gnutella itself is legal. There is no law ‘My Shared Files’ folder, (iv) after against sharing public domain files and registration, log in, go to the ‘Tools’ anybody is free to use Gnutella for menu and select ‘Options.’ Select the sharing content that is in public domain. directories to which download will be It is when people use it to distribute made and from which users will be copyrighted music and films that its use allowed to upload, (v) click on audio, becomes illegal. video, software, documents or images, There are several advantages of using and type something into the search Gnutella. Unlike Napster, the user does box...... When ready to start swapping, not rely on another server. Gnutella is click the ‘Search’ button at the top of the decentralized so you can still find other screen and wait till the appearance of a files if a couple of computers are taken bunch of files, double click on one of off the network. In this respect, there is them for downloading, (vi) when clicked no way to shut down the network. There on the ‘Traffic’ button at the top of the are no central servers to shut down! screen, another screen will open from Gnutella, therefore, is a far more which the status of transfers in both advanced version of Napster and this is a directions can be monitored. service that has again challenged the legal Kazaa network is built on a technology system. Gnutella allows searching for called the fast-track technology where the information anonymously, and it allows software detects and converts five or ten searching for information in a setting that of the good quality computers from the differs from traditional search engines available 100 computers into like Yahoo! because unlike these search supernodes17, which perform the listing engines, the information is not controlled function. With Kazaa, users trade files or fed. through thousands of anonymous ‘supernodes.’ There is no plug to pull. Kazaa The P2P searches occur through users Kazaa is the latest version in the P2P with these supernodes. A supernode technology. It is one of the many file contains a list of some of the files sharing networks, now facing a lawsuit in available and where they are located. In the United States by various companies in the course of the search, the Kazaa Media the music and movie industry. It was Desktop (KMD) first searches the nearest originally established in the Netherlands. supernode to the user, and then sends him The steps involved in downloading immediate results. This first supernode music, movie, or other types of files using then refers the search to other supernodes Kazaa network are: (i) download the and so on. This process is designed to Kazaa program available free at a number make searching as fast as possible and of web sites, and implement the same, (ii) hence, the computer will never search register by entering a username, password through all the files made available by 448 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

KMD, but only through the files that have & Stemra19 in the Amsterdam court of been indexed by the supernodes that the appeal. The court of appeal decided in user is connected to. A computer Kazaa’s favour and reversed the findings becomes a supernode automatically, but, of the district court stating that the Kazaa if a user does not want his computer to technology has many other substantial become a supernode, he has to go to and legitimate uses such as trading jokes ‘options’, choose the advanced tab and and personal photographs apart from the check the 'do not function as a supernode' fact that it could be used for copyright box. violations. Further, after release Kazaa is much more reliable than Kazaa.com is not monitoring the way it is Napster and even Gnutella. Kazaa being used and is not in a position to provides extra benefits such as control it. downloading images, documents, However, in the meantime, Kazaa had software and videos. The main benefit is already left Holland; Sharman Networks the download technology. When purchased the rights to distribute the searching for a song, Kazaa groups songs software from its Dutch owners, and with exactly the same file information Kazaa is now managed from Australia, from as many users as possible. It then but incorporated in Vanuatu, a South downloads the song from every user with Pacific island. In the USA on 2 October that file, in small chunks, and the user 2001, the weight of the global never comes to know this because it entertainment industry came crashing doesn't slow anything down. It means that down on Niklas Zennström, co-founder of downloads run much faster, and are Kazaa. Every major American music highly reliable. Kazaa allows the user to label and movie studio filed suit against even pause downloads and resume them his company. Their goal was to shutter later on. the service and shut down the tens of millions of people sharing billions of Efforts on to Stop Kazaa copyrighted music, video, and software In Buma & Stemra v Kazaa18 an action files. In January 2002, three months after for copyright infringement was brought the suit was filed, Amsterdam-based against Kazaa by Buma & Stemra in a Kazaa.com went dark and Zennström Dutch court. The plaintiffs, Buma & vanished. Days later, the company was Stemra, a Dutch copyright licensing reborn with a structure as decentralized as group, sued Kazaa for the distribution of Kazaa's P2P service itself. Zennström, a software which allowed users to make Swedish citizen, transferred control of the unauthorized copies of copyrighted software's code to Blastoise, a strangely works. In November 2001, the district crafted company with operations off the court of Amsterdam ruled in favour of the coast of Britain - on a remote island copyright industry and ordered Kazaa to renowned as a tax haven - and in Estonia, remove its website. Kazaa, thereupon, a notorious safe harbour for intellectual filed an appeal vide matter Kazaa v Buma property pirates. Ownership of the Kazaa MITTAL: P2P NETWORKS 449

interface went to Sharman Networks, a every week, the damages could be business formed days earlier in the South astronomical. With US operations, Pacific island nation of Vanuatu, another Grokster and Morpheus were easy to pin tax haven. Sharman, which runs its down. servers in Denmark, obtained a licence The question before US District Court for Zennström's technology, FastTrack. judge Stephen Wilson was simple: Does The Kazaa.com domain, on the other Sharman do enough business in the US to hand, was registered to an Australian firm be lawfully included as part of the called LEF Interactive. All this exercise Morpheus-Grokster lawsuit? But the was just to confuse the copyright cops proceeding quickly became a referendum and to drown all efforts to nail Kazaa in on the company's alleged sins. the jurisdictional quagmire. This strategy In the United States litigation, Kazaa could well be described as an argued lack of jurisdiction because Kazaa international business model for the post- spans worldwide, and any decision by a Napster era. US court would impact the entire world. According to Cnet.com, Kazaa Oddly, Kazaa argued "because we are software has been downloaded off their everywhere, we are nowhere;" a national site over 120 million times20. In the last ruling cannot be made because of its six months alone, PC users have international effects21. downloaded more than 90 million copies. Kazaa has 60 million users around the Online Piracy: Extent of Damage by world and 22 million in the US - an P2P Networks irresistible audience to marketers. Last According to the International year, Sharman raked in millions from US Federation of the Phonographic Industry advertisers like Netflix and DirecTV, (IFPI) 22, an organization representing the without spending a penny on content. The recording industry worldwide, the chase could have gone on forever. worldwide record sales for the year 2001 Hollywood's disdain for file-sharing were US $ 33.7 billion dollars. The can be measured in the 10-foot stack of availability of free music on the Internet papers that make up Metro Goldwyn was blamed for the 5% drop in global Mayer Studios v Grokster et al., which sales of compact discs23. In the year 2002, sits on file in the Los Angeles federal global sales were down 9.2%. Jay courthouse. In the suit, a roster of Berman, Chairman and CEO of IFPI entertainment conglomerates accuses states, the industry is in transition, with FastTrack-enabled services Kazaa, widespread CD-R, copying and Internet Morpheus, and Grokster of profiting from downloading continued to affect sales24. a "21st-century piratical bazaar." Record World sales of recorded music fell by labels and movie studios want the 10.9% in value and by 10.7% in units in services closed and fined $150,000 for the first half of 2003. Unauthorized file- each illegally traded song or movie. sharing and commercial piracy were Given the billions of files changing hands major factors causing the decline. Interim 450 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

sales of all audio and music video formats containing the tracks that users want will were worth US $ 12.7 billion, compared also have a bearing on the sales of pre- to US $ 14.2 billion in the same period of recorded music, films and software. 200225. There is also a tendency by the Internet piracy in particular affected the entertainment industries to argue that world's major markets in the first half of every copy made through the medium of 2003. Germany, Japan, France and the file sharing is a lost sale. The question is US suffered significant decline in sales. whether the person who made the copy The number of unauthorized downloads would have actually paid or not to acquire of tracks in some cases exceed the levels a legitimate copy had the alternative not of legitimate track and CD album sales26. been available. The RIAA puts the blame for 5.3 and In India, the problem of infringement 7% drop in the number of CDs sold in through the Internet has yet to reach the 2001 and 2002 respectively, partly on magnitude that it has in some developed online file trading. According to the countries - we have had no Napster-like RIAA, the decline cost the industry US $ problem as audio cassettes still remain the 284 million in lost sales. most common and most accessible form In Morpheus, it was estimated that, at in which copies of sound recordings are one point, 1.81 billion files were stored, being much cheaper and more exchanged in a month. According to widespread than the digital alternatives. download.com27, Kazaa was downloaded This situation would no doubt change. 2,804,056 times for the week of 12-8- 2002 and Morpheus was downloaded Reaction of the Audiovisual Industry to 295,632 times. According to Online Piracy cnet.download.com, there are over 2.5 Law Reforms and Litigation million downloads per week of the Kazaa The invention of the MP3, compression Media Desktop Software. The same of data into a small package without source mentions 230 million downloads loosing sound quality and enabling easy of the Sharman software, and 111 million sharing over the Internet, took the downloads of the Gnutella-based audiovisual industry by surprise. For the Morpheus software per week. audiovisual industry, Napster was a loud The Industry pointed the finger directly wake-up call. The online file-sharing at the Internet as these figures have all service demonstrated that people using been brought out by the Industry. readily available equipment could easily Moreover, it cannot be said with unfailing download and distribute digital music and certainty that how much of this loss is due movies en masse, regardless of copyright. to online piracy. So, the impact of this Not surprisingly, that sent the audiovisual activity on entertainment company profits industry into a panic. After all, one theory remains vague. Other factors like the state goes if you can get digital files for free, of the economy, and the easy availability why would you ever pay for a movie of CDs and DVDs in the form and ticket or a CD? The industry argues that MITTAL: P2P NETWORKS 451

online piracy eliminates the economic automatic public transmission right. The incentives for a business to invest court rendered an interim decision millions in the production of movies, declaring the defendant’s liability for software, video games, CDs, etc. A damages caused by its file-sharing business will no longer get a return on its service31. investment if a consumer can just get it In Columbia Music Entertainment K K for free online. In that manner, Internet et al. v Y K MMO Japan32, after the piracy would hinder the growth of Tokyo District Court issued a provisional creativity. injunction order against MMO Japan, 19 The success in the Napster case was a recording companies brought an action big win for the audiovisual industry. As it against MMO Japan for damages on the was distributing an illegal product, ground that the defendant infringed the Napster's key weakness lay in its plaintiffs’ rights of making available for architecture. transmission of their phonograms under Like in the case of Napster, the Federal Article 96-2 of the Copyright Act. The Appeals Court in Chicago upheld an Tokyo District Court rendered an interim injunction that shut down the file-sharing decision declaring that the defendant was service Aimster to stop its users from liable to the recording companies for illegally swapping copyrighted music infringement of the plaintiffs’ public recordings28. In JASRAC v Y K MMO transmission right33. But the P2P Japan29, the defendant MMO Japan networks that emerged after Napster are provided an electronic music file-sharing proving to be immune to legal service on Internet called “File Rogue” insecticides. The industry is finding it employing the P2P system that enabled more and more difficult to trap these registered clients to swap files in the form networks legally. of MP3 among themselves on their Not getting their way, the industry is personal computers through the starting to move down the chain, defendant’s server located in Canada so prosecuting not only companies like that individual clients could download Napster, but also individuals who music data. To receive the defendant’s download copyrighted content and the file-sharing service, each client must have persons who make it possible, namely, special file-sharing software installed in the ISP. his computer. The defendant offered such The new strategy became evident in the software to an indefinite number of users year 2003 when the RIAA served through its web site30 providing Verizon, an ISP, with a subpoena information of the contents of MP3 files. demanding that the service provider JASRAC, after obtaining a provisional disclose the identity of a user who injunction, brought an action to recover uploaded more than 600 songs while damages from MMO Japan alleging that connected to the company's Internet MMO Japan infringed JASRAC’s right of service. Verizon protested, but recently a making available for transmission and its US district court judge ruled in favour of 452 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

the RIAA and ordered Verizon to reveal environment, provisions have been the user's identity34. Verizon has asked for incorporated in the WCT making it a stay of the judge's order. If the stay is obligatory for member states to provide denied, Verizon said it would seek a stay legal protection against the circumvention at the appeals court level. of technological measures that are used by authors in connection with the exercise 35 Technological Measures of their rights . A pragmatic answer to these problems A considerable amount of work is was provided by the technology itself and being done on ‘copyright tagging’ and the audiovisual industry is currently developing ‘unique identifiers’ so that the looking at technological solutions to owners of digital material will be able to prevent unauthorized access to or use of identify their property wherever it is and copyrighted material, or illicit however it has been modified or dissemination of protected works. distorted. This will overcome many of the Technological protections could take problems of identification. Moreover, this many forms and serve many related technology, together with the purposes. Some of these protections are development of ‘intelligent agents’ or scrambling signals, encryption, ‘bots’, which are capable of trolling passwords, electronic watermark, digital around cyberspace identifying these tags, code and the like. These can lock the will help track the copyright material product behind technological barriers (or across the Internet wherever it may be. ‘walls’ or ‘fences’) – requiring Legal recognition and protection to RMI authorization and payment through have been provided in the WIPO electronic means before they could be Copyright Treaty (WCT) and WIPO opened up or set aside. The idea is to stop Performances and Phonograms Treaty copying in the first place rather than (WPPT) and have come up in a number fighting back after it has been done. of national legislations, which penalise No matter how sophisticated the anybody tampering with such, RMI technological protections employed, none employed. are invulnerable, and smart people will To guard its content and avoid further make it their business to hack through losses, the audiovisual industry has encryption, pick digital locks, steam open hastened to employ copy protection electronic envelopes, or obliterate digital technology. The industry is lobbying with watermarks. Since every kind of technical hardware and software producers to protection provokes circumvention, implement copy protection on their technical identification and control devices. The idea is to install chips into mechanisms have been backed by each computer that will decode audio and accompanying legal protection. In order video information only if it comes with to protect against the circumvention of an unlocking key; the computer will technological protections applied to refuse to play content if it is not digitally copyrighted products in the digital signed by Microsoft or an authorized MITTAL: P2P NETWORKS 453

party. Hard drives will no longer be able on the leading P2P networks, said Mark to record certain types of information36. Morgenstern, chief executive officer. He The goal is for the system to quietly said the company is very successful at report to authorities any unauthorized intervening for their clients to protect content in the computer, and the system copyrighted music, games, video, and may be instructed to delete information software. He measured their success by from the owner's hard drive. how often users access Overpeer files The duel between P2P file-sharing fans when apparently seeking pirated content. and their opponents who want to protect Overpeer keeps a low profile; the copyrighted materials is turning into a company's web site39 offers no high-tech arms race as each side boosts information, but a street address in New the stakes with digital weaponry. Both York City and an e-mail address. fans and foes of P2P activity are turning Morgenstern emphasizes that Overpeer's to technological self-help deterrents. The clients are the copyright holders, and its industry is relying on such self-help work is protecting copyrighted material40. countermeasures since other efforts to A second tactic of P2P foes, thwart P2P network operations are not interdiction, targets the search process. It working to give desired results. repeatedly requests media on a P2P One such self-help measure is network, starving out other searches by spoofing. It means posting corrupt or occupying the request line so others misleading files to discredit P2P network cannot access it. The method resembles a files. File spoofing calls for flooding it denial-of-service41 attack, which involves with decoy downloads created with the bombarding a specific Web server with so approval of the copyright owner. It many requests for information that it appears to be one of the most effective cannot keep up and crashes. Because P2P methods of preventing P2P sharing. connections are created temporarily by Spoofing makes it hard to find real media whatever computers are logged in at any in a P2P search because the decoys, given time, experts fear that innocent which may be ads or low-quality media, bystanders could also be hurt through a can vastly outnumber the pirated denial-of-service attack. versions. For the most part, file spoofing Many of the self-help measures would is being kept low profile37. Musicians strictly speaking be termed illegal when typically do not admit that they are hiring tested on the touchstone of laws like techies to spoof. So it is hard to tell how Computer Fraud and Abuse Act of the widespread the practice is. Rap singer, USA and the Information Technology Eminem, and the band ‘The Bare Naked Act, 2000 of India. Ladies’ are among those known to 38 Confusion Confounded: the Ongoing spoof . Debate For more than a year, the technical Why do people do what they do? consulting firm, Overpeer, has distributed An important question in this respect is hundred of millions of files every month why ordinary people who are generally 454 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

speaking law-abiding citizens engage in the prices high since our profit comes the online use of music and films that from a small number of bestsellers and is according to national and international partly needed to explore, develop and law is unauthorized. The answers to this subsidize new artist and performers’, is could be many. not very convincing when offset against One, people do not consider this use the complaint of many of them that they unauthorized. Ordinary people in their receive a rather modest portion of the role of consumers tend to regard digital revenues earned by an album44. content as something that is out there in Alex Alben, vice president of public order to be shared by all. This is policy for streaming media pioneer particularly so with popular music which RealNetworks believes most users will is not perceived as the product of a opt for legitimate digital content if creative music industry which has to services offer a big, reasonably priced invest vast sums in its promotion and selection with sufficiently flexible distribution, but rather as a freely distribution controls to make buying more circulating part of culture42. convenient than illegal copying45. But few Two, until very recently and despite such services exist today, and some new the availability of appropriate technology, ones have been scrapped. Though the audiovisual industry has failed to legitimate sites with major-release movies offer its customers the products they are scarce, several fee-based sites - want. If consumers prefer to buy music MusicNet, Pressplay, and Listen.com - by the track against reasonable prices, the offer music. But these services have music industry still offers only complete flopped commercially, hobbled by much albums at high prices. If under these smaller selections than those offered by circumstances, the preferred product is P2P networks, and by restrictions on the available for free on the Internet; it number of songs users can download and should come as no surprise that people whether users can burn them to a CD. 43 serve themselves . Viewing Consumers as Pirates Three, this is more so since the Consumers collectively, for their part, production and sale of music has over the have so far hardly been able to articulate last two decades concentrated in a few and express their views on the social and multimedia giants, which almost legal questions with regard to the online completely dominate the supply of music distribution of audiovisual products, other content. In view of how these giants like than by their actual conduct. to present themselves in today’s society, The industry harps on the doctrine of they should not be surprised when people functional equivalence, which means do not seem to feel they are causing any whatever laws apply in the offline world substantial harm to the content industries should also apply in the online or the artists and performers they environment. If somebody goes to a store represent. The argument repeatedly made and steals a CD, he would be prosecuted by the music industry: ‘we need to keep and made liable for the theft. On a P2P MITTAL: P2P NETWORKS 455

network, without leaving his house, a copyright ever been about perfect control person could steal material worth over copies of creative works49. Rather, thousands of CDs. Should there be a there have always been a number of difference? limitations and exceptions which evolved, It seems inappropriate to incriminate not only to give the author sufficient consumers for piracy when they are file- incentive to produce new works to satisfy sharing music or circumventing the public interest, but also to ensure that technological measures to get access to parts of existing creative works are text. This is because, however unlawful available to build upon in the creation of such unauthorized file-sharing or new works. Unfortunately, the circumvention may be under the technological measures which are being circumstances, it is not an act of piracy in increasingly adopted and implemented by the proper sense of the word, which would the audiovisual and software industries do require organized, systematic infringement not affect only pirated distribution on P2P of copyright law for commercial purposes networks - it can prevent users from by wholesale copying and reselling of making any copies at all- even one that illegitimate products46. formerly would have qualified as fair use. Widespread action against consumers With the possibilities of digital will no doubt put the music industry’s technology, the copyright industry is relationship with the public under further trying to extend their control over the strain. Consumer discomfort, however, is products in a manner which is, in fact, not only expressed with regard to the tighter than what was possible before. online distribution of music. In addition, With the possibilities of digital the results of technological measures, technology, what we're seeing is limits on access and use of copyrights copyright owners taking the opportunity owned by publishers frequently frustrate to try to extend their control, said Jessica customer preferences with regard to online Litman, professor of law at Wayne State content47. Few people would advocate University and author of the book Digital rampant piracy, or dispute content owners' Copyright50. right to fair payment for their works. Still, "The industries that own content need to Impact on Privacy shift their perspective from viewing Even if legitimate digital media consumers as potential pirates to dealing becomes available, the technology has a with consumers as potential customers," downside that worries some consumer said Alex Alben, vice president of public advocates. It lets vendors track what is policy for streaming media pioneer, being watched and listened to. Copy RealNetworks48. protection technologies must be able to identify devices such as PCs and portable Impact on Fair Use players that comply with its rules, and Copyright has never been a full must ensure that the content purchased is property right or monopoly. Neither has not misused. This would definitely raise 456 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

privacy issues. Digital media's connected do otherwise. It depends on which side nature makes consumer tracking possible you take. Seen in this context, the to a degree unmatched in the analogue legitimacy issue touches upon the world. question of North-South relations. Self help measures also will have quite Even in the Western world where a huge impact on privacy. Self-help arguments in favour of copyright and measures give media companies the other IPR are vociferous the legitimacy of means to take the law into their own copyright law is being questioned, as is hands. Everyone's right to privacy would illustrated by the fact that the RIAA is be infringed not by the government, but allegedly preparing for legal action by media companies. As many of the P2P against millions of individual users of traders are also paying customers, music file-sharing software.52 The audiovisual industry would be placed in communication of online audiovisual the strange position of hacking their own products is in great disarray, as is customers. evidenced by an ongoing societal and Moreover, because of legislations like legal process of action and reaction DMCA and the Verizon51 ruling, between the established music industry, copyright holders get users' identities suppliers of file-sharing software, ISPs merely by alleging copyright and individual users. In an environment infringement (a fairly easy standard to where the audiovisual industry has put meet) - without review by a judge and itself in conflict with its own consumers without giving users any chance to and other industries like that of protect themselves or their identities. All technology producers and ISPs, questions this is raising many an eyebrow on the are being raised about the legitimacy of consumer privacy front, a rather a sticky copyright system in the digital landscape. wicket. Indian Legal Landscape: Fighting Legitimacy of Copyright Law Piracy through P2P Networks The issue of the legitimacy of According to Section 51 of the copyright law as a system of positive law Copyright Act, 195753, in case any one may be looked at quite differently does any thing the exclusive right to do depending on whether it is approached which is by this Act conferred upon the from the perspective of a country with an owner of the copyright, his act amounts to established and expansive audiovisual infringement of copyright. Section 14 of industry or from that of a country, which the Copyright Act governs the domain of depends on the import of foreign exclusive rights granted to copyright materials for its public. A country having owners54. Making copies of any work by large audiovisual, music and film using whatever medium, communicating industries will tend to regard copyright the work to the public or issue copies of system in high regard and a country not the work to public fall within the domain having large industries of their own will of exclusive rights of a copyright owner. MITTAL: P2P NETWORKS 457

So, if any person is running a network Section 51(b)(ii) says that copyright is like Napster in India he could be liable infringed if anyone distributes either for for encroaching upon the exclusive rights the purpose of trade or to such an extent of the copyrights owner as he is as to affect prejudicially the owner of the essentially facilitating the communication copyright. Any person making available of the work to the public. Further, copyrighted works over P2P network may according to Section 51(a)(ii)55, in case a not be trading in the same, but he is, person permits for profit any place to be nevertheless, distributing such work used for the communication of the work which combined, could amount to to the public where such communication gigantic proportions affecting constitutes an infringement, he shall be prejudicially the interests of copyright liable for infringement of copyright. The owner. expression any place could well be Now for networks akin to Gnutella or construed to mean virtual place as well. Kazaa, where there is no central server In case he takes up an argument like brokering the requests of people, it is Napster that “I am not making anything rather hard to stop the system in one go. available, I just have a listing,” even in There is no one person or entity that is then he could be held responsible under managing the affairs. The entire thing is Section 63 of the Act56. managed by software and that is already In this case the person who runs such a out and lakhs of people have made copies system like Napster could be held guilty of the same. You cannot really outlaw the of abetting the infringement, as without installation and use of that software as it such a network it would have been could legally be used for sharing files, virtually impossible for people to share which are not protected by copyright. But copyrighted works. individuals who use such software for As for the persons who actually make sharing copyrighted works remain guilty available and download copyrighted under the above stated provisions of works, the law is very clear. Section 14 Copyright Act. Catching them is rather says that issuing copies of work or difficult, though potential liability is communicating the same to public made easier to document by the fact that amounts to infringement. So, a person P2P applications create long user sessions who downloads software like Napster and that present adequate opportunity to trace implements the same on his machine is users back to a point of origin. making the copyrighted work available to any member of the public who has the Conclusion corresponding software installed on his Technology is copyright industry’s best machine. The person who actually friend and worst enemy. P2P technology downloads the file containing copyrighted poses more of a threat to copyright work is reproducing the work without the industry which includes audiovisual and consent of the copyright owner and so is software industries, than the invention of guilty of copyright violation as well. the cassette tape recorder, because the 458 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

quality of a digital recording on an MP3 P2P file trading is a global player is almost as high as that of the phenomenon. Although record companies actual CD (the difference in quality is not have won considerable victories with the detectable by the human ear), and P2P enactments like the Digital Millennium technology enables massive reproduction Copyright Act, Napster's bankruptcy, and and distribution that could not occur with tools enabling the encryption protection a cassette tape recorder. The one of CDs to prevent copying, they have guarantee of the Internet is new progressively lost a substantial consumer technology will always replace the old. base. Stronger and more uncontrollable Napster came and went and is not even P2P networks have emerged since the missed because of the birth of better P2P death of Napster, hackers have easily networks. If P2P is defeated, some new circumscribed copy protection technology will replace it. All sides technology, and consumers are fighting should come together and work on a way for the fair use rights. The continued to pay the royalties and embrace the growth and popularity of P2P networks is current technology. The audiovisual not likely to cease in the near future. It's industry, artists, ISPs, software firms, hard to get the genie back in the bottle. computer manufacturers, blank CD The record industry has fought the war makers, and P2P networks need to find a against music piracy with lobbying, middle ground and a way to pay royalties litigation, copy protection technologies to their rightful owners. and self help measures. The industry We can benefit from the legal cannot possibly win a war fought on all experiments that have been conducted in fronts and has to think in terms of a the USA and the spurt of passed and change in its business model. proposed legislations there. But actually Entrepreneurs will have to think about every new piece of legislation has created change in business models and reducing more problems than it has solved. The prices so as to be viable in the digital legislations like Peer-to-Peer Piracy market. Public education and awareness Prevention Act seek to validate some of about copyright is also important. the self help measures which would allow Consumers will have to learn and be copyright holders to employ these comfortable shopping at their computer measures in certain situations. Consumer than in stores, and until that community and privacy advocates are up in arms feels comfortable about the security of against the passing of any such laws. their financial transactions, the market is They are already grouping themselves in going to be 99% hype and 1% wish. In alliances to wage a war against these other words, until the psychology of the legislations. Employing such self help public changes, there would not be a measures could well land a person in digital market. trouble as in that case he would be The challenge is to ensure that the laws violating the Information Technology of copyright adapt to the new Act, 2000. technological environment in a way that MITTAL: P2P NETWORKS 459

feeds and encourages creative activity 5 Marshall Brain, How MP3 files work, rather than in a way that inhibits or http://computer.howstuffworks.com/mp3.htm 6 Christopher Jones, MP3 overview, overwhelms it. The proprietary aspect of http://hotwired.lycos.com/webmonkey/00/31/i copyright law is only one side of the ndex3a.html?tw=multimedia matter to be considered in close relation 7 Compression is the reduction in size of data in with its cultural-economic aspect57. In order to save space or transmission time. For data transmission, compression can be other words: the right of copyright performed on just the data content or on the owners to equitable remuneration should entire transmission unit (including header always be balanced with the interests of data) depending on a number of factors society at large. The key is to balance, 8 Keith Taylor, Piracy in cyber space:The battle which has always to be interpreted and over digital music on the Internet, http://gsulaw. gsu.edu/lawand/papers/fa02/taylor/ reinterpreted considering varying 9 www.howstuffworks.com interests from time to time along with the 10 Jason Scott, Keith Taylor, Piracy in cyber space: advancement of technology. the battle over digital music on the Internet, http://gsulaw.gsu.edu/lawand/papers/fa02/ taylor. References 11 A&M Records v Napster, Inc, 239 F.3d 1004 1 See, www.whatis.com. (9th Cir. 2001), http://caselaw.lp.findlaw.com/ 2 Carlos Valiente, Jr, P2P: who pays the piper? scripts/getcase.pl?court=9th&navby=case&n Don't let it be you, http://www.scmagazine. o=0016401&exact=1 com/scmagazine/sc-online/2001/article/039/ 12 Section 512(a), US Copyright Act article.html (September 2001) 13 Marshall Brain, How file sharing works, 3 In general, broadband refers to http://www.howstuffworks.com/file-sharing. htm telecommunication in which a wide band of 14 A client is the requesting program or user in a frequencies is available to transmit client/server relationship. For example, the information. Because a wide band of user of a Web browser is effectively making frequencies is available, information can be client requests for pages from servers all over multiplexed and sent on many different the Web. The browser itself is a client in its frequencies or channels within the band relationship with the computer that is getting concurrently, allowing more information to be and returning the requested HTML file. The transmitted in a given amount of time (much computer handling the request and sending as more lanes on a highway allow more cars back the HTML file is a server, to travel on it at the same time). Related terms http://searchwin2000.techtarget.com/sDefiniti are wideband (a synonym), baseband (a one- on/0,,sid1_gci211795,00.html channel band), and narrowband (sometimes 15 In the client/server programing model, a meaning just wide enough to carry voice, or server is a program that awaits and fulfills simply "not broadband," and sometimes requests from client programs in the same or meaning specifically between 50 cps and 64 other computers. A given application in a Kpbs). http://searchnetworking.techtarget. computer may function as a client with com/sDefinition/0,,sid7_gci211706,00.html requests for services from other programs and 4 Niels Schaumann, Intellectual property in an also as a server of requests from other informative economy: copyright infringement programs. Specific to the web, a web is the and peer-to-peer technology, 28 Wm. Mitchell computer program (housed in a computer) that Law Review, 1001 (2002). Magdalena Heim- serves requested HTML pages or files. A web Smith, Peer-to-peer file sharing since Napster, client is the requesting program associated http://gsulaw.gsu.edu/lawand/papers/fa02/hei with the user. The web browser in the m-smith/#36 computer is a client that requests HTML files 460 J INTELLEC PROP RIGHTS, SEPTEMBER 2004

from web servers, http://whatis.techtarget. 28 http://www.boston.com/dailyglobe2/182/busin com/definition/0,,sid9_gci212964,00.html ess/Aimster_shutdown_upheld.sktml 16 Carlos Valiente, Jr, P2P: Who pays the piper? 29 Hanrei Jiho (No. 1810) 20 (Tokyo District Don’t let it be you, http://www.scmagazine. Court, interim decision, January 29, 2003) com/scmagazine/sc-online/2001/article/039/ Quoted in, Teruo Doi, Individual and article.html, (September 2001) collective enforcement of copyright and 17 Any computer using Kazaa Media Desktop related rights: law and practice in Japan, paper can become a supernode if it has a modern presented in the ATRIP Congress 2003 at computer and is accessing the Internet with a Tokyo, Japan broadband connection. Being a supernode 30 http://www.filerogue.net does not affect the performance noticeably. If 31 Teruo Doi, Individual and collective the computer is functioning as a supernode enforcement of copyright and related rights: other Kazaa Media Desktop users in the law and practice in Japan”, paper presented in neighbourhood will automatically upload to the ATRIP Congress 2003 at Tokyo, Japan ones machine, a small list of files they are 32 (Tokyo District Court, interim decision, sharing, whenever possible using the same January 29, 2003) Quoted in Teruo Doi, ISP. When they search, they send the search Individual and collective enforcement of request as a supernode. The actual download copyright and related rights: law and practice will be directly from the computer, which is in Japan, paper presented in the ATRIP sharing the file, and not from the supernode. Congress 2003 at Tokyo, Japan The download goes from them to the person 33 Supra note 31 who wants it 34 RIAA v Verizon Internet Services, Inc, 240 F 18 Cause list number KG 01/2264 OdC Supp. 2d 24 (i.e. First Subpoena Decision) (judgement passed by the President of the DDC, 2003 Amsterdam District Court on November 29, 35 Art. 11 of WCT states 2001) Contracting Parties shall provide adequate 19 Judgement delivered by the Amsterdam Court legal protection and effective legal remedies of Appeal (Fourth three-judge civil section) against the circumvention of effective on March 28, 2002 technological measures that are used by 20 http://download.com.com/3120-20-0.html?qt= authors in connection with the exercise of kazaa&tg=dl-2001&search=+Go%21+. their rights under this Treaty or the Berne 21 Anupam Chander, Next stop, Kazaakhstan?: Convention and that restrict acts, in respect of The legal globe-trotting of Kazaa post- their works, which are not authorized by the Napster filing sharing company, authors concerned or permitted by law http://writ.corporate.findlaw.com/commentary 36 Nathan Cochrane, Bit by bit, digital freedom /20021024_chander.html disappears, http://www.theage.com. au/articles/ 22 IFPI comprises a membership of more than 2002/09/14/1031608343597.html 1500 record companies, including 37 Malaika Costello-Dougherty, Tech wars: P-to- independents and majors, in over 70 countries, P friends, foes struggle, Medill News Service, http://www.ifpi.org/ March 13, 2003, www.pcworld.com/news/ 23 IFPI, http://www.forbes.com/asap/2002/1007/ article/0,aid,109816,00.asp 006.html 38 Ibid 24 Adrian Strain, Global sales of recorded music 39 http://www.overpeer.com/ down 10.9% in the first half of 2003, 40 Supra note 37 (London, 1 October 2003), http://www.ifpi. 41 On the Internet, a denial of service (DoS) org/site-content/press/20031001.html attack is an incident in which a user or 25 Ibid organization is deprived of the services of a 26 Ibid resource they would normally expect to have. 27 http://download.com.com/2001-20-0.html? Typically, the loss of service is the inability of legacy=cnet a particular network service, such as e-mail, to MITTAL: P2P NETWORKS 461

be available or the temporary loss of all presented at ATRIP Congress 2003 at Tokyo, network connectivity and services. In the Japan. worst cases, for example, a web site accessed 47 Hill Slowiaski F, What consumers want in by millions of people can occasionally be Digital Rights Management (DRM): Making forced to temporarily cease operation. A content as widely available as possible in denial of service attack can also destroy ways that satisfy consumer preferences” programing and files in a computer system. AAP/ALA Whitepaper, (Worthington Although usually intentional and malicious, a International, March 2003), http://dx.doi.org/ denial of service attack can sometimes happen 10.1003/whitepaper1. accidentally. A denial of service attack is a 48 Supra note 45 type of security breach to a computer system 49 Lessig L, Intellectual property and code, 11 St that does not usually result in the theft of John’s J Legal Comment 635, 638 (1996). information or other security loss. However, While we protect real property to protect the these attacks can cost the target person or owner from harm, we protect intellectual company a great deal of time and money, property to provide the owner sufficient http://searchsecurity.techtarget.com/sDefiniti incentive to produce such property. ‘Sufficient on/0,,sid14_gci213591,00.html incentive,’ however, is something less than 42 Willem Grosheide, The missing link: perfect control Repairing the chain from industry to customer 50 Supra note 45 – the online use of music and text, paper 51 RIAA v Verizon Internet Services Inc, 240 F presented at ATRIP Congress 2003 at Tokyo, Supp. 2d 24 (i.e. First Subpoena Decision) Japan DDC, 2003 43 Ibid 52 RIAA to file swappers: Let’s chat C Net 44 Courtney Love, Speech to the Digital New.com, http://news.com.com/2100-1025- Hollywood Online Entertainment Conference 998825.html. See also, Willem Grosheide, in New York, 16 May 2000, http://www. The missing link: repairing the chain from gramart.no/n-courtneysrequestyke.html. The industry to customer – the online use of music large sums of royalty income that copyright and text, paper presented at ATRIP Congress law enables to be collected goes mainly to the 2003 at Tokyo, Japan publishers (music publishers and record 53 S 51, Copyright Act, 1957. companies) and to a small minority of high 54 S 14, Copyright Act, 1957 earning performers and writers. These are 55 S. 51(a)(ii), Copyright Act, 1957 persons who can defend their own interests in 56 S 63, Copyright Act, 1957 the market place by virtue of their bargaining 57 Ruth Towse, Creativity, Incentive and Reward power and ability to hire advisers (managers, (Edward Elgar Cheltenhorn UK 2001), p. 22 lawyers and accountants) to control their own (…) copyright, like subsidy, (is) an instrument affairs by contractual arrangements. See, ibid of cultural policy and the role of copyright in 45 Tweney Dylan F, Now they're after you: providing incentives and rewards to creativity music cops target users, PC World (April must be considered side by side with subsidy. 2003), www.pcworld.com/news/ article/0,aid, Quoted in, Willem Grosheide, The missing 109584,00.asp link: Repairing the chain from industry to 46 Willem Grosheide, The missing link: customer – the online use of music and text, Repairing the chain from industry to customer paper presented at ATRIP Congress 2003 at – the online use of music and text, paper Tokyo, Japan