The Future of Bittorrent Technology
Total Page：16
File Type：pdf, Size：1020Kb
COMMENTS Peering Beyond Today’s Internet File Sharing Concerns: The Future of BitTorrent Technology Adam V. Vickers* I. INTRODUCTION ................................................................................. 133 II. BRIEF HISTORY OF P2P TECHNOLOGY ............................................. 134 A. Technical Explanation of BitTorrent Technology.................. 135 B. Recent Legal Attacks on BitTorrent....................................... 138 III. SECONDARY COPYRIGHT LIABILITY DOCTRINE .............................. 139 A. The Doctrines of Contributory and Vicarious Copyright Infringement ............................................................................ 139 B. Direct Third-Party Infringement ............................................ 140 C. A & M Records v. Napster ..................................................... 141 D. In re Aimster Copyright Litigation......................................... 142 E. MGM v. Grokster.................................................................... 143 IV. INDUCEMENT RULE APPLIED TO BITTORRENT TECHNOLOGY......... 145 A. BitTorrent Software Developers............................................. 145 B. Tracker Web Site Owner......................................................... 145 V. SEVENTH CIRCUIT SONY APPLICATION............................................ 146 A. BitTorrent Software Developers............................................. 146 B. Tracker Web Site Owners....................................................... 148 VI. LEGAL EVOLUTION: CONTEMPORARY APPLICATION OF THE SECONDARY COPYRIGHT LIABILITY DOCTRINE? ............................ 149 VII. CONCLUSION .................................................................................... 150 I. INTRODUCTION Technological progression over the past twenty-five years has led brilliant and innovative minds to develop methods of communication which continually shatter the bounds of information transfer. While such advancements certainly benefit society, they also have the power to undercut the very foundations upon which certain aspects of our world rest. These foundations are protected by the delicate balance achieved * J.D. candidate 2006, Tulane University School of Law. The author extends his gratitude to Professor Christopher A. Cotropia, Tulane University School of Law C.J. Morrow Research Associate Professor of Law, for his guidance in writing this Comment. 133 134 TUL. J. TECH. & INTELL. PROP. [Vol. 8 through copyright law. Article I, Section 8, Clause 8 of the United States Constitution provides Congress the power to legislate “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The careful attention we afford to striking a balance between incentive to create and public dissemination is called into question more often than ever because of advancements made after enactment of our current laws. As a result, courts have struggled over the problem of forcing new technology into current copyright doctrine, constantly calling upon our legislators to resolve the issues in light of society’s best interest. II. BRIEF HISTORY OF P2P TECHNOLOGY The increased ability to transfer large amounts of information over the Internet has evolved into “peer-to-peer” (P2P) file sharing between individual users.1 This activity involves Internet users connecting to each others’ computers over the Internet for the purpose of sharing digital computer files.2 In some cases, the users create and distribute copies of protected works without authorization, a practice strictly prohibited by copyright law.3 Napster, a centralized file sharing service, provided the original online network through which users began trading music files.4 Napster employed the client-server model, the most common method by which files are transferred over the Internet.5 In this model, the user is the “client,” the server is the Web site proprietor offering downloadable information, and a central index keeps track of the information shared between two clients (also known as “peers” and “users”).6 For example, in the Napster scenario, the client first would register his or her computer with Napster (the server) and would be granted access to the central directory of MP3 files, which would include all other online peers with files available for sharing.7 When the client wished to download a file, 1. Answers.com, File Sharing, http://www.answers.com/topic/filesharing (last visited Feb. 7, 2006). 2. See id. 3. See 17 U.S.C. § 106 (2000); Answers. com, supra note 1. 4. See Answers.com, supra note 1. The files were traded in MPEG-3 format, commonly known as MP3. Id. 5. See Brian’s BitTorrent FAQ and Guide, http://dessent.net/btfaq (last visited Apr. 6, 2006). 6. See Jesse M. Feder, Is Betamax Obsolete: Sony Corp. of America v. Universal City Studios, Inc. in the Age of Napster, 37 CREIGHTON L. REV. 859, 863-64 (2004). 7. See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1011-12 (9th Cir. 2001). 2006] THE FUTURE OF BITTORRENT TECHNOLOGY 135 he or she would simply run a query in the Napster server.8 The client would then select one or more peers from which he or she wanted to download the desired file.9 At that point, the Napster server linked the two peers and monitored the entire file transfer between them, recording a log of the activity in the server’s central directory.10 Napster’s role as the server and the central directory ultimately led to its demise, which is briefly discussed below.11 Since the advent of P2P sharing, computer gurus have developed more efficient methods to speed up the process. A major operational problem with the client-server model was the slow speed associated with downloading large files.12 “[I]t takes a great deal of bandwidth and server resources to distribute” large or very popular files since communications travel through the central server.13 Napster was unable at times to provide the required bandwidth to allow for reasonable sharing speeds. As a result, clients’ requests were placed in long “queues” before they were granted access to the requested files.14 This prompted users to disconnect and hence the network proved insufficient to meet its demands at times.15 A. Technical Explanation of BitTorrent Technology The operational failure of the client-server model prompted technology experts to develop a more efficient approach to P2P sharing.16 Their answer has been decentralization, which is the primary characteristic of BitTorrent technology.17 As a result of the ever- increasing demand for faster data transfer, BitTorrent file sharing technology has recently gained widespread popularity among legitimate and illicit file sharers alike. Developed by Bram Cohen, a twenty-eight- year-old Seattle resident, BitTorrent was first released three years ago 8. See generally id. at 1012. 9. See id. 10. See id. at 1011-12. 11. See id. at 1020-24. 12. See Brian’s BitTorrent FAQ and Guide, supra note 5. 13. Brian’s BitTorrent FAQ and Guide; How Does BitTorrent Compare to Other Forms of File Transfer?, http://btfaq.com/serve/cache/4.html (last visited Apr. 6, 2006). 14. See generally Brian’s BitTorrent FAQ and Guide, supra note 5. Such a situation is comparable to customers remaining “on hold” when phoning their cable service provider’s “customer service” department because of the “high volume of calls” they may be experiencing at that time. Only a limited number of phone lines are available, and only a limited number of clients may share certain files. Therefore, as customer service departments and music files grow more popular, clients stand in line longer. Id. 15. See id. 16. See Answers.com, supra note 1. 17. See id. 136 TUL. J. TECH. & INTELL. PROP. [Vol. 8 with the intent to attract music enthusiasts to share concert videos over the Internet.18 Thousands, if not millions, of illicit traders are now attracted to it because they can quickly download digital-quality, pirated movies from online peers in relatively short time.19 This Comment will proceed with respect to issues presented by illicit file sharing via BitTorrent technology. With BitTorrent, individuals generally share files on a one-to-one basis.20 First, an individual creates a “seed” file (identified by the .torrent file) using BitTorrent software.21 A “torrent” is a small metadata file the client receives from the Web server (ending in .torrent).22 “‘Metadata’ here means that the file contains information about the data [the client] want[s] to download, not the data itself.”23 The “seed” file is a complete source file (i.e., the movie).24 It includes the file’s name, size, and a “tracker” server.25 Once the seed has been planted, a client wishing to download the file must first download the BitTorrent software, which is available on many Internet sites.26 Next, the client clicks on a torrent link posted on a Web site, which opens using the BitTorrent software recently downloaded by the client.27 The client then communicates to the tracker, or file sharing index, that he is ready to download the file (or movie, in our case).28 The “tracker” plays an integral role in the file sharing activity. It generally behaves like a “matchmaker, keeping track of who’s downloading the file and matching them up with others who are doing the same.”29 It also provides clients with a list of other users who have 18. See Paul Boutin, Caveat MPAA: Meet BitTorrent, the File Sharing Network That Makes Trading Movies a Breeze, SLATE, Feb. 27, 2004, http://slate.msn.com/id/2096316.