A few thoughts on the P2P jihad

[vsp]

I'm sure everyone's heard by now that the RIAA is <a href="http://www.theregister.co.uk/content/6/31833.html">on a rampage</a>, and has prepared close to a thousand subpoenas for music sharers.

The sheer scale of the user base is at least momentarily comforting. (If every Kazaa user had a square inch of turf, the estimated user base would fill up seven or eight football fields. The RIAA's subpoenas would cover about six square feet inside the first field's one-yard-line, with a half-a-square-foot added each day.) Of course, those odds are a little deceptive; remove non-habitual users, users who don't share files, users who have removed <a href="http://www.riaa.com/about/members/default.asp">RIAA-affiliated artists and labels</a> from shared directories, and those scared off by the legal implications, and there aren't quite as many potential targets any more.

If you happen to hit the Unlucky Lottery and are served with a subpoena, the options aren't promising. The RIAA is clearly hoping that the vast majority will simply say "We'll settle" and fork over cash in four or five figures; that would provide them with lots of "See? The Internet IS full of pirates who are pleading guilty" PR material, save them court costs, and help finance the costs of the legal battles against those who don't cave in. But when you're up against big-corporation lawyers and you're a Joe Average, can you afford the risk of losing your case and being on the hook for a hell of a lot more cash? For that matter, will even the falsely-accused refuse to settle for precisely those reasons?

Realistically, I can't complain much; this is the approach the RIAA should've taken in preference to going after the likes of Napster. Napster was a carrier; users actively provided the infringing material. The viability of RIAA members' business models, copyright infringement vs. theft, the latest in <a href="http://www.wired.com/news/digiwood/0,1412,59654,00.html">Howard Berman's</a> string of ridiculous proposed legislation and such are different matters.

But I have two thoughts floating around in my pea-sized cranium:

* Why has Jack Valenti of the MPAA not rushed to a microphone to announce a "me too" lawsuit program? Valenti is a publicity hound, would blow up a station wagon full of nuns if it contained something he considered threatening to the status-quo business model, and has a long history of refusing to be the voice of reason. Considering that P2P serves up movie and television files with great regularity, and that he's crusaded against that before, what's holding the MPAA back?

* Are the RIAA's infringement-hounds leaving no stone unturned in their searches? Are they investigating IRC, FTP, USENET, eDonkey, LimeWire, SoulSeek, WinMX, and other sources of often-musical bandwidth? Are they looking for all kinds of infringement, popular and obscure alike?

Or are they, as some articles have suggested, merely trolling Kazaa each day for familiar names like "Avril Lavigne" and "Michael Jackson" and going after whoever turns up in those searches? (This would be more in character for them.)

Considering that my ISP (Verizon) has been the most directly targetted by the RIAA (a payback for not caving in quickly on the ISP-privacy-rights fight that opened the door for these lawsuits), I'm being very careful about what I put in my shared directories these days...

I read today that they're going after downloaders too. I suppose they're sharing files and seeing who downloads? I'm not sure. I'm also not real worried, 'cause I use iTunes Music Store.

[vsp]

Got a link for that? Going after downloaders just sounds strange. Isn't that treading in entrapment waters?

(iTunes is a big step in the right direction. When it's Windows-accessible, it'll be a HUGE step in the right direction, and one that I can take advantage of.)

[elSicomoro]

UT and I were discussing this last night, and I was telling him about a great setup that AOL Time Warner is apparently doing.

For example, on Seal's website, you can listen to a "jukebox" of his songs, then if you want to buy one of them, you're taken to paypal, and the cost is $1.49. I'm cool with that.

[elSicomoro]

So far, everything I've seen refers to "distributors" and "people who share files."

As far as entrapment, nah...free choice as to whether to download or not.

[vsp]

Originally posted by sycamore
As far as entrapment, nah...free choice as to whether to download or not.

Yeah, and the guy who propositions an undercover cop on the streetcorner has free choice whether to proposition her or not. It's still entrapment if the cop is openly offering a service, as compared to standing there and being made an illicit offer.

No money's changing hands in P2P, but the principle still stands. The downloaders are actively searching for the goods, but the uploaders have to actively put it in a shared directory and effectively say "Here, you can have this" for it to be accessible, and if the uploaders' act doesn't happen, there's no violation.

Where it's going to get quite ugly is when the RIAA's searchbots misfire -- it's not like it <a href="http://news.com.com/2100-1025_3-1001095.html">hasn't happened before</a>. Whether it's gray-area stuff (remixes, sampling, etc.) or mistaken identity, how many non-infringers will be able to afford to defend themselves, given that the RIAA is eschewing warning letters and suing on the first offense now?

I was actually the target of a threatening letter that incorrectly identified some stuff I was hosting. My server was shut down without any notification whatsoever; it was only after I called the hosting company that I found out that it was because I had DeCSS (that's De-Cascading Style Sheets) on a page that <b>very explicitly said</b> "this cannot be used for making illegal copies of DVDs". I wrote an angry letter to the hosting company; they wrote a very very <b>very</b> angry letter to the MPAA's attorney, and my server was restored (total downtime: about four hours). But it's still a big bag of suck.

I'm looking for my source right now, and I'll post it when I find it. But it was just today when I read it.

[SteveDallas]

Originally posted by vsp
The RIAA is clearly hoping that the vast majority will simply say "We'll settle" and fork over cash in four or five figures;

Yes, but won't it be fun when they hit the "jackpot" and get somebody with the resources to fight it.. or more likely, some folks (EFF?) decide to put together a legal assistance team.

* Why has Jack Valenti of the MPAA not rushed to a microphone to announce a "me too" lawsuit program?

You're right, it would be in character. But I think that since disk space and bandwidth limitations CURRENTLY make it not worth the trouble to share video at a reasonable quality level, he's decided to lie low and let the RIAA (and its expensive legal team) do the dirty work, and establish precedents so that at a later date when the technology has improved, the MPAA can just waltz on in and it will be business as usual to arrest P2P users.

Oh and speaking of the MPAA, I wonder how long it will be before the RIAA admits that all those shiny new hot-selling DVDs have something to do with the drop in CD sales?

* Are the RIAA's infringement-hounds leaving no stone unturned in their searches? Are they investigating IRC, FTP, USENET, eDonkey, LimeWire, SoulSeek, WinMX, and other sources of often-musical bandwidth? Are they looking for all kinds of infringement, popular and obscure alike?

I doubt it. They're going after easy targets. And artists who make more money can prove more damages. I'm not saying they wouldn't like to prevent me from sharing a rip of Stravinsky's "The Rake's Progress" (this is a hypothetical example BTW so don't arrest me! ), but it's way way way way down on their list of priorities.

[Griff]

BC and MIT weigh in.

[hot_pastrami]

Originally posted by vsp
Going after downloaders just sounds strange. Isn't that treading in entrapment waters?

This comment comes up a lot, and it is worth noting that entrapment is perfectly legal if it is not done by a person or persons in law enforcement. The RIAA can use entrapment methods as much as they want to.

I am curious whether my recent use of P2P is actually illegal... I have been downloading all the songs from CDs which I already own, but are all scratched up and won't play without skipping. I paid for a digital copy of the music itself, so I should be entitled to replace the music with CD quality music when the media becomes unusable. Right? I dunno.

For those who haven't seen it, the new release of KaZaA Lite K++ (the bootlegged version of KaZaA with the spyware stripped out) has RIAA-blocking stuff built in. Not sure how effective it is, though.

[Tobiasly]

I'm pretty sure you're legal there hp, but how much would it cost you to argue your lawsuit if you received a subpoena?

[SteveDallas]

Originally posted by hot_pastrami

For those who haven't seen it, the new release of KaZaA Lite K++ (the bootlegged version of KaZaA with the spyware stripped out) has RIAA-blocking stuff built in. Not sure how effective it is, though.

Surely somebody's going to start tunneling it through SSH. Then it would get interesting.

[vsp]

Originally posted by Griff
BC and MIT weigh in.

From the article quoted:

In a subpoena addressed to MIT, the association is demanding the name, address, and phone number of a student who used the nickname ''crazyface'' to download at least five songs, including Radiohead's ''Idioteque'' and Dave Matthews Band's ''Ants Marching.''

Hmmph. Dave, I guess you were right and they _are_ going that route. I have to admit that I'm surprised at that. Ah, well, time to teach my wife how to pull music from USENET instead! (I'd like to see the RIAA track _that_ on the client end, though they can certainly still go after file-posters.)

(The common thread so far seems to be Kazaa, which I don't use, but I don't want to be the guinea pig when they move on to SoulSeek and WinMX.)

[quote]Originally posted by hot_pastrami
I am curious whether my recent use of P2P is actually illegal... I have been downloading all the songs from CDs which I already own, but are all scratched up and won't play without skipping. I paid for a digital copy of the music itself, so I should be entitled to replace the music with CD quality music when the media becomes unusable. Right? I dunno.

I suspect that you'd find that the RIAA would sue you whether you owned zero, one or fifteen copies of a given CD.

[richlevy]

If they really do decide to get tough, will there be a backlash? Is it possible that smaller record companies and distributors will come up with a 'non-RIAA' label or sticker to use as a selling point?

[Cam]

I'm wondering about the impact this is going to have on music sales. It will be interesting to see if the RIAA's sales decrease dramaticly with this attack on their customers. How will they explain that?