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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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Copyfight

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May 3, 2004

Free Strategic Advice for the RIAA

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Posted by Ernest Miller

Last week, I advocated that the RIAA go on the offensive against commercial filesharing networks, such as Sharman Networks, in innovative ways that don't include more lawsuits, such as reverse engineering Sharman's interface and networking protocols and publishing them on the web. Additionally, I argued that the RIAA should provide legal support to projects that were being legally threatened by Sharman Networks for interfacing with Sharman's networks (One Way for the RIAA to Go on the Offensive).

Frequent commenter Cyphrpunk, called this "the craziest idea [he'd] ever heard" (Cyphrpunk's Comments). He argued that,

The problem with this strategy is that the RIAA is threatened both by commercial and non-commercial file sharing activities. The RIAA's problem is not Sharman, it is file sharing in general.

For the RIAA to give money and support to non-commercial file sharing would be cutting their own throat. Even if they succeeded in driving Sharman and other commercial operations out of business, they would have done so by making it even easier for people to engage in illegal file sharing than it is now.

Holmes Wilson of Downhill Battle noted that open source filesharing software is a bigger long term threat (Holmes Wilson's Comments).

However, if I may say so myself, the idea isn't crazy, unless you mean "crazy like a fox." Read on...

Undermining Commercial Filesharing Networks

Yes, attacking commercial filesharing networks doesn't solve the industry's problem with open source filesharing networks, but that doesn't mean the strategy can't be useful to the RIAA. Here are a few of the benefits of undermining commercial filesharing networks.

Number one on the hit parade, you will reduce investment and cash flow to the industry. Reducing investment dollars and cash flow has a number of salutory effects:

  • Decrease the speed of technological development. Sure, open source projects will continue to progress, but investor-funded projects progress much faster. This gives the RIAA more time to respond to developments and create counter strategies.
  • Reduce the amount of money filesharing companies can spend for Washington lobbyists. Sure, they don't have much effect on the Hill now, but eventually, if the industry matures, they will be able to counter the RIAA's lobbyists. Eliminate the commercial companies and then you only have to worry about underfunded, spread-thin do-gooders like the EFF.
  • Reduce the amount of money filesharing companies can spend to fight lawsuits. Even if the RIAA loses Grokster, there will still be limits that P2P companies can't cross (and they will certainly try to push the boundaries), meaning that they can generally be sued everytime they change their protocols to increase centralization (which they need to survive). That's expensive, and while the RIAA has deeper pockets, it wouldn't hurt if the companies they were suing were driven into bankruptcy first.
  • Reduce the amount of money spent on pro-P2P propaganda. It will still exist, but you don't want organizations like P2P United getting industry financing.

It also seems likely to me that many average users are somewhat gun-shy when it comes to open source projects. Without a commerical name behind a software project, it is likely that many average users will be reticent to use the program.

So, we can see that destroying the commercial aspects of filesharing can be quite beneficial to the RIAA's campaign. But, as my critics note, we will still have open source software. First, that is going to happen one way or another, unless Congress passes some pretty draconian laws. Second, although open source is a problem, it is a more manageable one.

Open Source is a Threat, Just Not as Big a Threat

Of course, the RIAA is going to have to look at this from my point of view, which is that they shouldn't be trying to eliminate filesharing but, rather, make the costs of filesharing high enough that the legitimate alternatives compare favorably. This is part of my argument that the RIAA should be promoting copynorms that permit some filesharing, but not all filesharing. By blindly opposing all filesharing the RIAA is undermining its own position by being unreasonable (To Save Copyright We Must Reform It). If you don't simply oppose all filesharing, then one is free to assist in one aspect of filesharing that has a tendency to achieve your larger goals. Which is exactly what I suggest for the RIAA.

One of the main drawbacks of decentralized open source P2P is precisely that is decentralized and open source. When a network is fully decentralized, it is much more difficult to enforce rules against bad actors and non-compliant implementations. It becomes much easier to spoof such networks, for clients to lie, and/or take other actions which degrade the usefulness of the network.

Clever RIAA programmers could do many different, legal things to make such networks increasingly unusable. Many of the nasty things that can be done on filesharing networks wouldn't even have to be done by the RIAA. Indeed, the users of open networks might ultimately be their own enemy as they leech (download only) files, so as not to upload and get the RIAA's attention. Too much leeching and many "sharing" networks collapse into uselessness. Finally, spammers, virus-writers and others will be more than happy to take as much advantage of open networks as they can.

Of course, you might say, one obvious response is to move to closed darknets. Great! That is good for the RIAA, since fragmentation of the network serves their interests. The more fragmented the network, the less likely it is that searchers will be able to find anything but the most popular music, which would have a tendency to make a full-catalog legal alternative much more attractive. Nothing the RIAA can do will stop people from being able to get the Top 40 easily ... what the RIAA can do is inhibit people's ability to get more obscure music (though it will require the RIAA's members to switch to business models that aren't as dependent on megahits). Indeed, if open source programmers switched their efforts from developing filesharing software that scales to software that is more effective as an invitation-only darknet, that should suit the RIAA's purpose just as well. And, bonus, this integrates nicely with the publically acceptable copynorm "share with friends, not strangers."

Heck, the more fragmentation the better. The RIAA should do its best to foment protocol and project forking for open source filesharing.

Combine all of the above with strategically targeted legal action (perhaps in conjunction with the FBI), and you can potentially degrade public filesharing networks quite significantly. For example, some sites publish lists of RIAA spoofing IP addresses. Targeted investigations of the owners/posters to such sites may find that they are *gasp* involved in illicit filesharing. Many of the "superpeers" that facilitate public filesharing networks probably also engage in illicit filesharing.

If the RIAA were smart, it would attempt a more nuanced approach to the issue.
Of course, proponents of filesharing networks have little to fear. The RIAA hasn't demonstrated much in the way of intelligence recently.

Comments (3) + TrackBacks (0) | Category: Big Thoughts


COMMENTS

1. Uioei on September 6, 2004 3:41 AM writes...

Indeed, if open source programmers switched their efforts from developing filesharing software that scales to software that is more effective as an invitation-only darknet, that should suit the RIAA's purpose just as well.
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Permalink to Comment

2. Dopae on September 21, 2004 4:58 AM writes...

Indeed, if open source programmers switched their efforts from developing filesharing software that scales to software that is more effective as an invitation-only darknet, that should suit the RIAA's purpose just as well. 传奇私服

Permalink to Comment

3. TRpier on September 22, 2004 5:27 AM writes...

Combine all of the above with strategically targeted legal action (perhaps in conjunction with the FBI), and you can potentially degrade public filesharing networks quite significantly. For example, some sites publish lists of RIAA spoofing IP addresses. Targeted investigations of the owners/posters to such sites may find that they are *gasp* involved in illicit filesharing. Many of the "superpeers" that facilitate public filesharing networks probably also engage in illicit filesharing.

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