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Features: Compulsory Licensing - Where Are the Defenders of HTTP?
Posted by Ernest Miller on Friday, September 19 @ 13:10:10 EDT File Sharing
Boston.com has published an AP wirestory on the Berkman Center Summit Digital Media in Cyberspace: The Legislation and Business Effects (Harvard symposium debates future of online file-sharing). A very interesting gathering (why doesn't anyone ever invite me to these things?) of lawyers, lobbyists, artists, economists, academics and etc., discussing the future of digital media (see, Wither Digital Media?).

I found the following quote by Charles Nesson rather interesting, "There was a time that to make a copy, you needed a monk, and a desk, and months, and then Sean Fanning hit the scene." Now, clearly, Nesson was exaggerating his statement for effect. However, his statement does point to a common misconception about filesharing - many people believe that it started with Napster. It didn't. The MP3 format itself was causing concern to the record industry at least since 1997 and Napster was not founded until 1999. So how was music filesharing taking place before Napster? Many of the usual suspects that are routinely ignored in the press even today: Usenet, FTP, IRC ... and one suspect that is no longer a major concern: HTTP.

The Era of OF - Original Filesharing

Remember the MP3 search engines? Before Napster, college students and dotcommers were filesharing by putting MP3s on their webpages for download through good ol' http. However, webpages are relatively easy to find and, more importantly, easier to shut down for a number of reasons: primarily, because of contributory and even direct liability for the organization hosting the site. Consequently, such organizations (like ISPs) had (and have) an interest in shutting down copyright infringing websites relatively quickly (even absent the poorly designed notice and takedown "safe harbor" provision of the DMCA).

Yet there hasn't been much outcry over the fact that the RIAA has and continues to shut down hundreds of noncommercial websites offering copyrighted MP3s for download without authorization. The RIAA has even threatened lawsuits and gotten college students expelled over their refusal to remove MP3s from college websites. There has been concern (often expressed on LawMeme) about abuse of the DMCA's notice and takedown procedures, but not much outcry when direct copyright infringement has been shown. Why is there no outraged defense of http filesharing?

Legally Equivalent, but HTTP has Advantages

P2P and http uploading and downloading of copyrighted MP3s are, essentially, functionally equivalent from a copyright point of view. From a technical point of view, however, there are significant differences. If anything, http has some serious advantages over P2P filesharing in many cases. Although P2P would still be useful in a world where http filesharing were allowed, http could easily and more effectively handle the vast majority of filesharing. For example, http:

  • Is better at providing access to the obscure stuff. Everytime you log onto a P2P network to download, you are relying on someone else being online at the same time with the materials you desire. For popular stuff, it is a virtual certainty you will find it. However, for more obscure works, or particular versions of works, you may or may not be successful at finding it right away. Having a work available on a website 24/7 generally solves this problem. If it exists, it can be found.
  • Is better at sharing 24/7. If you really believe in sharing, wouldn't you want to share 24/7? Why deny people the bounty of your largess when you aren't online? Or, if you are online, but don't want to slow your own surfing experience, wouldn't it be better to move your filesharing to another server rather than turn it off altogether?
  • Means security issues may be ameliorated. Many people don't really take security seriously enough. They don't keep their virus files updated, they don't patch vulnerabilities, they'd rather not be bothered. For these people, uploading files to be shared via a server maintained by someone else is an ideal solution.
  • Means privacy issues may be ameliorated. Many people have no idea what they are sharing with a P2P client (not too mention the spyware and adware). If you upload files to a webserver, you know exactly what you are sharing.
  • Means privacy issues may be ameliorated, part II. Http means not having to broadcast your searches. P2P clients broadcast searches to many different actors that can easily gather that information (such as Big Champagne) and possibly link to personally identifying information through other means. Although search engines and downloads would still subject surfers to possible observation, the risk seems obviously less than broadcasting searches and answering every query that shows up.
  • Works better with existing search engines. Existing search engines do a real good with http indexing and searches. One word: Google.
  • Doesn't need a separate application. Why use a client when you can simply use the browser?
  • Works better with caching. Many ISPs cache very popular websites and thus make more efficient use of bandwidth and provide better downloads for their customers. This would work just as well with MP3s, and might be even more efficient.
  • Is great for fan pages. What better way to show your support for a musician then to embed their works in a fan website?
Now, P2P does have some advantages of its own, particularly a service like Bit Torrent. Still, it seems that P2P should supplement http, not be the main focus (just as Bit Torrent supplements the original hosting website). So why no impassioned defense of http?

Differing Copynorms?

I venture that there seems to be a different set of copynorms for the practice of filesharing via P2P and http. Certainly some defend filesharing via both P2P and http, but others strongly defend P2P with nary a word in favor of http filesharing. Although I have no proof, I suspect that the public's attitude toward filesharing would differ based on the protocol at issue. Would 12-year old Brianna Lahara think it was okay for her to put all her music on a website for the world to copy? Why don't we see people uploading files to their websites more often? Why aren't they more upset when told they can't upload to their website then when they make files available via a filesharing program?

I believe that the difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act [Can't stay away from that Public/Private distinction, huh? - Ed.]. If I were to stand on a street corner handing out CD-Rs to strangers (even were I doing so with no possibility of remuneration of any sort), most people would not consider that proper. If the RIAA were to sue me for such an act, would there be such an outcry over the injustice of it all? Yet, if I handed a CD-R to a friend, most would defend it. The difference is that one is private and the other public.

Many have noted that copynorms don't seem to have shifted much in the few weeks that the RIAA has been suing filesharers on P2P networks as noted in today's New York Times (reg. req.) (Music File Sharers Keep Sharing). However, the evidence isn't nearly as clear to me. First, it is too soon to tell whether or not the RIAA's program is having an effect. Second, the true measure of the shifting of norms is not whether people have stopped downloading, but how many have stopped uploading. I haven't seen much documentation on the latter question recently.

Furthermore, my intuitions and the point of this post is that copynorms aren't quite as clear cut as some would have us believe. When people clearly advocate for their right to post MP3s to website, then we will have seen a clear shift in copynorms.

Forget Kazaa, Morpheus. Filesharing advocates should be mounting the barricades in defense of their right to use Apache, or better yet, an MP3 locker service like what my.mp3.com used to be (the subject of another post).

 
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Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 0)
by Anonymous on Friday, September 19 @ 14:51:17 EDT
I believe that the difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act.
The reason for this seems clear: P2P networks allow individuals to share files from their own home computers, while HTTP in the absence of extra P2P-like services (the 24x7 "website" kind of HTTP server that you are talking about) requires them to upload files to commercial third-party servers.


[ Reply to This ]


Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 1)
by Ernest_Miller on Friday, September 19 @ 17:27:15 EDT
(User Info | Send a Message) http://research.yale.edu/lawmeme/
DocBug [docbug.com] has some interesting speculation on the reasons for a difference (Different copynorms for HTTP and P2P?). And the FurdLog [msl1.mit.edu] talks about using this distinction as an example in class ( HTTP v P2P - Norms of Filesharing [msl1.mit.edu]).


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the difference to me between p2p and http for sharing (Score: 0)
by Anonymous on Friday, September 19 @ 20:02:38 EDT
As someone else said the biggest difference is that A 3rd party is needed to do the sharing. This 3rd party would also benefit financially from the sharing. Although they benefitted indirectly they would clearly KNOW that copyright works were being shared, they would also be hosting them and facilitating the sharing [arguably making them a direct distributor of works they didnt own] and they would make a profit from it. That would be commercial piracy.

When people share music via p2p however. They pay for the bandwidth, and almost always it is primarily for a legitimate legal purpose.

Sharing comes at a cost:

1. bandwidth paid for is surrendered in exchange for the things they wish to download.

2. A sacrifice is also made when the balance between what one uploads and what one downloads is decided.

The second point is one that I think there is a problem with when it comes to p2p. I would like restrictions to be in place so that how much you can download depends on how much you upload per week/month.

If someone has to upload in order to download this would have 2 effects on them, assuming it was difficult or impossible to hack the system used of course.

1. they would make damn sure that they put as much of their legally obtained stuff online for others to download. The more they have the greater chance people will download it from them & the more they can download.

2. Following on from point 1, they would need to have things people want. The best way to do that is to aquire the things that people are demanding. How do they do that? they buy stuff, obviously, almost certainly new things too because that is what other people are least likely to have. Why do they buy it? because that is the only way, and because it is what is most likely to get them the credit to download the things they cannot afford to buy.

Ohh the other bugbear is mis-named or bogus files .. that has to be sorted too so people do not try to cheat that way either.

This process works for the sharer as well as the people who want their stuff bought and not downloaded. Instead of trying to break the system they should be looking for ways of trying to profit from it.

Maybe this is somewhat idealistic .. but, just maybe, it is not the case. Isnt what I proposed how some of the old bbs systems used to work? and how fileservers on irc work? Once legal though, I am convinced that a workable framework could be in place, and the current system can evolve to something greater.


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Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 0)
by Anonymous on Friday, September 19 @ 20:06:02 EDT
People do stand on the street corning giving cds away. You see it all the time when a band is promoting some new muic they hand out demo disks and singles to everyone. No one has a problem with this as it promotes the music. Same as P2P.


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Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 0)
by Anonymous on Friday, September 19 @ 20:58:05 EDT
Check out YouServ [www.almaden.ibm.com] for an example of a system that does what you suggest (uses P2P to "enhance" filesharing via webservers/HTTP).


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Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 0)
by Anonymous on Friday, September 19 @ 22:40:37 EDT
The current legal climate is much more harsh for content providers than for downloaders. There are numerous legitimate reasons to be downloading an .mp3 from a website, and it seems that it would be legal if you had a hardcopy of the album. However, there is no such defense for providing the content.

In other words, the benefit of 24/7 sharing is working against you from a culpability standpoint. The more you hang your files out there, the more likely you are to get bitten.


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Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 1)
by Sphere1952 on Friday, September 19 @ 22:42:48 EDT
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It seems to me that putting a file up on a Web page is not legally equivalent to using P2P. When you put a file up on the Web you generally know where the file came from. That is, you know whether the file is someone's free speech or it is someone's intellectual property. When you get and share a file using P2P you generally have no idea where the file came from. That is, you don't know whether the file represents someone's free speech or their intellectual property.

This is in fact the filesharer's dilema. There is no general way to tell whether a file is one or the other. If it is assumed that the file represents someone's intellectual property then the fundamental free speech right of some authors to speak and be heard by willing listeners is infringed. If it is assumed that the file represents someone's free speech then the RIAA is likely to harrass you.


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Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 0)
by Anonymous on Friday, September 19 @ 23:28:23 EDT
The issue causing the public outcry isn't based on the protocol, it's based on the tactics. People are enraged at the thought of big corporations with tons of money waging offensive lawsuits against individuals that cannot afford to litigate the issue. The RIAA knows that people are afraid of how much lawyers cost and will just settle for whatever it decides. These lawsuits are being conducted by an organization that already has a lot of money because it believes it should have more money and thinks that elimination of file sharing would help it attain this goal.

If the RIAA had taken an approach to waging this battle that didn't involve individuals having to pay thousands of dollars, I think the public outcry wouldn't be there. By trying to intimidate people with large lawsuit settlements, the RIAA has taken up the role of "bad guy".


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Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 0)
by Anonymous on Saturday, September 20 @ 00:13:59 EDT
The fundamental difference I see between the most common (not all) P2P applications and http is those P2P applications used for illicit purposes have a very useful built-in "search" functionality, and also provide a degree of anonymity that websites don't. Such functionality makes it very easy (?too easy) for people to not respect copyrights. It is much less practical to complete a task like "download XYZ's latest album" if that music is posted via http than P2P. Google alone is not as powerful an aggregator or directory or as useful as Kazaa in this context. It isn't clear to me Google wants to be (I wouldn't ...) As you note in your article, any "directory" or "search-engine" focused on content without respecting copyrights becomes an easy target to get shut down.

Perhaps I am naive and you can tell I am no lawyer. I fundamentally believe that -- in and of itself -- a piece of filesharing technology isn't illegal. IMO the RIAA's problem springs from the following root causes:

1) The real issue is the behavior of people. Technology can make something previously tedious, like manufacturing a car, efficient. Most technology I have seen isn't making a decision to willfully violate a copyright; the issue springs from when people decide to use that technology to violate copyrights.

2) Companies represented by the RIAA aren't actually listening to their potential customers and doing a good enough job of offering (a majority of them) a legitimate way to do what most potential customers want. They have business model issues and they aren't adapting and moving into the future. History will judge them by how they move forward (or don't).

If a technology makes it very easy for people to do what they want by violating copyrights, and there isn't a legitimate way to do what they want without violating copyrights, lots of people do not respect copyrights.



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Re: Compulsory Licensing - Where Are the Defenders of HTTP? (Score: 0)
by Anonymous on Saturday, September 20 @ 09:01:09 EDT
I think a key reason for the outcry over the RIAA's attempt to stifle P2P sharing is that they don't want to just stop the infringers, they want to abolish the technology itself. This is obviously different from the http case, because no matter how powerful the RIAA is, we are not going to allow them to abolish the web. It's not so certain in the case of P2P.

I'm on a campus where our computer lab orientation actually went so far as to "remind" us that "P2P file sharing is illegal" and so it is not allowed on our campus.

I raised my hand and said, "But isn't it just the sharing of copyrighted material that I don't have a license to share that's illegal? There are lots of legal uses of P2P."

The response was, "Well, yeah, but we block the ports that most P2P programs use, so you're not going to be able to use P2P at all."

THIS is a problem. THIS is what creates outrage for me.


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iRATE radio and the problem of provenance (Score: 0)
by Anonymous on Friday, October 03 @ 22:12:06 EDT
I wrote an essay about web sharing technologies for sharethemusicday [www.sharethemusicday.com].

The advantage of http, as the author points out, is being able to determine provenance. If a spice girls mp3 is made available at www.spicegirls.com, the user might feel more confident that the site was the copyright owner and approved the web distribution. (Similarly, the spicegirls could shutdown sites where provenance is questionable). On the other hand, web browsers are a particularly clumsy way of downloading music (the more likely method to me is a website like audiogalaxy that uses a helping client application--maye bit torrent). Bit torrent allows the user to determine provenance. Even though the bandwidth load is distributed, the torrent address can be linked to a domain name that is accountable for the content.

Another good solution is an mp3 scraper program like iRATE radio (which I did a profile about for a kuro5hin interview with the lead iRATE developer [www.kuro5hin.org]. Basically it's a centralized system for storing URL's that feeds it to clients. Very clever method and also a way to guarantee provenance. Also, iRATE is a great way to get tons of free mp3's legally!

Robert Nagle, idiotprogrammer


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