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Piracy and peer-to-peer

CNET's Declan McCullagh hosts a debate between Freenet inventor Ian Clarke and the RIAA's Matt Oppenheim on the race between law and technology.

To thwart peer-to-peer pirates, the Recording Industry Association of America is wielding the clunky but mighty club of the federal court system.

The RIAA recently won a court order forcing Verizon Communications to divulge the identity of a Kazaa user suspected of copyright infringement and now says that soon it will sue hundreds of alleged P2P infringers.

Ian Clarke and the merry band of programmers who are creating Freenet are taking a different approach: They're betting that technology, not the law, holds the key to the future. They believe that Freenet, a radically decentralized network of file-sharing nodes tied together with strong encryption, will make it possible to share any kind of file with impunity--and offer superior anonymity in the process.

It might even work. Freenet may not be one of the most popular file-sharing networks right now, but its creators have carefully designed it to be as difficult as possible to censor or monitor. That has implications beyond copyright law. If successful, Freenet could make laws against publishing material such as libelous statements, trade secrets or military intelligence either irrelevant or, at least, unenforceable.

So, is it legal and moral to create and use Freenet? That's a complicated question, but I'd say that the draconian police tactics required to prevent people from running Freenet nodes--measures such as constant Internet surveillance and the banning of encryption without backdoors for law enforcement--mean the costs of an outright ban would outweigh the benefits.

The U.S. Supreme Court has never come close to answering that question. But last week, a federal appeals court ruling in the case against Aimster (another P2P network), suggested that a file-swapping network that cloaks its users' activities might run afoul of copyright law precisely because it is designed to conceal illegal acts.

I asked Clarke, Freenet's inventor, and Matt Oppenheim, RIAA's senior vice president of business and legal affairs, if they would be interested in engaging in an e-mail debate on Freenet and the race between law and technology. I'm delighted to say that both of them agreed. Their exchange follows. Should file swappers have any expectation of privacy?
Ian Clarke: Everyone, including file swappers, should have the ability to communicate freely without someone looking over their shoulders. Free communication is essential to free thought, which is essential to democracy.

Matt Oppenheim: An individual who illegally distributes music on a peer-to-peer network has less of an expectation of privacy than a bank robber wearing a mask when holding up a teller. And, just as the bank robber cannot be heard to complain when the guard pulls off his mask, an infringer on a P2P network cannot complain. The bank robber can at least claim that until his mask is pulled off, nobody knows who he is. In the case of an infringer on a P2P network, the (Internet service provider) knows exactly who the individual is and has typically told the user in advance in their terms of service that they will turn over information when they receive a subpoena.

But don't just accept my thinking on this. Look at what Judge John Bates said in the Verizon case: "If an individual subscriber opens his computer to permit others, through peer-to-peer file-sharing, to download materials from that computer, it is hard to understand just what privacy expectation he or she has after essentially opening the computer to the world."

Remember, the RIAA does not seek the identity of someone engaged in speech. The RIAA seeks the identity of those engaged in copyright infringement. That is not speech. That is theft. Is it possible to guarantee completely anonymous online activity using technology alone? If yes, should using that technology--regardless of what is traded--be illegal?
Clarke: It is impossible to guarantee anonymity against someone with infinite resources and no constraints, but it is hopefully possible to guarantee anonymity against someone with the resources of, for example, the Chinese government.

It is a cost-benefit decision. One must make the cost of circumventing someone's anonymity significantly higher than the benefit of doing so. Freenet is designed to achieve this in environments such as China and Saudi Arabia and easily achieves this in environments such as the United States.

Just last year the U.S. Supreme Court reaffirmed that the right to anonymous speech is an essential part of the right to free speech. This concept is pretty obvious when you think about it--if you are forced to disclose your identity whenever you express your opinion then you put yourself at risk of retaliation. It is for this reason that the Federalist Papers, the precursor to the U.S. Constitution, were authored anonymously. Were it not for anonymous speech, the United States might be a very different country, and it might never have existed at all!

Oppenheim: We are not aware of any technology that can provide a user with complete "anonymity." At the end of the day, we believe we can find infringers regardless of what network they use to try to cloak their illegal activity.

We are not aware of any technology that can provide a user with complete "anonymity."
-- Matt Oppenheim, RIAA
Having said that, companies and individuals who try to help others hide their illegal behavior are themselves culpable for the misdeeds of the underlying infringer. Recently, the U.S. Court of Appeals for the 7th Circuit considered this issue in the context of Aimster building encryption into its system to prevent the operators from seeing what was happening on the network. What Judge (Richard) Posner said was: "Willful blindness is knowledge, in copyright law...One who, knowing or strongly suspecting that he is involved in shady dealings, takes steps to make sure that he does not acquire full or exact knowledge of the nature and extent of those dealings is held to have criminal intent."

Again, this is not about speech. Nobody who has ever been engaged in "speech" has ever been uncloaked. What we are talking about here is unmasking those that are stealing music.

Clarke: Matt seems to misunderstand Judge Posner's quote. Posner was referring to those involved in the likely "shady dealings"--not the creators of the tools they are using. To use his own analogy, the manufacturers of a mask used in a bank robbery are certainly not responsible for the criminal behavior of the bank robbers. This notion was reaffirmed by Judge (Stephen) Wilson earlier this year in his ruling in the Grokster case as it pertains to P2P networks saying, "Grokster and Streamcast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights." Do corporations right now have too much power to investigate alleged copyright infringement online? Where should the line be drawn?
Clarke: I am not entirely comfortable with the situation after the Verizon v. RIAA case--or with the boorish behavior of the RIAA since then. However, neither am I all that surprised. Most P2P applications today were not designed to hide the identities of their users. Their goal was primarily to insulate the operators of the P2P networks from the actions of their users, and they have been reasonably successful in this regard.

I draw comfort from the fact that systems like Freenet exist which do maintain the anonymity of users and can therefore continue to ensure users' freedom of communication. I don't particularly care for people whose only desire is to get music without paying for it, but Freenet can't protect the rights of political dissidents without also protecting file-swappers. It is an inevitable side effect of Freenet's design.

Oppenheim: How does this have anything to do with corporations? This has to do with artists and creators. Artists and creators, like anybody else who creates something, should have the right to sell what they create...Indeed, most artists spend a lifetime trying to sell the result of their efforts to record companies so that they may make a living making music. At the end of the day, that is a great thing for music lovers--otherwise artists would have a lot less time to create the music we all love.

As for where the line should be drawn in terms of power to investigate copyright infringement, the answer must be considered in light of the massive illegal copying of music on the Internet in the last few years. If anything, the line has been crossed by individuals who have engaged in the systematic theft of music without any apparent concern for the rights of copyright holders. Why should copyright holders, who as owners of intellectual property, have fewer rights than somebody who owns televisions or clothing and attempts to sell them? Clearly everyone would agree that the television and clothing retailers should be able to investigate and prosecute shoplifters. Is it moral to create a general-purpose, anonymity-preserving tool--a file-swapping system that can be used for good (publishing political tracts) and ill (trading copyrighted music)?
Clarke: If it is moral to make guns, knives or anything else that can be used for both good and ill, then it is certainly moral to create something which tries to guarantee a freedom that is essential to democracy.

Oppenheim: It is difficult to have a discussion about P2P and consider it a "general purpose" system. Nobody really contests the fact that these networks are overwhelmingly used for infringement. In Napster, we proved that over 87 percent of the music on the system was infringing. In Grokster, we showed that almost 90 percent of the files were infringing. (By the way, the term "file swapping" is inaccurate. Nobody is swapping, people are making copies.) So, is it moral to copy and distribute music on these networks? The answer is that it is no more moral than stealing anybody else's property. Just as we would never agree that it is right to steal someone's clothes or furniture, it is not right to steal music. The ability of musicians to sell the result of their work is critical if we as a society want to foster music.

Just as the motor car replaced the horse and cart, so will the Internet replace most of the roles performed by today's recording industry.
--Ian Clarke, Freenet
Most of the noninfringing justifications for these networks that I have heard of are totally unrealistic and virtually nonexistent. For example, in Kazaa, they claimed that the system was used to trade jokes. Think about that. How would that work? Would people search for the punch line? Or, I have heard that it is used for posting real estate sales listings. Again, think about it. Would people search for "Main Street in Kansas?" Or, I have heard that the Bible gets distributed on these networks. Apart from the fact that we can all get that from the motel we most recently visited, there are plenty of legitimate sites that distribute the Bible online.

As for political speech, it also makes no sense. How would anyone search for political speech on a P2P network? Would you look for "democratic ideals as they pertained to the Bush tax cut"? For people that want to distribute political speech online, there are plenty of Usenet groups and chat rooms for them to use. The facts here simply do not support the theory that these networks are being used for "general purposes." The facts make clear that these networks are overwhelmingly being used to infringe music, movies, software, games and images.

It would be nice to see the creators of these P2P networks put all of their efforts into adopting one of the many technologies available to filter out infringing music rather than arguing that the networks are being used for things like "speech."

Clarke: I contest that claim. Freenet is primarily used for the distribution of noncopyrighted material at this time. It is actively being used in countries like China by dissidents to distribute censored information. How much of a threat is Freenet to the recording industry and other large copyright holders, compared with Kazaa and popular P2P services?
Clarke: That is difficult to say. The RIAA claims that P2P is to blame for their declining sales, yet they are in an industry that relies on discretionary spending in the middle of an economic slump. Of course, rather than blame the economy for declining sales, they blame P2P.

In the longer term, however, I think it is inevitable that communication technology will reduce and eventually eliminate the role of those that profit from their monopoly over the physical distribution of music CDs.

That isn't something anyone except the members of the RIAA should worry about--certainly not the artists, and certainly not the general public. Rather, this is a perfect example of capitalism in action. Just as the motor car replaced the horse and cart, so will the Internet replace most of the roles performed by today's recording industry.

Oppenheim: Other than the fact that most infringers do not like to use Freenet because it is too clunky for them to get their quick hit of free music, it is no more of a threat than any of the popular P2P services.