Open-source P2P projects keep swapping

Supreme Court ruling casts cloud over commercial file-trading companies, but independent projects continue unabated.

John Borland Staff Writer, CNET News.com
John Borland
covers the intersection of digital entertainment and broadband.
John Borland
5 min read
The ripples of anxiety from last month's landmark Supreme Court ruling on peer-to-peer software haven't quite made it to Jonathan Nilson's home in Tallahassee, Fla.

Nilson, a programmer who has been working on peer-to-peer software called Shareaza for several years, says the loose band of developers who share responsibility for the open-source project haven't been dissuaded from their work by the court ruling, which is casting a dark legal cloud over the future of companies such as Grokster and Lime Wire.

Nilson cautions that neither he nor anyone else can speak with authority on behalf of the project as a whole. For the most part, that's exactly why he and the others feel sheltered. As is the case with many loosely organized, open-source programming projects, there is no central entity, no "Shareaza" company or organization that issues paychecks or answers lawyers' telephone calls.


What's new:
Although the Supreme Court ruling cast a cloud over commercial file-trading companies, independent open-source projects continue unabated.

Bottom line:
Open-source P2P threatens to mute the court ruling's effect on the file-swapping world, because millions of people a week are already downloading and using those independent programs--but they risk drawing legal attention if they slip over the line of piracy "inducement."

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"We haven't really altered our direction as a result of the judgment," Nilson said. "We have a strict open-source goal now, and that really frees us up from a lot of responsibility. We're not trying to make revenue, so it's hard to try to sue us."

Indeed, as the dust settles over the post-Supreme Court landscape, a decided split is emerging in the peer-to-peer development community.

The legal threat facing many of the most popular file-swapping software companies may well radically change their operation and strategies. Yet open-source projects like Shareaza, which create software of similar function and popularity, are continuing unabated.

That optimism threatens to mute the court ruling's effect on the file-swapping world, because millions of people a week are already downloading and using those independent programs.

Of course, the open-source developers' confidence may not be justified. Jeffrey D. Neuburger, an intellectual property attorney at Brown Raysman Millstein Felder & Steiner in New York, said they risk drawing legal attention if they make even a small slip over the line of piracy "inducement."

"I think individuals behind it could be liable," Neuburger said. "They have to be very careful about how they position themselves. They have to release the software out there and not say anything about it."

Split decision
For now, the ruling's admonition that software companies that encourage copyright infringement by their users could be liable for that piracy has put commercial file-swapping developers in a very nervous mood.

The defendants in the Supreme Court case, Grokster and StreamCast Networks, are headed back to federal court in Los Angeles, where movie studio and record label lawyers will ask a judge to end the case in their favor. A hearing date has not been set.

Companies that haven't been sued, such as Lime Wire and eDonkey parent MetaMachine, are anxious as well. Lawyers for the Recording Industry Association of America and the Motion Picture Association of America have made it clear that they view those companies as potential lawsuit targets.

"We are evaluating all our options," said MetaMachine CEO Sam Yagen. "There are things we can do to reduce the likelihood of a lawsuit. We're going to do our best to figure out what's best for the company."

open-source P2P

In the noncommercial, open-source world, programmers have discussed the court case, but few appear ready to abandon their projects. Some are taking extra precautions not to appear as though they are advocating copyright infringement, going so far as to ban users who discuss piracy from online forums.

Development and distribution of the file-swapping software itself continues, however.

"My impression is that people aren't that worried about it," said Ian Clarke, the British founder of the Freenet project and a longtime stalwart of the open-source community. "The primary impact is likely to be on commercial developers of P2P software. Even then, the impact is really to make them more careful about what they say both within their companies and externally about aspirations for their software."

An RIAA spokesman declined to comment specifically on the open-source projects.

Walking a fine line
Open-source peer-to-peer software development takes many forms, ranging from obscure hobbyist projects with only a few users to software programs that have been downloaded tens of millions of times. Many of the most influential peer-to-peer ideas, such as the hydra-headed decentralization of Gnutella or the speedy "swarming" downloads of BitTorrent, have come from this community.

At one end of the spectrum are projects like Shareaza, which are wholly decentralized, without a controlling entity at all that bears

legal or financial responsibility. On the other are companies like Lime Wire and MetaMachine, both of which have open-source development products, but have revenue-generating businesses based on selling software and associated products.

Somewhere in the middle are younger companies such as Aelitis, the French company recently formed by developers of the Azureus BitTorrent client, the most popular piece of software tracked by Sourceforge, a well-trafficked open-source software development hub. According to that site, Azureus has been downloaded more than 78 million times, and more than 2.4 million times in the last week alone.

"The open-source guys are always going to be there. I don't think anyone expects that to go away completely."
--Jeffrey D. Neuburger, attorney, Brown Raysman Millstein Felder & Steiner

BitTorrent, a file-distribution technology developed in 2002, is widely used to swap copyrighted works such as movies and games. But it's also increasingly used for authorized purposes such as distributing open-source operating system files and was even recently built into Opera Software's Web browser.

Olivier Chalouhi, the founder of the Azureus project, said his team has made few changes since the ruling and will continue to develop and distribute the core swapping technology.

"The ruling never said that P2P technologies were bad or should be avoided," Chalouhi said. "As software developers, and as technology makers, we've not changed anything."

The company has taken some precautions, however. Chalouhi said its programmers had readied a range of "extensions"--essentially add-ons that would add new features to the program--when the ruling was released. In order to be wholly safe, he has decided not to release several of those.

Nilson noted that Shareaza warns people about copyright and intellectual property issues when the program starts up, and that the project asks people not to discuss any illegal activities. Chalouhi said he actively bans users from the Azureus forums who talk about piracy, and he's not about to shutter his work.

"The Grokster (court decision) gives content companies another arrow in their quiver in challenging commercial infringers, the people making profit and selling ads," said the lawyer Neuburger. "But the open-source guys are always going to be there. I don't think anyone expects that to go away completely."