("P2P") technologies have created more criticism and praise than
perhaps any other recent Internet technology. Working without the aid of a central server, P2P data
sharing brings the Internet back to its roots, allowing users to connect
directly with each other and exchange files. Unfortunately, bypassing these intermediary servers has left
a legal system that assumes a central responsible party struggling to adjust.
In 1999, a college
student named Shawn Fanning created a music file-sharing program called
Napster. Napster almost
immediately brought millions of users together, downloading and sharing an
unprecedented amount of MP3
files, most of which were copyrighted musical works. By December of 1999, as Napster's
popularity gained, the record industry brought suit against Napster, Inc. for
copyright infringement. Although the recording industry
eventually prevailed on their copyright claims and largely killed off most of
Napster's user base, the damage had already been done. File-hungry users quickly flocked to
the next generation of P2P technologies, which are adapting to new legal and
technological hurdles at an amazing rate.
The recording industry has since launched legal attacks on a variety of
fronts, going after new P2P companies as well as individual users.
examines a developing technology named Freenet. Freenet is a P2P architecture designed
to be secure, efficient, and built to withstand virtually any legal or
technological challenge. Although
it is far too soon to predict Freenet's triumph or defeat, it is a worthwhile
conceptual model to examine, because modern P2P systems are already integrating
many law-defying characteristics of Freenet and will continue to do so, even if
the Freenet project never takes off.
The thesis of this
paper is that the technology of P2P systems is stretching the applicability of
modern copyright law to its limits.
Content owners will possibly see the day that a technology like Freenet
will render the current law ineffective against digital copyright infringement
on the Internet. However, it is
more likely that both P2P technology and copyright law will ultimately survive
the current conflict intact, as they both adapt to legal and technological
changes driven by worried content owners, digital libertarian programmers, and
the file-hungry public.
I of this paper examines the technological nuances of Freenet and the trends in
P2P projects to develop systems that withstand both legal and technological
attack. Part II documents the
ongoing battle between content owners and companies touting new, disruptive
technologies that threaten copyrights, ranging from video cassettes to
file-sharing computer programs.
Part III examines how modern P2P technology tests the bounds of
copyright law and content owners' available options to curtail full-fledged
information anarchy on the Internet.
technologies are spreading at an increasing rate, despite the persistent threat
of legal action. Andrew Frank,
Chief Technology Officer in Viant's Media and Entertainment practice, notes in The
Copyright Crusade that the "ironic effect" of the content
industry's vigorous protection of copyrights in court was to create a
"Darwinian force ... under which only the most legally and technologically
resilient [file trading systems] survive." P2P developers today focus on making
copyright enforcement increasingly difficult, in addition to other
Inc. believed it could escape secondary copyright liability by not directly
transferring music files, but after losing in the Ninth Circuit in A&M
Records v. Napster, Inc. ("Napster "),
the service effectively shut down. In response, "FastTrack"
based P2P technologies
employ new distributed and encrypted "supernode"
servers to index file names and facilitate searching. In addition to the technological
robustness of distributed file indexing ,
it appears that the technology was also chosen to avoid the liability found in Napster . The content industry has wasted no time in pressing
the issue of whether "FastTrack" companies can be liable under Napster , already filing suit against Grokster, Morpheus
(StreamCast) and KaZaA.
contrast to the popular "FastTrack" technologies, many P2P developers
are not focusing on "turning a buck," but rather on creating systems
of file trading immune to both physical and legal attack. Perhaps the most advanced P2P
technology in this regard is Freenet. Although the Freenet Project remains in
the early stages of development, it has already created a secure P2P network
that can withstand existing physical and legal attempts to shut down the network as a whole.
In July of 1999,
Ian Clarke conceived of the idea for a secure, distributed file system during
his studies of artificial intelligence and computer science at the University
of Edinburgh, in Scotland. The idea quickly progressed into an
open source, volunteer-supported effort, known as the Freenet Project. Freenet was publicly released in March
of 2000 and has been under frenetic development ever since.
Freenet is not a "pure" P2P system (like Gnutella),
but is instead a distributed, caching file service. The Freenet program includes a client
that retrieves files from other Freenet user's computers ("nodes")
and a server that relays requests and files for other Freenet clients on the
network. The Freenet network
operates without the aid of any central technology. Each node of Freenet is autonomous and
an "equal" on the system.
Moreover, each node is aware only of nodes with which it can directly
communicate. If a node disappears
from the network, Freenet routes around this and the network continues
Unlike most P2P
models, Freenet users who wish to share a file do not simply make a
"shared" file available to other users and the network, like Napster
or Gnutella do. Freenet users must
"insert" the file into the Freenet. Users create a "key" for the
Freenet file such as "freenet:the_constitution.txt," and insert the
file into their node. The file is
then stored on one or more local Freenet nodes. As Freenet users request the new file, neighboring nodes
make additional copies of the file, distributing it across the Freenet. More popular files spread to more and
more servers across the Internet.
However, since Freenet servers have a limited storage capacity
(determined by the node operator), less popular files get pushed out of servers
and eventually drop off the Freenet altogether. Thus, Freenet does not rely on specific
nodes to serve requested files, but instead acts as a large "cache,"
bringing more popular files closer to the users who want them.
Napster , the recording industry was able
to document the widespread infringement of copyrighted songs because all of the
communications between the central Napster server and clients were sent
unencrypted across the network. By contrast, Freenet encrypts all
communications between nodes, so that third parties cannot monitor the content
of file requests. Additionally, files are inserted in
encrypted form. Only after a file
successfully reaches a requesting Freenet client's hard drive is the file
decrypted into an identifiable form.
also takes pains to protect and guarantee the anonymity of its users. In contrast to Napster, there is no
central database of users, or even a concept of "users." Each node only knows the Internet
Protocol ("IP") address of its neighbors. When a file is retrieved or transmitted
to a Freenet client, only the last node
that contacts a monitoring node might be identified. However, there is no way of knowing whether that last node
originated the file, or just passed on a "cached" copy from an
earlier node. As files are
requested and cached across the network, a node operator's server storage
("datastore") is used without the node operator's knowledge or
control. A node operator cannot
remove or determine what files are being served off of the node at any given
Freenet Project aims to be robust organizationally, as well as
technologically. Whereas Napster
and others provide an obvious legal target of a central corporation to sue,
Freenet is not the product of any specific company. The project currently
consists of volunteer programmers, working on Freenet in their spare time. Moreover, Freenet is an open source
project, meaning that anyone who wishes to take the existing source code of the
project and continue development on her own may do so unimpeded. Thus, Clarke contends, "Freenet is
an open, democratic system which cannot be controlled by any one person, not
even its creators."
Freenet Project developers focused on four primary goals for their technology:
to make it highly survivable, private, secure and efficient. Freenet is designed to make it almost
impossible to "shut down Freenet without shutting down the Internet." The redundant caching of information
and distributed system provides a network with no dependencies on a central
server, or any node in particular.
Simulated tests have shown that the Freenet system "is surprisingly
robust against quite large [network] failures," working efficiently even
when 30 percent of the system nodes were randomly removed.
protects the anonymity of users inserting files into the Freenet and other
users requesting and retrieving those files (through encrypted
transmissions). Moreover, the node
that delivered a file is likely not the node that originated the file. Thus, Freenet makes all information of
activities (sharing and receiving) within in its scope private from the many
prying eyes of governments, copyright owners and other interested parties. Clarke characterizes the system as
"a near-perfect anarchy."
was originally conceived as a more efficient way to distribute information,
later lending itself to the political goals of creating a haven for free
speech. The technological nuances of Freenet
that yield particularly troubling legal quagmires also contribute to the
Freenet system's very effective distribution of data. By dynamically caching data, files are copied to relaying
servers. Subsequent requests do
not have to go quite so far to get the file, as it is now available from any of
the relaying nodes, saving substantial amounts of bandwidth. Simulated tests and analysis of the
current network suggests that the Freenet model will be able to handle an
enormous level of traffic and activity.
Freenet Project has progressed rapidly from Clarke's original concept paper to
a working software program and network.
Downloads of the software have already topped 100,000, while it is
estimated that a new 1,500 users download the software every day.
growing popularity, Clarke is quick to point out that Freenet is not the
"next" Napster because "Napster is an application, but Freenet
is a platform." Freenet is an architecture, which, like
the Internet itself, can be used by programs for not only file sharing, but
practically any form of communication. Developers are actively working on a
variety of applications to take advantage of the security and distributed power
of the Freenet network. The Freenet
Message Board ("FMB") allows messages to be freely exchanged over the
Freenet. Far more ambitious is the
"Everything Over Freenet" Project, which aims to implement a variety
of services, such as email, news, chat programs, and DNS ,
over the Freenet.
the file-swapping public and recording industry are most interested in how
easily users can trade content files over the Freenet. In this regard, content owners can
breathe easy. At the current time,
Freenet is a limited tool for everyday users. Freenet is still quite difficult to install and the network
is very slow. Moreover, Freenet currently lacks
"free text" searches. A Freenet user has to know the exact
file name "key" to retrieve a given file. Searching for the key
"freenet:theconstitution.txt" will not match to "freenet:The
Constitution.txt" or any other variant that is not the exact file key,
character for character.
this wave of popularity, P2P systems continue to develop and adapt to both
technological and legal changes.
New P2P systems are sprouting up all over the Internet. Moreover, broadband technologies, which
allow greater download speed and use of these systems, are also expanding
rapidly in the home and business environments. Freenet may not be the secure P2P system that ultimately
gains a wide public acceptance, but it certainly serves as a conceptual model
for future secure P2P technologies.
large audience of file sharers are just as adaptive as the technologies they
use, easily shifting to new P2P systems that better serve their needs. At the same time as the Ninth Circuit
effectively shut down Napster, MusicCity offered its new FastTrack-based P2P
client, Morpheus. Morpheus was an instant success and has
now surpassed even Napster's load of simultaneous users. Andrew Frank observed that Morpheus
"illustrates how, despite user interface woes and a hostile legal climate,
a new peer-to-peer service can still double its usage in the span of a month
and emerge from nothing to become a hit." The public has extremely low
"switching costs," having no apparent problem abandoning their
current P2P application for a new one, and is thus likely to migrate to the
best P2P system, whether it respects copyrights or not.
law has been the traditional sword the content industry wields against new
technologies which are perceived as a threat. The Internet may be the darling new
technology of the day, but the present P2P situation is far from the first
battle that the content industry has waged. The tour of the modern confrontation
between technology and copyright owners began in 1976, with Sony Corp. of
Am. v. Universal City Studios, Inc. (hereinafter the "Betamax " case).
sold "Betamax " recording
devices and tapes that allowed the public to record television programs. Two moguls of the television content
industry, Universal City Studios and Walt Disney Productions, quickly brought
suit against Sony for secondary copyright infringement.
Universal and Disney contended
that Sony should be liable for the copyright infringement of consumers who
utilized the Beta system, which made the simple copying possible.
Supreme Court decided Betamax in
1984. In a 5-4 decision, the Court
held that Sony was not liable for secondary copyright infringement because Beta
was an "article of commerce," which was "capable of substantial
noninfringing uses." The Court further reasoned that
consumers who recorded television shows to play back at a later time
("time-shifting") were engaging in a legitimate "fair use",
even if the copying was unauthorized by the copyright owners.
Although a narrow decision, Betamax
had far-reaching legal consequences.
The doctrine of "substantial noninfringing use" has now become
the standard by which to judge potentially infringing technologies and
1999, the popular success of Napster brought an almost immediate lawsuit
against the file swapping service in A&M Records, Inc. v. Napster, Inc. (hereinafter
"Napster "). The recording industry alleged that the
vast majority of the MP3 files traded by the millions of Napster users were
unauthorized copies. Napster responded with several theories
under which the activity that Napster supported was defensible. Both the district court and Ninth
Circuit sided with the recording industry.
argued that actions of its users in swapping files were protected fair use
under the theory that Napster users were engaged in "space-shifting"
their music from CD's to computers, devices, etc. in the same way that Betamax
users "time-shifted" television programs. The Ninth Circuit concluded that the
"shifting" defense was only available where a technology" did
not also simultaneously involve distribution of the copyrighted material to the
general public. Time or space-shifting copyrighted material was only protected
when essentially done for personal use."
was first charged with contributory copyright liability, because it had
knowledge of, and materially contributed to its users' copyright infringement.
Napster argued that Betamax's
"substantial noninfringing use" doctrine protected them from
contributory copyright liability. The Ninth Circuit considered Napster's
possible noninfringing "capabilities," but concluded that the
doctrine was unavailable to Napster because they had notice and actual
knowledge of infringement. The court also found that Napster
materially contributed to copyright infringement by providing software and the
central server. Thus, the court sustained an injunction
for plaintiffs on their contributory liability claim.
was also charged with vicarious copyright liability, because Napster "has
the right and ability to supervise the infringing activity and also has a
direct financial interest in such activities." The Ninth Circuit found that Napster's
business model depended on attracting a large user base to gain revenue. Thus, the pirated music available on
Napster directly benefited the defendant. The court then examined Napster's
ability to supervise its users and found that it sufficiently could. The court observed, "The ability
to block infringers' access to a particular environment for any reason
whatsoever is evidence of the right and ability to supervise." The court held that Napster's police
power "must be exercised to its fullest extent. Turning a blind eye to detectable acts of infringement for
the sake of profit gives rise to liability." Because Napster had not adequately
supervised users and directly financially benefited from copyright
infringement, the Ninth Circuit concluded that an injunction was appropriate on
vicarious liability grounds as well.
Napster was saddled with the Ninth Circuit's injunction and the once thriving
file-swapping service lost its luster, the public found KaZaA ,
(hereinafter "FastTrack" technologies), based on the proprietary
"FastTrack" technology. A FastTrack network relies on a
collection of "supernodes" to provide listing and searching functions
to users (like the old Napster central server). Unlike Napster, actual users run
supernodes, and not a FastTrack company. The FastTrack companies claim that they
have no knowledge of what goes on between the supernodes, as they do not
directly control them and all supernode communications are encrypted.
increasingly standard approach to P2P technologies, the recording, music
publishing and motion picture industries filed suit against the companies
responsible for KaZaA, Morpheus, Grokster and FastTrack in 2001 (hereinafter
the "Grokster " litigation). Although the Grokster lawsuit is still in preliminary phases at the time
this article was written, the filings and motions of both sides provide a good
indication of the eventual legal showdown. The parties have filed various motions and responses. As of December, 2002, both sides have
argued summary judgment motions in federal court, hoping to prevail before the
case actually goes to trial.
content industries claim that the Grokster
defendants profit from users' copyright infringements like Napster, and are
presently suing for both contributory
and vicarious copyright liability. The plaintiffs allege that FastTrack
defendants have actual knowledge of user infringement and that they actively
encourage the public to trade unauthorized copyrighted works. The plaintiffs further contend that the
defendants control users' copyright infringements because they reserve rights
to unilaterally terminate user accounts. Finally, the plaintiffs argue that the
defendants have derived financial benefit from the infringement of the content
motion for partial summary judgment hints at the Grokster defendants' strongest arguments against secondary
copyright liability under Napster :
first, the defendants were running a network that was capable of
"substantial non-infringing uses" protected under Betamax , and second, the defendants do not maintain a
central database of available files like Napster.
initially noted that its Morpheus network has several non-infringing uses,
leveraging the fact that Morpheus allows the exchange of any kind of document
type (as opposed to only MP3's on Napster). One of Morpheus's non-infringing uses is Project Gutenberg's
distribution of public domain "eBooks." Another current use of the Morpheus
network is the availability of government documents. Third, copyright owners utilize
Morpheus to distribute authorized and protected media. Finally, Morpheus allows the authorized
exchange of demonstration, shareware
and freeware computer software. Moreover, StreamCast concluded that if
the Morpheus system could not utilize a Betamax defense ("staple article of commerce" defense), then
liability would have to extend to most common internet technologies (like web
servers, e-mail, FTP programs, etc.). In opposition, the content industry
contended that these "legitimate" uses are insubstantial in the face
of widespread piracy and that most often such files cannot be found on the
also argued that because it does not operate a central file-index server, it
could escape liability under Napster . Since FastTrack networks rely on
user-controlled "supernodes" for file indexing, the Grokster defendants retain no control over the network or any
supernodes. Moreover, StreamCast observed, "If
[StreamCast] ceased to operate, or if its servers became inoperative . . . the
searching, indexing, transferring, downloading [and other] functions . . .
would continue unaffected." The content industry countered that the
Grokster defendants retain
control and knowledge of the content on their networks. Initially, the Morpheus program can
recognize and determine similar files, which implies filters could be used to
prohibit downloads of copyrighted works. Moreover, StreamCast regularly updates
the software , sends
promotional and other information ,
and monitors its bulletin boards
from a central location. Finally,
the language of the Morpheus end user license proves that "Morpheus is an
ongoing, interactive service that [StreamCast] can terminate at any time."
contends that for a product to avoid secondary copyright liability under Betamax , it "need merely be capable of substantial
StreamCast argues that "capability" was the crux of the Supreme
Court's holding, and not the amount or degree of actual copyright infringement. Thus, StreamCast concluded it would be
protected because "Morpheus software is capable of present and future
substantial noninfringing uses." The content industry plaintiffs
responded that these uses were not significant because the overwhelming
majority of files traded on the FastTrack networks are illegal copies of
copyrighted works. Moreover, since the Grokster defendants have actual knowledge of infringement and
the FastTrack system was designed solely to circumvent copyright liability, the
defense is unavailable.
to the Napster decision, StreamCast
contended that the Ninth Circuit only held Napster, Inc. liable for its
conduct, and not its architecture. Because StreamCast does not have
knowledge of files indexed on supernodes and does not "'operate' the
Morpheus user network," this architectural distinction precludes copyright
liability under Napster . The content industry responded that Napster precludes any Betamax defense because of actual knowledge and control. The Central District of California
denied StreamCast's motion and the case is set to go to full trial. Nonetheless, these arguments certainly
provide a strong indication of the defining legal issues for the trial phase.
Moreover, StreamCast's approach gives insight into the shifting legal landscape
surrounding evolving file-sharing technologies. P2P projects, like Freenet, are mindful of the shaky legal
ground on which they operate, and have adjusted to the Napster decision.
The outcome of the Grokster
litigation will likely further influence the design approaches of law-defying
makes an interesting study as a technological solution to the legal problems of
censorship on the Internet. Ian
Clarke's goal of destroying copyright law, as it conflicts with free speech, is
an equally tantalizing legal subject, given that legal systems tend to be
inhospitable towards deliberate attempts to circumvent the law.
technical aspects of Freenet have perplexing legal implications. First, any attempt to monitor activity
on the Freenet will be limited and difficult. Freenet's encryption and communication methods make
observation of a node or the network impracticable. As a result, monitoring and documenting wide-scale copyright
infringement, like in the Napster case,
is presently impossible with a system like Freenet. Second, Freenet's distributed
"caching" system prevents data from being forcibly removed. If a court orders the takedown of
material, a single node might be able to comply, but there is no way to filter
or enforce the restriction on the network as a whole. The caching system also makes it
virtually impossible to identify the source of the original document. The owner of a node serving up a file
could be the original poster of the document, or the node could simply be one
of thousands of nodes that unknowingly "cached" the document. Third, Freenet has no technical point
of control. It was designed from
its inception to be impossible to shut down, even by its own creators. Freenet nodes can survive on a hostile
system, even when other nodes are shut down or turned maliciously against the
network. Thus, legal or technological action
against Freenet may prove fruitless against the system as a whole.
it is worth considering that although copyright law may be effective at
restraining P2P companies, it has done little or nothing to stop
"direct" infringers - the millions of users trading files, with
virtually no regard for copyright law. Moreover, these users move seamlessly
from one P2P system to the next, as demonstrated in the rapid rise of the
FastTrack system from Napster's ashes.
Thus, regardless of the specific technology (Morpheus, Freenet, etc.)
shut down next, the core dilemma remains, as the public's insatiable thirst for
file trading is met by new and evolving technologies.
Napster , although the recording industry
did not pursue legal action against individuals, it had no difficulty
discovering evidence of Napster users' "direct" copyright infringement by
monitoring the Napster network.
Unfortunately, even this is wrought with technological, legal and
practical difficulties on a system like Freenet. Freenet's encrypted storage and communications, and lack of
central communication point, prevent any party from monitoring general activity
on the network. Furthermore,
Freenet traffic looks very similar to other services, hindering the
determination of which computers are even running the Freenet, let alone what files they are sharing.
Freenet system also complicates the individual user liability model under Napster .
Clearly Freenet users who illegally download copyrighted works are
guilty of infringing reproduction, but what of the nodes that serve the
content? In Napster , individual users chose to share files they had
stored on their computers, presumably infringing copyrights in
distribution. By contrast, Freenet
node operators never know what content is actually cached on their nodes, and
have a plausible argument that they had no part in any actual infringement. Fred von Lohmann, an attorney with the
Electronic Frontier Foundation, opines that Freenet's automated caching system,
"minimize[s] the likelihood of direct infringement liability" for
node operators, because it was designed for efficiency reasons. Moreover, the process by which a
copyright owning plaintiff would actually prove individual infringement
complicates the situation even more.
Because Freenet replicates popular data, if a plaintiff requested and
received a file from a neighbor node, it is very likely that the plaintiff's
very request actually placed the
file on the offending node! Thus, Freenet's caching system, where
users and computers no longer control and own files, makes legal action against
direct copyright infringers difficult.
addition, even if individual liability were legally plausible, copyright owners
could not go after the most wanton infringers. Traditionally, a P2P system (like Napster or Gnutella) is
driven by small groups of users (the "big dogs"), who provide most of the
files. While it is infeasible to
sue everyone on a P2P network, going
after the major suppliers of information is a somewhat effective legal
this tactic is completely ineffective for Freenet, because node operators do
not control or know what is on their node. Someone else most likely inserted the original infringing
file, and eventually got "cached" at some given user's node. On Freenet, node operators cannot be
reliably identified and distinguished as saintly, copyright-obeying users
versus willful, copyright pirates and distributors.
owners usually forego legal action against individual infringers, concentrating
instead on identifiable companies releasing the technologies. However, Freenet is difficult to target
as an organization. Freenet itself
is not "owned" by any one entity. The Freenet Project does not operate for profit, and relies
almost entirely on the volunteer efforts of developers. Freenet is an open source
project, allowing anyone to take the source code and continue independent
development. Andrew Frank sums up the difficulty in
initiating legal actions against such projects:
Going after the creators of such
services does little good: first, these systems are generally being
developed using Open Source collaboration, so hundreds of anonymous developers
worldwide may contribute to the final product; second, even if these
alleged perpetrators could all be identified and prosecuted, they would not be able
to stop the service once it was unleashed, as it would be running on the
individual computers of its users.
Professor Jessica Litman, in Digital
Copyright , echoes this sentiment, noting,
"As a comprehensive strategy, litigation works best against commercial
actors." Litman concludes that a litigation
strategy will prove increasingly difficult for programs that offer no clear
intermediary to sue, like The Freenet Project.
Nonetheless, it is
possible (some would say even likely) that Freenet developers could eventually
become a legal target. However,
traditional copyright law does not lend itself well to Freenet, even in a Post-Napster world.
Initially, proving end users' direct infringement (required for
secondary copyright liability) was relatively easy in Napster and the ongoing Grokster litigation.
By contrast, the previous section shows why proving copyright
infringement by individual Freenet users is impracticable and complicated. Nevertheless, von Lohmann concludes
that although a P2P system is protected by "plausibly deny[ing]" user
infringement, the promotion, endorsement or aid in the infringing use of a P2P
product may nonetheless potentially garner secondary copyright liability.
the remaining elements of secondary copyright infringement against Freenet
developers would be equally difficult.
Vicarious liability does not really apply to Freenet. Vicarious copyright liability requires
proof of a defendant's right and ability to control the copyright infringement
of others and the derivation of a financial benefit from that infringement. In Napster , the Ninth Circuit found that operating the central
file-indexing server and running user accounts left Napster in control of its
system. In the Grokster case, the content industry alleges the defendants
control their FastTrack systems through user accounts and rights to terminate
users. Freenet, by contrast, has no concept of
outwardly identifiable "users" or any form of centralized
control. Moreover, Freenet derives
no direct financial benefit from the project, and its current developers obtain
no obvious present or future financial gain from Freenet.
for contributory liability might fare a little better, but would nonetheless
prove difficult against Freenet.
Contributory liability requires that the defendant had knowledge of and
materially contributed to direct copyright infringement. Knowledge can be demonstrated "by
showing either that the contributory infringer actually knew about the infringing activity, or that he
reasonably should have known
given all the facts and circumstances (constructive knowledge)." In Napster , actual knowledge was shown by company e-mails and
monitored lists of thousands of infringing files. Knowledge of Freenet developers would
be difficult to prove based on evidence of monitoring files (like in the Napster case).
However, if infringing files were found to be prominently listed on the
Freenet, direct or constructive knowledge would be a feasible claim, especially
given that infringing content largely comprises the current network. Additionally, Ian Clarke and other
Freenet developers have publicly acknowledged the potential (and for some, the
goal) of Freenet subverting copyright controls on file-swapping. Proving material contribution to direct
user infringement would likely be a straightforward claim against Freenet
developers who offer the program to the public. Thus, Freenet developers could
conceivably face some form of contributory liability, although even such a
finding still could not stop the Freenet network, or someone else from resuming
their development roll.
"substantial noninfringing use" doctrine (the "Betamax defense")
could be argued by any Freenet group claiming fair use protection for the
"legitimate uses" of Freenet.
Initially, Freenet is championed as a protector of free speech. Andrew Frank, writing for the content
industry, even admits that "[l]egally, however, because their content is
encrypted, [distributed, encrypted P2P systems] have a substantial
non-infringing objective: to protect freedom of speech from censorship." Although the copyright - free speech
issue is a matter of ongoing debate,
it is conceivable that the core goal of the Freenet Project could be found to
be a "substantial noninfringing use." Second, in the Grokster litigation, StreamCast has already indicated it
believes that Morpheus has several substantial non-infringing uses (distributing
public domain content, authorized software and media content, etc). Any of these possible non-infringing
distributions are possible on the Freenet as well. Third, Freenet is not necessarily an application that allows
infringement, but a full "platform" in its own right. An application, such as Freeweb (which
allows a user to view websites over the Freenet) or Frost (which allows users
to trade files over the Freenet) is required to actually perform any
file-sharing. While groups that develop these
specific tools could face liability, the core Freenet network is likely legally
immune because it does not actually swap files. Fred von Lohmann concludes that when
P2P technologies disaggregate functions in this fashion, they stand a much
greater likelihood being of legally immune. Fourth, the design choices of
dynamically caching documents can be touted for their technological
desirability, despite their hindrance to legal enforcement of copyrights. Caching and file distribution
techniques save bandwidth, bring desired information more quickly to those who
want it, and
provide free storage space for information. Encryption of information guarantees
data integrity against those who might attack communications. Additionally, the decentralized P2P
system may prove more efficient at searching for information.
Thus, the wide
array of technological uses, free speech goals and potential for dissemination
of "fair use," authorized, or public domain content leave Freenet in
a better legal position than either Napster or the Grokster defendants.
Nonetheless, the Napster
decision (if followed by other circuits) has seriously limited the scope of the
"Betamax defense" in the P2P context, and the mere
copyright-subverting goal of Freenet could yield liability. However, even if a court refuses to
find "substantial non-infringing uses" of the Freenet system, the
content industry will inevitably have to face the prospect of future P2P
developers adopting these legally troubling designs as a standard, efficient
approach to their new technologies.
traditional secondary copyright liability, a group connected to Freenet could
possibly try to seek refuge under section 512 of the Digital Millennium
Copyright Act ("DMCA"), but would not likely be successful. Section 512, the
"safe-harbor" provision, provides "online service
providers" with four bases of protection, covering: "[t]ransitory
communications[,]" "[s]ystem caching[,]" "[s]torage of
information on systems or networks at direction of users[,]" and
"[i]nformation location tools." However, von Lohmann notes that because
"Congress did not anticipate peer-to-peer file sharing when it enacted
safe harbors, many P2P products may not fit within the four enumerated
functions." Von Lohmann posits
that the transitory communications exception
would not apply unless the network traffic actually passes through the P2P's
private network. Napster failed under this standard, and
Freenet clearly would as well, given that Freenet has no "private"
network of its own. Although the "system caching"
exception seems to
encompass Freenet, this and the remaining two exceptions all require some form
of blocking access to or taking down information upon notification of copyright
infringement. The Freenet system is thus problematic
under DMCA safeguards because it deliberately prevents the forcible takedown of
any group of Freenet developers sued by a plaintiff would likely have
difficulty proving they are an "online service provider"
("OSP"). To qualify for any of the safe harbor
protections, an OSP must terminate users who infringe copyright laws and not
interfere with "standard technical measures" that protect copyrights. Freenet does not employ a
"user" system; the very design of Freenet as a censorship resistant
technology could be seen as an interference with "standard technical measures." Also, von Lohmann notes that an OSP
"must not have known about the infringement, or been aware of facts from
which such activity was apparent (i.e., if you take a 'head in the sand'
approach, you lose safe harbor)." The developers of Freenet would likely
be found to have at least constructive knowledge of copyright infringement. Alternately, if the content industry
attempted to sue internet service providers ("ISP's") (such as
America Online, etc.), for merely allowing users to run Freenet nodes, it is
likely that such ISP's would qualify as OSP's and fall within one of the safe
harbor categories. However, for any group directly connected
to Freenet, and merely aiding a Freenet project, the DMCA safe harbor
protections would likely be unavailable.
P2P legal landscape has been continually changing since Napster . As the
content industry moves forward in its litigation with the FastTrack P2P
companies, the FastTrack system may prevail where Napster failed because its
service is more decentralized and encrypted than Napster. Furthermore, if the content industry
does succeed in the Grokster
litigation, P2P developers will move on, trying to create a system that cannot
be stopped by copyright law.
have suggested that the DMCA could be amended to require ISP's or individual
users to only allow P2P technologies over their networks that respected
copyrights. Freenet developers have even pondered
Freenet specific legislation or litigation that would impose burdens on
individual Freenet nodes. However, such approaches would likely
run afoul of the current "no mandate" technology provision of the
and restrain technological innovation too greatly to be palatable options. Moreover, Freenet (or other P2P)
communications may eventually become so well-masked and undetectable that legal
action would be practically moot.
the meantime, the content industry has not been waiting idly for the day when
the existing copyright framework falters under technological advances. In addition to attempting to thwart
existing P2P networks,
the content industry has begun to push the government for stronger copyright
controls on the user's end. Damien Cave observes the broad scope of
the content industry's vision:
Hollywood is on the march. Adding copy protection to
CDs is just one tactic in a comprehensive onslaught. Media behemoths like Disney, Sony and AOL Time Warner are
seeking full control of all methods of entertainment distribution; if their
vision is realized, digital television sets, hard drives, personal video-recorders
and wireless devices will all have some form of copy protection. In the most dire incarnation of the
digital entertainment future, consumers of music and movies won't be able to
make any copies at all without explicit permission...
The content industry is seeking the
help of the government to force users away from "insecure" medium to
copyright-owner friendly technologies. This approach, also called
"digital rights management" ("DRM"), aims to simply make it
impossible for any individual to play unauthorized content on their computer or
device. The Consumer Broadband and Digital
Television Promotion Act ("CBDTPA"), proposed by Senator Ernest
Hollings at the behest of the content industry, would simply bypass the P2P
threat by requiring all computers and digital devices to ensure that only
authorized copyrighted content could be accessed. Although the CBDTPA has not made
measurable progress in the Senate at the time this article was written, the
content industry is steadily moving along with a mixed technology-legislation
DRM approach. If successful, all
existing P2P systems would cease to be a copyright threat if their unauthorized
content could not be used on the end user's computer. Not without its critics, DRM has been harshly criticized for
putting far too much power over information in the hands of the content
industry. Additionally, many observers note that
the DRM approach may alienate too many consumers, as well as ultimately prove
the current regime of copyright law fail to stop Freenet, content owners or the
legal system could attempt to technologically attack or poison the system. Nevertheless, this threat has been
assumed from the start, and the Freenet Project maintains that it can only be
shut down when the Internet is turned off. Architectural changes in the Internet
could make this more feasible, however.
Lawrence Lessig contends that the Internet as a whole is moving away
from being a "stupid" network that is difficult to control to a
"smart" network that will be more readily manipulated by powerful
corporate and government actors. Although a remote threat as pertains to
Freenet now, things change very quickly on the Internet. Such architectural change could
eventually control the Freenet, which currently relies on the nondiscriminatory
flow of data in the current "stupid" network design to hide and
secure the Freenet network.
both the technological and legal arenas fail to stop P2P systems like Freenet,
the content industry may have to reconsider its approach towards P2P
technologies. Professor Litman argues that content industry must take steps
beyond their current legal and technological strategies:
If forty million people refuse to obey a law, then what the law says doesn't matter. It may be that
people flout it because they're natural lawbreakers, or it may be ... that they
don't comply because it doesn't make sense to them. Whatever the reason, the law is not going to work well in
the real world.
Professor Litman concludes that
this is simply the age-old tradition of copyright owners resisting all new
forms of technology they cannot control. Talal Shamoon, executive vice president
of InterTrust, a company pioneering copy-protection strategies for the content
industry, acknowledges that the P2P controversy illustrates an "ugly
transition period" in the digital revolution. Nonetheless, Shamoon believes that
regardless of a particular solution, the content industry will adapt to the
specter of P2P technologies and other advances. As it turns out, Ian Clarke would agree
with Shamoon's assessment: "Artists and publishers all adapted to those
new technologies and learned how to use them and profit from them; they will
adapt to Freenet as well."
legal questions and conundrums are raised with a technology like Freenet than
can be currently answered.
Presently, Freenet is still an enthusiast's toy and not the
"next" or current Napster, Morpheus, etc. However, even if Freenet never gains a massive user base,
the law-defying encryption and distributed caching techniques of the project
will likely end up in the next generation of P2P services. The struggles over changes in the
Internet, seen through the eyes of emerging technologies, demonstrate that the
confrontations between copyright owners and free information advocates will
only continue to escalate. This
escalation will be inextricably tangled in both legal and technological
complexity, as neither the law nor technology appears capable of solving these
Andrew Frank poignantly observes, P2P technologies are evolving in a
"Darwinian" fashion, proving more resistant to technological and
legal control with each iteration. The content industry stopped
Napster. The industry may stop the
FastTrack companies. It may even
stop Freenet. Eventually, however,
a new system, borne of the lessons of these pioneering technologies, will
likely arrive that cannot be addressed within the current practical confines of
copyright law. When that day
comes, the content industry will perhaps have to consider (if has not already
done so) how it will "evolve" in the ever-changing digital landscape.