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  1. 1. Copyright and You“Warez” the Copyright Violation?Digital Copyright Infringement:Legal Loopholes and DecentralizationBy Christopher AdamsickP eople are in violation of copy- as in software] is a generic term used includes four safe harbors that protect right law when they copy or to refer to copyrighted materials that OSPs from the potential copyright distribute copyrighted material are shared illegally over the Internet violating behavior of their customerswithout the consent of the copyright (Goldman, 2004). Taking the form of (Wright, 2006). As a safeguard againstholder. Enforcement of digital copy- an executable file (.exe or .app) or other disenfranchising OSPs, the four saferight violations are continually thwart- digitally encoded form (e.g., .mp3, .jpg, harbors of the DMCA include the: (a)ed by the large population of users or .mpg file), warez generally consist of Transitory Communications Safe Har-who participate in online file sharing commercially available computer soft- bor, (b) Network Storage Safe Harbor,and the rapid technological innova- ware, audio and video, video games, (c) System Caching Safe Harbor, andtion that usually keeps the file-shar- still pictures, as well as just about any- (d) Information Location Tools Safeing community one-step ahead of the thing else that can be packaged and Harbor (2006).law (Wright, 2006). As “the courts ex- delivered over the Internet (e.g., books, Currently, “tens of millions of Amer-pound rules to pin liability…technolo- pornography). When compared to icans engage in…file sharing” (Gold-gy developers [subsequently] find and the price of actually purchasing the man, 2004, p. 34-35). It has proven toexploit loopholes” (Choi, 2006, p. 394). product legally, the fee for download- be an overwhelming task for “Big Con-Learning from the court case which ing such a file usually consists of the tent” (the DMCA) to make inroadsrevealed the mistakes of Napster and comparatively low price of sharing the in stopping this phenomenon, due toother early litigation involving digital file electronically (Choi, 2006; Ludwig, the sheer number of people who ac-copyright material, several technolo- 2006; Schoen, 2006). tually participate in illegal file-sharinggies currently exist in the nexus of Current copyright laws and pending (Cheng, 2008). As The Harvard Crim-these loopholes, including: Usenet legislation attempt to protect copyright son staff write: “Litigation may persist,(e.g., Giganews), decentralized peer- holders from those who would infringe but the problem of lost revenues willto-peer filesharing (e.g., Limewire), on such rights (Butler, 2004; Goldman, never be relieved by virtue of litiga-and extraterritorial one-click file-host- 2004; Schoen, 2006). For example, tion [on an individual-by-individualing (e.g., Rapidshare) (Wright, 2006). the Digital Millennium Copyright basis]” (The Crimson Staff, 2007, p. 7).This short essay will examine copy- Act (DMCA) adds certain additional Likewise, U.S. lawmakers have provenright violations involving each of these measures to existing copyright law, in- that they have neither the desire norseparate technologies, as well as some cluding the provisions to: (a) restrict the human/financial resources to makeof the issues that serve to undermine anti-circumvention technologies, (b) criminals out of tens of millions ofthe enforcement of copyright law on subpoena online infringers, and (c) no- generally law-abiding citizens. In ad-the digital frontier. tify and takedown infringing materials dition to taking legal action against a (Goldman, 2004; Ludwig, 2006). Since small fraction of copyright violatorsBackground online service providers (OSPs) supply (Lobowitz, 2005; Moen, 2003; Wright, much of the networking infrastruc- 2006), Big Content increasingly takes The word warez [pronounced as a ture in the United States, the DMCA action against (a) the developers of file-single syllable as if the plural of “ware”10 TechTrends • November/December 2008 Volume 52, Number 6
  2. 2. sharing software, (b) OSPs, and (c) the material on its Usenet server, AOL Usenet file sharing, tracking and con-search engines that make file sharing a was cleared of liability that it materi- trolling digital copyright infringementfeasible enterprise (Ludwig, 2006). ally contributed to the infringing act. in a decentralized P2P networking en- At the time of the infringement, how- vironment has proven to be an exceed-Who is the violator? ever, AOL had recently changed the ingly difficult endeavor (2003). Usenet is the granddaddy of all file- email address for reporting copyright Similar to litigation against Usenetsharing technologies (Roettgers, 2007; infringement and had never received infringers and the technologies thatWright, 2006). Designed in 1978 by Ellison’s email concerning copyright make it possible, the prosecution oftwo Duke University graduate stu- violations of his work (2006). Due to P2P file sharing technologies has prov-dents, its original purpose was to act its technological oversight, AOL’s case en to be an uphill battle. In the wake ofas an asynchronous discussion board was deemed triable since it had the po- Napster, for example, Grokster distrib-consisting of hierarchically arranged tential to know of the infringing activi- uted its free P2P software within thenewsgroups (e.g., alt.binaries). As such, ties of its customers. The claim resulted decentralized framework mentionedpersons post messages or binary files in AOL removing the particular news- above (Hirning, 2006). In MGM v.to a newsgroup on their OSP’s Usenet group from its Usenet server, and El- Grokster, however, the Grokster tech-server. Subsequently, the message or lison and AOL reached an out-of-court nology itself was targeted (2006). In thefile is copied to Usenet servers around settlement. Grokster case, the question was raisedthe world in a process referred to as Other Usenet services proved to learn as to “whether the mere existence orpropagating or peering (Wright, 2006). from the mistakes of AOL. For example, prominence of a product’s non-infring-Today, over 24 million messages are Giganews is the largest Usenet service ing uses could be sufficient to protect aposted each week to one of more than provider in the world, retaining binary software distributor from indirect li-100,000 newsgroups, with the alt.bina- files (e.g., copyrighted movies, songs or ability.” (p. 14)ries category of newsgroups occupying pictures) for 200 days, as well as provid- Despite more than 90 percent of itsnearly 99 percent of all the data stored ing access to over one billion messages network activity involving illegal fileon Usenet servers (2006). Not surpris- (Roettgers, 2007a). In order to exist sharing, Grokster claimed its softwareingly, this is also where most of the ille- within the loopholes of the DMCA, was capable of many non-infring-gally-shared copyrighted materials re- Giganews offers (a) deliberately vague ing uses, nor did it have any specificside on Usenet (Ludwig, 2006; Wright, advertisements, (b) an accessible lo- knowledge of infringing activity due2006). cation for copyright holders to notify to the network’s decentralized nature Prosecuting Usenet copyright in- Giganews in instances of copyright in- (2006). Ultimately, the Supreme Courtfringement on an individual-by-indi- fringement, and (c) a newsgroup archi- found that Grokster’s advertising andvidual basis is an insurmountable task tecture that is “coupled with secure SSL business actions directly fostered copy-(Roettgers, 2007a). As such, a recent transmissions” (Mennecke, 2007, p. 3). right infringement (2006). For ex-trend for copyright holders has been As a result, end-users are granted near ample, in the help documentation ofto expand their legal strategy beyond total anonymity, and Giganews is con- the Grokster client, a screen shot wasindividuals to include Usenet service ceivably protected from liability under presented of a search query involvingproviders as well as Usenet search sites the DMCA’s Safe Harbor provisions a copyrighted work (2006). As such,(2007a). In Ellision v. Robertson, for (Mennecke, 2007, Roettgers, 2007a). Grokster was found to induce its endexample, Robertson scanned the popu- users’ infringement.lar works of science fiction writer Har- How does decentralizing Again, the file sharing communitylan Ellison and posted them to a Usenet change the picture? proved to learn from even the minimalnewsgroup named alt.binaries.ebook mistakes of its predecessors. For exam- Whereas Usenet is the granddaddy ple, Limewire’s P2P file sharing software(Ludwig, 2006). After discovering the of all file sharing technologies, peer-to-copyright infringement of his work, client runs on a global networking pro- peer file sharing (P2P) represents a rel- tocol named Gnutella (Schoen, 2006).Ellison filed a liability claim against atively new and different form of file-America OnLine (AOL), Robertson’s Similar to the Grokster P2P network, swapping technology (Schoen, 2006). Gnutella consists of a network frame-OSP (2006). Ellison claimed AOL acted As such, it allows a large populationas a contributory infringer, as it either work of open standards as well as the of users to share public or copyrighted decentralization of information (2006).had knowledge of the infringing activ- materials over the Internet, and oper-ity, or induced, caused or materially In other words, Gnutella technology ates within a decentralized manner. does not belong to anyone (2006). Al-contributed to the infringing conduct While storing copyrighted materialsof [its customers] (Ludwig, 2006). beit Limewire does contain end-user in a central location proved to be Nap- documentation (e.g., help screen) sim- Seeking liability immunity under ster’s downfall, decentralized P2P net-two of the DMCAs Safe Harbor provi- ilar to any P2P client, the screen shot of works (e.g., Gnutella, BitTorrent) oper- a sample query involves a rather vague,sions, AOL argued it neither knew of ate in an environment where files arethe infringing activity nor materially benign search for speeches. Subsequent stored on millions of users’ computer screen shots display works of famouscontributed to it (Ludwig, 2006). De- hard drives (Moen, 2003). Similar tospite actually storing the copyrighted old speeches, which are typically non-Volume 52, Number 6 TechTrends • November/December 2008 11
  3. 3. copyrighted, public domain works. As are shared via web forums or blogs, the Cola on its own website (p. 9). Accord-a result, Schoen (2006) suggests, “it will content is readily indexed via Google. ing to Roettgers (2007b):be very difficult for a future court to com (2007b). For example, a proxim- This must feel like a slap in the facefind express intent to induce infringe- ity query of the Google search engine for rights holders organizations thatment in Limewire’s case.” (p. 59) using the search terms “mariah carey,” have spent years to sue P2P operators “.mp3,” and “rapidshare.com” results and thousands of their users to make fileWhat about not sharing in 126,000 hits. While not every URL sharing networks less profitable and at- contains a link to a shared copy of one tractive. To some degree, they succeed-the file? of Mariah Carey’s songs or albums, ed—and in turn helped to build a whole One-click file hosting is a newcomer many of them do provide direct rapid- new industry that makes companies likeon the warez scene (Roettgers, 2007b). share links to her copyrighted music. Grokster look like small fish (p. 10).The process of the file hosting business In addition to music, end users of one-is simple, as end-users (a) upload a file click hosting services share copyright- Conclusionto a server, (b) are given a web link ed software, movies, video games, and With monumental increases of warez(URL) to the file, and (c) subsequently pornography. available, enforcing digital copyrightshare the URL with others via a web Although one-click hosting is gener- laws remains rife with formidable ob-forum or blog (2007b). One-click file ally protected by the DMCA’s Safe Har- stacles. Big Content, the DMCA, as wellhosting service plans are not pricey, bors, both Rapidshare (Switzerland, as the judiciary are seemingly thwartedasking minimal or no fees. The two Germany) and Megaupload (Hong by (a) the large, decentralized popula-largest one-click file hosting services Kong) reside outside of the United tion of end users, (b) existing loopholesare Rapidshare.com and Megaupload. States (2007b). While Germany’s ver- in the DMCA, as well as (c) a judiciarycom (2007b). Since their inception, sion of the RIAA has filed suit against which is unable to keep pace with theboth services have been ranked as high Rapidshare, “it’s unlikely that Rapid- rapid development of file sharing tech-as number 13 and 18 on the Alexa.com share will be forced to shut down any nologies. Due to the ubiquity of filelist of the most popular sites on the In- time soon, [as] there are plenty of ser- sharing in the United States, the linesternet (2007b). vices waiting to fill the gap already.” that separate general law-abiding citi- Neither Rapidshare or Megaupload In a weird twist of fate, Megaupload zens from criminals are blurred.index the content of their servers. recently featured advertising from Mi-Since the URLs to most one-click files crosoft, Levi’s, McDonalds and Coca12 TechTrends • November/December 2008 Volume 52, Number 6