The Discerning Downloader

Those who have read this blog before know that I strongly believe that the Big Content industries' major weakness in the fight against file sharing is that they lag behind consumers in their exploration and exploitation of new technologies. A recent survey from TorrentFreak seems to confirm that.

The survey shows that uTorrent has made massive gains in market share among file sharers (now enjoying over 60% share), primarily at the expense of Vuze, the second most popular Bit Torrent client (now with about 14%). So, what, you ask, does that have to do with the tech savvy-ness of file sharers? Well, one of the main draws of uTorrent is its extremely small footprint, consuming as little as 14 MB of RAM while downloading. Vuze, the former number one Bit Torrent client, by comparison, requires approximately 80 MB of RAM. The huge uptick in market share for uTorrent tells us that either: 1) the average Bit Torrent user now understands that minimal RAM consumption allows them to download files "in the background" while performing other tasks, without experiencing degradation in system performance; 2) the average Bit Torrent user is easily influenced by word of mouth and uses uTorrent because someone who understands #1 told them to; or 3) some combination of #1 and #2.

Whether by true understanding or by influence, the file sharing legions are coming to embrace not only free content, but also the most efficient means of obtaining that content. This growth of efficient client usage will permit more users to remain online while they perform other computer-based tasks, both allowing them to download more and, likely of more concern to the industries, make greater numbers of files available for download by others.

This is yet another sign that the real issue facing Big Content is the gap between their understanding and usage of technology and that of their (former) consumers. Until that gap is spanned, the downward slide of content sales will continue.

PRO-IP Act Serves Only RIAA and Similar Lobbyists...And Not Very Well

What is a single sentence worth? In copyright law, it would appear the answer is: $150,000 per song.

Much commentary has been offered over the last two months since a bill known as the PRO-IP Act was introduced in the House of Represenatives on December 5, 2007. The bill (H.R. 4279), properly known as the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" covers much ground and states its purpose as "to enhance remedies for violations of intellectual property laws." However, the bulk of the focus in the blogosphere and elsewhere online has centered around a single sentence in Section 104 of the bill - a sentence so obviously bought outright by the influence of the RIAA, the MPAA and their ilk.

Section 104 of the PRO-IP Act proposes to replace the second sentence of 17 USC 504(c)(1). Section 504 of the Copyright Act provides for copyright damages - those damages referred to as "statutory damages." In the simplest terms, Section 104 proposes to amend 504(c)(1) so that damages for infringement by illegal copying of an album will be calculated based upon individual songs - not complete albums - thereby multiplying potential damage awards in file sharing cases by 10 or 12 times the current amount in most cases.

As 504(c)(1) stands, "all the parts of a compilation or derivative work constitute one work." This means that if a person illegally downloads a 12-song album, their potential total statutory liability lies between $750 and $150,000. If the PRO-IP Act becomes law, a copyright owner will be "entitled to recover statutory damages for each copyrighted work sued upon that is found to be infringed." This means that illegally downloading the same 12-song album will expose the guilty party to a damage award of up to $1.8 million.

That Congress would so readily hand to the recording industry and other copyright owners a larger sledgehammer with which to bludgeon their fleeing customers is a fine example of influence without intellect. As a copyright attorney I am a strong supporter of the rights of copyright owners. Plainly put, intellectual property is valuable and theft of that property is no different than theft of material goods. However, the proposed damages provision in the PRO-IP bill does nothing to discourage theft by consumers or to encourage the RIAA and its member organizations to update their own failing and outmoded models.

A college student sued by the RIAA is as unlikely to pay a judgment of $1.8 million as he is to pay a judgment of $150,000. Moreover, there is no evidence that the campaign of file sharing lawsuits has done anything to stem the tide of infringement. Simply raising the potential damages by tenfold is a blind shot that clearly has less to do with solving the problem than it does with pleasing these Congressional policymakers' financial backers.

The answer to reducing infringement by mass file sharing lies in education of consumers - primarily at a young age - and the changing of the outmoded business models of the major record labels and other content owners. The PRO-IP bill neither achieves nor encourages either of these. It is simply a legislative bandage bought by the content owners and sold by Congress, when what is truly necessary is reconstructive surgery of the related business and consumer practices. In the meantime, however, the PRO-IP Act's amendment to the damages provision of the Copyright Act should provide the RIAA and others with more cash from larger damage awards and "settlements" for the same infringements that will not stop.

Can Ruckus Stop the Commotion? Free Downloads Offered to Students

A new attempt to stem the tide of illegal downloading on college campuses has digital music provider Ruckus offering free downloads of MP3s from a catalog of 2.5 million songs for any student with a ".edu" email account. The downloads are licensed for use on the Ruckus player software, as well as compatible MP3 players. The music may not be burned to CD. (99 cent purchases are available for those who wish to burn CDs.) One university giving the service a try is the University of Georgia.

The program, however, leaves out a few important details regarding its origins. I believe that once uncovered by the student body at large, these omissions may lead to the rapid demise of the service.

I was surprised to find that the Ruckus service is compatible with "many MP3 players," but not the iPod or iPhone products from Apple. According to Ruckus' website, users must have a "PlaysForSure" compatible MP3 player in order to take their music files with them. That led me to ask: What is PlayForSure?

It turns out that PlaysForSure is a standard owned by Microsoft. The PlayForSure logo sports a small Windows icon in the middle, and the PlayForSure website sports a Microsoft copyright logo on the bottom of the page. It would seem, when all this is brought to light, that Ruckus and the free music downloads are an attempt by Microsoft, through creative licensing with the major record labels and negotiation with possibly unsuspecting universities, to wrestle away some of Apple's MP3 player market share, where iPod is king. While universities are likely quick to come on board with this program, seeing it as a legitimate way to stem the tide of illegal downloading on campus, thereby reducing the universities' exposure to secondary liability, I highly doubt that they are fully aware of the program's pedigree.

The article cited above from the University of Georgia raises more legal questions. Please read on in the next post for that discussion.

Online File Sharing Programs: What is BitTorrent?

Much of the discussion of online file sharing that has grown out of the recent pre-litigation letters sent by the RIAA to universities and university students has been throwing out terms relating to file sharing programs and protocols without explaining to readers what these things are and how they work. Let's take a quick look at what BitTorrent, one of the most popular file sharing protocols is and how it works.

BitTorrent is a protocol that was created by a programmer named Bram Cohen in 2001 and 2002. (A protocol is simply a standardized method of communication.) Cohen also created a program to use that protocol - also named BitTorrent. The BitTorrent protocol is relatively simple from a conceptual standpoint:

Users' computers directly connect to one another over the Internet, using the BitTorrent protocol, in order to share files. The various computers achieve this connection by running a program called a BitTorrent client. There are many clients out there made by many different software companies or individuals, but all use the same technology under the hood - the BitTorrent protocol - to communicate.

The BitTorrent protocol allows users to identify multiple other computers that have copies of the files for which they are searching. Once identified, BitTorrent looks at that file as a series of digital chunks called packets. In order to achieve a fast download, the BitTorrent client downloads the various packets of the desired file one at a time, in order or out of order. When the packets arrive, the client re-assembles the packets into the whole. This is possible because: 1) each packet has an identifier that essentially says "I am packet 14 of 255"; and 2) since it's digital, all the 1's and 0's in each packet are still right where they need to be within the whole. Two obvious benefits of this method are that the user can download each packet from the fastest of multiple sources and should any source go offline, the download can continue from the remaining sources.

So far, this isn't much different than file-sharing programs like Kazaa. But here's where BitTorrent gets interesting and attractive to people who do significant sharing. The protocol weights the connections between users in order to reward the users for sharing as well as downloading. Users who download but do not make files available for upload are known as leeches. Those who provide files for upload are seeds. Since seeds are a needed source of content for download, the BitTorrent protocol gives faster downloads and higher priority to users who seed, while leeches do not get this benefit. So...the more you share the faster you can download. Further, since users are downloading in packets, they can begin sharing each packet as they receive it; no need to have the whole in order to share.

The final point: how do the clients know how to find each other? Various websites host "trackers" for torrents. These are lists of the available torrents and by downloading the torrent file related to the desired download, the user's client knows how to announce its desire to the protocol and join the torrent (i.e. the wave of uploading and downloading).

That's pretty much all there is to it. Have questions? Drop me an email.