Ethics, copyright, Napster and P2P - report from a conference

From: Gregory Aharonian <srctran[_at_]world.std.com>
Date: Thu, 22 Feb 2001 19:27:15 -0500 (EST)


Some of the ethical/innovation aspects observed at a recent P2P conference involving copyright.

    (my earlier Napster critique is at www.bustpatents.com/napster.htm)

    Last week I attended and spoke at the Oreilly Publishing P2P conference held here in San Francisco. Given the immature ethical attitudes and overblown sense of creativity of the attendees (the conference was mostly a chance for P2P companies to advertise their products in the conference talks), P2P is shaping up to be a mini-fad bubble that will rise and burst quickly - a good stock shorting opportunity.

    Ethically, it was a joke. Barely anyone I spoke to could include the words "Napster" and "copyright theft" in a sentence. I don't care if you agree or disagree with doing so, the fact that they couldn't even say the words together was sad.

    You could tell the ethics were being checked at the door when Tim O'Reilly, in his keynote address, didn't have the guts to take a public stand on Napster's activities. Tim, near the end of his introduction, stated something to the effect that: 
	"I am not taking sides.  Napster didn't want to speak.  Shows
        chilling side of legal intrusion."

This from a businessman who uses the legally intrusive copyright laws to prohibit people from freely distributing electronic versions of his books, copyright theft no different than the appeals court ruling that Napster was little more than an engine for copyright theft (which came out before the start of the conference). This attitude was reflected on many of the conference panels, where no one critical of the copyright thefting aspects of P2P were invited to be panelists. I hope their upcoming East Coast P2P conference will have more policy/ethics panels, with a broader range of panelists.

>From here, it went downhill ethically. One of the first speakers, Clay Shirky, made analogies between copyright theft and the speed limit:

        "In a democracy, if enough people do it, it's not a crime."

Gee Clay, grow up. In our democracy, at one time, enough people thought it was alright to have slaves, to deny women and non-whites the right to vote, to throw Japanese people out of their homes and into tent cities (during World War II), etc. Such violations of human rights are crimes, even if the majority of people do it/support it. Majority rule is not an absolute rule, and no excuse for sanctioning copyright theft.

This attitude carried throughout the conference to the end. At one of the final sessions, on one panel, John Barlow (ex-Grateful Dead musician and heavily involved with Electronic Freedom Foundation), roughly stated: 

        "After the 9th circuit decision, time to flagrantly ignore
        the law - do whatever you please."

It was such a stupid comment that when I had a chance to ask an audience question, I asked two of his fellow male panelists (P2P is pretty much the refuge of male geeks - one more arena with women in any prominence, which will contribute to the lack of social relevance for many P2P applications), Dan Gillmor with the San Jose Mercury News and Tim Oreilly of Oreilly Publishing if they fully agreed with Barlow and if so would they mind if I made their companies copyrighted material freely available over the Internet using P2P. At this point, Barlow said something to the effect that he didn't mean that P2Pers should ignore existing laws, but something else (huh?).

And in case anyone wants to use technology to fight the theft of their copyrighted material, another talk showed how to resist attempts of people to defend their rights. The talk, "Attack resistant sharing of metadata" by Bryce Wilcox of Mojo Nation, tried to justify its role by saying that such resistance allows people to fight censorship. While an admirable goal, there are other ways of helping people publish their censored material on the Internet without using technology that helps facilitate copyright theft.

Sadly many of the press accounts of the conference ignored these very controversial comments, or an interesting ethics point made by some speakers. P2P will find it difficult to get corporate acceptance of their products as long as the P2P crowd continues to warmly embrace illegal efforts such as Napster. Such an attitude raises fears in corporations that any P2P technology they acquire will be used to help leak corporate proprietary information outside the company.

That most of the attendees apparently have little educational or workplace exposure to dealing with ethics problems was their enthusiastic reactions to the arguments of Prof. Lawrence Lessig of Stanford University, who gave the keynote speech on the last day of the conference. One of the arguments he puts forth in favor of current P2P activities is that the government should be wary in imposing too much control on such activities while the technology and applications are still being developed:

        "If innovation first isn't allowed, that is wrong."

        "No innovation if we legislate first."

        "How do we balance control versus innovation."

        "Your power to build it first is being threatened." 

        "Unless you fight back, your power to innovate will be
         removed."

In general, I support such a stance (for example over in the biotech field with embryonic stem cells, an analogy Prof. Lessig might want to include in his talks - the VCR analogy is too dated). But too many people in the P2P field are using such arguments to justify violations of the law (such as particular copyright theft) in the short term, in order to allow experimentation and innovation to occur. That might even be a tradeoff worth considering, if indeed lots of innovation is going on in P2P. As Prof. Lessig stated: 

        "I am not saying to defend Napster because it is innovative.
        Only restrict innovation where there is a compelling interest.
        Napster is interesting and supportable because it offers a
        new way to compensate authors."

That justification may be true of other P2P efforts. But not for Napster, and probably not for other P2P efforts, as I argued in my talk on 20 years, yes 20 years, of P2P technology. I shall be sending Prof. Lessig a copy of my talk to try to convince him that indeed there is little innovation in both the technology and applications in the P2P space. For example, consider the following paper published in 1996 at the 2nd USENIX Workshop on Electronic Commerce, easily a few years before Napster: 

        A peer-to-peer software metering system
        by Bruce Schneier and John Kelsey, Counterpane Systems, Minneapolis
        Abstract
            We present two software-network payment systems, designed so
        that every user is capable of both buying and selling. One system
        uses online clearing; the other uses offline clearing.

They disclose a secure, cheap, widely available, peer-to-peer system for payments of electronic information. If we combine that with IBM's 1990 filed patent "Combining architecturally dissimilar computing networks into a single logical network", a technology which given a file name goes out across a peer-to-peer network to find the file. If the file happens to be an MP3 music file, and the Counterpane system is used to pay to be able to transfer the file, what is left to be innovative with Napster and the ilk? Absolutely nothing. These companies could have been Napster, if only they sanctioned and exploited copyright theft.

In my talk, I showed how P2P patents date back 20 years, how most of the post-Napster applications were actually invented years before Napster (including Napster itself - there is nothing novel or unobvious about Napster's technology - it was invented by others years before, those these efforts never became as popular because they ... um .... didn't encourage people to use these technologies to violate copyright laws). And there is nothing novel about whatever Napster is scrambling to do to show it can help compensate artists - all of the proposed compensation schemes already existed and were being used before Napster. The only thing that Napster invented was a cute social justification for large scale copyright theft. Part of an internal Napster memo reported in the December 2000 eCompany quotes Napster co-founder Sean Parker as saying that he'd designed Napster's software to avoid links to users' "name or address or other sensitive data that might endanger them, especially since they are exchanging pirated music."

In my talk, I first listed the types of activities I consider to be peer-to-peer, and the dates when the activities first were published and/or patented in non-trivial amounts: 

            File / peripheral sharing        (early 1980s)
            Distributed processing           (early 1980s)
            Remote procedure calls           (early 1980s)
            Interacting agents               ( mid  1980s)
            Virtual LANS                     ( mid  1980s)
            Advanced Intelligent Networks    ( mid  1980s)

In short, at least fifteen years of prior developments in P2P before it became a fad. In terms of patents, I counted about 1000 patents from 1980 to 2000 that mentioned the phrase "peer-to-peer" in the specification, at least 100 with the phrase in the claim. Examining lots of abstracts for truly P2P applications, I made the following count: 

              YEARS               ISSUED PATENTS FILED
            ------------------------------------------
            1980-1984                      11
            1985-1989                      21
            1990-1994                      40
            1995-1999                      98

Almost a doubling every five years, and probably faster growth for patents filed in 2000 and 2001 and 2002 (by which time this fad will be dead, and patent applications start dropping off).

One of the earliest P2P patents - 4335426 filed in 1980 by IBM "Remote processor initialization in a multi-station peer-to-peer intercommunication system." One of the latest - 6167432 - "Method for creating peer-to-peer connections over an interconnected network to facilitate conferencing among users" filed in 1996. One of the earliest file and code sharing peer-to-peer patents - 4363093 to IBM filed in 1980 titled "Processor intercommunication system."

One P2P investment fad is using everyone's home computers in one big calculation network. Sorry, already developed and patented, for example, patent 6098091 to Intel that assigns computational tasks to peer-to-peer computers connected by the Internet and arranges for payments for the use, and patent 5815793 to Microsoft for using the microprocessors in cable TV set-top boxes to do distributed calculations.

Here's another P2P solution published as well in 1996:

    Distributed PeCo-Mediator: finding partners via personal connections     IEEE Int. Conf. on Systems, Man and Cybernetics 1996, vol. 1: 802-7     Abstract:

        In this paper, we describe the distributed PeCo-Mediator which     supports a user to find a partner by using personal connections     (PeCo). We have already proposed the PeCo-Mediator which allows     members to share and use their PeCo. PeCo-Mediator is very practical     for use in some small groups. However, in an organizational use there     are some problems: (1) the user are reluctant to offer his/her     personal details because they are private information; (2) since     this system only supports the user in finding candidate partners,     the user has to negotiate with them using the connection offered.     Distributed PeCo-Mediator has two sub-systems: a PeCo-Collector for     maintaining the individual PeCo in his/her own site, and a PeCo-Agent     for supporting the negotiation between his/her and the candidate.     It improves the privacy of users and also facilitates to find a     cooperative and capable partner.

As I said, little innovation in the P2P world. They spend so much time trying to organize information online, they forget to make use of some pretty well polished offline systems, like, um ..... libraries.

Current companies in the P2P space - their products maybe prettier and use more cutesy buzzwords, but much of the technology is not innovative, and a few boring in light of these patents, and even more journal articles and conference proceedings. What brilliance are they offering? More online shopping comparison systems, more online recommendation systems, etc. Boring and socially questionable (do we want to encourage even more software to replace people connections with computer connections?).

So arguments that we need to give the P2Pers more freedom less controls (maybe at the expense of some copyright theft) to provide innovation to the American public, is weak. There is already plenty of P2P innovation, most of which is quite happier complying with existing laws. Indeed, as an editorial in the San Jose Mercury News put it about the recent Napster decision: 
      "There are legitimate alternatives like MusicMatch and Emusic,
      that sell music by the download or subscription.  But they
      haven't had a chance - not with Napster sucking up their oxygen.
      Shackling Napster should open up opportunities that piracy has
      stymied."

Other alternatives for downloading music include myplay (www.myplay.com), which has five million users and the support of the recording industry. A story in the New York Times (1 Feb 2001, D6) mentions at one point how myplay helped revive the career of Aimee Mann, who used myplay under HER CONTROL to allow listeners to preview her work. Other legal alternative is Supertracks, a new startup to help Internet broadcasters and radio stations stream music without the music being shared such as with Napster. This is Supertracks second attempt to launch a business - since the first attempt to legally help major record labels sell downloaded music failed because of illegal competition from, .... Napster. Far from supporting innovation, Napster helps suppress innovation.

There are other such legal alternatives so that there is nothing Napster is contributing, and its illegal success should not be rewarded.

Which causes speculation on why it is taking Judge Patel so long to issue the revised injunction. It has been over a week since the US Court of Appeals for the Ninth Circuit ordered Judge Patel to narrow her original injunction. Since experts think it is unlikely Napster's appeal to the Supreme Court has much chance of being accepted, let alone reversed, you would think there would be some haste in issuing the revised injunction, not only for the benefit of the music industry, but for other legal Internet music distribution efforts - their rights are more important than those of Napsters. A mediator named by Judge Patel is helping negotiate the amount of damages for past infringement, and terms of an injunctive relief going forward (which would explain the delay).

There is also multiple technologies to help the recording industry supply Napster with the information Napster will need to prevent the transfer of copyrighted music. EMusic has one such technology (the February 2001 issue of IP Worldwide, page 11 has a nice article on EMusic), and the 16 Feb 2001 Wall Street Journal, page A9, reports that a similar technology is being developed in Europe by the International Federation of the Phonographic Industries is testing software that allows members to speed up prosecution for piracy by tracking people's use of free file-sharing services. For example, Belgian police are pursuing prosecutions for copyright infringement against people whose activity on the Napster site was being monitored. An article in the 14 Feb 2001 New York Times, page A1, reports that in Europe plans are being made to charge upwards of $80 per PC to compensate artists for the theft of their copyrighted materials exchanged using PCs.

Judge Patel shouldn't be fooled by Napster's recent PR stunts, including their offer of a one billion dollar payment to the recording industry (an offer which seems to me to be interfering with the mediator's activities), and earlier announcements of adopting digital rights management practices (gee, why didn't they do this earlier?).

Comments were made at the conference, and in the press, that Senator Hatch has been making comments about these issues and the crackdown on Napster, and that he plans to have hearings later this year. Some comments of his from an address at the Future of Music Policy Summit in Washington: 
        "I do not think it is of any benefit for artists or fans to
        have all the new, wide distribution channels controlled by
        those who have controlled the old, narrower ones."  ...
        "This is especially true if they achieve that control by
        leveraging their dominance in content or conduit space in
        an anticompetitive way to control the new, independent
        music services that are attempting to enhance the consumer's
        experience of music."

Apparently he is ignoring all of the legal new independent music services that are being suffocated by Napster, and maybe hinting at compulsory licensing. If so, I suggest that the pharmaceutials companies watch out for their industries, if Hatch is serious with this rather un-Republican attitude. Fortunately his bark is worse than his bite, since Hatch has his own major ethics problems (let's just say that 7:8 is obscene scientific nonsense) that Hollywood can exploit if it needs to render Hatch impotent on this issue. Sure there will be hearings, but they won't lead to anything.

One comment Prof. Lessig has made in the press and at the conference is as follows: 
        "My view is that the RIAA loses the battle and loses the war,
        because they become the bad guys. ....  With every song they
        tell Napster to remove, the political resistance to this
        extreme view of copyright law will grow stronger."

Maybe - maybe not. As others at the conference mentioned, the recording industry apparently is already hated by the public and artists, so this requirement of the Appeal Court (to supply Napster with information) probably won't make the RIAA and multi-billion dollar music companies that much more hated. And its attempt to buy legitimacy, Napster is offering to do this themselves.

Many Napster supporters will eventually realize that Napster is trying to become the sixth member for the recording industry, given Napster's recent offer of one billion dollars to the recording industry to settle its facilitating copyright infringement. Bertelsmann is trying to make Napster a competitor with AOL Time Warner and Universal, partially by planning to charge people $3 to $10 per month for music downloading. All these activities will be enough to see most people fleeing Napster, and make silly the cult of Shawn fostered by Napster.

Napster's CEO, Hank Barry, has some nice spin: "We want our users to be clear in understanding that if Napster is shut down, it's because even though we're willing to pay the record labels they don't want to take out money." Utterly hilarious. A burgular asking to be allowed to set the terms on how much he will pay back to the people from whose house he stole from. Press reports indicate that the music companies consider the billion dollar offer inadequate, as well as ill-timed until Napster first stops the current copyright theft it facilitates.

And not only is Napster facing skepticism from the music industry, but artists as well. With Napster officials saying "Napster is an added marketing and promotional tool for the music industry, and this guy [Fanning] figured it out.", which I am sured inspired the following comment from the Artists Against Piracy: 

       "So it is imperative that artists shore up performance rights
       for digital uses of music.  If we allow Napster to become a
       promotional tool rather than a distribution tool, then we
       have lost the whole ball game."
The final hilarity of all of this are reports that Napster is applying for patents. Respect for intellectual property? HaHaHaHaHaHaHaHaHaHa. If they issue (since I hear the PTO's double eyeball procedure is doing a decent job preventing bad business method patents from issuing), well, start letting me know about prior art so I can start writing a nice PATNEWS bust article of any Napster patents.

Greg Aharonian
Internet Patent News Service
www.bustpatents.com/subscribe.htm Received on Fri Feb 23 2001 - 00:28:47 GMT

This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:41 GMT