September 18, 2020

Industry to Sue Supernode Operators?

Rumor has it that the recording industry is considering yet another tactic in their war on peer-to-peer filesharing: lawsuits against people whose computers act as supernodes.

Supernodes are a feature of some P2P networks, such as the FastTrack network used by Kazaa and Grokster. Supernodes act as hubs for the P2P network, helping people find the files they search for. (Once a user finds the desired file, that file is downloaded directly from the machine that has it.)

The industry tried suing the makers of Kazaa and Grokster, but the judge ruled that these P2P companies could not be punished because, unlike Napster, they did not participate in acts of infringement. In Napster, every search involved the participation of server machines that were run by Napster itself. In FastTrack networks, the same role is played by the supernodes, which are not run by the P2P vendor.

A supernode is just an ordinary end-user’s computer. The P2P software causes a user’s computer to “volunteer” to be a supernode, if the computer is fast and has a good network connection. The user may not know that his computer is a supernode. Indeed, he may not even know what a supernode is.

The likely theory behind a lawsuit would be that a supernode is participating in acts of infringement, just as Napster did, and so it should be held responsible as a contributory and/or vicarious infringer, just as Napster was. Regardless of the legalities, many people would think such lawsuits unfair, because at least some of the defendants would be unaware of their role as supernodes.

Perhaps the real goal of the lawsuits would be to convince people not to act as supernodes. Most of the P2P applications have a “don’t be a supernode” configuration switch. If people understood that they could avoid lawsuits by using this switch, many would.

On the other hand, the industry had hoped that the existing lawsuits against P2P direct infringers would convince people to use the “don’t upload files” configuration switch on their P2P software, even if they still use P2P for downloading. (It’s not that downloading is legal, or that the industry doesn’t object to it. It’s just that it’s much easier to catch uploaders than downloaders, and the industry’s suits thus far have been against uploaders.)

The lawsuits have been effective in teaching people that unauthorized filesharing is almost always illegal and carries potentially serious penalties. They have been far less effective, I think, in enticing people to turn off the upload feature in their P2P software. Getting people to turn off the supernode feature seems even harder.

The main effect of suits against supernode operators would be to confuse ordinary users about the law, which can’t be in the industry’s best interest. If they’re going to file suits against P2P users, going after direct infringers looks like the best strategy.

Comments

  1. Interesting approach… Perhaps one of the lawyers following this blog could comment on how this scenario differs from the following, and what the implications are if successful:

    1) Large outdoor flea markets run by a corporation where some of the vendors may be selling illegal copies of tapes.
    2) eBay & Amazon “used marketplace” auctions and sales where (odds would say) somebody is selling an illegal copy of a book or tape?
    3) Newspaper classified ads that offer paperback books for sale, which were “rip-offs” (i.e. where the bookstore ripped off the cover to send back to the publisher for credit and should have destroyed the remaining part of the book).

    In all these cases you have an unconnected entity hooking up supplier and consumer of goods, some of which may be copyright infringing. It was my (nonlawyer) thought that unless specific incidents of infringements were brought to the attention of the “marketplace operator”, there was no liability. I remember way way back when I was living in S. Florida there was a big outdoor flea market called (iirc) “The Swap Shop” that had a run in with either the RIAA or MPAA and ended up winning the case.

  2. Industry to Sue Supernode Operators?

    Link: Rumor has it that the recording industry is considering yet another tactic in their war on peer-to-peer filesharing: lawsuits against people whose computers act as supernodes….

  3. Cypherpunk says:

    The real question is, if supernode operators potentially carry some extra contributory or vicarious liability, it’s horrible that the software companies are putting their users into this situation without giving them adequate notice. By turning users into supernodes, these companies are increasing the value and therefore the sales of their products, while hiding behind the innocent supernode operators who are forced to take the legal heat. That seems very questionable morally as well as legally.