Snocap Tries Authorized P2P

Snocap, a company involving Napster founder Shawn Fanning, is trying to enable new peer-to-peer networks that identify copyrighted works and charge users for receiving them, according to Jeff Leeds’ story in Friday’s New York Times. Snocap is not itself building the P2P network(s), but is supplying the payment and song-identification technology.

Based on press accounts, it appears that the Snocap uses audio fingerprinting technology, which reduces an audio track to a short binary description and then looks that description up in a database containing the descriptions of many known works. The Snocap application will check the fingerprints of the songs it is sharing, and will charge the user accordingly.

In my Rip/Mix/Burn lecture, I talked about how Napster had solved one half of the digital music problem – how to distribute the music – but had ignored the other half – how to manage payment. It turned out that distribution was by far the easier problem to solve; and Napster just left the payment problem for later. You couldn’t pay on Napster, even if you wanted to. Now Snocap will give you a way to pay, at least for songs whose copyright owners register them with Snocap.

Let’s think about how a P2P system based on Snocap might work. When users want to share a file, Snocap will compute the file’s audio fingerprint and look up that fingerprint in the database. One of three things will happen:

• the file is in the database and the copyright owner has stated conditions for its use,
• the file is in the database and the copyright owner hasn’t told Snocap anything about the rules for its use, or
• the file isn’t in the database.

In the first case, the system will clearly enforce the copyright owner’s rules. In the second case, the system knows what the file is, and the file is almost certainly copyrighted, so the system would probably have to deny access to the file.

The third case is the really interesting one. One could argue that the system should deny access here too, since the file is probably copyrighted by somebody, and ignorance of the copyright owner’s identity is no excuse for infringement.

But what if the system allows the distribution of unrecognized files, arguing that the copyright owner is free to register the file with Snocap if he really wants to be paid? Is this enough to shield the P2P operator from liability if the file is infringing? This might make an interesting moot-court case.

But perhaps the P2P operator’s main concern is not to comply with the law, but to reduce the probability of facing a big lawsuit (whether or not that lawsuit has merit). In that case, all that really matters is whether Snocap allows the P2P vendor to kiss up to the big record companies – as long as their content is in Snocap’s database, then they won’t have grounds to sue the P2P vendor. If this is really the innovator’s best strategy, it’s a sad commentary on the state of copyright law.

At the moment we don’t know much about Snocap or how it would be used in P2P networks. Once we see P2P networks using Snocap (if we ever do), we’ll be able to see how they have chosen to address these questions.

UPDATE (7:30 PM): This post originally assumed that Snocap itself was creating a P2P network, rather than just creating the song identification and payment tools. It’s now updated to fix this error. Thanks to Derek Slater for pointing out my earlier error.