May 5, 2015


Grokster Briefs: Toward a More Regulable Net

Many briefs were filed yesterday in Grokster, the upcoming Supreme Court case which has broad implications for technology developers. (Copies of the briefs are available from EFF.) There’s a lot to discuss in these briefs. Today I want to focus on two of the amicus briefs, one from the Solicitor General (who represents the U.S. government), and one from a group of anti-porn and police organizations.

The Solicitor General offers an odd discussion of P2P and the Internet’s history (pp. 2-3):

1. Peer-to-peer (P2P) computing technology enables users of a particular P2P network to access and copy files that are located on the computers of other users who are logged in to the network. Unlike traditional Internet transactions, in which a user’s computer obtains information from a specific website operated by a central computer “server,” P2P networking software gives users direct access to the computers of other users on the network. [Citation omitted.] P2P file-sharing software thus performs two principal functions: First, it searches for and locates files that are available on the various “peer” computers linked to the network, and second, it enables a user to retrieve and copy the desired files directly from such computers.

This history could hardly be more wrong. The ability to share files between any two computers on the network was an explicit goal of the Internet, from day one. The web is not a traditional aspect of the Internet, but a relatively recent development. And the web does not require or allow only large, centralized servers. Anybody can have a website – I have at least three. Searching for files and retrieving copies of files is a pretty good description of what the web does today.

What the Solitor General seems to want, really, is a net that is easier to regulate, a net that is more like broadcast, where content is dispensed from central servers.

The anti-porn amici come right out and say that that is what they want. Their brief uses some odd constructions (“Like any non-sentient, non-judgmental technology, peer-to-peer technology can be misused…”) and frequent recourse to the network fallacy.

Their main criticism of Grokster is for its “engineered ignorance of use and content” (p. 9; note that the quoted phrase is a reasonable definition of the end-to-end principle, which underlies much of the Internet’s design), for failing to register its users and monitor their activities (e.g., p. 13), for failing to limit itself to sharing only MP3 files as Napster did (really! p. 17), and for “engineer[ing] anonymous, decentralized, unsupervised, and unfiltered networks” (p. 18).

These arguments (as the lawyers say) prove too much, as they would apply equally to the Internet itself, which is ignorant of use and content, does not register most of its users or monitor their activities, does not limit the types of files that can be shared, and is generally anonymous, decentralized, unsupervised, and unfiltered.

What kind of net would make these amici happy? The Solicitor General speaks approvingly of LionShare, Penn State’s home-grown P2P system, which appears to register and log everything in sight. Of course, LionShare doesn’t fully exist yet, and even when it does exist it will not be available to the public (see LionShare FAQ, which says that the source code will be available to the public, but the public will not be allowed to share files with “authorized” academic users). For a member of the public who wants to share a legal, non-porn, non-infringing file with a wide audience, the Web, or Grokster, is a much better technology than LionShare.

These briefs are caught between nostalgia for a past that never existed, and false hope for future technologies that won’t do the job.


  1. Once More Into the Betamax Breach

    Yesterday, the major motion picture studios and the recording industry filed a brief [PDF] in MGM v. Grokster arguing that the Betamax defense “should not apply when the primary or principal use of a product or service is infringing.” They…

  2. avatar Darren Coolidge says:

    Is it common place in the legal system just to out-right lie?

  3. avatar Cypherpunk says:

    I don’t understand your complaint about the Solicitor General’s statement. It is an utterly prosaic and common description of P2P technology which you might find in any article about the internet. Despite what you say, the defining property of P2P applications is that everyone is a server. Older protocols generally ran in an environment in which most people ran client software and a few larger sites ran servers. Most people don’t run HTTP servers, or FTP servers, or email servers. But they do run Kazaa servers because the server is part of the client, and that is why Kazaa is considered a P2P application while the others are not.

    Your reductionist approach takes away all meaning from P2P. By your definition, Napster was not fundamentally different from what came before. But in looking at things at such a low level, you are missing the fundamental differences in the nature of these various protocols. After all, ultimately everything is IP packets, but that’s not the most useful level of analysis. At higher levels, there is in fact a difference between P2P and other protocols, which is why we use the word P2P to distinguish them. The SG is simply following common usage, and I doubt that you would object to it if it weren’t that this distinction works against your favored side in this court case.

  4. Cypherpunk:

    I agree that one often sees such a definition of P2P. What I disagree with in the SG’s brief is the characterization of this kind of peer-to-peer design as a recent development. In fact, it goes all the way back to the origin of the Net.

    Today, not everyone wants to run a server (many people don’t want to, or prefer to hire someone to run a server for them). But it’s critically important that anybody who wants to run a server can do so.

    And note that the FastTrack protocols, which Grokster uses, don’t treat all users’ machines as equals, but instead sets up a hub-and-spoke system with supernodes acting as information hubs. Some users do “lurk” and act only as clients. What I don’t understand is why that particular distinction (whether all user machines play identical roles in the protocol, or whether the protocol instead segregates user machines into different categories such as client/server or node/supernode) should affect Grokster’s liability, one way or the other.

  5. avatar Liam O'Melinn says:

    “What the Solitor General seems to want, really, is a net that is easier to regulate, a net that is more like broadcast, where content is dispensed from central servers.” Indeed, the legal theory of the brief seems premised on the belief that there must be a central server, and the brief thus directs the Court’s attention to the question of whether defendants’ “business model” depends on infringement, rather than to the nature of non-infringing uses considered in their own right. (I note, by the way, that scientists appear to be able to use p2p software without objection, p.18, and thus even under the SG’s standard Ed Felten can apparently use Grokster and remain a free man.) Even the unobjectionable use by scientists, however, is described by the brief as a “network that markets itself.”

  6. Once More Into the Betamax Breach

    Yesterday, the major motion picture studios and the recording industry filed a brief [PDF] in MGM v. Grokster arguing that the Betamax defense “should not apply when the primary or principal use of a product or service is infringing.” They…

  7. avatar Mark Gritter says:

    I am more than willing to support Dr. Felten if he strips all meaning from the term ‘p2p’, as I cannot determine any meaning it currently has… what is common between Chord, Tapestry, Grokster, or Napster that is not present in DNS, Quake, Usenet, or the Web? Bundling a client and server together is a good idea, but I’m not sure it qualifies as a defining characteristic.

    On the other hand, I don’t think it’s fair to say that a more law-enforcement-friendly past never existed. Those trying to manage networks certainly feel that their job is harder with these applications around. It’s not unreasonable to say that there has been some real change in the characteristics of network behavior. Of course, I don’t think law enforcement was really any better at stopping copyright infringement when it was conducted via warez sites (and it still is), so one could argue that matters haven’t gotten much worse.

    But from a network researcher’s point of view, we certainly have a big problem with rogue applications— we just call them worms and zombies. I hope that there really is something we can do about them. And it is not too unreasonable to suppose that the same techniques might place more controls on “P2P” traffic.

  8. Supreme Court P2P case briefs available, deconstructed

    The Grokster Supreme Court case is looming — this is the case where the entertainment companies are trying to overturn their total, crushing defeat at the hands of EFF law-ninja Fred von Lohmann, who got the Ninth Circuit to see that P2P networks are …

  9. avatar Kenneth Almquist says:

    This history could hardly be more wrong.

    Agreed. But you are complaining about one subordinate clause. And you are complaining about a factual inaccuracy which is irrelevant to the argument that the brief is making. In short, you are nitpicking.

    What the Solicitor General seems to want, really, is a net that is easier to regulate, a net that is more like broadcast, where content is dispensed from central servers.

    The thesis of the brief is that if Grokster is in the business of helping people violate copyrights, then Grokster is liable for copyright infringment. If, on the other hand, Grokster is in the business of providing software which is intended to be used in accordance with copyright law, then any use of the software to violate copyright law is the responsibility of the user, not of Grokster. If one accepts this argument, then the details of the technology (including whether central servers are used) are not relevant. What matters is Grokster’s business model.

    Napster used a central server model for the data base (though files were only stored on clients’ computers). According to your thesis, the Solicitor General should therefore oppose the shutting down of Napster. That is, forgive me, ridiculous.

  10. Mr. Almquist: It was the SG, and not me, who introduced the incorrect history into the argument. This looks to me like an attempt to imply, wrongly in my view, that Grokster’s technology does not follow established engineering principles and therefore should be suspect.

    I did not discuss the SG’s argument that Grokster’s total course of action was designed and intended to foster infringement.

    And I think you misread the thesis of my post. The briefs’ authors want to make the net more regulable so that they can regulate it. They would shut down both Napster and Grokster, but they would prefer to live in a Napster world because Napster-style services are easier to shut down.

  11. avatar Douglas Perkins says:

    The goal of the briefs’ authors to regulate the net is not a new issue; Lawrence Lessig’s “Free Culture” book and speech are about this very issue. It is interesting that the same arguments repeatedly arise. In this instantiation, we must once again explain that the “engineering principles” of Grokster are very similar to those for which the internet is generally used. It is my hope that we may move this discussion toward its eventual end (i.e. get the SG correct on his history & analysis of programs acting over the internet), so that the question of whether Grokster has enough significant non-infringing uses to be acceptable may be answered.

  12. avatar Visionaerie says:

    It seems to me that sharing of information is the very essence of the internet. It will probably always be a battle between those who want to regulate everything, and those who are pushing society forward through better technology. And just as the case with gun control, dishonest people will always find a way to get guns — and they will always find a way around any registration or other restraints. The best we can hope for, is to punish those who hurt other people, and leave the rest of us alone. After all, weren’t we always told by our parents and schools that it’s polite to share? Let’s hope that our allegedly Christian administration gets awakened to the true reality of the Golden Rule, instead of staying obsessed by the golden calf of money and power.

  13. Unfortunately they’re all too aware of the golden rule. The “he who has the gold, makes the rules” one, that is. :P