[Today we kick off a series of three guest posts by Mitch Golden. Mitch was a professor of physics when, in 1995, he was bitten by the Internet bug and came to New York to become an entrepreneur and consultant. He has worked on a variety of Internet enterprises, including one in the filesharing space. As usual, the opinions expressed in these posts are Mitch’s alone. — Ed]

The battle between the record labels and filesharers has been somewhat out of the news a bit of late, but it rages on still. There is an ongoing court case Arista Records v LimeWire, in which a group of record labels are suing to have LimeWire held accountable for the copyright infringing done by its users. Though this case has attracted less attention than similar cases before it, it may raise interesting issues not addressed in previous cases. Though I am a technologist, not a lawyer, this series of posts will advocate a way of looking at the issues, including legal, using a freedom-of-speech based approach, which leads to some unusual conclusions.

Let’s start by reviewing some salient features of filesharing.

Filesharing is a way for a group of people – who generally do not know one another – to allow one another to see what files they collectively have on their machines, and to exchange desired files with each other. There are at least two components to a filesharing system: one allows a user who is looking for a particular file to see if someone has it, and another that allows the file to be transferred from one machine to the other.

One of the most popular filesharing programs in current use is LimeWire, which uses a protocol called gnutella. Gnutella is decentralized, in the sense that neither the search nor the exchange of files requires any central server. It is possible, therefore, for people to exchange copyrighted files – in violation of the law – without creating any log of the search or exchange in a central repository.

The gnutella protocol was originally created by developers from Nullsoft, the company that had developed the popular music player WinAmp, shortly after it was acquired by AOL. AOL was at that time merging with Time Warner, a huge media company, and so the idea that they would be distributing a filesharing client was quite unamusing to management. Work was immediately discontinued; however, the source for the client and the implementation of the protocol had already been released under the GPL, and so development continued elsewhere. LimeWire made improvements both to the protocol and the interface, and their client became quite popular.

The decentralized structure of filesharing does not serve a technical purpose. In general, centralized searching is simpler, quicker and more efficient, and so, for example, to search the web we use Google or Yahoo, which are gigantic repositories. In filesharing, the decentralized search structure instead serves a legal purpose: to diffuse the responsibility so no particular individual or organization can be held accountable for promoting the illegal copying of copyright materials. At the time the original development was going on, the Napster case was in the news, in which the first successful filesharing service was being sued by the record labels. The outcome of that case a few months later resulted in Napster being shut down, as the US courts held it (which was a centralized search repository) responsible for the copyright infringing file sharing its users were doing.

Whatever their legal or technical advantages, decentralized networks, by virtue of their openness, are vulnerable to a common problem: spam. For example, because anyone may send anyone else an e-mail, we are all subject to a deluge of messages trying to sell us penny stocks and weight loss remedies. Filesharing too is subject this sort of cheating. If someone is looking for, say, Rihanna’s recording Disturbia, and downloads an mp3 file that purports to be such, what’s to stop a spammer from instead serving a file with an audio ad for a Canadian pharmacy?

Spammers on the filesharing networks, however, have more than just the usual commercial motivations in mind. In general, there are four categories of fake files that find their way onto the network.

• Commercial spam
• Pornography and Ads for Pornography
• Viruses and trojans
• Spoof files

The last of these has no real analogue to anything people receive in e-mail It works as follows: if, for example, Rihanna’s record label wants to prevent you from downloading Disturbia, they might hire a company called MediaDefender. MediaDefender’s business is to put as many spoof files as possible on gnutella that purport to be Disturbia, but instead contain useless noise. If MediaDefender can succeed in flooding the network so that the real Disturbia is needle in a haystack, then the record label has thwarted gnutella’s users from violating their copyright.

Since people are still using filesharing, clearly a workable solution has been found to the problem of spoof files. In tomorrow’s post, I discuss this solution, and in the following post, I suggest its legal ramifications.