Freedom to Tinker

James Grimmelmann offers another nice conference report, this time from the Seton Hall symposium on “Peer to Peer at the Crossroads”. I had expressed concern earlier about the lack of technologists on the program at the symposium, but James reports that the lawyers did just fine on their own, steering well clear of the counterfactual technology assumptions one sometimes sees at lawyer conferences.

Among other interesting bits, James summarizes Tim Wu’s presentation, based on a recent paper arguing that much of what passes for copyright policy is really just communications policy in disguise.

We’re all familiar, by now, with the argument that expansive copyright is bad because it’s destructive to innovation and allows incumbent copyright industries to prevent the birth of new competitors. Content companies tied to old distribution models are, goes this argument, strangling new technologies in their crib. We’re also familiar, by now, with the argument that changes in technology are destroying old, profitable, and socially-useful business, without creating anything stable, profitable, or beneficial in their place. In this strain of argument, technological Boston Stranglers roam free, wrecking the enormous investments that incumbents have made and ruining the incentives for them to put the needed money into building the services and networks of the future.

Tim’s insight, to do it the injustice of a sound-bite summarization, is that these are not really arguments that are rooted in copyright policy. These are communications policy arguments; it just so happens that the relevant which happens to affect communications policy is copyright law. Where in the past we’d have argued about how far to turn the “antitrust exemption for ILECs” knob, or which “spectrum auction” buttons to push, now we’re arguing about where to set the “copyright” slider for optimal communications policy. That means debates about copyright are being phrased in terms of a traditional political axis in communications law: whether to favor vertically-integrated (possibly monopolist) incumbents who will invest heavily because they can capture the profits from their investments, or to favor evolutionary competition with open standards in which the pressure for investment is driven by the need to stay ahead of one’s competitors.

The punch line: right now, our official direction in communications policy is moving towards the latter model. The big 1996 act embraced these principles, and the FCC is talking them up big time. Copyright, to the extent that it is currently pushing towards the former model, is pushing us to a communications model that flourished in decades past but is now out of favor.

This is a very important point, because the failure to see copyright in the broader context of communications policy has been the root cause of many policy errors, such as the FCC’s Broadcast Flag ruling.

I would have liked to attend the Seton Hall symposium myself, but I was at the Harvard Speedbumps conference that day. And I would have produced a Grimmelmann-quality conference report – really I would – but the Harvard conference was officially off-the-record. I’ll have more to say in future posts about the ideas discussed at the speedbumps conference, but without attributing them to any particular people.

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.