The Distributor Problem and Peer to Peer Sharing

Consistent with the evolution of copyright as a right to protect the interests of distributors, actions for copyright enforcement have historically been taken against the distributors of a copyright work. The main targets of infringement actions have primarily been those targets who are motivated by the "filthy lucre".

For example, people who produce vast quantities of counterfeited goods for sale at street stalls or from fly by night shopfronts. Where an individual comes to the attention of a copyright holder as being involved in an infringement of rights involving no for-profit redistribution, it is rarely worth the copyright holder's time, money or effort to pursue that individual.

The costs of such a litigation will ordinarily far exceed the amounts which will be recoverable from that individual in the event of a successful litigation. Usually the target of the action will have no means to pay any damages awarded against them in any event. While some companies do take action against individuals, this is often done purely for publicity purposes to dissuade other individuals from being so enterprising [83].

As a result it is the larger, slower moving targets which have received the most attention from copyright holders, whether they be distributors of illegal works, distributors of equipment to be used in circumventing copyright protection, companies with a large installed base who are directly profiting from their use of infringing items or people such as telecommunications carriers through whose equipment infringements of copyright may be being carried out.

In this instance telecommunications carriers have been a problematical target in that they may have no knowledge of an infringement taking place over their system, and yet directly profit from that infringement through the usage and interconnection fees they charge. They are even more problematic in that they also have the resources to fight court proceedings.

The advent of the Internet is seeing the emergence of individuals as the key distributors of copyrighted works, with that "distribution" occurring purely to themselves. That is, there is no longer the filthy lucre element to the infringement which has historically been present. Put another way, a large part of infringement is being shifted from profit making activities to cost reducing activities.

Where before a copyright holder may have had a distributor who was selling tens of thousands of copies of a work, nowadays that distributor has been replaced by tens of thousands of individuals all acquiring a single copy of that work from perhaps disparate information sources. The copyright holder in this situation no longer has an ability to sever the head of the demon infringement because, like the hydra, once the head has been severed, two new ones will grow back in its place. There are simply too many targets, no one of which is worth pursuing.

The Napster Suit - Spitting in the Wind?

Music swapping systems, such as Napster [84], Gnutella [85] and Freenet [86], are a prime example of the problems faced by copyright holders. Under each of these systems end users swap copies of musical works which they have recorded (or otherwise "acquired"). The critical aspect of this swapping is that it occurs directly between the two users rather than through each individual acquiring the work from a central store of works. As such, there is no central store which is infringing copyright and which can form the basis for copyright action.

The Napster service has nevertheless been the subject of action in the United States, primarily as a result of two factors: (1) Napster creates a central store of information detailing from where copyrighted works can be acquired and (2) the main use of such a server is argued to be for the infringement of copyright.

However, more recent systems such as Gnutella and Freenet have sought to implement pure client to client systems in which there is no central server at all, whether for the storage of primary material (such as sound recordings in the original server model) or indexing material (such as, under the Napster model, information as to where primary material can be obtained) and where connections to other servers are dynamically determined - i.e. if you are not on line at the time you do not exist to the network. Thus, not only is the contributory infringement or authorization argument not available, there is not necessarily even any person against whom such an argument might be attempted.

The problems posed by this decentralzsation of infringement action are exacerbated by the level of anonymity permitted by distribution over the Internet. Distributors of copyrighted works who are motivated by profit need to have an identifiable location in order to receive their payments of the filthy lucre, even if this is a post office box in the middle of nowhere. However, where individuals are acquiring copyrighted works for their own edification or cost reduction, they have no interest in disclosing their identity or location and, indeed, if they are involved in not for profit distribution of infringing works, have a positive disincentive to make that information known.

Sufficiently many of the Internet's denizens appear to have deeply seated oppositions to copyright as a concept and are more than willing to engage in collective subversion of a copyright holder's interests through the reproduction of copyright material to other locations once it has been targeted by a copyright holder.

In some instances, the information may be moved entirely outside of the jurisdiction of the courts on which the copyright holder wishes to rely. At present this tends only to happen once action has been initiated against a given target, in the meantime the infringing material being the preserve of those "in the know". I

f prosecutions become more commonplace infringers may commence the infringement cycle by distributing the code as widely as they can as soon as they can [87]. Similarly for every Napster which is attacked, there are two other services waiting in the wings to take their place once an injunction is issued. Hydra is again rearing its head [88].

Intolerance of Format Inflation

The mood of the consumer has also changed over the past two decades. In the earlier part of the twentieth century consumers were content to simply be able to have access to reproductions of works. However, as time has gone on we have seen a proliferation of data storage formats on which such reproductions can be held. While driven by technical innovation in its early stages, the cynical in the community have viewed some of these developments as merely a means to prolong the profitability of a work by requiring a user to repurchase it in different formats every five to ten years.

In the music industry for example, records have gone through a number of stepped speed changes (72RPM, 45RPM, 33RPM) before being replaced by tapes (reel to reel evolving to cassette) and CD audio disks which, in turn are being attempted to be replaced by minidiscs [89]. Consumers as a whole are beginning to rebel against this idea, asserting instead that their purchase dollars should be for a media independent right of use. One example of this can be seen in the case of MP3.com. MP3.com purported to allow its users to store on the Internet music which they had validly purchased, and to be able to download that music over the Internet as and when they wanted to.

While MP3.com became the subject of legal action (and is of highly doubtful legality) it has spurred legislative initiatives in the United States to give effect to its key premise [90]. We see similar experiences in computer software with packages released which are not compatible with previous releases in some key respect, designed to require the community of users to be pulled forward by the adopters of the new release.