Forbidden Fruit

It's the world's largest music and movies superstore, and everything in it is free—and illegal. Every month, some five billion illegal downloads are passed around the internet, and the entertainment industry sues several hundred people. CP writer St

The tech wars touched off by the Napster decision—an ever-shifting tussle between forces of detection and forces of evasion—were immediately evident in the rise of Gnutella, the most popular system to appear in Napster's immediate wake. And what was Gnutella's distinguishing characteristic? It was a true peer-to-peer network, which meant that users connected directly with each other to share files, thereby making their often-illegal activities much more difficult to trace. Metallica's lawyers had learned the identities of 350,000 downloading fans from Napster's database. Gnutella afforded no such easy pickings. The system design, featuring no centralized host servers, likewise allowed Gnutella to dodge the copyright infringement morass that helped sink Napster. No centralized hosting of files meant no liability of the sort Shawn Fanning and company had incurred by playing host to all those illegal downloads.

But the lengthening arm of the law was not the only major development in file-sharing. File-compression technologies were being tweaked and refined, culminating in the development of moving-picture files of manageable size. At that point, the web pirates were no longer just the record industry's concern. For the first time, copies of first-run films started showing up online. At first the market was relatively limited: The "movies" were about the size of postage stamps, looked like shit, and played only on computers. As the quality of image-compression improved, and user interfaces got friendlier, the volume swelled. It was around this time that spoof files and files infected with viruses began to appear regularly on popular downloading sites. (The most notorious spoof files are still the ones created by Madonna to harass would-be downloaders of her 2003 CD American Life—when users played the faux-mp3s, they got no music, just an earful of Madge cursing at them for ripping her off.)

Madonna aside, though, the hassle and clutter of pop-ups and spyware at popular services were not all Big Brother's doing. Some of the problems were caused by the file-sharing programs themselves, which often included spyware in their installation bundles. But the spoof files were certainly the work of the RIAA and MPAA, which employed outside companies with names like Overpeer and MediaDefender to flood the P2P sites with phony files in the hope that frustrated users would stop bothering to download anything with those titles. More ominously, many users believed the spoof files contained tracer hooks that would land them in offender databases.

In the short term, the plan to provoke frustration and fear in users worked. Networks like Kazaa soon became so polluted with spoofs and unwanted pop-up ads that many visitors did abandon them. (In March 2006, Google named Kazaa the worst site online for "badware," hidden software that installs ads and spyware that can threaten a computer's security. A few months later, the company was closed down by courts in its native Australia, and just this past July it settled with the MPAA for $100 million.) But any sense of triumph on the industry's part was short-lived, because a great deal of the downloading traffic simply moved to the next levels of file-sharing technology, particularly ED2K (eDonkey) and BitTorrent.

In 2003, the record industry took its act to court with regularly timed flurries of lawsuits against individual users: 261 in the first volley, some 18,000-plus to the present day. (In January 2006 alone, for example, 750 were filed.) The downloaders most often singled out for litigation have been those with over 1,000 songs in their "shared" folder, mostly by popular artists. Many, though not all, of the people sued initially were users of FastTrack clients like Kazaa, because while FastTrack employed a true peer-to-peer network, it happened to prove more easily traceable than some other systems.

Some of the suits have misfired as PR gambits—like the one targeting a dead grandmother accused of sharing over 700 songs under the name "smittenedkitten." Then there was the case against a 12-year-old honors student named Brianna Lahara, whose mother had paid a $29.99 subscription fee to Kazaa and believed it to be a legal service. After the RIAA offered to settle for only $2,000 and a public apology, it was reported that the girl and her family lived in a poverty-stricken New York City housing project.

Following a series of PR snafus like these, the RIAA eventually changed law firms but kept to the plan of filing fresh reams of litigation each month. Yet as the clockwork filing of RIAA lawsuits became old news, the PR bang-per-buck of the litigation waned. This summer, in response, the RIAA modified its approach. Instead of suing hundreds of individuals scattered around the country in one filing per month, the record industry now plans to stagger its filings through the month and to concentrate each one on a particular region. Translation: If downloading busts aren't big news to ABC or the New York Times anymore, maybe they will be big news to the Omaha World-Herald.

The MPAA has never taken up the sort of continuing litigation blitzkrieg against consumers that the RIAA is pursuing. In all, the MPAA appears to have sued fewer than 100 private individuals. Tactically, the movie business is devoting relatively more of its firepower to shutting down sites and servers trafficking in illegal downloads. Earlier this year, in a specially timed pre-Academy Award maneuver, the MPAA targeted the uploading of all Oscar-nominated films. They singled out, among others, the popular sites TorrentSpy and Isohunt. This marks an interesting legal fishing expedition on the industry's part, because both sites were only search engines—not the sorts of content providers that had been prosecuted in the past.

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