Developing search engines almost cost four college students $97,800,000,000. That’s 97.8 billion dollars–the amount the Recording Industry Association of America requested for damages in a recent lawsuit against the four (more than the sales of the entire recording industry in one year).
The students’ crime? Facilitating music piracy and copyright violations by operating search engines that browse the “shared” files on computers connected to the university’s local area network. These search engines are widely available and are even included on Microsoft XP, but rather than picking on somebody its own size, the RIAA made its case against four college student scapegoats.
In the end, the lawsuit was settled when the students agreed to pay fees ranging from $12,000 to $17,500 each. That’s bad enough, but worse is the chilling effect the suit will have on future software development. Laws that should have shielded the defendants–used by the makers of the peer-to-peer software systems Grokster and Morpheus in their recent district court win over the RIAA–were considered too risky in light of the RIAA’s legal might.
Cary Sherman, RIAA president, describes the programs in question as “local area Napster networks,” implying they operate like the defunct file-sharing network. In fact, this type of software, called SMB search engines, is unlike Napster because it serves a pre-existing network of shared files. A more appropriate summation of an SMB search engine’s function is that it works as “local area Google network.” Yet whatever the technical differences, the case filed against Daniel Peng, Jesse Jordan, Aaron Sherman, and Joseph Nievelt is likely to have a chilling effect on the widespread practice of downloading music and video files on college campuses. Individual operators of similar search engines immediately took their servers offline once the lawsuit went public.
Part of a broad effort by RIAA to stamp out music piracy, this case raises the stakes considerably. Previously, RIAA has filed suit against Internet service providers like Verizon, demanding the identity of subscribers who download music through file-sharing systems like KaZaa, and the trade group has also pressured universities to clamp down on students who download music. (Recently, the Naval Academy and Penn State responded by shutting off Internet access and otherwise disciplining students caught downloading music illegally.) But this is the first RIAA lawsuit that targeted individual defendants by name, and it seems likely to have huge consequences for the unfolding digital revolution.
Digital Freedom Fighter?
The creator of the search engine “Wake,” Princeton University sophomore Daniel Peng is hardly a music piracy freedom fighter. In a weblog entry dated February 16, he writes that like his favorite author Ayn Rand, he considers intellectual property to be a “wonderful … concept that allows us to extend capitalism to intangibles.” Those are not the kind of words you expect from an individual the RIAA describes as having “taken a network created for higher learning and academic pursuits and converted it into an emporium of music piracy where copyright infringement is simplified down to the click of a computer mouse.” The overblown rhetoric in the RIAA’s complaint left aside, Wake is less like Napster than it is like Google. It is a search engine created to curtail the process of browsing through the individual files located on a campus LAN or “Neighborhood Network.”
The “Neighborhood Network” icon on a LAN-connected Windows desktop opens a tree of files shared on a university server. Individual computers on the network may have a series of files that anyone connected to a university server can peruse at leisure. Files can be copied and shared without a search engine, but Wake and other programs save the user some points-and-clicks by searching all available files and directing the user to the location of the information requested. As these files are already publicly available, Wake does not exclusively facilitate file-sharing or copying; it simply makes the procedure easier for the user.
Yet as fellow Princeton student Joseph Barillari remarks in his thorough analysis of the RIAA’s complaint, “although the RIAA has done much to conflate the two, the term mp3 is not a synonym for ‘copyright infringement.’” Wake is content-neutral as a search engine. A student can use Wake to find pirated music; he can also use it to find legal mp3s and other material meant for free distribution. As a post on the ChewPlastic message board notes, “I used [it] to download all kind of files, from CAD parts to porn.”
ChewPlastic and FlatLan are the other two programs singled out by the RIAA. FlatLan was the first LAN search engine created for Windows, inspired by Unix-based predecessors such as Celery/Stalk and Phynd. The most popular LAN-based file-sharing program, FlatLan was distributed free over the Internet and was used by students on several college campuses, including Bryant College, Lehigh University, Rice University, UMass-Amherst, University of Texas, and New Jersey Tech. FlatLan was created by Rensselaer Polytechnic Institute senior Aaron Sherman, along with Associate Professor Mukkai Krishnamoorthy. Krishnamoorthy also assisted Sherman with his master’s thesis, “Efficient Solutions for Peer to Peer Resource Discovery on Local Area Networks.” This paper (accessible only through the Google cache) explains FlatLan and contrasts its software to file-sharing systems that use the entire Internet, rather than self-contained LANs.
One significant difference between file-sharing systems such as Gnutella and Napster on the one hand and FlatLan and Celery on the other is the interface between users that facilitates the copying of files. Gnutella and Napster create a direct interface to copy files between each other. FlatLan and Celery use SMB, or Server Message Block, a “request-response” file-transfer protocol for Windows servers. Simply put, SMB is the command that individual computers send to servers that allow access to shared files. This command can be turned off to make material inaccessible to SMB search engines such as Wake, FlatLan, and Phynd, or a user may keep some “public” files private by protecting them by passwords that deter an SMB search engine from indexing the material. Why does this seemingly arcane distinction matter? The differences in the software goes to the heart of the RIAA’s case. Wake, ChewPlastic, and FlatLan all browse pre-existing server network connections. They do not, like Napster, create their own file-sharing servers, which can eat up bandwidth. They also do not, like Napster or Gnutella, complete the actual transfer themselves–that’s taken care of by the Windows File Sharing application available on every Windows computer. In fact, all these SMB search engines do is locate files available on shared drives. You can, of course, use these search engines to find copyrighted material if it’s available. But that is not the exclusive use of the software, as the courts have determined Napster to be.
That distinction was an important consideration for the defense. The DMCA (Digital Millennium Copyright Act) has a “safe harbor” for search engine development that requires claimants to show knowledge and intention to disobey copyright law if their product is used for copyright infringement purposes. It is unclear how the RIAA would have framed a case proving Peng, Nievelt, Jordan, and Sherman intended for their search engines to be used for piracy, since they are clearly content-neutral.
“It does seem like all it’s doing is indexing resources that are available on a network that people are already a part of,” Electronic Frontier Foundation attorney Fred Von Lohmann commented. “It doesn’t seem like there’s anything wrong with building a tool to do that. And it doesn’t seem like there’s anything wrong with running that tool.” Lohmann volunteered to represent Peng in court.
Practical Application Vs. Piracy
One of the four students, Aaron Sherman, went to great lengths to discourage people from using FlatLan as a tool for digital piracy. On the FlatLan website (via Google cache) he writes, “FlatLan IS ONLY FOR ACADEMIC PURPOSES,” and goes on to remark that non-academic use without his permission is “piracy.”
In his paper with Krishnamoorthy, he remarks, “FlatLan and Celery were designed as tools to locate files on a network and were not designed to break copyright laws.” Krishnamoorthy and Sherman note that FlatLan has a practical application for corporate networks, not only for private file-sharing purposes, but also “for keeping track of what users are sharing inappropriate files and alerting the employee before it becomes an HR issue.” Similarly, Barillari suggests that Wake could be used as a tool for the RIAA to detect piracy violations. Wake’s contents are visible–although inaccessible and untransferable–outside of Princeton’s network, so the RIAA might have taken advantage of its search capacity. They could enter searches for “Eminem” or “Shania Twain” and issue takedown notices to offenders of each artist’s copyright. That is the current procedure used for copyright complaints against Internet browsers like Google and HotBot.
Ironically, Microsoft’s Windows XP operating system includes LAN search software that makes Wake and FlatLan redundant. In its complaint, RIAA says that without “a Napster equivalent system, LAN users cannot effectively search for and transfer song recordings over the network.” However, Window XP’s help feature on “Using Indexing Service” states:
Indexing Service creates indexes of the contents and properties of documents on your local hard drive and on shared network drives. You can also control the information included in the indexes. Indexing Service is designed to run continuously and requires little, if any, maintenance.
All users of Windows XP, amounting to about 20 percent of all Windows desktops, may use the Indexing Service instead of Wake, FlatLan, or ChewPlastic.
Training Its Sights
One would expect that the RIAA worked in conjunction with campus DMCA enforcement, but the lawsuit came as a “surprise” to university officials. The president of Michigan Technological University, Curtis J. Tompkins, issued an open letter to Cary Sherman regarding the case against Nievelt, an MTU student. Tompkins details the university’s past cooperation with RIAA officials to reduce campus piracy under the “Soundbyting” campaign, and expressed his disappointment that the RIAA chose not to include the university in their investigation:
You have obviously known about this situation with Joe Nievelt for quite some time. Had you followed the previous methods established in notification of a violation, we would have shut off the student and not allowed the problem to grow to the size and scope that it is today. I am very disappointed that the RIAA decided to take this action in this manner. As a fully cooperating site, we would have expected the courtesy of being notified early and allowing us to take action following established procedures, instead of allowing it to get to the point of lawsuits and publicity.
But of course, publicity is the point. These four students are not being sued because their alleged offenses are any greater or less than that of any college student–or computer user–who downloads pirated music. Instead, the RIAA intends to make an example of them to the larger world–a visible sign of its ability to enforce its agenda.
The RIAA has learned to pick its battles. College students with limited fiscal resources are unlikely to challenge the RIAA’s Goliath. The students’ decision to settle was on the heels of a district court ruling that Grokster and Morpheus are not liable for damages as the RIAA claimed. Wake, FlatLan, and ChewPlastic are far more benign than these two internet peer-to-peer systems, which differ from Napster only in not having a central list of available files. Judge Stephan Wilson found that distinction alone to be enough to free the system operators from responsibility of user copyright infringement. Unsurprisingly, Hilary Rosen, CEO of the RIAA, pledges to appeal this ruling.
If the RIAA is successful in its appeal of the Grokster and Morpheus decision, it will serve as the prototype for its real targets: Microsoft and popular Internet search engines like Google. Already, Google allows users to search exclusively for images on the Internet, while Inktomi-powered browsers such as HotBot allow you to directly search for mp3s and other specified file types. Undoubtedly, these two Internet browsers have facilitated many copyright violations. If RIAA has its way, facilitating such infringements will become an excuse to haul some of the world’s most innovative companies into court.