Since the Supreme Court ruled ambiguously on Monday in the MGM v Grokster case the motives of software designers and programmers are now probative in pursuing civil and criminal actions involving copyright law. This story – Wired News: BitTorrent Whiz Extolled Piracy? [ archive.org ] – is about a manifesto once published on the web by the programmer who designed BitTorrent, a P2P distribution system that initially cam into my view as a way to spread the load of new Linux distributions off the servers of the (usually) poor project’s servers. Of course, it also works really well to send any large file, such as a television program or movie.
BitTorrent has subsequently been turned into a corporation, which might make the issue of ownership of the motive behind its creation more complicated, if it ever comes to that.
But what would happen if I were to create something – let’s say I examine a number of open source projects; FreeNet, waste, BitTorrent, Tor, Subversion, WebDAV, maybe a few others – and I come up with a design for a software product that is entirely encrypted with the best available software encryption techniques, fully anonymous, entirely serverless, and capable of being indexed and searched without compromising the physical location of any given node on this encrypted undernet. Furthermore, it looks like ‘normal’ Web traffic, so perimeter defenses and network sniffers can’t easily detect the traffic, nor does it appear as explicitly encrypted traffic. It can negotiate NAT and PAT, dynamically assigned IP addresses, and functions equally well in IPv4 and IPv6 environments. It integrates right into the filesystem of the host – it looks like a hard-drive or a network share. It has version control features – you can change a file and if you don’t like the changes, you can ‘undo’ them.
I do the UML diagrams, create the classes, the architectural documents, the specifications, and all the rest of what you’d need to sit down and write the code. I use my credit card to hire some Indian software house to write a reference implementation in Java or C++ that works on Windows, Macs, and Linux and I put it, and all the specifications, on a community software project site, like Sourceforge. I license it under the GPL.
Then I go to my local LUG meeting and share it, inevitably it gets into the hands of some undergraduate CS students who become the first tier of beta testers. They find that it is, among other things, an excellent file sharing utility well suited to music and movies. In fact, they find that the specifications show how to easily integrate it into their media players and they write the code to do that. Now they can search the network from within XMMS, iTunes, WinAmp, and Windows Media Player, among other.
Other people find that they can write extensions to the program that permits similar searches from within Microsoft Office’s ‘open file’ dialog box, or from KDE and Gnome ‘open file’ dialogs. It is very easy to do, and it works very well. Some one else discovers that it is obvious how to integrate their TiVO or MythTV DVR into the scope of the software, as if it was designed to be plugged-in, so they write the short bit of code needed to do that.
At this point, some agent of the RIAA, MPAA or some other distribution monopoly files suit against me personally – I have no corporate backing or liability protection – for secondary damages alleging that I created the software for the purposes of assisting others in the violation of copyright law.
So, my real question is this: What if I said the following: “I created the software to make networks better, and if in doing that it facilitates an assault orthodox capitalism and nationalism then so be it. I neither control the software’s distribution beyond the scope of the GPL, nor do I advertise the product’s potential uses, I simply advocate the product’s functional capabilities, one of which is potentially undetectable transfer of digital files in microcomputing file systems.”
Have I acted with malice towards the copyright holders? I would not deny that I had, but not against their right to control distribution afforded under copyright law, but against their right to that right in the first place. My malice is towards the artificial scarcity imposed as a legacy of the Industrial Age onto the abundance of the Information Age for the sake of conserving the power of the few over the many.
Have I aided others in violating copyright? The technology has many uses, principally the distribution of digital files. Some digital files may be constrained by the anti-redistributive wishes of their original distributors, some may not, but the system intentionally does not distinguish them as impermissible for transfer. The system is also designed to be hacked so it can support a variety of sources beyond a PC, including audio inputs, satellite radio receivers, DVRs, mobile telephone handsets, cable TV receivers, networked photocopiers, scanners, faxes, and still and full-motion digital cameras. In short, in seeking to permit the greatest currency of information, I do not actively prevent copyright violations.
I’m not wealthy, nor am I particularly well renowned. I only gain when the copyright monopolies make me a celebrity. What possible punishment can I be assessed? Jail time perhaps. Fines I can never pay? Even if I was found to be in the wrong on this new kind of liability, what could they do to me? And what consequences would they face to their reputation if they did prosecute me for secondary liability, particularly if that prosecution was well publicized?
I guess my point is that the network is bigger than (or could become bigger) than the nation-state, so using the force of a nation-states to control market threats that originate on the network might be losing its effectiveness. A college kid in Bangalore or Sydney or Cordoba has just as much power of mass disruption in the market as a multinational corporation but the power of a multinational corporation or a nation-state over an individual is less nuanced than the power of the individual; imprisonment, bankruptcy, death – these are substantial, but there is a lack of lesser responses in their repertoire.