Napster; The P2p Model - Essay Example

NAPSTER; THE P2P MODEL Introduction: Peer to peer software was developed by an American Teenager, Shawn Fanning, through his system for music sharing called Napster. This allows users to swap music directly from one computer to another without the need to go through a central server.(Annonymous, 2000). The system became so popular that Napster had 20 million users in 2000, with the number ever growing. The process of downloading music off the Net was initially a cumbersome process because music files contained too much of data – up to 172 kilobytes of information per second (Westrup 2000). A single AIFF sound file used on audio CDs takes up 8.75 megabytes of storage space for each minute of music, so that even with a 56K high speed modem, an individual song would take at least an hour to be downloaded.(Woodworth, 2004). During the process of making a digital recording, sound waves are changed into the digital format. Since sound travels through the air in waves, it must first be transferred to a transducer in order to convert the sound waves into voltage variations. This further moves to an analog to digitial convertor. The analog voltage is converted into digital bits, each of which is assigned a number with a particular binary value, which are then recompiled within the storage facility of a computer.(Anderton, 1985). Each of these bits is a sample and the samples can be altered by changing the binary values so that when they are played back they appear in a different arrangement. Sampling is used especially heavily where rap music is concerned and in the words of rap producer Daddy-O, sampling is what a person “put[s] together out of the bits and pieces other people have done. Once you have the complete product, you have a completely different picture.”(Zimmerman, 1989). The advent of a computer program known as MP3 revolutionized downloading of music because music files could be compressed using a compression algorithm. This algorithm detects all repetitive patterns within a music file and assigns them a common code, replacing the code wherever the repetitive pattern occurs. In this manner, the bulk of the file is considerably reduced to about one tenth of its original component, without any depreciation in quality taking place.(Westrup 2000). The MP3 program allowed users to quickly and easily download music files on to their hard drives, however usage was limited and such files were available only on a few websites. But Fanning devised a way to bypass the web servers, through the development of a software program called Napster, that allowed users to access the Napster central registry, to swap files from each other without going through the web servers at all. Since each user lists the songs he/she has stored on hard disk through the Napster registry, a user searching for a particular song can boot up the registry and connect to the PC of the user who has those songs, while others can similarly access the song stored on his hard drive. This was later developed further by other file sharing software such as Gnutella, Grokster and Morpheus, which specifically utilizes the P2P file sharing mode, whereby users can directly exchange files with each other without the need to use a centralized server, but by connecting directly with each other and accessing the hard drives (Lee Saw and Koh, 2005). This technology has been further refined through the use of the Bit Torrent protocol where by P2P users can transmit large multi media files.(Hendrix, 2007). The P2P model may therefore be characterized as a decentralized mode of file sharing that allows users to download music off of each other’s computers directly. Lee Saw and Koh (2005:420) point out that while Napster originally reserved “a broad discretionary right to deny user access and terminate accounts” if its users violated the norms of sharing in any manner, the more recent types of P2P file sharing software as mentioned above only provide the technology, but do not try and regulate user behavior in any way – they allow “independent and uncontrolled user interaction.” Therefore, this lays the ground wide open for potential misuse of the technology through the decentralized framework that now exists. The problem of illegal downloading of music: Since software development has been a relatively new area of creative product development, it has been accessible to a large number of users, fairly easily, but this has raised legal issues of protection of the rights of the owners of the intellectual property and their right to economic benefit from the fruits of their creativity. (Cornish, 1996).This is however, pitted against public values and the need for citizens to access digital content in a spirit of education and innovation. Regulation of web content which has been affected by the rise of companies such as Napster and the concept of file sharing( Beigel, 2001). Through this device, it is possible for music to be downloaded by thousands of users, thereby resulting in losses to recording companies in the United States and other countries from loss of revenues gained through record and CD sales. Moreover, it is also possible for users to easily modify the content, so that it becomes difficult to detect the tracks of infringement. Bit Torrent technology created a stir because it became possible to download entire movies at lightning speed, thereby removing the incentive for users to pay for the viewing. (www.bittorrent.com). P2P networks have created an arena where large scale copying and duplication of matter is as easy as the click of a mouse. Moreover, concepts such as file sharing make it difficult to pin down the infringement on to a particular source, because at any period of time, the content can exist on the computers of different users and the path of transmission is also difficult to trace because its scale is so enormous and decentralized. (Bowery and Rimmer 2002). Since Copyright Law generally requires a specific target to be identified to bear the liability of infringement, a copyright infringement action becomes almost impossible, even when such infringement is discovered. In the case of Napster, it was possible to identify a central source from which the infringement originated (A&M Records v Napster), however this is not possible in every case. However, in the case of MGM v Grokster, decentralized file sharing resulted in an ambiguity in defining physicality, as a result of which liability could not be effectively established. (Lessig, 2004). As also pointed out by Carse (1940) in his discussion of the history of the development of music rights, the economic potential in a piece of music largely lies in its novelty, therefore speed of distribution to the public plays a vital role in the economic potential of the work – where the legal aspects are concerned, it is therefore the law of the jungle that is prevalent in the music business. By appropriating portions of or entire musical compositions which are an expression of the distinct personality of an author, there is an infringement of the moral and creative rights that exist in a work and belong solely to the author. Furthermore, in some cases, those who sample music may be able to get away with using the music without paying due compensation, thereby directly impacting upon the economic benefits that should accrue to the author. While moral rights emphasize the personal rights of the author due to the fact that personality cannot be transferred(www.rbs2.com) the anonymity of the digital environment challenges traditional notions of the protection of an author. Where the issue of contracts in the music industry are concerned, the question of exclusivity of use of the material and the right to exploit it are a vital part of the rights of the Plaintiff, in order to preserve the economic potential of the composition.(www.musicforlondon.co.uk) Vertrone (2003) also points out how the proliferation of sites such as Napster and Kazaa which promote illegal downloading of music without payment of consideration only results in a further ripping-off of artists. Major recording companies such as RIAA, LARAS and NARAS, Sony and Emi have embarked on an aggressive campaign to wipe out music piracy on a global level, since these Companies are suffering enormous losses in revenue that arise out of illegal downloading of music (Bishop, 2004). They have also been successful in getting legislation enacted in their favor, such as the No Electronic Theft Act. However, as Bishop succinctly points out, the overriding reason for such piracy of music is the high cost of audio and video CDs and most of the profits gained from sales of such CDs go into the pockets of the recording companies rather than benefiting the artists themselves. On this basis therefore it may be argued that P2P networks may provide a forum for both musicians and consumers where the middlemen such as recording companies, who amass profits are eliminated form the picture. However globalization and the dissolution of trade and technological boundaries have created a situation where the protection of IPR has become a hotly contested issue, since it is difficult to regulate IPR within a cyber environment. In recognition of the need to regulate IPR within an international context and afford protection, the constitutional definition of intellectual property by international standards is set out through the TRIPS agreement.(TRIPS). Under the TRIPS international agreement, software is protected on par with literary texts, under copyright law. (Article 40(1) and 10(2) of TRIPS agreement). After the developments that resulted from Napster offering musical material that had not been released to its customers based on a P2P (Peer to Peer network), several Companies that create content have woken up to the dangers of the online environment, which in turn led to legislative reforms in the form of the Digital Millennium Copyright Act in the United States (DCMA), that is also being adopted by other countries such as the UK and Australia. This Act has five main provisions: (a) broad based technology right of communication to public (b) extension of fair dealing measures (c) Provision for copyright owners to introduce TPMs (Technological protection measures) (d) limiting liability of ISPs for third party infringement in certain circumstances (e) licensing for free to air transmission broadcasts. Provisions have also been made under the Act for prosecution of those why try to circumvent TPMs (Argy et al, 2003). Assessing the impact and future of P2P: Hendrix(2007) mentions many of the advantages that have resulted from the offshoot applications of the P2P file sharing model. One of these is Instant Messaging, which is becoming a widely used means of communication among 53 million users in America. As a result, the efficiency of remote collaborative work is enhanced and Hendrix (2007) states that IT managers, law firms, technology companies and investment companies have invested in P2P systems in order to speed up their communications, utilize idle storage space and speed up the day to day business activity. The popularity of P2P networks is such that IM is becoming more widespread and preferred as a medium of use as compared to email. The author has reported several studies that show the increasing preference of Americans for the use of Instant Messaging as opposed to email, since multi media content can also be transferred through IMs. Moreover, the significant factor is that there is an increasing perception among younger people that file sharing is not viewed as illegal, and most young people were of the opinion that sharing files and music should not be restricted by law. The older the population, the more the prevalence of the view that illegal file downloading should not be allowed. Therefore, this provides a definite indication that younger users are more receptive to the new technology and strongly support its use. In view of this, it appears likely that the propagation of P2P networks in the future is assured. Another interesting aspect about P2P networks revealed by Hendrix (2007) is the use of such file sharing technology in e-learning. There are also other beneficial uses of P2P such as the facility for collaborative work and the sharing of digital resources, apart from the facility of e-learning. Moreover, P2P networks allow sharing of material without the imposition of censorship, all of which constitute benefits that are likely to ensure its continued application in the future as well. In his paper assessing the impact of P2P networks and the likely ramifications for the future in China, Xiahoe (2006) pinpoints the benefits and the controversies surrounding the development of P2P networks such as Napster and Gnutella. While he acknowledges that P2P is very significant because it is an advanced technology and is a powerful for enhancing the popularity of music and sharing common human and spiritual values through music all over the world. However, the controversies generated by the P2P networks are caused largely due to the illegal use of the technology for file sharing of copyrighted music. He highlights the advantages of P2P music production, since one of the major weaknesses inherent in the traditional recording systems is the fact that decisions on what kinds of music should be produced are still made by the recording Companies. As a result (a) it is a few people who determine what the music choices of the majority should be (b) such choices may not be acceptable to the majority and this could account for the fluctuations in the music market (c) music producers therefore try to market in albums to pass on the risk to the public (d) this has a contra effect in that people are forced to buy albums and may not be able to focus feedback on a particular artist or piece of music, as a result of which certain types of music or artists may be neglected. (Xiaohe, 2006: 69) P2P technology however allows listeners the facility of listening freely to various kinds of music and downloading what they like. Moreover, the facility of sampling and mixing also allows consumers to become creators of music, thereby allowing for a vast musical marketplace over the Net that is accessible to everyone. Therefore, as opposed to a minority few dictating the music choices of the majority, people have more freedom of choice in terms of their music through P2P networks and the feedback received is also likely to be more meaningful. As opposed to earlier times when recording companies like the RIAA decided whether or not production of an item of music should be continued or discontinued, this is no longer the case since it is the consumers who make those choices. However Xiaohe(2006:72) concludes that on an overall basis, the potential of the advanced P2P technology has been undermined to a considerable extent by the illegal downloading and copyright violations that are continuously taking place. He has recommended new legislative developments in the interests of the public that can also protect the copyright owners, so that the P2P model is used within an ethical framework. In this context Lee Saw and Koh (2005) have recommended that copy protection devices such as DRMs are used, which include encryption, use of passwords, a pay-per-use mechanism or other technologically feasible means to control and regulate access to copyrighted materials. Lessig has suggested the creation of a creative commons, a forum where all creators of original work voluntarily allow their material to be accessed through gaining a license from the owners, so that some measure of control is retained by the owners over who accesses their material, without restricting the rights of the public to access creative material. (www.cretaivecommons.org) Lee(2005) has presented an argument in favor of allowing software developers the freedom to innovate and develop technologies that may be used for non infringing purposes, as per the Sony doctrine. He points put that when Sony developed its Betamax video recorder and attempts were made to bar its use, the Supreme Court of India was in favor of development of new technologies and did not allow the opposition to stand (Sony Corp of America v Universal City Studios, Inc). The Court held that Sony could not be held guilty of secondary liability arising out of copyright infringements by customers using the video cameras. In a similar way, the development of P2P technology is unlikely to be stopped and customers will definitely use a new technology that is available to them, as also pointed out by Xiaohe (2006). In order to fall into the same category of a safe harbor that Sony’s new technology symbolized, Lee states that three requirements are necessary: (a) the product should be shown to be capable of a “significant number” of “potential uses” which are non infringing and may have commercial significance, as was stated in the Sony case. Since the video recorder had another non infringing use, which was home videos, it satisfied this requirement. He has emphasized that p2p software has an important non infringing use – it enables people all over the globe to share content and become publishers themselves, thereby allowing for a broad dissemination of speech under the First Amendment. In the Groskter case cited before, the Court found that p2p software was also used to share other kinds of information such as Government documents and research material, which constitute a non infringing use. His conclusion is that the spirit of innovation symbolized by new technology must be preserved at all costs, especially those that have non infringing uses. Therefore, clamping down on the p2p software may set a damaging precedent to all innovators of new technology, since the prospect of a looming business liability for development of technology that could be misused for infringing purposes would chill innovation, especially when the same technology could also have non infringing uses. Lin Saw and Koh (2005) assess whether P2P technology has a future by examining the situation with the technology in Singapore. He draws particular reference to the legislative provisions incorporated into the Digital Millennium Copyright Act of 1998 and the implications of such provisions for the future of the P2P model. The right of communication of a artistic work to the public by wire or wireless means will impact upon the rights of members of the public to access material. Since P2P users access music directly from each other rather than from the copyright holder or a person authorized by the copyright holder to dispense the material, they could be held liable for infringing the right to communication, since it is the copyright holder who is allowed to determine the mode and method of access. As Lee Saw and Koh(2005:425) have stated, it is now a criminal offence to willfully infringe copyrighted material, especially if such materials are transmitted in quantities large enough to provide a commercial advantage, such as those business that operate file sharing networks. First time offenders may face a fine of up to 20,000 dollars, while there are harsher measures available to cope with repeat offenders. In the context of individual P2P users, criminal liability attaches when private individuals allow access to large volumes of files from their hard drives or similarly access large volume sof material. A student of the University of Arizona was sentenced to three years of imprisonment because the FBI found more than 50 millions dollars worth music and movie son his computer (www.kvoa.com). However, as opposed to copyright implications, Lee Saw and Koh(2005:427-428) also point out the benefits of P2P file sharing, in that it allows users to sample an artist’s music and learn more about a particular artist, thereby forming a guide in the consumer’s purchasing decisions. Users of P2P often discuss artists in chat rooms or on other online forums, thereby enhancing music sales of artists who receive good reviews from P2P users who have sampled their music. These authors have also highlighted reports which show that music sales is actually increasing in the United States since the onset of P2P sharing. There is potential for higher exposure for a wider range of music artists through the Internet, to make their music commercially viable, as opposed to the earlier scenario, where they had to depend upon a few recording companies to support and promote them. On this basis therefore, Lee Saw and Koh(2005) have concluded that despite all the controversies generated by the P2P model, it is likely to survive. They point out that consumers prefer downloading music only because of the exorbitant prices of audio and video CDs, and are perfectly willing to pay for online use of material if the price is right. The authors are of the view that P2P technology will survive because of its inherent social and economic benefits – the facility of cost effective and convenient distribution of materials. The benefits of this nascent technology are therefore likely to ensure that it is preserved, in the same way as copy machines and video recorders have not been outlawed. P2P –revolutionizing the music industry: In view of the foregoing, there is a clear indication that P2P has indeed revolutionized the music industry. Through the facility of decentralized sharing, it has allowed music consumers to take control of the kind of music that they want to hear and the artists that they want to promote. Music production is largely dictated by the choices of the majority rather than imposed by the views of the minority few in the recording companies, who earlier made the decisions about what the public should hear or not hear. Through the use of sampling, it has provided a forum for artists among members of the public that is unsurpassed. While artists had to earlier depend upon the recording Companies to promote them, they may now promote themselves inexpensively over the Internet. There is scope for a much wider range of artists to gain exposure through the facility of P2P sharing. Moreover, there are also other useful applications of P2P that have been demonstrated in the discussion above, such as the facility for collaborative learning, e learning and instant messaging, all of which are beneficial in terms of social and economic benefits. They enable an extent of sharing of music and other materials over the Internet that brings about high levels of human communication and sharing all over the globe, an opportunity for rich interaction among different kinds of people all over the globe. The negative implication of the P2P networks has been upon the copyright of music producers and recording companies through the illegal downloading of files and unauthorized distribution. Through such illegal piracy, the economic incentive of the original creator of the music may be destroyed, since he/she is deprived of the economic benefits of his/her work. This is the reason why there has been so much opposition to the concept of P2P networks, because they remove the systems of control that have been imposed through Copyright law for the protection of the innovation and creative skill of original creators of musical and other works. They have posed a potent threat to copyright, especially because when music is available free, there is little incentive for consumers to pay for the music. However, in conclusion, it may be stated that P2P is a nascent technology and therefore has considerable value and benefit to mankind, especially in its many non infringing uses. Therefore to outlaw or prohibit P2P would not be an acceptable alternative. Rather, effective means of controlling copyright protection must be devised, using the tools of technology – such as passwords, etc, as have been proposed by the authors whose views have been examined above. The P2P technology may have actually provided a boost to the music industry because it has resulted in much wider distribution of music throughout the globe on an unprecedented scale. It has turned the music consumer into a music publisher, because he can create and enjoy his own music. It has made music accessible to a wide range of members of the public, for whom the high prices of audio CDs had made certain types of music inaccessible. Moreover, the enhanced popularity enjoyed by P2P networks among the younger sections of the population appears to indicate that the technology is here to stay. Therefore, copyright regulatory measures are continuously being devised and need to be refined through other tools of technology. But the revolution that P2P symbolizes to the music industry, the fresh energy it has pumped into the distribution and enjoyment of music all over the globe, is a revolution that is here to stay. 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