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Commercial Litigation Woods Lonergan LLP


TECH - In Defense of the Swarm (P2P Filesharing)

June 8, 2010

E. Logan Lo

Steve McQueen had some great films – Bullitt and The Magnificent Seven spring to mind. But he could have also been the Sundance Kid, Popeye Doyle and Capt. Willard, in Butch Cassidy and the Sundance Kid, The French Connection, and Apocalypse Now, respectively.

Unfortunately, he turned down these iconic roles; imagine, however, if he took the job and played those parts. Boggles the mind. Instead, he's been relegated to the opening statement of this article and an upcoming Webinar Blog on the Dangers of Downloading.

On that point, consider the what-if of Napster and RIAA. To briefly summarize, the Recording Industry Association of America sued Napster in 2000 for contributory and vicarious infringement of RIAA's copyrights plus direct infringement by its users on their copyrights. After losing in court, Napster was bankrupt by 2002.

But note that file sharing is as thorny and prevalent an issue as ever. If the lawsuit was done to punish Napster, then that goal was certainly achieved. Besides this, however, little else was accomplished.

  • RIAA did not manage to dissuade others from creating and implementing P2P networks - if anything, they're far more advanced now.
  • RIAA did not manage to compensate its artists for lost revenues.
  • Napster was shut down, but countless replacement P2Ps filled its place.

The lawsuit was costly for everyone involved, not just in terms of money but time and goodwill as well. Everyone lost - Napster, the artists, the users, RIAA, the musicians.

OK, maybe the lawyers made a few bucks, but that's really neither here nor there.

Let's pause for a moment to think about the nature of peer-to-peer - it's simply a means of distribution. What exactly is the opposite of P2P? Broadcast.

While P2P is symmetrical communication and traffic - both the sender and recipient communicate data and either can play the other role at any time - Broadcast requires that the roles of sender and receiver be fixed. It is, by its very nature, inefficient.

The days of $19.99 CDs are gone and no amount of litigation will bring that back. Those that prosper are those that see the world as it is, not as they merely wish it to be.

Imagine if RIAA had done things a bit differently. Napster once had a whopping 26.4 million users verified uses worldwide in February 2001, or about six million more than the population of Australia. And as any internet startup will tell you, it's the cost of building an audience that gets you. If RIAA had used a scalpel instead of a sledgehammer, it could transformed Napster into partner for recording artists without the cost or concern of building an audience and with the inherent efficiency of P2P.

Instead, RIAA and its members are beholden to iTunes as both to pricing and distribution having traded one upstart for another, one uncontrollable distribution model for another.

The King is dead, long live the King.

Incidentally, Steve McQueen also turned down Close Encounters of the Third Kind, Oceans Eleven, and Dirty Harry.

It could have all been so different. Boggles the mind, I tell you.


This article is cross-posted to the Martindale-Hubbell IP Forum. It is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. Mr. Lo and his firm, Woods & Lonergan, do not intend to create an attorney-client relationship by offering this information, and anyone's review of the information shall not be deemed to create such a relationship. You should consult a lawyer if you have legal matter requiring attention. ©Logan Lo and Woods & Lonergan.

Mr. Lo is an attorney with Woods & Lonergan, a commercial litigation firm in New York City and can be reached via email at: