Although neither the IFPI nor the RIAA was reachable by press time to confirm whether Media Tracker was in fact being used by the recording industry, it seems a fair bet that if it hasn't yet happened, it's just a matter of time until it does.

Marketing firms such as Big Champagne have already launched programs that track usage of P2P networks in the name of market research and sell the results to entertainment industry clients. Although Big Champagne promises that it tracks only general trends, and doesn't share information about specific users, there's nothing to stop the recording industry from developing its own programs that do.

Similarly, Napster is now contending with a company called Copyright.net, which conducts stings on P2P users. In late February, at the request of dead singer Roy Orbison's estate, Copyright.net's "Copyright Agent" software tracked over 1 million Orbison songs being traded on Napster. After grabbing the IP addresses of those Roy Orbison fans, Copyright.net subpoenaed their ISPs and requested the users' names. The company then forced Napster to block 60,000 fans from its service. (Playing both sides of the fence, however, Copyright.net also helps blocked users get reinstated back on the Napster system.)

Is such snooping an invasion of privacy? Technically, no. Anything you put in the public directory of your P2P software is fair game -- that's why the surveillance software can find it. And if you get in trouble for having those Limp Bizkit tunes in your public directory, well, that's your own problem too. You are allowing the general public to pirate copyrighted tunes off your hard drive -- no matter if your own MP3 copies are perfectly legal.

But that doesn't mean that surveillance is justified; can the recording industry really find no other solution to piracy except to play Big Brother and snoop on its fans? And will the tools really work, anyway?

Under the terms of the Digital Millennium Copyright Act, an ISP is required to remove a user from its system if a copyright owner insists that that user is infringing. In other words, the recording industry could force ISPs to monitor their own users or face the legal consequences. But it's an onerous burden on the ISPs to be constantly tackling them with legal warnings; some ISPs are already refusing to comply with such subpoenas. Verizon recently refused to comply with a Copyright.net subpoena, insisting that the request was not legal under the DMCA.

So, would the recording industry then sue the ISPs -- which are, increasingly, enormous telecommunications monopolies? Unlikely, says Eben Moglen. Nor, he says, would it make sense for the recording industry to try to sue, or even legally threaten, the individual users who are swapping those files.

First of all, there are simply too many P2P users to track. Moglen has been monitoring over 100 OpenNap and Napster servers, and estimates that there is approximately a terabyte of information available at any given time, essentially "vast amounts of useless data." "So given that terabyte of music shared by tens of thousands of people, is it technically feasible to collect information on those people?" asks Moglen. "Yes. it's feasible. So let's say they're collecting information on a terabyte of music. What are they going to do with that? Send a lot of e-mail messages at best. What will the people do with those e-mails? Throw them away. Is the record industry going to sue each and every one? Let's get real."

But perhaps the entertainment industry merely wants to put the fear of God into music fans who are trading copyrighted MP3 tunes (and porn, and warez, and pirated films, and whatever else you might imagine). It's possible that by picking out a few dozen of the most egregious offenders on various P2P networks, the recording industry would scare the rest of the user base into good behavior. RIAA counsel Cary Sherman has already hinted that the RIAA is considering employing this tactic against Gnutella users. In that case, programs like Media Tracker aren't really weapons -- they are elements in a public relations campaign of terror.

Scaring your customers isn't, however, a particularly logical move. If the Metallica P.R. debacle of last year proved anything, it's that insulting and alienating your fan base isn't likely to make you any new fans. Instead, Napster users redoubled their efforts to pirate Metallica tunes in order to thumb their noses at the band that was threatening to close down their favorite software. As Moglen puts it, "It's a dumb thing to scare people, because if you scare them they will hate you, and they are your customers."

Furthermore, can the record industry really keep ahead of the latest peer-to-peer software developments? Although Media Tracker or Copyright Agent may be effective monitors of networks like Napster or Gnutella, more distributed systems like Freenet or Mojo Nation are relatively immune to surveillance. When a file is uploaded to Freenet, for example, it gets passed around the servers on the network and comes to rest on various "nodes," which don't necessarily belong to the person who originally uploaded the file. In other words, while the recording industry might observe that Limp Bizkit tune being stored at a certain IP address, it's not a given that that IP address even knows that the file is there.

Explains Ian Clarke, developer of Freenet, "If you request a file from a Freenet node it will get it for you, without betraying whether it was on that node previously or not. It might be stored on that node after you requested it, but it would be silly to blame someone for having some data on their computer that you put there. That would be akin to planting drugs on someone before arresting them."

As Gene Kan, the de facto spokesperson for Gnutella, observes, the game of P2P surveillance is a kind of arms race. Technologists are going to keep inventing ever-more-wily software in order to evade industry snoops. And the industry will continue to evolve new strategies for working around that new software. Says Kan, "It's like an auction dilemma. This is a case where the tracking technique is going to incrementally catch up with the technology -- You bid a dollar, I bid a dollar and 1 cent. Technology and tracking are moving in lockstep with each other, and technology is always going to lead the way."

Arguably, the most effective way to stop music fans from pirating tunes would be to create alternatives for them: to work with Napster, or Gnutella, or any other P2P software to create a viable, legal alternative. More than a year into the war against Napster, fans are still innovating new ways to beat the system, and the recording industry has yet to produce a subscription model service that gives fans access to the music they apparently crave.

And so, the weapons of Big Brother are developed, while it remains unclear exactly how they will be wielded in the future. Sighs Kan, "Whatever happens, it certainly is going to alienate a lot of music fans."

The Free Software Project
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