Almost exactly 2 years ago, I wrote an essay that examined the case of Arista Records et al v. Lime Group et al. It was presented on Freedom-to-Tinker in a series of three posts (1, 2, 3). These articles presented an analysis which showed that any open filesharing network, such as Gnutella, is vulnerable to spamming. Lime Wire, without advertising as much, was acting as a spam cop for Gnutella, keeping the network safe for infringers. It was my view that the decision in the case could be made to turn on the actions that Lime Wire was taking to control spammers on the Gnutella network, and if the case were examined in that light, Lime Wire could be found liable for contributory infringement while still respecting the First Amendment rights of software publishers.
Since that time, a great deal has occurred in the world of filesharing. It is worthwhile to examine the the current state of affairs, which is predictable in some ways and yet quite surprising in others.
The Arista Records et al. v. Lime Group case has been a victory for the plaintiffs. On October 26, 2010, the court handed down an injunction that permanently prevents Lime Wire from distributing its software or running any servers that maintain the Lime Wire system.
Interestingly, the court largely sidestepped the technical issues as to whether Gnutella itself had non-infringing uses or not, or whether a Gnutella client can be legally distributed. The court's decision instead turned on evidence submitted by the plaintiffs that LimeWire intended to facilitate filesharing.
As a part of the injunction, Lime Wire was required to "disable ... all functionality of the Legacy Software".
In response, Lime Wire took several actions.
This last action is rather significant. Many, if not most, modern programs include a feature that "phones home" to figure out when to inform the user that a new version has been released. Many allow automatic installations of the new version, without user intervention. It is most uncommon for such a notice to shut down the program if the user does not upgrade to the new version. It is doubtless unique among programs distributed under an open source license.
Indeed, this unusual feature of verson 5 of LimeWire was also accompanied by increased intrusiveness in Lime Wire's ability to monitor the Gnutella network. Even before v5.5.11, in which LimeWire added this "kill switch" to the client, additional ability to inspect running clients had been added. It is interesting to contemplate just how intrusive these features were, all embedded in a very widely used open source program.
This state of affairs stands in sharp contast to what LimeWire told the court in its July 18, 2008 Motion for Summary Judgement:
[The simpp.xml file does not enable LW to] control what files users search for, choose to share, or download. Also, LW has no ability to alter, disable, or upgrade LimeWire remotely once it has been downloaded and installed by the user. If LW went out of business today, users could continue using LimeWire without interruption.It appears that, behind the scenes, LimeWire knew it would be made to shut down its network well before the October injunction was issued. Version 5.5.11 was released on July 25, 2010, so LimeWire by that point was acting with the knowledge that it was going to be shut down.
Upon the demise of LimeWire as a useful client, many people simply stopped using Gnutella altogther. Though there are a large number of Gnutella clients, (see http://en.wikipedia.org/wiki/Gnutella#Software for a list) a substantial number of former LimeWire users switched to FrostWire, which got a great deal of buzz as a result. Unlike LimeWire, FrostWire does not embed ads in the client or distribute a "pro" version, and therefore the group that writes FrostWire does not have substantial revenue, as did Lime Wire.
Accordingly, the vigilant anti-spam activities that had been performed by Lime Wire disappeared from Gnutella. In a matter of short order, spammers of various sorts, including those whose intention was to block the sharing of infringing music files, managed once again to afflict the Gnutella network. In late June 2011, the FrostWire team announced that they would remove the Gnutella functionality from their code, and focus on improving the BitTorrent client. As argued before in this space, this outcome is exactly what should be expected of a filesharing network without effective spam policing.
Despite this victory over Lime Wire, and perhaps ultimately over Gnutella itself, it is unlikely that the RIAA and MPAA are raising the champagne glasses quite yet. In essence, the resurgence of BitTorrent as a music and video-sharing protocol brings the techical architecture full circle. The BitTorrent system resembles the original Napster more than Gnutella, as it has a centralized search and seeding system. The calculation made by the file-sharers appears to be that a game of legal whack-a-mole is sustainable in their favor, especially given the global nature of the hosting of trackers.
The next step for the copyright holders appears to be to get the ISPs involved in preventing filesharing, and to that end an agreement annouced on July 7 of this year between copyright holders and some of the largest ISPs is a step in that direction. Nonetheless, it is difficult to see how the relatively slow-moving copyright holders and ISPs will be able to shut down a network that is specifically intended to work as a darknet, hiding itself and moving from place to place.