EFF on USPTO file sharing report
p2pnet.net news:- Filesharing Programs and Technological Features to Induce Users to Share, a little-noticed US Patent and Trademark Office (PTO) report, attacks several leading p2p software applications, “for making user interface decisions that allegedly ‘dupe’ users into sharing files unintentionally,” says the EFF’s (Electronic Frontier Foundation) Seth Schoen on Deep Links.
The apps mentioned are BearShare, eDonkey, Kazaa, LimeWire and Morpheus.
” ‘A decade ago, the idea that copyright infringement could become a threat to national security would have seemed implausible,’ writes Jon W. Dudas (right), under secretary of commerce for intellectual property and director of the United States Patent and Trademark Office in a foreward,” p2pnet said recently in a post about the report. ‘Now, it is a sad reality.’
“If his name seems familar, you may be remembering that in 2005, he warned pupils at the Legacy Elementary School in American Fork, Utah, about, ‘downloading and copying music, movies and video games without…the artists’ or copyright holders’ permission’.”
Now, “In hyperbole that is all too familiar in Washington, DC, these days, the authors claim that P2P therefore contributes to terrorism, child pornography, identity theft, and (of course) copyright infringement,” says Schoen, going on:
>>>>>>>>>>>>>>>>>>>
Its authors include Tom Sydnor, who while an aide to Sen. Orrin Hatch was widely credited with the Senator’s infamous “blow up their computers” solution to P2P file-sharing, and Lee Hollaar, a professor who was a motive force behind the ill-fated INDUCE Act. So it’s fair to say these gentlemen have an anti-P2P agenda and a rather one-sided view of copyright law.
But the real problem with the report is that the invective, innuendo, and misguided legal analysis obscure interesting and worthwhile empirical research about the interface decisions made by various P2P vendors at various times. There is, at the heart of the report, quite a bit that makes sense.
End-users’ control and autonomy over their software environments has been under sustained assault, whether from DRM systems that try to remotely control and limit what users can do, or spyware and adware that hijack computers, or worms and viruses that increasingly use personal computers to send spam or attack other machines. All of these phenomena have in common that they try to take the user out of the driver’s seat and subordinate the user’s own choices and preferences to someone else’s desires. The PTO report makes a useful contribution in pointing out the ways in which some P2P applications may be contributing to this problem by confusing users and exhibiting behavior that users did not intend or desire.
Unfortunately, an increasing amount of software (by no means just file-sharing software) exhibits this property today. (StopBadware collects a variety of examples — including file-sharing software as well as other utilities — that have hidden or inadequately disclosed behaviors to which users might object. Sony-BMG’s “rootkit” copy restriction technology is another example.) Confusion among software users is not limited to file sharing software. A wide variety of popular software has been criticized for confusing users, and the discipline of user interaction design has been gaining prominence over time; user interaction design is a difficult and complex discipline and one in which many software developers have made important mistakes. Amidst a general epidemic of consumer confusion, the authors of the PTO report have chosen to focus their scrutiny exclusively on a few file sharing programs. (Consider, for example, that personal files have more often been inadvertently shared through Microsoft’s File and Printer Sharing tools, for example, than through P2P applications.)
But the PTO report does highlight one important difference where commercial P2P applications are concerned — commercial file-sharing companies may have an incentive to mislead users, or at least not to inform them, about what files they are sharing. After all, companies that depend on advertising and bundle-ware for their survival have a reason to encourage users to share a wide array of files that may be popular with other users. So the PTO report is right to emphasize that commercial P2P developers and P2P users may have conflicting interests. There is reason for users to be skeptical and critical of the software they use, including P2P software. Independent review by academics, computer security companies, and the IT press are helpful toward this goal, much in the way that they have helped expose security vulnerability and undesired features in many other kinds of software.
But the PTO report fails to examine the converse of their theory: whether noncommercial P2P developers (including many or most open source P2P developers) do a better job than their commercial counterparts when it comes to informing users. An examination of the noncommercial Azureus BitTorrent client, for example, demonstrates that it does a vastly better job informing users of the tit-for-tat automatic uploading inherent in the protocol than the official commercial BitTorrent client. Indeed, several of the leading noncommercially-distributed file sharing tools remain ahead of the curve on the issues criticized by the USPTO report, while competing favorably on technical merits. If noncommercial developers are more likely to keep users informed, then better information and market forces may well solve this problem without the need for government meddling in software design. (Open source supplies useful pressure to keep software developers’ incentives aligned with users’, since users are empowered to directly change features they dislike, or even fork off a competing version with design choices they prefer.) The only missing ingredient here is more information for consumers that highlights the good and bad interface features relating to the sharing of files — precisely the sort of thing that EFF, sites like Slyck and StopBadware, and the press have been doing.
Rather than taking these next steps, however, the PTO report spends most of its energy arguing that poor interface choices should make P2P vendors liable for inducing copyright infringement. By jumping to legal conclusions about legal theories that could get file sharing software developers in legal trouble, the report drifts away from the core goal of informing and empowering users, almost as though its authors put a higher priority on their notions about the legal doctrine of “inducement” than on directly protecting users. The report specifically disclaims any intention of taking on the task of educating users, but it points out that some existing documentation about disabling sharing is out of date — including EFF’s own. Since we remain committed to educating users, we welcome suggestions of resources that document popular file sharing software (including usable advice on how to disable sharing and critical analysis of how such software actually behaves). We’ll be happy to update our “How To Not Get Sued for File Sharing” page with such information; we don’t think anyone is well-served when users are confused or deceived.
Useful security analysis and consumer advocacy requires a sense of perspective that is not in evidence in the Filesharing Programs report. The authors of the report have identified improperly documented features that may be confusing to some users. These (mis)features are a discredit to the developers of the programs reviewed and, like other security and user interface problems in popular software, should be fixed (some may already have been fixed — the PTO report does not examine the most recent versions of many P2P apps).
The PTO report, however, concludes by urging someone (it is not clear who) to investigate whether these (mis)features should make P2P companies liable for inducing copyright infringement. Of course, the entertainment industry already has both the incentive and means to pursue that agenda, and is doing so in court. It’s hard to see what the PTO has to contribute there. But perhaps the FTC should take on the task of taking a more unbiased look at the issue, following up on the examination of P2P file sharing software that it began a few years ago (which the PTO report fails to mention). The goal should be to figure out how to enhance users’ control over their own computers and empower them to make sensible, informed decisions, rather than using government resources as an arm of RIAA and MPAA lawsuits.
Also See:
Deep Links – New USPTO file sharing report falls short on consumer protection, March 28, 2007
p2pnet – P2p apps ‘induce others to share’, March 8, 2007
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March 31st, 2007 at 8:36 pm
Who from azureus paid you off, jon? They raised millions in venture capital and lacking in any creativity, are doing exactly what commercial bittorrent is doing.. except they still use sourceforge which kinda makes them non-commercial [[read: lacking in servers and resources to host their own files]]