About time somebody wrote a book on this!

-david

------

http://www.itnews.com.au/News/279763,how-litigation-only-spurred-on-p2p-file-sharing.aspx

How litigation only spurred on P2P file sharing
By Rebecca Giblin on Nov 11, 2011 12:30 PM (1 day 10 hours ago)
Filed under Telco/ISP

Analysis: Did the content industry lose the legal battle?

Do you remember back in 2001 when Napster shut down its servers? US
courts found Napster Inc was likely to be liable for the copyright
infringements of its users. Many of Napster's successors were also
shut down.

Aimster and its controversial CEO were forced into bankruptcy, the
highest court in the US strongly suggested that those behind Grokster
and Morpheus ought to be held liable for "inducing" their users to
infringe, and Kazaa's owners were held liable for authorisation by our
own Federal Court. Countless others fled the market in the wake of
these decisions with some, like the formerly defiant owners of
Bearshare and eDonkey, paying big settlements on the way out.

By most measures, this sounds like an emphatic victory for content
owners. But a funny thing happened in the wake of all of these
injunctions, shutdowns and settlements: the number of P2P file sharing
apps available in the market exploded.

By 2007, two years after the US Supreme Court decided Grokster, there
were more individual P2P applications available than there had ever
been before. The average number of users sharing files on file sharing
networks at any one time was nudging ten million and it was estimated
that P2P traffic had grown to comprise up to 90 percent of global
internet traffic. At that point content owners tacitly admitted
defeat, largely abandoning their long-time strategy of suing key P2P
software providers and diverting enforcement resources to alternatives
like graduated response or "three strikes" laws.

Why is it that, despite being ultimately successful in holding
individual P2P software providers liable for their users'
infringement, content owners' litigation strategy has failed to bring
about any meaningful reduction in the amount of P2P development and
infringement?

Physical vs digital

I would argue pre-P2P era law was based on a number of "physical
world" assumptions. That makes sense, since it evolved almost
exclusively with reference to physical world scenarios and
technologies. However, as it turns out, there is often a gap between
those assumptions and the realities of P2P software development.

Four such physical world assumptions are particularly notable in
explaining this phenomenon.

The first is that everybody is bound by physical world rules. Assuming
this rule had universal application, various secondary liability
principles evolved to make knowledge and control pre-requisites to
liability. But software has no such constraint. Programmers can write
software that will do things that are simply not possible or feasible
in the physical world. So once the Napster litigation made P2P
programmers aware of the rules about knowledge and control, they
simply coded Napster's successors to eliminate them – something no
provider of a physical world distribution technology ever managed to
do.

In response, the US Supreme Court in Grokster created a brand new
legal doctrine, called inducement, that did not rely on either
knowledge or control. That rule was aimed at capturing "bad actors" -
those P2P providers who aimed to profit from their users' infringement
and whose nefarious intent was demonstrated by "smoking guns" in their
marketing and other communications. But the inducement law failed to
appreciate some of the other differences that make the software world
special and thus led directly to the explosion in the number of P2P
technologies. In understanding why, three other physical world
assumptions come into play.

One is that it is expensive to create distribution technologies that
are capable of vast amounts of infringement. Of course in the physical
world, the creation of such technologies, like printing presses,
photocopiers, and VCRs required large investment. Research and
development, mass-manufacturing, marketing and delivery all require
massive amounts of cash. Thus, the law came to assume that the
creation of such technologies was expensive.

That led directly to the next assumption – that distribution
technologies are developed for profit. After all, nobody would be
investing those massive sums without some prospect of a return.

Finally comes the fourth assumption: that rational developers of
distribution technologies won't share their secrets with consumers or
competitors. Since they needed to recoup those massive investments,
they had no interest at all in giving them away.

All of these assumptions certainly can hold up in the software
development context. For example, those behind Kazaa spent a lot on
its development, squeezed out the maximum possible profit and kept its
source code a closely guarded secret. By creating a law that focused
on profits, business models and marketing, the Supreme Court succeeded
in shaking out Kazaa and its ilk from the market.

But the Court failed to appreciate that none of these things are
actually necessary to the creation of P2P file sharing software. It
can be so inexpensive to develop that some university programming
courses actually require students to make an app as part of an
assignment. When the software provider puts in such a small
investment, there's much less need to realise a profit. This, combined
with widespread norms within the software development community
encouraging sharing and collaboration, also leads to some individuals
making the source code of their software publicly available for others
to adapt and copy.

When the US Supreme Court created its new law holding P2P providers
liable where they "fostered" third party infringement, as evidenced by
such things as business models, marketing and internal communications,
the result was an enormous number of programmers choosing to create
new applications without any of those liability attracting elements.
In the absence of any evidence that they had set out to foster
infringement, they could not be liable for inducement, and having
coded out of knowledge and control they could not be held liable under
the pre-P2P law either.

The end result? The mismatch between the law's physical world
assumptions and the realities of the software world meant that the law
created to respond to the challenges of P2P file sharing led to the
opposite of the desired result: a massive increase in the availability
of P2P file sharing software. The failure of the law to recognise the
unique characteristics of software and software development meant the
abandonment of the litigation campaign against P2P providers was only
a matter of time.

Dr Rebecca Giblin is a member of Monash University's law faculty in
Melbourne. Her new book Code Wars tells the story of the decade-long
struggle between content owners and P2P software providers, tracing
the development of the fledgling technologies, the attempts to crush
them through litigation and legislation, and the remarkable ways in
which they evolved as their programmers sought ever more ingenious
means to remain one step ahead of the law. The book explains why the
litigation strategy against P2P providers was ultimately unsuccessful
in bringing about any meaningful reduction in the amount of P2P
development of infringement.

Visit codewarsbook.com where you can read the first chapter in full.
Physical copies can be ordered online from stores like Amazon and Book
Depository, and electronic copies are available via Google books at a
heavily discounted price.

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After an all-night reading binge, I finished re-reading Isaac Asimov's "The End of Eternity" -- one of my favorite books by my favorite author.  I hadn't read it since, I don't even know, high school?  In the nearly twenty years since it's always stuck with me.  Like all of Asimov's work, I think he wraps an adequate story around some core, brilliant concepts.

In this case it's exploring the consequences of humanity inventing, in essence, a "time elevator" -- step in at one year, and step out at any other.  It can go backwards through time as far back as when it was created (in this case, around 2400), and forward as as far as when the sun becomes a supernova.  The story centers around a group of people called The Eternals who manage and use the elevator, ostensibly for the purpose of enabling trade between times (your century have deforestation? import wood from the future!), but secretly also to tweak time for the greater good of humanity: something as simple as shifting a jar from one shelf to another could prevent disease, war, and the ever-present threat of nuclear apocalypse.  Wrap in a mystery (why can't you get out of the elevator between the years 10M-10.5M, and why aren't there any people after 10.5M years?) a romance (between an Eternal and a Timer), and enough paradox-management to make Primer seem sensible, and you've got yourself a heck of a book.

The first time I read it all those years ago, I was most interested in the ultimate consequences of a well-intentioned organization devoted to the ostensibly positive goal of mitigating the worst disasters of human history and ensuring trillions of lives achieve the happiest possible existence.  (Read the book to learn how that all ends up.)  

But this time I was more interested in the minutiae of time alteration itself: the so called "ripple" of small changes having profound long-term consequences.  This isn't a remotely new concept, but a few other recent developments made me think more on it.


Jumping to the present: I'm writing this from a balcony overlooking a river full of long, low boats in Hoi An, Vietnam.  I'm here with my company for our annual month-long retreat, where we leave the real world behind for some foreign location far removed by space and time(zones) to work hard, get to know each other, and ultimately get a new perspective on all the things we take for granted -- in both our personal and professional lives.  This is our fifth annual trip, spanning this startup and the last, and it's always a very interesting experience.

Most of it involves a of sitting around in cafes working on our laptops, but on weekends we typically head out on some adventure.  Yesterday was such a day, and we rented moto-scooters and zipped over to the Marble Mountains -- five tall pillars of rock jutting out of an otherwise perfectly perfectly flat region.  Atop the tallest of the five is an active Buddhist monastery, with tall pagodas and stunning vistas in all directions.

But more interesting still were the caves worn into this rock over the millennia, each of which was repurposed into a different temple -- turning the entire mountain into a single huge temple, with awe-inspiring statues nestled deep within the earth.  The improbable size of the underground caverns and their enormous carved-in-place statues was, at times, overwhelming.  It's almost inconceivable to imagine the manpower required to first haul the materials for such a monastery up the near-vertical mountain trail, by hand, and then continue an equal distance back down into the earth to build within the caves.  As a foreigner who doesn't share the religion (or in my case, any religion), I couldn't help but wonder: Who would do such a thing, and why?

The "who" part of that is of of course clear: the large  number of Buddhists in the region built the temple at enormous expense over a tremendous period of time.  But the "why" is what captured my attention.

Why spend so much energy on such a magnificent creation, in a region that clearly could have benefited by that energy being spent elsewhere?

Now again, there are a host of obvious answers, each of which plays a part.  For one, there's the allure of earning favor from the gods.  When trying to influence your fate in this life (or position in the next), there are obvious advantages to participating in such an exercise.

And of course there's the political and religious order that depends on the physical show of strength such imposing structures create.  If we can cause this to happen in this world, so the reasoning goes, imagine what we can do in the next.

But I think these are only symptoms of something more fundamental and universal.  After all, imposing structures aren't the exclusive work of theistic religions.  Athiestic ancestor worship nearly always includes lavish shrines or temples to honor the dead -- the people least likely to benefit from the attention.  And this isn't just a religious desire.  Nations, businesses, and even individuals invest in physical structures rich in symbolism: the national monuments, the stone facades of banks, or even a marble headstone to carry your name forward into history long after you're gone.

What is it with the universal desire to transfigure the temporary into the permanent using tangible symbology?  And why is the primary medium used almost always stone?

And this brings me back to the book: I think there's a strong desire in nearly all people to create a "ripple in time", as big as they can.  It's almost literally like dropping a stone into a river: the bigger the stone, the bigger the ripple.  After all, diamonds may last forever, but they tend to move without your permission once you turn your back.  A giant stone statue has a bit more permanence, especially when hidden on top of a giant pillar of rock, down in a deep cave, elevated on a tall platform out of reach, and physically larger than all openings.  *That's* forever.  

So I could take this thought experiment in a few directions.  One would be to challenge whether stone is the best medium for creating a splash.  Other common ones include DNA, religion, ideology, myth, lore, legend, teaching, post-dated letters, memoirs, commissioned artwork, family heirlooms, etc.  You can't help but create a ripple of some sort, or avoid being a product of the ripples that came before you.  But you *can* take action in your life to maximize the extent of your ripple.

(And there are high tech solutions like Kiva.org enabling micro-loans that re-invest to people in need when repaid.  This has the effect of identifying people with entrepreneurial spirit, giving them the capital to grow their business and improve their standing in the world, enabling them to spread the entrepreneurial spirit through all the same ways everyone else has -- but with more means at their disposal.  A single Kiva investment could be re-invested every 6 months for 50 years (based on a 2% default rate), meaning a single investment can help a hundred people over a major fraction of your lifetime.  *That's* a ripple. -- Thanks to Matt McNamara for pointing this out to me!)

I could also question why we have this innate need to make a splash, and whether it's universal or limited to a subset, whether this desire to make a splash can itself be taught (making the biggest ripple of all), or even whether that's something anyone might want to do.

And I'm sure there are a dozen other interesting directions.  But the direction I want to go with is to expand on an idea I wrote about previously, regarding the relationships between consciousness and tools.

Now, you can read all about it in a rambling essay even longer than this one.  But in short: I feel what separates humans from all other creatures is our exceptional ability to invent and use tools.  (Yes, other animals do this too, but I think it's safe to say we're the best.)  Furthermore, it's my belief that using a tool doesn't merely extend your reach, it physically -- in the most literal sense -- extends *you*.  When you hold a hammer in your hand, the hammer is every bit as much a part of you as your hand, your spleen, or any other tool.  We are in fact nothing but a collection of tools, all under some miraculous and ambiguous and sort of "conscious" control.

Building on this notion, with tools being literal extensions of yourself, what are the ideas you have, the books you write, or the stone statues you build  -- other than more tools?  Sure, like any tools they're not all equally effective at achieving whatever intent you set the tool upon.  But the right tools, maintained in the right context, might continue to be effective even after your body dies.

And if the tools are literally a part of you, and if those tools continue to achieve your desired effects long after you die, did you really die at all?

So long as there's some part of you -- some tool of you that's still functioning -- you're still alive.  And if "life" is measured as the scope of your tools, is it possible that you might grow *more* alive over time?

After all, the Buddha was just one guy in his day.  But now he is a vast organization of billions of people.  Maybe the secret to eternal life isn't through the supernatural, ascending to Heaven or Nirvana.  Maybe it's just leaving a part of you -- the best part of you -- behind as your body degrades,  such that it can grow eternally, freed from its confines?

I'm on a Delta flight equipped with GoGo in-flight wireless, and they
have an interesting campaign going on: free Twitter for all. It's a
pretty slick campaign, but I think it raises interesting net neutrality
issues because, in essence, Twitter is paying for preferred access.

Personally, I'm ok with it: I don't have any problem with an internet
carrier creating a "fast lane" that either side of the connection can
pay extra to use, so long as the lane is made equally available to all
comers, on the same terms.

That's not to say that all advertisers are required to accept
advertisements from all organizations -- I'm not excited about it, but I
wouldn't outlaw GoGo from accepting an ad for the Catholic Church on the
GoGo website while refusing an ad for atheism. As a publisher, GoGo can
choose what message to put on its own website, even if that message is
discriminatory.

But as a communication medium, GoGo shouldn't be allowed to grant free
access to websites hosted by the Catholic Church, while simultaneously
refusing the same deal to an atheist organization.

I understand it's a tricky and totally arbitrary line, but I think
content-discrimination should be legal (to enable free speech), while
communications-discrimination should be outlawed (to prevent restriction
of free speech).

I think too much of the NN debate is wrapped up in thinly-veiled
anti-corporate fearmongering (the little guys need to be protected from
the big guys!!). Even if it's a fine goal (and I don't think it is), it
doesn't seem to have any Constitutional or free/fair-market basis that I
can see.

Net neutrality shouldn't be about mandating equal performance, but equal
opportunity.

I'm curious what you think?

-david

I'm on this mailing list where everybody is suddenly raving over this new book "The Information".  Amazon describes it as:

In a sense, The Information is a book about everything, from words themselves to talking drums, writing and lexicography, early attempts at an analytical engine, the telegraph and telephone, ENIAC, and the ubiquitous computers that followed. But that's just the "History." The "Theory" focuses on such 20th-century notables as Claude Shannon, Norbert Wiener, Alan Turing, and others who worked on coding, decoding, and re-coding both the meaning and the myriad messages transmitted via the media of their times. In the "Flood," Gleick explains genetics as biology's mechanism for informational exchange--Is a chicken just an egg's way of making another egg?--and discusses self-replicating memes (ideas as different as earworms and racism) as information's own evolving meta-life forms. Along the way, readers learn about music and quantum mechanics, why forgetting takes work, the meaning of an "interesting number," and why "[t]he bit is the ultimate unsplittable particle." What results is a visceral sense of information's contemporary precedence as a way of understanding the world, a physical/symbolic palimpsest of self-propelled exchange, the universe itself as the ultimate analytical engine. If Borges's "Library of Babel" is literature's iconic cautionary tale about the extreme of informational overload, Gleick sees the opposite, the world as an endlessly unfolding opportunity in which "creatures of the information" may just recognize themselves. --Jason Kirk

I don't know about you, but I can't piece together anything meaningful other than "Wow wow wow!!!!!"

I'm really curious to hear if anybody who reads the book actually changes their opinion on anything as a result.  I fear a lot of these books just have "something for everybody" such that you walk away feeling stronger in your belief no matter what that belief is.  Sorta like MSG: it makes everything taste better, without having any flavor by itself.  I'd love to hear somebody say "I've held this passionate belief my entire life, but as a result of reading this book I've changed my mind."


Somewhat related, I spoke at a conference recently, and the other presenters had these really incredible, well-researched, inspiring presentations.  But I realized afterwards that a major problem with so many of these broad trend analyzes is they lack statistical relevance.

For example, I find everybody talks about Twitter, Facebook, Google, and a half-dozen mega names -- and then draws inferences based on them.  But that's equivalent to "averaging the exceptions", which just isn't a valid technique: the problem with outliers is they're *outliers* and by definition defy the baseline trends.  They are too few and too different to be summarized in any meaningful way.

Rather, I think these business-fad, pop-psychology, averaging-the-exception techniques just create hysteria and excitement where perhaps none is really warranted.  Even if they're 100% "accurate", they're so incredibly imprecise as to be non-actionable.  Said another way, even if you're totally right on predicting the wave, if you can't say with any certainty the time and magnitude when it will hit, it's not worth getting excited about.

Don't get me wrong, hysteria and excitement are great ways to sell books or promote products.  But as the people being sold and promoted *to*, it's in our interests to take these fantastic claims -- each of which seems increasingly fantastic with increasing frequency -- with a corresponding amount of skepticism and composure.

I'm here at the Kynetx Impact conference (come see me talk tomorrow at 11am!) learning about the "live web" through a series of keynotes.  One of those keynotes will be moderated by Robert Scoble, and he happens to be sitting 5' to my left as I type these words.  A few minutes ago I was labeled a "curmudgeon" (I didn't know that word was used anymore!  but I managed to spell it right on first shot, so go me) for being an iPad skeptic.  Robert took it upon himself to explain to me why the iPad is so incredible... and alas, it didn't take.  But while he was trying, I think I learned *why* I'm an iPad skeptic: because it's primarily a fashion accessory, and I'm not fashionable.

Now that's a bold statement.  (The first one, not the second.)  You might say "but it clearly has better workmanship than any competitor!" and "it does all sorts of genuinely helpful things!"  And those statements are definitely true.  But the same could be said of a haute couture handbag -- many of which cost vastly more than an iPad despite doing so much less.

I've been toying with this notion for a while, but it really rung for me as Robert was trying to extol the virtues of the iPad -- clearly incredulous that I wasn't blown away. 

He brought up an app that shows a ton of videos in a huge virtual wall: an impressive work that looks super cool for browsing random videos.  But I never do that; I probably look at a video sent to me by some friend maybe once a week, probably less.  I'd never ever sit down and just randomly browse videos.

Then he brought up Wolfram Alpha, showing the periodic table in an amazingly gorgeous, exquisite way.  But I haven't needed a periodic table since high school.

Then there was the cool news reader, this neat app for learning fiddles, etc.  All of them are really neat, fantastic executions of their concept.  Executions that simply couldn't be done on any other device -- executions that are made *possible* by the iPad.

But their incredible executions of concepts that range from mildly to totally uninteresting.  Given that, I just couldn't get excited about them, and that was clearly not the reaction he intended.

At this point we highlighted that I'm incredibly far off the edge when it comes to my habits.  I don't watch TV, I don't have a car, I work more or less continuously, and when I'm not on my absurdly-small laptop I'm drinking wine with my wife and walking my beagle.  I carry a Palm Pre (which replaced my Sidekick), I use Verizon Broadband (and Ricochet back in the day), etc, etc.  He said "you make me look mainstream".

Given all that, it's possible that I'm just so overworked and socially deficient that I simply cannot conceive of this value that is universally recognized by everyone else.  It's possible.

But I don't buy it.  I think a more simple explanation is that I'm simply not fashionable.

I think when most people see an iPad, they see this incredible world of possibilities -- and they want to participate in that world, even if  
they don't personally use those possibilities in any meaningful way (or even if many of those possibilities don't actually exist yet).  And I actually think that feeling of participation is akin or even equivalent to fashion.

For example, Robert said Android wouldn't compete with iPhone until it had 10,000 *good* apps.  But then he acknowledged that virtually everyone is always playing Angry Birds, or one of a tiny set of other apps.  So I don't think the 10K app collection is important because people actually use those apps.  I think it's necessary to create this image of endless possibility -- without that, the suspension of disbelief that's so critical to fashion just isn't there.

Similar to fashionable clothing.  A common theme is they always use the best materials, the highest quality stitching, the most exotic product placements and high-class endorsements, etc.  I think all of these are necessary to create this image of supreme quality that justifies a 10x purchase price (or 10x brand loyalty) despite only being marginally better in any measurable way.

Indeed, when I look back on my extreme product choices in the past, they actually *were* the best.  I was doing email and browsing real webpages on my phone in 2002.  I had wireless broadband in 2000.  Compared to any Mac laptop, mine has a longer battery life, higher resolution screen, a smaller form factor, and built-in Verizon Broadband, etc.  They were genuinely better than the other options at the time, but those options just weren't fashionable.

But my point isn't to tout my awesomeness (though I could do that all day).  Nor is my point to say the iPad isn't awesome (it is), or that tablets aren't superior to laptops for certain use cases (they are, though in far fewer cases than is usually claimed).

Rather, I'm saying the iPad -- like any fashion accessory -- isn't nearly awesome as people say it is, and most of its differentiating value over other tablets is simply the strength of Apple's brand in telling a story of infinite possibilities, most of which don't actually matter, and many of which don't yet exist.

I haven't seen this mentioned anywhere, but see screenshot below.  I was curious when PayCycle was founded, so I searched "paycycle founded".  Google apparently saw enough similarity in the search results that rather than just giving me the links, it gave me *the answer*. Especially interesting because not all of the answers were right (eg, the second search result is clearly wrong).  Pretty amazing!



-david
Founder and CEO of Expensify
Follow us at http://twitter.com/expensify