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File-sharing is the activity of making files available to other users over the Internet or like networks (Wikipdeia, 2005). File-sharing allows a number of people to use the same files by a combination of being able to read, view, write or modify, copy, or print. Users may have different levels of access ranging from public Internet websites to private subscriber networks (encyclopedia.laborlawtalk.com, 2005).
File-sharing usually follows a peer-to-peer (P2P) model, where files stored on a personal computer are accessible by other users in the network. Although files may be distributed to external parties by downloading and mailing (file-trading) the practice almost always involves only sharing files in a network (shumans.com, 2005).
File-sharing is distinct from file-trading in that downloading files from a P2P network does not require uploading, although some networks provide incentives for uploading such as credits or force the sharing of files being currently downloaded (shumans, 2005).
The act of file sharing is dependent on the file-sharing technology utilized (encyclopedia.laborlawtalk.com, 2005) . There are a wide variety of file-sharing program available in several different networks. Different networks have different features ranging from accepted commercial programs to underground illegal programs.
The Peer-to-peer model is employed by recognised networks such as Napster, Kazaa and Limewire.
In the past, Napster was a centralised application (Mac-P2P.com, 2003), where a user would send a search to the centralized server for files they were looking for, i.e., song, video, movie. The server then sends back a list of which peers have the data and facilitates the connection and download.
Kazaa, differ from Napster such that its network is without a central index server and uses super nodes (Kazaa, 2005).In the network, all of the machines tell each other about available files using a distributed query approach. Currently, most peer to peer networks, such as Gnutella and Limewire follow this de-centralised approach.
One of the latest file-sharing applications is BitTorrent. It uses a file-sharing system known as “swarming�?, which allows users to download different pieces of the file simultaneously from multiple computers (BitTorrent, 2005). Unlike some other peer-to-peer downloading methods, BitTorrent offloads some of the file tracking work to a central server, a tracker. Another difference is that it uses a principal called "tit-for-tat" (Madden and Lenhart, 2003). This means that in order to receive files, you have to give them. This solves the problem of leeching or hording which is common on other file sharing networks. BitTorrent has proven to be useful for large and popular files.
Many have credited the increase in file-sharing to several technological factors; one of these would be the introduction broadband (Bharambe, Herley and Padmanabhan, 2005), which allows faster and more efficient file transfer as compared to dial-up connections.
Another factor is the widespread use of MP3 format and its ability to distribute music efficiently over the Internet and stored, has caused music file sharing to soar in popularity ever since Napster was first introduced in 1990 (Yang and Fisher III, 2001). MP3 encoders and MP3 rippers have also made it possible for music lovers to convert audio from CDs to MP3, further encouraging the MP3 file sharing across the Internet.
In the past, it was hard for file swappers to upload movie DVDs and share the files in the networks because of the Content Scrambling System encrypted in to the discs. But with DVD decrypters, DeCSS, available online, has made this possible.
The rise and fall of Napster in the late 90's brought file sharing over the Internet, and peer-to-peer technology, to the attention of the world. As Fuchs (2005) observes, before Napster file sharing was done largely underground and out of the public spot light; file sharing did exist before computers and information technology (CIT). CIT, however increased the dynamics and proficiency of file sharing. Initially ICQ Internet Chat System (used as both a chat system and a file distribution system), and Hotline, (founded by Hotline Communications Ltd in 1996) were used. At this time Hotline was known for its speed. Fuchs informs that File transfer protocol (FTP) is the most primitive method of file sharing. FTP is very effective, however only for file sharing, as it does not provide an online community via chat or message groups.
Napster was launched by Shawn Fanning in 1999, after the RIAA sued Napster in 1999 for copyright infringement, Napster was forced to shut down in July 2001. Napster's demise led to the creation of companies such as Kazaa, Morpheus, FastTrack, Audio Galaxy and Gnutella. OpenNap, a reverse-engineered version of the Napster protocol was released before legal problems, which led to the birth of MusicCity (Fanning, Shawn, 2005).
Napster and Gnutella continue to define file sharing today. Napster was resurrected as a commercial online music store in 2004 competing with other online services like [www.iTunes.com iTunes] and Rhapsody, while Gnutella is a free and open protocol and service. Other file sharing systems seek to ride the like between the two extremes (Audio Melody, 1999).
The nature of file-sharing technology produces various implications for the laws relating to intellectual property, particularly copyright law. Intellectual property laws afford protection to creative and intellectual effort. Copyright law does this by assigning exclusive rights over the material form of a work to a copyright owner.
The rights held by the copyright owners are; to reproduce the work in material form, to publish the work, to broadcast the work and to cause the work to be transmitted to subscribers of a diffusion service (Armstrong 1995:85). Breach of any of these exclusive rights can give rise to liability. File-sharing, whilst having numerous legal uses is often used for the sharing of copyright material such as songs and movies. This sharing of copyright material is capable of various breaches of copyright law at different levels depending on whether the person in breach is an end-user, creator or administrator of the software.
End-users almost certainly violate copyright law. Given that they are directly involved in the discovery, copying and transmission of material being shared any breaches committed by them are ‘direct breaches’ (Lohmann 2004:1). When users download any copyright material as they are essentially creating an unauthorised, therefore illegal reproduction. Furthermore, if the user then chooses to share this material with other users they are publishing and distributing the works, which is a further breach of copyright law. Also, if any user were to use this work publicly eg. in a film or sampled in a song they would yet again be in breach of copyright law for unauthorised broadcasting and public performance (Crews 2004:1).
Creators and administrators of file sharing networks and software are also at risk. The law of copyright extends to include ‘aiding and abetting’ any of the above breaches as giving rise to liability where the creator and/or administrator has the right and ability to supervise users or has a significant financial interest in their activities (A & M Recrds Inc v Napster). Where this is found to be the case and the creator or administrator has made no effort to control the illegal activities of the users they can be found to have committed a ‘contributory breach’ of copyright law (Lohman 2004:2).
In the past only major companies were able to utilise resources to reach the broad market, but now with the internet and peer to peer file-sharing services available, independent producers of media such as music, film and art are able to distribute and share their product with the world without the help of a company. While file-sharing continues to advance in technological ways, the run of legal issues involved is not stopping the production of new downloadable software for its users. It now rather pushes the makers to go more underground so that its consumers are not able to be recognised, combating the legal authorities that catch them out (MaxPC, 2003).
Some of the new technologies are making finding files easier, while also side-skipping legality issues. The introduction of devices such as Kapsules and the issues of spyware and aware are some of the evolutions which are occurring within file-sharing. Kapsules are ways of collecting distributed files together, in that individual files with the same subject are formed into a collection, making an easier way of locating files (Kroeker, 2004). Sharman Networks, eDonkey, WinMX, Morpheus and Shareaza are just some of the 100’s of file-sharing networks competing on the internet, and the numbers are growing. Organisations such as the RIAA and companies that are affected by the technology are continuing to make file-sharing difficult. Some of these measures include how many times the downloadable files can be transferred to a portable player, or how many times a compact disk may be burned and redistributed. Larger companies are now combating this issue with the introduction of legal file-sharing sites, such as iTunes, that complies by recognising the artist and paying royalties. Phil Morle of Sharman Networks predicts, “Peer to peer software is an evolutionary development and not a revolutionary one. It is a very natural direction for technology to take�? (Kroker, 2004).
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Bronwyn Hooton, Ruth kan, Gavin Mathieson, Kate Mitchell & Lara Cresser.
