Anonymity a Double-Edged Sword for Pirates Online

Doug Lichtman & David Jacobson
The Chicago Tribune
April 13, 2000

The music industry has been largely unsuccessful in its legal campaign against on-line music piracy. And no wonder. On-line piracy is a virtually anonymous crime. Users connect to the Net, upload or download unauthorized tracks, and then disappear--leaving industry
lawyers outraged, perhaps, but with no one to actually sue.

The attorneys have reacted to this predicament in a relatively intuitive way: They have given up the search for pirates and started to instead take aim at the pirates' ships. For example, the Recording Industry Association of America recently filed suit against Diamond MultiMedia Systems, arguing not that the firm itself infringes copyright, but instead that the firm's portable MP3 player encourages others to infringe. Similarly, RIAA is involved in litigation against software start-up Napster, again arguing not that the firm violates copyright directly, but that the firm's products facilitate other users' copyright violations.

Indeed, to date the music industry has reacted to the anonymity of Web piracy by spending thousands of dollars on litigation against these sorts of third-party accomplices. But perhaps there is a better way.

In order to maintain their anonymity, pirates--and the Web sites and servers they run--are constantly on the move. So, to find the latest Mariah Carey track, a freeloading fan must begin by searching the Net for an operational storehouse of illicit tunes. This is typically done by logging onto some sort of a search Web site and typing in the name of a desired song. When the search engine reports back a list of possible hits, the searcher then checks out each one to see if the given server is still up and running, if the site is willing to grant access to yet another anonymous downloader, and so on. All this typically takes a few minutes.

But suppose the music industry were to flood the Net anonymously with thousands of decoy files, each appropriately named after a current popular song. When opened, these files would contain not the given artist's latest hit, but a recording of that same artist explaining to his or her fans that piracy hurts artists as well as recording companies and that true fans should buy legal music.

Now when our enterprising fan enters his search, he's going to get thousands of hits, most of which will be decoys. And every time he opens one of these, he'll be reminded by the artist of his choice that piracy is not exactly cricket. This not only increases the hassle of obtaining illegal music (thereby making legal alternatives more attractive at the margin), it also educates consumers that intellectual property is indeed property, and stealing Ms. Carey's
music is not so different from stealing Mr. Levi's jeans.

Pirates might try to counter this decoy strategy by creating Web sites that link to real music files while filtering out the decoys. But that countermove would play right into the lawyers' hands. A filtering Web site is a threat only if a large number of pirates know of its existence. But in order to develop that kind of reputation, the site would have to stay put. And that would make it the kind of identifiable, stationary target against which legal process has always been relatively effective.

Internet purists might worry that this type of decoy strategy opens Pandora's box, empowering any malicious party to drown out information posted by others.

But that is not a real concern. Suppose, for example, that some overzealous record company were to try to use decoys to smother the perfectly legal amateur music available on the Net. In response, a Web site like MP3.com would simply establish itself as the clearinghouse for authentic amateur music.

The overzealous company's lawyers, while fully capable of identifying the site, would have no legal recourse because MP3.com would be doing nothing wrong. The decoy strategy, in ther words, is effective only because music piracy is itself illegal.

In short, the music industry has missed a beat when it comes to protecting its intellectual property on-line. The anonymity of the Internet drove RIAA to target accomplices. But that same anonymity, exploited strategically, could instead have been used to bring the real perpetrators of on-line music piracy back within law's purview.