The Internet Turns 40

Oliver Burkeman of The Guardian has written a great article looking forward to next week's 40th birthday of the Internet. It really needs no commentary. Just give it a look for an interesting read, including the following "wow" realization:

Unless you are 15 years old or younger, you have lived through the dotcom bubble and bust, the birth of Friends Reunited and Craigslist and eBay and Facebook and Twitter, blogging, the browser wars, Google Earth, filesharing controversies, the transformation of the record industry, political campaigning, activism and campaigning, the media, publishing, consumer banking, the pornography industry, travel agencies, dating and retail; and unless you're a specialist, you've probably only been following the most attention-grabbing developments. Here's one of countless statistics that are liable to induce feelings akin to vertigo: on New Year's Day 1994 – only yesterday, in other words – there were an estimated 623 websites. In total. On the whole internet.

The Discerning Downloader

Those who have read this blog before know that I strongly believe that the Big Content industries' major weakness in the fight against file sharing is that they lag behind consumers in their exploration and exploitation of new technologies. A recent survey from TorrentFreak seems to confirm that.

The survey shows that uTorrent has made massive gains in market share among file sharers (now enjoying over 60% share), primarily at the expense of Vuze, the second most popular Bit Torrent client (now with about 14%). So, what, you ask, does that have to do with the tech savvy-ness of file sharers? Well, one of the main draws of uTorrent is its extremely small footprint, consuming as little as 14 MB of RAM while downloading. Vuze, the former number one Bit Torrent client, by comparison, requires approximately 80 MB of RAM. The huge uptick in market share for uTorrent tells us that either: 1) the average Bit Torrent user now understands that minimal RAM consumption allows them to download files "in the background" while performing other tasks, without experiencing degradation in system performance; 2) the average Bit Torrent user is easily influenced by word of mouth and uses uTorrent because someone who understands #1 told them to; or 3) some combination of #1 and #2.

Whether by true understanding or by influence, the file sharing legions are coming to embrace not only free content, but also the most efficient means of obtaining that content. This growth of efficient client usage will permit more users to remain online while they perform other computer-based tasks, both allowing them to download more and, likely of more concern to the industries, make greater numbers of files available for download by others.

This is yet another sign that the real issue facing Big Content is the gap between their understanding and usage of technology and that of their (former) consumers. Until that gap is spanned, the downward slide of content sales will continue.

Japanese Court's Reversal in File-Sharing Case is a Clear Win for Software Innovators

A Japanese appeals court yesterday reversed a lower court ruling against file-sharing software developer Isamu Kaneko related to his "Winny" program. This ruling is a departure from recent rulings in both the US and Sweden, and clearly demonstrates that Japan's courts have an eye toward fostering innovation rather than protecting the status quo on behalf of content owners.

The criminal proceeding against Kaneko turned on the issue of whether the Winny program "encouraged" file-sharing and copyright infringement. This approach is directly analogous to the idea of contributory infringement here in the U.S. The doctrine of contributory infringement basically goes like this: If you know that your actions/products/etc. are used for infringing activity and you intentionally induce or encourage people to participate in the activity or use the product, you are also liable for any infringement that they commit. The case law in this area has been developing for over two decades, but was codified in 2005 by the Supreme Court in the landmark MGM v. Grokster case. However, it is the 1984 Sony Betamax case that provides an escape. In that case, the Supreme Court said that a product is not designed for contributory infringement as long as it has significant non-infringing uses. Yesterday's ruling from the Japanese high court clearly recognizes the goal of Sony, which is the continued encouragement of technological innovation.

Worldwide, the big content companies have seemed to fear this encouragement of technological innovation in the area of file-sharing. Rather, they have attempted to place civil and criminal liability upon file sharers, software developers and tracking site hosts in order to cut off the supply of unauthorized copies of music, movies, software, etc. Big Content has seemingly ignored the tack whereby they would become participants in the technological foot race and lead the next iteration of development in order to protect their own content without resort to legislation. The reversal of Kaneko's conviction demonstrates to Japanese content providers that the courts of that country are not going to be as cooperative as some other courts in policing file-sharing related copyright infringement if it means stifling innovation. This ruling is a clear win for software developers in that country and should be a strong signal to Big Content that - at least in Japan - their next move must come on the technological front rather than the legislative or judicial approaches employed to this point.