2025-05-31-13:58:42

The-darknet-a-digital-copyright-revolution

Auteur	Jessica A. Wood
Editeur	Richmond Journal of Law & Technology (Volume XVI, Issue 4)
Année	2010
Fichier	wood-the-darknet-a-digital-copyright-revolution.pdf
URL	https://scholarship.richmond.edu/jolt/vol16/iss4/4/
Dossier	jessica-a.-wood-the-darknet-a-digital-copyright-revolution-2010 ( 3a09fda4d2a7e3912ce45b5c1354d91a )
Ref	The_darknet_a_d_Jessic_2010

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Cite as: Jessica Wood, The Darknet: A Digital Copyright Revolution, XVI Rich. (2010), http://jolt.richmond.edu/v16i4/article14.pdf. J.L. & Tech. 14

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Part I examines the prospect that, due to the Darknet, it is virtually impossible to control digital copying. Peer production is increasing and darknets are becoming more prevalent. Liability rules, stringent copyrights, and technological protection measures stifle innovation, smother creation, and force consumers further underground into darknets. The Darknet poses a particular threat because it is impossible to track or proscribe user behavior.
Part I
the Darknet will render Liability rules, stringent copyrights, and technological protection measures stifle innovation, smother creation, and force consumers further underground into darknets. The Darknet poses a particular threat because it is impossible to track or proscribe user behavior. Further, the presence of technological protection measures unenforceable, or at least impracticable, as a solution for digital copyright management.
introduces a digital use exception for copyright to deter development of the Darknet. The proposed copyright shelter is the solution most closely aligned with the goals of copyright, and a monopoly is no longer necessary or practical to accomplish those goals in the digital realm.
Part II
The proposed copyright shelter is the solution most closely aligned with the goals of copyright, and a monopoly is no longer necessary or practical to accomplish those goals in the digital realm.
Part III
explores methods by which content creators, publishers, and distributors can profit under this new rule. Absent copyrights for digital works, service providers will capitalize on alternative business methods and data mining. Driven by necessity, they will commission the production of new works.
I. THE RISE OF THE DARKNET CHALLENGES DIGITAL COPYRIGHT ENFORCEMENT A. Peer Production and Distributed Networking 1. Digital Content Consumers Become Producers
Internet users no longer passively consume media.

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This new breed of producer-consumers, sometimes termed "prosumers," embodies democratic culture.6 The digital revolution promises prosumers freedom to interact with media on their own terms.7
The digital revolution promises prosumers freedom to interact with media on their own terms.7
Web 2.0,
wikis, podcasting, news fora, social networking sites, hosting services, and search engines.
Peer-to-peer (P2P)

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1. Distributed Networking Technology
In contrast, a P2P network permits a computer connected to the Internet to identify itself as both a client and a server, thereby enabling the computer to communicate directly with any other computer on the Internet to exchange files.19 All types of P2P network models fall within the classification of distributed networks because no central server stores the files.20
In a distributed network, every computer acts as a host, and each user can introduce content to the network by storing files on their computer and making

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those files available to others on the network.21
all distributed networks have the same infrastructure requirements: (1) facilities for injecting new content into the [network] (input); (2) a distribution network that carries copies of content to users (transmission); (3) ubiquitous rendering devices, which allow users to consume [content] (output); (4) a search mechanism to enable users to find objects (database); (5) storage that allows the [network] to retain [content] for extended periods of time. Functionally, this is mostly a caching mechanism that reduces the load and exposure of nodes that inject [objects].26

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1. Distributed Networks Promote Progress More Effectively Than Client/Server Networks a. Optimal Means of Digital Content Distribution
NOTE
[ Ressource bénévoles ]
They are the economically and technologically optimal vehicles for digital content distribution. Distributed networks are economically efficient because users donate their own (often idle) computing resources29 to facilitate distribution, essentially providing free bandwidth, storage space, and computing power.30
NOTE
[ auto scalling ]
As users provide the system infrastructure, when demand on the system increases with the addition of new users and content, the total capacity of the system also increases.33
NOTE
[ Sabotage - -resilient ]
Sharing resources across a network is more stable and reliable than traditional client/server distribution because a breach or failure in one sector will

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not sabotage the whole system.35
b. Increase the Volume and Quality of Creative Works
Just as users donate computing resources on P2P networks, many consumers also volunteer their creative resources. As reproduction, storage, and distribution become cheaper, more prosumers contribute to the collective directory. The blossom of peer production results in an increased output of new works.

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LionShare
designed such that users are not anonymous

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c. Consumer Freedom and Control Protects First Amendment Rights
The lack of central control makes distributed networks less vulnerable to censorship and protects citizens' rights to free speech, press, and assembly55
consumers are also suppliers
The fact that consumers are also suppliers means that if a large number of people want to download a particular work, then a large number of people are likely to make that work available for upload as well.
NOTE
[ test ]
P2P networking shifts control to users to decide what content to make available and when to make it available.56 Peer-to-peer networking also allows this decision-making process to operate on a large scale.57 There is less risk that unpopular or marginal works will be scarce since digital reproduction costs very little, and digital networking eliminates the need for publishers to print additional copies or make guesses regarding the popularity of works (to divvy up server storage space and marketing dollars).58

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open source code.
This encourages quality through competition by allowing the the existing development of subversive technological paradigm.61 that can challenge technologies
B. Liability Rules Inhibit Innovation in the Development of P2P Network Design 1. Early P2P Technology: Centralized Networks
P2P networks are either centralized or decentralized.62 Centralized models, such as Napster, utilize a central server system that facilitates users' activities in the network.63
Napster,
The centralized model is preferred because the directory and central index locate files quickly and efficiently.68 Since users must access the system through a

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central point, one can disable the entire system by shutting down the server, thus, providing considerable control over users.69
Most importantly, users must register with the system (to be located and connected), so the service provider knows the identity of each user, as well as what he is downloading.70
the media content industry to lobby Congress for stronger copyright protection.71
1990s,
Initially, the content industry targeted commercial entities for contributory and vicarious infringement because a single lawsuit could shut down the central server and eliminate an entire dissemination mechanism.7

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1. Second Generation Technology: Decentralized (Fully Distributed) Networks

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Gnutella,

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Early versions of BitTorrent required an intermediary "tracker" service to perform the search function and aggregate torrent files to enable uploading and downloading.95
BitTorrent r
The logs were instrumental in lawsuits against trackers by "identifying infringers who downloaded and shared copyrighted material."9

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1. The Evolution of the Darknet
Darknet
Those P2P networks retain one key feature: users of Gnutella and other BitTorrent-type networks "are not anonymous."102
Those P2P networks retain one key feature: users of Gnutella and other BitTorrent-type networks "are not anonymous."102 By permitting the determination of server endpoints, decentralized networks reveal the IP address and affiliation of file sharing peers.103

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The Recording Industry Association of America (RIAA) has sued over fifteen thousand individuals alleging copyright infringement.107
NOTE
[ liability == responsabilité ]
To escape liability, consumers demanded that P2P developers follow their own precedent and improve distributed networks to shield users from liability by providing users with anonymity, privacy, and increased security control.108 T
shield users from liability by providing users with anonymity, privacy, and increased security control.108
NOTE
[ !!! DEFINITION DARKNET // These
--- has P2P networks ? ]
These newest versions of distributed networks, known as darknets, pose a serious threat to copyright enforcement on the Internet by concealing user behavior from detection.
C. The Darknet
Generally, the Darknet refers to the underground Internet.109
November 2002
In November 2002, four senior Microsoft security engineers coined the term "Darknet"
The Darknet and the Future of Content Distribution.
Microsoft
the engineers defined darknets broadly as "a collection of networks and technologies used to share digital content."111
Since then, the term has infiltrated the mainstream media and been used to refer to a variety of clandestine Internet activities and technologies.
LASICA, supra note 4, at 45.

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small file sharing networks to elite and exclusive cyber clubs,112 to databases unreachable by cyber robots,113 to avenues for cybercrime and Internet terrorism,114 the Darknet evokes increasingly nebulous and threatening activities.
public predecessors.115 In his groundbreaking legal work regarding darknets, Fred von Lohmann incorporated the element of privacy, defining the Darknet as "[t]he collection of networks and other technologies that enable people to illegally share copyrighted digital files with little or no fear of detection."116 In his 2005 book, Darknet: Hollywood's War Against the Digital Generation, Darknet expert J.D. Lasica emphasized that darknets can be used for illegitimate activities.117 Lascia defined darknets as "networks of people who rely on closed-off social spaces—safe havens in both virtual and real worlds where there is little or no fear of detection—to share copyrighted digital material with others or to escape the restrictions on digital media imposed by entertainment
Fred von Lohmann i
"[t]he collection of networks and other technologies that enable people to illegally share copyrighted digital files with little or no fear of detection."116
Darknet: Hollywood's War Against the Digital Generation
In his 2005 book, Darknet: Hollywood's War Against the Digital Generation, Darknet expert J.D. Lasica emphasized that darknets can be used for illegitimate activities.117
2005
NOTE
[ DEFINITION -- LASCIA
Réseaux dans lesquels des pers de réseaux proches échangent sans peur de detection... pour partager des contenus digiaux sous copyright ]
Lascia defined darknets as "networks of people who rely on closed-off social spaces—safe havens in both virtual and real worlds where there is little or no fear of detection—to share copyrighted digital material with others or to escape the restrictions on digital media imposed by entertainment companies."118
J.D. Lasica
Darknet can refer to "the world of cybercrime, spammers, terrorists, and other underworld figures who use dark spaces found on Internet networks to avert the law.").
The Darknet has its roots in underground physical networks organized around groups of friends that shared music on cassette tapes and computer disks.
"SneakerNet,

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Users often refer to darknets for file sharing as friend-to-friend (F2F) networks, because direct connections are only established between trusted friends.120
friend-to-friend (F2F)
But the term "Darknet" can also be used to describe any private file sharing network.121 For the sake of clarity, this article will differentiate between these terms.
The term "darknet" will refer to a decentralized distributed network (lacking a central index) that incorporates privacy, security (encryption), and user anonymity features, with the primary purpose of sharing information with trusted members.
The goal of darknets is to create a closed network to communicate securely in a manner that defies detection or penetration by governments or corporations.122 A user can download, upload, and inject content anonymously, meaning an outsider cannot sufficiently identify a user.123
anonymously,
See John Markoff, File Sharers Anonymous: Building a Net That's Private,

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1. The Immediate Future of the Darknet
a. Improvements in Security and Privacy
Freenet
2000
Ian Clarke
primary goal of his darknet was to protect political opponents of repressive regimes.131
Freenet's website claimed that, without anonymity, there can never be true freedom of speech, and without decentralization, the network

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will be vulnerable to attack.132
To preserve user anonymity
'promiscuous'
Freenet not only prevents outsiders from finding out what users are doing,
7 Freenet not only prevents outsiders from finding out what users are doing, but it also makes it extremely difficult for adversaries to know a user is running a Freenet node138 or to discover the identity of anyone publishing or downloading content.139
typical 'promiscuous' approach of classic P2P networks,
b. Improvements in User Interface Design and Mass Distribution

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LimeWire 5.1
LW5

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c. Improvements in Infrastructure, Interconnectivity and Network Effects
In 2006, P2P traffic accounted for two-thirds of all Internet traffic.150
2006
The rapid build-out of consumer broadband, the dropping price of storage, and the fact that personal computers are effectively establishing themselves as centers of home-entertainment will fuel the spread of darknets.151
home-entertainment will fuel the spread of darknets.15

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anonymous sharing can only occur amongst mini-networks of small groups of friends that do not scale.156
Microsoft engineers
the Microsoft engineers concluded that even if global, public peer-topeer networks were eliminated through legal or technical means, small-world networks would likely provide a mechanism efficient enough to satisfy a large percentage of digital media consumers157
D. The Darknet's Impact on Copyrights 1. The Darknet Precludes Copyright Enforcement on the Internet
John Perry Barlow

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Without a central server, it is difficult (if not impossible) to enforce an injunction.167 Once software is distributed, it is difficult to remove all the downloaded copies in use, and users holding copies of open source darknet software can easily copy it, adapt new versions, and make it available throughout the Internet.168
http://www.wired.com/wired/archive/2.03/economy.ideas.html
John Perry Barlow

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1. The Darknet Nullifies Technological Protection Measures
Microsoft paper
the Microsoft paper warned that any "popular or interesting content" would inevitably leak into the Darknet.172
"popular or interesting content" would inevitably leak into the Darknet.172
See BIDDLE ET AL., supra note

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II.RELINQUISHING CONTROL OVER DIGITAL WORKS WILL ACHIEVE COPYRIGHT'S INTENDED GOAL A. The Goal and Function of Copyright

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Thus, "copyright assures authors the right in their original expression, but encourages others to build freely upon the ideas and information conveyed . . . ."
B. Stronger Protection Measures are Unenforceable and Deter Innovation

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Digital Millennium Copyright Act (DMCA)
C. Relinquishing Control Over Digital Works Will Promote Progress

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File sharing through centralized distributed networks is clearly a more effective and efficient medium for dissemination than either selling physical copies or distributing them through darknets.
As described above, developments in the law that imposed liability on various market players shaped the development of Darknet architectures inferior to their P2P predecessors in terms of economic efficiency and social welfare.201
If the rise of the Darknet can be directly attributed to increasingly strong copyright protection and TPMs, then the fall of the Darknet will require weaker copyright protection and less technological control.
1. Copyright Shelters Encourage Innovation

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Electronic Frontier Foundation (EFF)
1. Restructuring Digital Copyright Law
mash-ups)

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a. A Commercial/Non-Commercial Distinction is Unnecessary
Sharing and Stealing

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The Audio Home Recording Act
No Electronic Theft (NET)
criminalize copying for purposes of commercial advantage or private financial gain,238

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1. The Effects of a Digital Use Exception a. Promote Innovation i. Develop Superior Distribution Technology

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ii. Quash the Darknet

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b. Promote Progress and Protect Free Speech
Distributed networking will also secure free speech because eliminating liability removes the incentive for ISPs to filter and block access to content on their networks.
ISPs to filter and block access to content
censorship

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1. A Monopoly is Not Required to Incentivize the Creation of Digital Works a. Monopolistic Copyrights for Digital Works Do Not Benefit Society

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b. Digital Copyrights Are Economically Inefficient i. Digital Copyrights to Incentivize Distribution Are Redundant

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ii. Digital Copyrights Are Not the Best Incentive for Creation
III.MARKET FORCES WILL SUPPLY THE INCENTIVE TO CREATE AND DISSEMINATE IDEAS

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A. Peer Production and Volunteerism
B. Consumers Will Not Pay For Content When a Free Alternative is Available 1. Voluntary Collective Licensing: Pay to Use