The practice of peer-to-peer file sharing has reached a crossroads and has the potential to take off as an increasingly popular and vital method of sharing information. Or it could collapse under the weight of its own controversy as lawyers and politicians try to negotiate the intricacies of copyright protections and the legality of certain file-sharing networks.

That was the message put forward by Law Professor Larry Lessig, founder of Stanford’s Center for Internet and Society, during a panel on March 8 on the ethics of peer-to-peer file sharing. Lessig was joined on the panel by Law Professor Deborah Rhode, founder of the Stanford Center on Ethics.

File-sharing technology is expanding in creative and intriguing ways that could allow an almost limitless ability to obtain and manipulate just about any kind of electronic content and then redistribute it. But that technology is threatened by the recording industry’s stepped-up efforts to crack down on illegal file-sharing networks and individuals who engage in such practices, Lessig said. He said the recording industry is engaged in a war of prohibition with escalating penalties and has put too much emphasis on stigmatizing those who engage in illegal downloads as criminals.

“Should the legal system take the lead in shutting down this kind of communication?” Lessig asked. “Historically, we have taken this [kind of public debate] much more slowly and not labeled the other side criminal.”

An estimated 70 million people engage in online file sharing, much of it illegal. Illegal downloading, mostly of music, took off in the late 1990s with the popularity of file-sharing programs like Napster and Kazaa. But the backlash has been intense, with the Recording Industry Association of America (RIAA) successfully suing file-sharing networks and bringing much-publicized lawsuits against individuals accused of illegal downloading.

By engaging in downloads that they know are illegal, many people have made themselves magnets for the lawsuits, Lessig said. Rhode cited a survey of 16- to 28-year-olds who engage in illegal downloading that showed that although most were aware that they were engaging in illegal behavior, only 16 percent considered their actions morally wrong. She said her teenage nephew, when asked about the subject, told her, “Well, there’s illegal and then there’s illegal.”

Within the past couple of years, the recording industry has dedicated considerable resources to cracking down on file-sharing networks and has filed suit against many large-scale and individual programmers, prompting many to settle their cases rather than engage in a costly legal battle against an opponent with deep pockets, Lessig said. Some of the lawsuits would almost surely fail a legal challenge, he said, but the intimidation factor has stifled development of file-sharing techniques that could actually benefit the recording industry.

“What is the RIAA doing aside from suing people?” Lessig asked. “It’s an industry organization trying to use the law to protect themselves against competition.”

Lessig said the industry should explore other kinds of file-sharing platforms and models that would be easier for consumers to use—and pay for—and that would also set up a better structure for artists to receive a cut of the profits. He cited a Harvard study that proposed a tracking system similar to the Nielsen television ratings system that would make as much music available at a cost to consumers and then pay artists based on their popularity.

Lessig said copyright laws that were created more than 25 years ago—long before anyone had a sense of recent technological advances that allow mass manipulation and redistribution of online content—are in dire need of an overhaul. He didn’t advocate doing away with copyright laws altogether, but he expressed support for loosening up the rules to allow for “private, noncommercial ventures.”

“All of the great technologies coming out now are technologies that will allow people to do stuff with your stuff,” Lessig said. “That’s an extraordinary opportunity that we should allow our culture to take. We wouldn’t produce the same laws had we known about the technological advances.”

— Ray Delgado

Innovation in file-sharing technology is threatened by the recording industry’s stepped-up crackdown, according to law Professor Larry Lessig, who spoke last week on a panel with law Professor Deborah Rhode. Lessig expressed support for loosening copyright rules for “private, non-commercial ventures.”

Photo: L.A. Cicero

This article first appeared in the March 17, 2004 issue of Stanford Report. An audio recording of the CIS panel discussion can be found at http://cyberlaw.stanford.edu/events/past_index.shtml.