The Australian Library Journal

eBooks, libraries and peer-to-peer file-sharing

Mark Hoorebeek

Manuscript received January 2003

Napster shut its electronic doors in May 2002, after an intense legal battle in the United States. It has left a lasting legacy however. While music industry lawyers ponder the question of copyright in musical works, the 81 Napster clones such as XoloX, KaZaA and eDonkey are facilitating the transfer of music, DVDs, computer programs and eBooks. The early skirmishes in the file-sharing wars have centered on music; this article discusses whether academic eBooks will become the next casualty.

Napster's history

There is a lesson about human nature that Napster's legacy will firmly write into web history: people will freely steal content when given the opportunity. Napster provided and people stole, quite a lot in fact. File swapping naturally causes anyone who has digital assets that can be stolen [to be] very nervous. (Peek, 2001).

Napster, created by 19-year-old college dropout, Shawn Fanning, was constructed around a simple guiding premise: to facilitate the sharing of computer files through the internet. Napster's server accepted requests for certain MP3 (digital music) files, searched MP3 listings on other computers, and made the connection that assisted the transfer. Napster opened its online doors in the summer of 1999: since then millions of MP3 files have migrated across the web. Users suddenly no longer needed the music industry's middlemen, the packagers, (companies like Time Warner and Sony) and the promoters: (companies like Virgin and Tower Records). The network grew exponentially, as friends told friends. In the computer world, word of mouth is of immense importance and Napster was suddenly the internet's hottest topic. As more people logged on, more music became available.

At its peak Napster provided as many as one billion music files available on computers around the world. The recording industry reacted, not by providing its own version of Napster but through the courts. The Recording Industry Association of America (RIAA) launched legal proceedings in December 1999 (King, 2002). It did not, however, have the expected effect: word of mouth and a high profile court case combined and turned Napster into a global phenomenon.

Napster's legacy: how the mighty are fallen

The music companies were forced to respond and did so quickly, not by getting their own product to market, but by suing Napster and similar upstart companies into the ground. Music companies say they plan to roll out a digital distribution system soon, but consumers are still waiting to see a new paradigm that they like. (Godwin, 2001).

Napster, for a while at least, held the promise of being something special: Fanning injected youthful confidence and a radically different platform to the computer industry. However, the free exchange of intellectual property belonging to others could not last long. The music industry brought in its heavy artillery and placed a bull's-eye squarely on Napster.

Companies on the edge of copyright legality have felt safe since 1984, when the US Supreme Court ruled that people could record television and movies in their homes. Other storage devices are afforded similar protection from legal proceedings. This approach has recently been confirmed in the European Community by European Legislation (Osbourne, 2001). Napster changed that thinking, at least in the American courts. The RIAA successfully argued that laws governing analog taping devices, such as VCRs, shouldn't apply in a digital age, when copies of music or movies are perfect. Ninth Circuit US District Judge Marilyn Hall Patel produced a brutal verdict in July 2000, in which she called Napster 'a monster' and issued the first of two injunctions that proved to be the beginning of the end (Osborne, 2001).

The legal battle became drawn out and complex but the company that developed the most innovative internet program ever came to an end when founder Shawn Fanning and CEO Konrad Hilbers abruptly resigned in May 2002. Millions of users are still able to trade thousands of compressed digital music files in MP3 format as clones carry on Napster's work. The second-generation file-trading services allow users to swap all types of files, something they didn't even know they could do just four years ago. To date there are eighty-one commercial-quality download programs like KaZaA, XoloX, Gnutella and iMesh, available to the public. The quantity of these download programs has been staggering: KaZaA has been downloaded over 100 million times. Napster may have been shut down though legal channels but other more sophisticated programs have quickly evolved and established themselves.

Napster clones have fully decentralised the file-sharing world and this will affect all forms of intellectual property . The film industry, for example, is already worried about films lifted from DVDs traveling on high-speed broadband lines. The publishing industry shares this concern over the fate of eBooks.

eBooks

Book publishers ... are convinced they won't be spared, and unlike the music industry - which spent much of the 1990s in a defensive crouch - they are busily preparing for the inevitable. From Random House to McGraw-Hill to Simon & Schuster, publishing houses are racing to digitise their valuable backlists. (Lynch, 2001).

A recent report from Envisional, a British digital rights management company believes that online trading of best-sellers is accelerating even as the industry's own efforts to get a digital product out of the door are slowing to a crawl (Godwin, 2001). At present books can be turned into digital form in two main ways: the first is to scan the book onto a computer. The second is to crack the protection of a commercial eBook thus allowing it to be traded. As there is no precedent for complete copyright security in any media, publishing houses look forward to an uncertain future.

Scanning eBooks

While publishers have been pondering the prospect of thousands of users trading copyrighted works over the internet, the book pirates have set sail in a different direction. They have side-stepped commercial eBooks, choosing to scan the text of traditional paper editions and make the results available on the internet, often through Napster-like file sharing devices. (Rawlins, 1998).

In an exhaustive survey in August 2001 Envisional claimed that as many as 7300 paper editions of popular books have been scanned and made available on the internet through Napster clones. Among the most commonly traded books are titles from best-selling authors such as Stephen King, Tom Clancy, JK Rowling and JRR Tolkien (Godwin, 2001).

In the short term, increasing piracy in the shape of scanner-produced eBooks seems a certainty. Doorstop tomes can be scanned as files ranging from two to three megabytes in size. The complete works of Isaac Asimov comprising twenty-five books fit into eight megabytes, the approximate size of one MP3 music file. For the moment, publishing houses have a certain amount of breathing room because the reading public has not yet shown any deep interest in obtaining books in digital form from the net (Godwin, 2001). This may not last.

Cracking the code of commercial eBooks

If eBooks take off, the number of titles available online could multiply dramatically. All it would entail would be for some hacker to crack the code on a new eBook, put the text on a peer-to-peer service and launch it widely into cyberspace. A valid objection UK trade publishers ... have against eBooks is lack of security. There is huge skepticism that this can be resolved satisfactorily. (Curtis, 2002).

On 28 August 2001 a federal grand jury in the US indicted the Russian company Elcomsoft and programmer Dmitry Sklyarov on charges of trafficking and conspiracy to traffic in a copyright circumvention device. The charges were brought for violations of provisions of the Digital Millennium Copyright Act (DMCA). This Act prohibits companies from creating and selling technologies that circumvent protections placed on copyrighted works. ElcomSoft employees allegedly violated US law when, in June 2001, they began selling a program that disabled the encryption of Adobe eBook documents.

Vladimir Katalov, managing director of ElcomSoft, released methods of breaking security features on Adobe's eBook library system (Rosie, 2001). The eBook Library is designed to be a secure repository for eBooks and allows users to 'borrow' titles for a specified number of days. Katalov identified a method of borrowing all the books in the library for an unlimited time period. The acquittal, announced in a federal district court in California, brought to a close the first criminal trial of a company accused of violating the DMCA. By favouring ElcomSoft, the jury showed a reluctance to prosecute a company or programmer for creating a program that others might use to commit acts of infringement (Glasner, 2002).

Piracy control

In spite of the disillusionment some publishers now feel about whether there will be a significant market for eBooks in the near future, the American Association of Publishers is adamant about the need to advance eBook anti-piracy technology.' (Godwin, 2001).

Two methods of control are available: Firstly, there's the legal code, or set of laws, that could end up legalising file-sharing or making it a criminal activity. Secondly, piracy can be combated by computer programs that can create programs for sharing secured copyrighted information or encrypt files so they can never be shared. Both still seem to have inherent flaws as there is no precedent for absolute security in any digital media.

The encryption method is a complex and difficult task; as soon as one programmer creates a new software encryption device, the programmer's wits are matched against the countless users of the internet who can, by conversing in chat rooms, work together to crack the code. A few days after eBooks are released hackers break the code and post a copy on the internet.

What is the law relating to this area?

There is no such thing as an 'international copyright' that will automatically protect an author's writings throughout the entire world. Protection against unauthorised use in a particular country depends on the national laws of that country. Countries do offer protection to foreign works under certain circumstances and these conditions have been simplified by international copyright treaties, although copyright laws are clear and well established in both the US and in Europe.

The legal systems seem likely to back the music industry. Judge Patel's verdict in July 2000 all but shut Napster down. In the meantime, a federal judge in New York slammed a crippling fine on MP3.com, a company that was trying to operate within the rules of copyright. Judge Jed Rakoff awarded Universal Music Group damages of $25 000 for each copyrighted CD stored on the popular My.MP3.com service, a total that could reach $250 million.

Legal problems of determining liability arise when a central server cannot be identified, due to the software being untraceable. Where there is no need for a central server, the sheer volume of participants makes any type of legislation impotent.

This theme has been mirrored in recent European legislation:

Music lovers and film buffs will continue to be allowed to make private copies of their favorite songs or movies after the European parliament yesterday agreed Europe-wide internet piracy legislation...MEPs [Ministers of the European Parliament] approved a copyright directive that will ensure European clones of song-swapping website Napster can be swiftly shut down through legal action. (Osborn, 2001).

This might prove to be problematic, because the eighty-one Napster clones presently available are easily modified and have been downloaded onto millions of computers already. A case of closing the website door after the eHorse has bolted. The MEPs rejected calls from the music industry to outlaw reasonable private copying for personal use and opted to strike a balance between the interests of the entertainment industry and consumers. British MEPs successfully defended their current domestic situation regarding private copying. Certain countries and companies were keen to impose a levy on blank video, audiotapes and blank CDs. Libraries, schools, universities and other educational and charitable institutions will be allowed to copy intellectual property for educational purposes (Osborn, 2001).

Academic eBooks

In February 2001, Harper Collins with its e-imprint PerfectBound was the first major [publisher] in the UK to release e-titles. Penguin and Warner Books UK followed in the Autumn. PerfectBound initially priced books at a twenty per cent discount to the hardcover. Their most successful e-title sold in the low hundreds. Compared to around thirty million paper backs Harper Collins sells annually, PerfectBound barely appears on the Harper Collins sales graph.' (Guthrie, 2002).

eBooks, for all the hype, are still awkward and unappealing in any format. No one seems to want to read anything much longer than a few paragraphs on a computer screen for pleasure (Epstein, 2001). Most of the discussion in this area has focused on the eBook novel: academic books may however pose a different problem.

Academic textbooks are generally not bought for recreational reading: they are expensive and typically have a short shelf life. They make ideal commercial eBooks, they also make excellent targets for eBook pirates. Most students have access to the internet, a conventional library and a scanner, and scanning 'homemade' academic eBooks is not difficult. UK publishers like Cavendish command large revenues from the sale of academic textbooks and have a lot to lose if scanner piracy increases.

UK law publishing has quietly gone digital and most of the larger publishing houses offer law books in digital form. Academic law book publishers could be the first to feel the full effects of Napster clones. As an example Cavendish uses the Sklyarov-cracked Adobe technology for access to its library of eBooks, and obviously new protection methods have been employed by Cavendish and Adobe. These methods are already under scrutiny on certain websites.

University libraries across the globe are beginning to amass a sizable collection of digital materials that include eBooks (Jantz, 2001). Digital publishers of eBooks are looking to libraries and their patrons to add to sales and to help offset the threat of piracy (Reid, 2002). If a library pays a fee to a publishing house and then allows the student body access private piracy may be reduced, as the student can lawfully download the book. In this situation everybody wins, except the conventional, paper based academic book.

References

Curtis, R (2002) 'Bullish on eBooks' Publishers Weekly 7 January, pp10-11.

Dillion, D (2001) 'eBooks: The University of Texas Experience: Part 2', Library Hi Tech, 19, [4] pp350-362.

Epstein, J (2001) Book Business W W Norton, New York.

Gibbons, S (2002) 'Computers in libraries' [Proceedings of the] 17th Annual Conference and Exhibition USA: integration and use of eBooks at an academic library, March, pp104-107.

Glasner, J (2002) 'Verdict seen as blow to DMCA.' Wired December. Available http://www.wired.com

Godwin, M (2001) 'Napster for novels? Not even pirates like eBooks', Reason 1.02, 33 [8] pp60-62

Guthrie, RG (2002) 'The eBook: Ahead of its time or a burst bubble?' LOGOS, The journal of the world book community 13 [1] pp 9-17

Hane, PJ (2001) 'Rosetta Books publishes first self destructing eBook' Information Today 8 [9].

Jantz, R (2001) 'eBooks and new library service models: an analysis of the impact of eBook technology on academic libraries.' Information Technology and Libraries 20 [2] pp104-112.

King, B (2002) 'The day the Napster died' Wired 15 May. Available http://www.wired.com

Lynch, C (2001) 'The battle to define the book in the digital world', First Monday: Journal of the Internet, 6, 6 June.

Osborn, A (2001) 'In Brussels.' Thursday 15 February, The Guardian.

Peek, R (2001) 'Controlling the threat of eBook piracy.' Information Today 18 [6] June. pp42

Pike, GH (2001) 'A book is a book is an eBook, copyright, contract and technology are clashing in the digital age.' Information Today 18 [7] July/August. Available http://www.infotoday.com

Rawlins, GJE (1998) The new electronic book technology Department of Computer Science, Indiana University.

Reid, C. (2002) 'eBook vendors look to libraries for growth.' Publishers Weekly 7 October, pp12.

Rosie MJ (2001) 'Throw the eBook at Sklyarov.' Wired 24 July. Available http://www.wired.com

Taylor, C (2001) 'Throwing the eBook at him.' Time 20 August.

The author says: 'I have worked at Sheffield University Law Department for eight years and at present I am looking at libraries and technology law. I am able to travel extensively with a research budget. The Australian work was completed as a visiting academic in Perth and Sydney.' twomarky@msn.com

Editor's note: As I was marking up the copy for this article, my ISP sent me the following warning. It is passed on here for what it is worth: 'What do you really know about KaZaA? KaZaA is a popular program that, by file-sharing, networks computers worldwide to exchange music files. Users should be especially careful when accessing KaZaA, because it has built-in software that watches its users. KaZaA, with its partner Brilliant Digital, monitors user activity with software that is downloaded and invisibly installed with KaZaA Media Desktop. This software automatically links users into yet another network, Altnet, which can track behaviour, as well as store and retrieve banner ads and pop-ups.'