"It's open source, so who do you go after?" asked Phil Albert, IP attorney and partner with the San Francisco law firm Townsend and Townsend. "You could go after its author and you could somehow force him to give up and say he'll never touch it -- so what? It's open source. Anybody can develop on it."
The point, despite the actions of the MPAA's recording industry equivalent RIAA, is that you can't sue "anybody."
Open and used regularly
Albert used the case of the original Napster as an example of how the open source nature of BitTorrent, created by Bram Cohen in 2001, bolsters its resistance to any legal strategy against it. With the old, centralized music swapping service, Napster represented a centralized server that facilitated the trading -- similar to what Loki Torrent was. After successful legal attacks against Napster, the decentralized models of Kazaa and Morpheus emerged and became popular -- remaining so to this day. Once the file trading moved to a decentralized form, the RIAA then pursued the companies behind the services, albeit unsuccessfully. Still, the RIAA at least had companies to target. With a widely used open source application such as BitTorrent, the focus of the court filing evaporates, according to Albert.
"Now, you don't even have a company to go after," he said.
The attorney also pointed to the prevalent, legitimate uses of BitTorrent -- which recently won inclusion in the latest Morpheus 4.7 -- that make it an unattractive legal target.
"If someone wants to distribute their own material and it's a lot of bits, the simplest way to do it is BitTorrent," he said. "There's a lot of legitimate uses for BitTorrent outside of the entertainment industry. My gut reaction [to BitTorrent] is, maybe you could use that for illegal movie and music swapping, but its primary purpose is to distribute material legitimately."
Albert said the open source nature of BitTorrent and the legitimate use of the technology were two things that validate it is "not a target worth attacking."
In an interview, MPAA Senior Vice President of Worldwide Anti-piracy Operations John Malcolm said the MPAA has no qualms with BitTorrent as a technology.
"I am totally agnostic about the technology that is involved," Malcolm said. "I view innovations as exciting. While they present some piracy problems, there are tons of opportunities for creative
people to put content in peoples' hands at a reasonable price."
Malcolm indicated he was not favorable to BitTorrent over any other technology and added the fact that it is open source has little to do with his organization's approach.
"I view it as the latest and greatest, which is not the same thing as the last and best," he said. "Technology marches on. We have not gone after the creators of BitTorrent because they're the developers of a technology. If I learn they geared this technology for unlawful purpose, and ignored easy things that they could've done to prevent it, we might view it differently."
Malcolm claimed by legally pursuing those using BitTorrent or other technologies to traffic unlicensed material, the MPAA was actually more pro-technology than the illicit file-sharers.
"The people who are anti-technology are the targets," he said. "They're the people who use technology to engage in rampant theft. Our beef is not with the people who develop technology. It's with the people who use it illegally."
BitTorrent is a clever technology for chunking content, including video, into "torrents" and sharing bandwidth to deliver the chunks efficiently. Loki Torrent and others like it may represent the low-hanging fruit for the MPAA, but new generations and variations of BitTorrent -- namely eXeem -- are emerging without the central server model, much the way decentralized sharing models such as Morpheus and Kazaa rose while the original Napster fell.
Yankee Group senior analyst Mike Goodman said he did not think the MPAA would go after the BitTorrent technology, which he referred to as, "absolutely one of the more legitimate uses within P2P."
"I think BitTorrent is certainly [an application] to point to to show the legitimization of P2P networks," Goodman said.
While he added that the MPAA or other content owners do not care that BitTorrent is open source, the P2P industry watcher said the centralization that made
Loki Torrent a target is disappearing.
"I don't see them attacking the technology," Goodman said. "To work, BitTorrent requires a central location to find [content] and a central server. What they're attacking is that centralization. They're attacking the sites where the illegal content is being posted. They're not attacking the technology."
Electronic Frontier Foundation staff attorney Fred von Lohmann said it is clear that Cohen did not set out to provide a piracy tool in BitTorrent, and the MPAA -- though arguably backward-minded in the eyes of many -- is smart enough to know it cannot target the technology or its creator.
"It seems clear to me that BitTorrent and Bram Cohen are not liable for what [BitTorrent] is being used for," von Lohmann said. "Bram has little to worry about on it."
Like Albert, von Lohmann argued that the legitimacy of BitTorrent and its lack of legal appeal were reinforced by the fact that the popular software is open source.
"I think [the MPAA] realizes if they tried to sue Bram, they'd be in a very weak legal position," he said. "The MPAA is acting in ways that [indicate] they recognize that. The fact that it's open source really underscores the point that they wouldn't go after [it], anyway. The technology is available and can be used by anyone."
von Lohmann said the central "trackers" used to find content for BitTorrent downloads, such as Loki Torrent, may still come under fire from content owners
such as the MPAA, but he stressed how BitTorrent reflected the continued legitimacy and longevity of P2P.
"Consumers and Net users are always going to have the ability to exchange files," he said. "That's the world we live in and I don't think that genie's ever going to get put back in the bottle."