Distributors of file sharing programs have created an unprecedented, avoidable, and tragic conflict between artists and their fans. Beginning in 2003, copyright holders began suing file sharing program users alleged to be uploading (“sharing”) thousands of infringing files. The sued users reported they did not know they were “sharing” files they downloaded. A report, Free Riding on Gnutella, explained that most users of file sharing programs do not want to share files; they only want to download files shared by others.(1)

Virtually everyone who uses file sharing programs appear to use them exclusively to download infringing files. In practice, file sharing programs are used mostly to download and upload (“share”) infringing copies of copyrighted music, movies, games, images, and software. For example, on June 27, 2005, in MGM v. Grokster, unrebutted evidence showed that 90% of available files on file sharing networks consisted of infringing files. In fact, the district court found undeniable evidence showing that almost 97% of the files requested for downloading were infringing.(2)

It is an undeniable, proven fact that peer-to-peer (P2P) networks cannot thrive without 100% cooperation from their users to share their files. These “shared” files include files downloaded through the P2P network and any existing files users have on their computers, such as private, sensitive files and personal audio files from paid downloads or CDs they have purchased.

In a 2004 letter to six Senators, distributors of KaZaA, a popular file sharing network, emphasized that disabling its redistribution feature (discussed below) would “cripple” the KaZaA network. In an internal e-mail, another distributor affirmed that “P2P exists because of this feature.”

The authors from, Free Riding on Gnutella, found that the Gnutella network faced “possible collapse” if developers of Gnutella-based programs continued to rely on “voluntary cooperation between its users”. Instead, they started to rely on “technological features to induce users to share.” One of those features, redistribution, by default, causes users to share all files they download (piracy), and the other, forced-sharing, compels each user to store and share all of their files. Both features have been found to cause users to share infringing downloads unintentionally and almost all file sharing programs contain at least one of them, if not both, by default.

The problem is that many users may not be aware that redistribution or another “duping” feature is automatically enabled by default or a part of the program at all. Many scholars have warned that distributors create “technological barriers” to ensure that “disabling file sharing….can be a very difficult and perhaps impossible task for all but the most expert computer users.” Others have commented that “P2P networks are programmed to create strong incentives to upload, which is partly achieved by burying the pro-sharing default so it takes some user sophistication to figure out how to turn it off.”

For years, technological research, lawmakers, reporters, and affected and concerned individuals and groups have raised numerous complaints and reports regarding file sharing programs users sharing files unintentionally. In MGM V. Grokster, the Supreme Court found “unmistakable” and “unequivocal” evidence that distributors of the file sharing programs in question intended to encourage their users to infringe copyrights. The findings of the persistent reports of inadvertent sharing signal the effects of duping schemes.

The recent USPTO report, File sharing Programs and “Technological Features to Induce Users to Share” concludes that, after analyzing five popular file sharing programs, it found that distributors of these programs have repeatedly deployed features that had a known propensity to trick users into uploading (“sharing”) infringing files inadvertently. It was discovered that, at minimum, distributors deployed the following features, all known to cause involuntary sharing:

• Redistribution features: by default, cause program users to upload (“share”) all files they download; creates a counter-intuitive link between downloading files for personal use and distributing files to strangers; implemented to make effects less obvious to new users
• Share-folder and Search-wizard features: cause users to share inadvertently infringing files and sensitive personal files (tax returns, financial records, etc.)
1. Share-folder features: lets users store downloaded files in folder other than specially created folder ; stores downloaded files by default through interface that doesn’t warn users that all files stored there will be recursively shared (all files stored in folder, including subfolders shared)
2. Search wizard features: searches users’ hard drives and “recommends” users share folder containing certain “triggering” files (document, audio/visual, image files); can activate automatically, require trigger; activate optionally by user, select identified folders, or recommend
• Partial-uninstall features: If users uninstall, will leave behind file causing any subsequent installation of any version of same program to share all folders shared by “uninstalled” copy.
• Coerced-sharing features: make it far more difficult for users to disable sharing of folder used to store downloaded files; provides misleading feedback indicating-incorrectly- that user has disabled sharing of the download folder; in each case, an obscure mechanism appears to allow sophisticated users to avoid this feature and stop sharing the download folder.

All the features described above cause users to share infringing files involuntarily. The design of these features ensures that files that are shared include downloaded and existing files, including users’ personal collections of audio files copied from purchased CDs.

It has been found that popular file sharing programs deployed most or all of these features at some point from 2003 to 2006. In fact, these features became more aggressive after their vulnerability to cause involuntary sharing was, or should have been, known to program distributors. The distributors of the programs who were evaluated for deploying such features and duping schemes even continued or began to deploy these features after they drafted a Code of Conduct in response to such “false” claims about the features in their programs and after new versions were released “claiming” improvements and changes to these and similar features.

Duping schemes are a well known means of inducement by file sharing programs intending to exploit users by tricking them into unintentionally sharing files. Findings from research and reports show that new users tend to download more files than established, existing users. Additionally, duping schemes used in file sharing programs seem to target young or sophisticated users, thus resulting in ensuring that attempts to enforce copyrights against those infringers who upload thousands of infringing files would tend to target young or sympathetic users.

Peer-to-peer file sharing networks can only thrive from the induced, illegal actions from users to share their infringing and existing files. File sharing networks, by definition, intend to “share” files. Without sharing, peer-to-peer does not and will not exist. Regardless of whether a user intends to share the files they download, they still intend to illegally download files for free. Downloading alone infringes on copyrights and proves that file sharing programs only exist to serve the masses with free, copyrighted music, movies, software, and the like.

File sharing programs infringe on copyright laws and facilitate the theft of millions of dollars of lost revenues to the deserving copyright holders of music, movies, games, images, and software and their affected industries. But the damage, risks, and losses from these file sharing networks continues further to strongly and negatively affect different users, distributors, networks, national and military security, various industries, and the economy as a whole:

• Government & Corporate IT-Security Managers: security of sensitive and/or computer networks threatened and compromised from “unintentional sharing”: compromise entire networks, infect computers/networks with malicious code, and contain vulnerabilities hackers can exploit to steal sensitive data and increase risk of security breach.
• Home Computers Users: sensitive data stored on computers can be “shared” unintentionally; others users of computer-ones installing file sharing program- not always person who understands which files sensitive and where they are stored, resulting in “sharing” of all private and sensitive files on computer or network.
• File sharing Program Users: implications of features in file sharing programs cause users to “share” all sensitive files and infringing files involuntarily, resulting in: risk of lawsuits, identity and personal data theft from the “involuntary sharing” of sensitive personal files, such as health, tax, financial, company information, etc.
• File sharing Program Distributors: should eliminate features so they cannot be held liable for wrongful conduct on intent to “dupe” users; distributor that has program containing features that cause users to share infringing files unintentionally could face direct or secondary liability for the resulting infringements absent any showing of intent.
• Networks: can be destroyed or compromised from files downloaded containing malicious code, bugs, flaws, viruses, or the like; bandwidth congestion from P2P activities.
• National and military security: can be compromised from the “involuntary sharing” of files containing sensitive or classified valuable data or files, such as Defense Department information, law enforcement records, etc.
• Industries: decrease in revenues for the affected entertainment industries and for various industries outside the entertainment industry that are connected by business activities; unprofitable industries ripple their negative industries across the supply chain causing decreased revenues for future business and projects; industries losing their drive to keep investing.
• Economy: the massive theft that results from the use of file sharing programs destroys jobs, kills investment, funds organized crime, and decreases tax revenues.

The only conclusions that can be drawn from these findings are that file sharing programs only serve one purpose: to serve the masses with free, copyrighted material via their networks and users. The only solution to making this free, copyrighted material unavailable to these masses is to eliminate peer-to-peer file sharing programs altogether.

There is not and will almost never be a legitimate business or governmental justification for use of file sharing programs. SafeMedia has developed the solution to prevent the use of such programs and stop the mass distribution of copyrighted material in file sharing networks with its network appliance, Clouseau™. Clouseau™ protects against all of the threats that file sharing programs present, including the security of sensitive data and the security of computer networks for government, corporate, home users and networks.

For the full USPTO Report click here.

(1) Eytan Adar & Bernardo A. Huberman, Free Riding on Gnutella, 5 FIRST MONDAY iss. 10, Oct. 2000, http://www.firstmonday.dk/issues/issue5_10/adar/; see also infra note 66 (reporting that Free Riding has been cited over 100 times in computer-science research papers); cf. Tim Wu, When Code Isn’t Law, 89 VA. L. REV. 679, 686 (2003) (“etiquette among users must be engineered or … induced with ‘charismatic code’”).

(2) Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 2006 U.S. Dist. LEXIS 73714 (C.D. Cal. Sept. 27, 2006).