BearShare has been one of the Internet's better-known name brands for the past three years. When Falco's corporation, Free Peers, Inc., first debuted it in 2000, it was the subject of several complimentary articles by ABCNews.com, MTV.com, and other media outlets looking to crown Napster's successor. But since then, BearShare has kept a low profile while Kazaa, another P2P software created by the Australian company Sharman Networks, has emerged as the industry leader in online music swapping. Not coincidentally it is also the target of a lawsuit from the Recording Industry Association of America, which believes that companies like Kazaa encourage copyright infringement on music owned by the major labels and its many subsidiaries. (No representatives from the RIAA were contacted for this article.) That's why, says Falco, "we've intentionally tried to maintain a second-place position. In other words, we wouldn't want to be Kazaa right now."
The RIAA, argues Michael Froomkin, a University of Miami law professor and a leading authority on Internet policy, does have a legal right to protect its products. However, he makes a key distinction between open-source networks like Kazaa and BearShare and the prototypical file-sharing system, Napster. The latter, he says, "didn't control the files, it controlled an index to where the files were. It got in trouble, not because it was infringing copyrights but because it was contributing to the infringement of copyright." On the other hand, Kazaa and BearShare "neither keep an index nor the files. Now it doesn't seem to me that, under the laws that stand now, they are liable." In the meantime, the RIAA has begun targeting P2P users; last week it began issuing hundreds of subpoenas to Internet service providers and colleges in order to collect personal information on, and eventually sue, file-swappers.
Of course the RIAA has also argued that all file-sharing systems, by their very existence, facilitate copyright infringement. Froomkin says, "Lots of the files being traded are with the consent of the artist. That's how independent bands get famous." And as for the trading of files of songs by popular major-label acts like Eminem and Avril Lavigne? "Well, then you have a problem. That's what brought down Napster, right?
"I'm not saying there's no copyright violation going on," he clarifies. "What worries me, though, as someone who cares about policy, is that the RIAA is trying to get a law changed [through the Author, Consumer and Computer Owner Protection and Security Act, which would make it a felony to trade MP3 music files] in which it makes it impossible for you to do things you have the right to do." This includes, he says, "fair-use" rights like burning a copy of a CD you bought "to listen to in the car" or using a VCR to tape a TV program. Like VCRs and CD burners, file-sharing systems like BearShare are not illegal -- yet.
Although Free Peers, Inc.'s relatively small size (Falco won't divulge how much his company grosses from advertising sales, but allows that its employees are "well compensated") has kept it out of the RIAA's crosshairs, it isn't taking any chances. Last month it joined LimeWire, Grokster, and three other file-sharing networks to form a new coalition, P2P United. Free Peers, Inc. COO Louis Tatta says the group plans to spend time in Washington educating congressional lawmakers instead of supporting or combating legislation. "It's more of a lobbyist group to try and educate Congress about the non-infringing uses of P2P," he explains. "The good uses of the technology are for people who want to publish any of their works. Also, any company that wishes to publish a trial version of their software or an artist that wants to give a sample of their music can easily use P2P."
"Government has the ear of money," admits Falco. "Up until now, the customers and our users haven't been contributing to any campaign coffers. We joined the P2P United thing to pool resources and money together to shift the scales in the other direction."
