Most of us easily will recall one of the first uses of the internet: Napster. While Napster thrilled users with the prospect of “free” music and the ability to locate those obscure songs you thought were lost when your last vinyl LP record broke, its widespread use was devastating to the retail music industry and infuriated Metallica drummer Lars Ulrich. Further, in most instances, the use of Napster to download music and other content also amounted to copyright infringement. Accordingly, Napster was sued, the general public was educated about the fact that stealing copyrighted content is unlawful, and Lars Ulrich was happy.

The end of Napster marked only the beginning of the use of the internet for sharing files over what are called peer-to-peer (“P2P”) networks. Although Napster ultimately was moved to make adaptations to comply with copyright laws, multiple other unrestricted P2P file-sharing tools sprang up in its place. Seemingly overnight, tools like LimeWire Kazaa, and BearShare came into existence to fill the void left by Napster.

First generation P2P networks allowed two users to connect with each other through the use of a specialized search engine. Once two users located and connected with each other, files could be downloaded from one user to another, but this first generation P2P network suffered from two notable glitches. First, because many internet service providers (“ISPs”) limit their users’ upload speeds, downloads on P2P networks often were slow due to the limited bandwidth available to the user who was sharing files. This made first-generation P2P networks impractical for sharing large files. Second, because first-generation P2P networks connected two users directly to each other, the IP address of the user sharing the file could be discovered, leading eventually to the discovery of the identity of the person sharing the files. This second glitch allowed the music industry to identify individuals sharing copyrighted content and sue them for copyright infringement, thereby creating a significant disincentive to using first-generation P2P networks for unlawful purposes. Because the thought of paying 99 cents for Metallica’s latest release seemed too much to bear, the internet adapted.

BitTorrent represents the second generation of P2P file-sharing protocols. The BitTorrent protocol overcomes the slow-download problem of first-generation P2P networks by allowing large files to be broken into many pieces. These multiple pieces are then shared among many users called a “swarm.” A user seeking to download a certain file then downloads the various pieces of the file from multiple different users, thereby overcoming the limited bandwidth available to each user who is uploading the file. Perhaps of greater importance to those who would unlawfully download copyrighted content is the fact that, because the downloader is connected to a potentially large number of peers, locating and identifying individuals responsible for the unlawful sharing of content over the internet is significantly more difficult than it was on first-generation P2P networks. Moreover, because BitTorrent overcame the speed limitations imposed by the technology of first-generation P2P networks, significantly larger files, such as high definition movies, now are routinely and easily shared over the internet.

Software recently has been developed to permit the detection of unlawful file transfers over the internet using the BitTorrent protocol. This software identifies the “cryptographic hash” of a file being transferred over the internet, and can alert the owner of that file of the unlawful distribution. The file owner then can use the software to discover the IP address and ISP of the individuals who are unlawfully copying and distributing the file. Thereafter, the content owner must initiate litigation and use subpoenas to determine the actual identities of the users behind the unlawful copying of the content. Obviously, this process could take a considerable amount of time to complete, and many courts may be concerned when cases are filed naming hundreds, if not thousands, of Doe defendants. Additionally, while content owners are attempting to enforce their copyrights in federal courts, the unlawful copying and downloading of content using the BitTorrent protocol over the internet will continue unabated.

Recently the Department of Homeland Security began to take action against the most prolific unlawful distributors of copyrighted content, resulting in the seizure of several internet domains which had been assisting in the distribution of torrents relating to copyrighted content. Users visiting domains such as atdhe.net and channelsurfing.net now are greeted with a web page informing them that the Department of Homeland Security has seized the domain name. While the seizure of these domain names may be good news to the content owners who have been adversely impacted by distribution of their content using the BitTorrent protocol, the seizure of domain names by the Department of Homeland Security represents a very blunt tool which also may block the lawful distribution of large content files over the internet. Obviously an action of this nature presents a number of potentially problematic issues for the Department of Homeland Security, including potential violations of First Amendment rights.

The unchecked and unlawful distribution of copyrighted content remains a significant problem of the digital age. While actions by Homeland Security may have a modest impact on an internet user’s ability to unlawfully download copyrighted content, it is obvious that individuals intent on promoting such piracy can find other ways to locate each other. Until such time as a more streamlined process is created allowing content owners to quickly address and terminate rampant unlawful distribution of copyrighted content over the internet via BitTorrent or similar tools, content owners will continue to suffer potentially significant economic losses.