How Music Got Free (17 page)

The RIAA’s antipiracy division targeted defendants by the number of files they had uploaded, setting a threshold minimum of 1,000 songs shared. The idea was to go after only the worst offenders, but, due to technical factors, it didn’t quite work out that way. Napster and its clones tended to make one’s library uploadable by default. Savvy users often disabled this function, meaning many of the so-called “worst offenders” turned out to be clueless noobs. So to the outside world, Project Hubcap looked arbitrary and vicious. The RIAA seemed to be choosing the defendants at random, picking up IP addresses from peer-to-peer servers like Kazaa and LimeWire and subpoenaing the responsible Internet service providers for customer details. But even with these subpoenas the RIAA never quite seemed to know who it was suing. It targeted single mothers and families without computers. It targeted senior citizens and children. It targeted the unemployed and people who’d been dead for months. In one high-profile case, the RIAA targeted Brianna LaHara, a 12-year-old girl who lived in a New York City housing project and who had downloaded, among other things, the theme song from the TV sitcom
Family Matters.
Rather than doing the sensible thing—dropping their civil lawsuit against a child—the RIAA instead offered to settle with little Brianna, provided her parents wrote them a check for 2,000 dollars.

Project Hubcap was not popular. The lawsuits asked a few people singled out at random to pay for the collective actions of millions. The RIAA’s website was hacked and repeatedly bombarded with denial-of-service attacks. Dozens of musical artists, including many signed to Universal, disavowed the suits, siding with their fans. Technology commentators called the lawsuits “absurd,” and pointed out that, in the era of unsecured wireless hotspots, an IP address was hardly proof of legal culpability. Legal experts referred to the
lawsuits as “shakedowns,” pointing out that many of the accused had neither the time nor the expertise nor the money to properly defend themselves in a court of law. The ACLU filed its own countersuit, contending that the ISP subpoenas were themselves illegal, and called the RIAA’s actions “vindictive.”

The RIAA had its own descriptive term for the Project Hubcap lawsuits.
They were “educational.”

In later years, long after the dust had settled, Doug Morris would seek to play down his role in this disastrous policy. He would claim that he had had little personal involvement in Project Hubcap’s design and execution, and that he’d relied primarily on Horowitz and Geller’s advice. Perhaps that was true. But it was also true that Morris was Horowitz and Geller’s boss. It was only with his explicit endorsement that the lawsuits could have been filed. If Morris—who controlled almost 30 percent of the RIAA’s annual operating budget—had opposed Project Hubcap, it never could have happened.

It was widely conceded, even by the RIAA’s own lawyers, that the peer-to-peer file-sharers were not deliberate lawbreakers but just kids who wanted music. Their actions were selfish, perhaps, but they weren’t trying to hurt anyone. That was a far cry from the Scene participants, who from the labels’ perspective seemed like vandals intent on destroying the music business out of spite. During the flap over Project Hubcap, the Scene remained well hidden. Even within the music industry, even among specialists in intellectual property protection and copyright law,
even among most pirates,
very few were aware it existed.

But the RIAA knew. For years their secretive antipiracy group had been surveilling the Scene. They hung around in the chat rooms and learned the language of the subculture. They tried, as best they could, to track the shifting allegiances of the pirates and the protean relationships of the dozen or so named groups dedicated to music leaking at any given time. They built a large internal database that tracked the groups’ activities, and using this they were able to
construct something that looked almost like an epidemiology map of both the origins of the leaked material and its dissemination throughout the Internet. By the end of 2003, their research kept pointing to one increasingly powerful crew: RNS.

In January 2004, the RIAA appointed Brad Buckles, the former director of the Bureau of Alcohol, Tobacco and Firearms, as its new executive vice president of antipiracy. Buckles would be paid nearly half a million dollars a year for his investigative talents and his connections to law enforcement. After his appointment, the RIAA’s antipiracy squad began to meet regularly with members of the FBI, to share evidence and intelligence, and to convince the Bureau to allocate agents to the case. It was around this time that the FBI opened its dedicated case file on RNS. Termed Operation Fastlink, the investigation grew out of intelligence collected from Operation Buccaneer, the successful prosecution against software crackers from a few years before.

The lead case agent was Peter Vu, who had joined the Bureau in 1997 and had spent his career fighting computer crime. The child of Vietnamese immigrants, Vu was a stern if melancholy presence who brought considerable intelligence and dedication to his job. In his time with the Bureau he had worked online blackmail and credit card fraud and harrowing cases of child exploitation. He was professionally obligated to look under the nastiest rocks of the Internet, and few people understood as well as he did how dark the so-called “darknets” could really get.

Thus for Vu working the Scene was almost like a vacation. The targets of Operations Buccaneer and Fastlink tended not to have prior criminal convictions, and in many cases were even surprised to learn that their actions were illegal. Compared with the sort of depraved criminals and serial perverts Vu normally went after, games-cracking crews and music leakers were marshmallows—bright young kids who were terrified of prison and who, once caught, tended to plead guilty immediately and then provide almost obsequious cooperation. As a
result, most of those convicted got probation, and even the worst offenders never spent more than a year or two behind bars.

Nevertheless, the economic damage they caused was real, and Vu was determined to put an end to it. His agents began meeting regularly with the antipiracy division at the RIAA to exchange information and intelligence, and to discuss the progress of the case—what little there was. RNS’ chat channels were closed off, and its recruiting strategy was to pull connected players who were already long-standing members of other groups, making infiltration difficult. RNS’ leader, whoever he was, had an excellent understanding of operational security, cultivating high-placed moles in other organizations while preventing his own from being compromised. Vu worked the case for years, and for a long time he got
nowhere.

B
y 2001 Brandenburg and Grill had parted ways. The compression ratios of the latest generation of psychoacoustic products were approaching theoretical limits, and the outstanding problems in the field were considered solved. The two sought other challenges. Grill, in Erlangen, went into satellite radio; Brandenburg, from his new lab in Ilmenau, into surround sound.

MPEG, too, was making progress. Video quality was improving, even as the files were shrinking. The upheaval in the music market soon spread to the movie market, as Scene crews that specialized in DVD ripping, in-theater camcorder bootlegs, and high-definition television emerged. Soon, movie files from the Scene were leaving the topsite networks and making their way into the wild.

The defenders of intellectual property were a step behind. The failed lawsuit against Diamond had shown that the technology itself could not be litigated against. Instead, media industries had to target the bad actors one at a time. Numerous lawsuits were filed against peer-to-peer operators,
targeting companies like Grokster, LimeWire, and Kazaa. The upshot of these shifts was that the file-sharers no longer needed help compressing the files. They needed help distributing them.

Napster, though, was ruined, and the heirs to its shattered empire could match neither its quality nor its scope. Kazaa, eDonkey, LimeWire, BearShare, Gnutella, Grokster—the new peer-to-peer networks were frustrating morasses of crap. Requesting a song or movie on these networks meant joining a download queue behind hundreds of
other users. Your wait time could run to hours, even days, and the entire time you waited in this line you were forced to advertise your computer’s IP address to the subpoena-crazed lawyers of Project Hubcap. Worse, when you did finally receive the file you’d requested, it often turned out to be a glitchy, low-fidelity encode, or a mistagged version of some other song entirely, or even
a deliberate, earsplitting fake.

There was little incentive for the peer-to-peer entrepreneurs to invest in quality control. After the
A&M Records vs. Napster
decision they were plainly on the wrong side of the law, with no hope of buy-in from the media conglomerates. With their venture capital drying up, many operators in the peer-to-peer space began secretly bundling their supposedly “free” applications with gray-market adware, flooding the desktops of the unsuspecting with pitches for low-credit loan consolidations and penis-enlarging pharmaceuticals. Investors predictably rebelled, as did users, and for a time the file-sharing economy faced a return to the days of the pre-Napster IRC underground. But the underlying potential of peer-to-peer technology was still tremendous, and, even as mainstream capitalists abandoned it, the more idiosyncratic programming talent stuck around. And that was how an offbeat 25-year-old code warrior at a short-lived peer-to-peer start-up called MojoNation ended up using his spare time at a doomed job to rewrite the rules of Internet architecture.

His name was Bram Cohen, and he called his invention BitTorrent. Born in Manhattan, Cohen was a gifted programmer who competed in recreational mathematics tournaments in his spare time. He wore his hair long and his eyebrows thick, his voice came fast and nasal, and he had the hard-geek habit of nervously chuckling at things that weren’t really funny, like the inefficiencies of standard Internet packet switching, or the believability of reported file transfer download speeds. His laugh was startling and staccato, and always felt forced, and when he talked he bounced in his seat and didn’t meet your eyes. These were classic symptoms of Asperger’s
syndrome, an autism spectrum disorder that Cohen claimed to have—although, he admitted, this wasn’t a professional diagnosis, merely one he’d assigned to himself.

Cohen’s position at MojoNation had given him an intimate look at the mechanics of file-sharing, and what he saw there was appalling. Let’s say you wanted to download an mp3 of the “Thong Song” off a classic peer-to-peer site. There might be millions of copies of the song out there, but, using a site like Napster or Kazaa, you could access only one at a time. That struck Cohen as nonsensical. Rather than matching users piecemeal, he reasoned, an intelligent peer-to-peer protocol would match hundreds of users simultaneously. Instead of downloading the entire “Thong Song” from one user, you could download one one-hundredth of it from a hundred users at the same time. A file transfer like that would happen quickly, perhaps even instantaneously. And even before you finished downloading, you could yourself simultaneously upload pieces of the half-finished file to other users around the globe.

That logic was at the core of the BitTorrent technology, but eliminating download queues was just the beginning. The greatest benefit of the torrent approach was the way it solved one of the Internet’s long-outstanding problems: the traffic bottleneck. Historically, popular files tended to crash servers, as millions of users crowded around a narrow doorway and tried to push their way in. But the matching schematic of torrents opened hundreds of doors at once, taking pressure off the server and transferring it to individuals. This inversion of the traditional paradigm of file distribution had a startling result: with torrents, the more people who attempted to simultaneously download a file, the
faster
the download went.

The technology was brilliant, but there was a catch. The torrent needed to be governed by an oversight server called a “tracker.” A torrent tracker would do far less work than a traditional peer-to-peer network and would require far less capital to operate. But still, someone had to manage it, and the precedent set by
A&M vs. Napster
was
that the operator of a tracker was responsible for policing the contents of the files the torrents pointed to. If (god forbid) a tracker were to govern the transfer of pirated files, then the operator of that tracker would face the possibility of civil and maybe even criminal liability.

Mimicking the routine from the Fraunhofer playbook, Cohen claimed that he did not intend his invention to be used for piracy. Like Brandenburg and Grill, he saw himself only as an inventor. Like Brandenburg and Grill, he dutifully paid for the media he consumed. Like Brandenburg and Grill, he wanted his invention to make him rich. But unlike Brandenburg and Grill, he did not attempt to secure royalty revenues for his invention. Instead, believing he could succeed as an open-source entrepreneur, Cohen registered the BitTorrent technology under an open license that guaranteed his authorship status, but which otherwise permitted the idea to be implemented anywhere, by anyone, for free.

Cohen unveiled the first version of BitTorrent in July 2001, at the annual Defcon hacker conference in Las Vegas. Adoption was slow. Cohen’s first-generation software was cumbersome and confusing, and the underlying BitTorrent architecture was such a radical departure from existing Internet protocol that even the technorati had a hard time understanding it. As with the mp3, the pirates were the first to grasp its potential. In the months following the conference, a number of pirate tracker websites began to appear, but none succeeded in building a critical mass of users. What the earliest torrenters began to see was that the hardest part of running a peer-to-peer file-sharing network wasn’t sourcing the files. It was sourcing the
peers
. Not until September 2003, more than two years after the shutdown of Napster’s servers, did the first really successful public torrent site go live: the Pirate Bay.

Hosted in Sweden, the Pirate Bay quickly became the world’s leading index of pirated material. Movies, music, TV shows, cracked software—it was all available, not in any one place but shared among thousands, with the Pirate Bay servers hosting only the governing
torrent files. The site’s early popularity came from its no-apologies approach: its founders believed what they were doing should be legal, but if it wasn’t they were going to do it anyway. If running a torrent tracker violated copyright law, then the Pirate Bay founders were willing to break that law.

This dissident viewpoint drew attention, and attracted users from the same disaffected subculture of Internet trolls that would later populate such luminary organizations as Anonymous and 4chan.
The Pirate Bay’s founders loved controversy—one of them, Gottfrid Svartholm Warg, had previously hosted a site called “America’s Dumbest Soldiers,” which provided casualty reports from the Iraq War and let users vote on the presumed stupidity of the death. They trumpeted their actions as civil disobedience, and publicly flipped the bird to those who didn’t like it. In 2004, lawyers for DreamWorks SKG sent the site a cease-and-desist letter, threatening legal action under the U.S. Digital Millennium Copyright Act, concerning a torrent for a pirated copy of
Shrek 2
. The response Svartholm Warg drafted was characteristic:

As you may or may not be aware, Sweden is not a state in the United States of America. Sweden is a country in northern Europe. Unless you figured it out by now, U.S. law does not apply here . . . It is the opinion of us and our lawyers that you are fucking morons, and that you should
please go sodomize yourself with retractable batons.

Not every site was so combative. The Pirate Bay was open to the public and hosted a wide variety of file types, and its founders adored attention. Most of the torrent trackers were private, invitation-only affairs, limited to one or two types of media and dedicated to secrecy. As the Pirate Bay went wide, covering all types of files, the private trackers went deep, building completist collections segregated by
genre and medium. Over the next few years, several of these private trackers would flourish beyond their founders’ imaginings, snowballing into large-scale indices of pirated material whose archival breadth surpassed not just the Pirate Bay’s but also the Scene’s and, in some cases, even the Smithsonian’s. The best of these, which grew from the humblest of origins, was the legendary music tracker known as Oink’s Pink Palace.

Oink himself was Alan Ellis, a 21-year-old computer science student from the United Kingdom. Born in Leeds and raised in Manchester, Ellis had enrolled in 2002 in a computer science program at the
University of Teesside, located in the decaying industrial city of Middlesbrough in the UK’s blighted northeast. Ellis was shy, intensely private, and—in sharp contrast to the Pirate Bay’s founders—unfailingly polite. He stood only 5'5", but he was an avid squash player and kept his body in peak physical condition. His hair and eyes were dark, and his square, handsome face was bisected by a pronounced dimple in his chin.

Ellis found his university education lacking. The school’s curriculum seemed geared to an early era of computing. Courses were, in the best British academic tradition, conducted in languages like Fortran and Lisp that had been dead for centuries—the programming equivalents of ancient Greek and Latin. There was no focus on commerce or contemporary computer trends, and there was a baffling lack of interest in the Internet. In conversations with potential employers, Ellis kept hearing of demand for newer programming languages like PHP, for Web scripting, or SQL, for database administration, but the school offered courses in neither.

So he decided to teach himself. In his spare time between classes and squash, Ellis downloaded a few open-source software packages and familiarized himself with the basics of both languages. Although he wasn’t expecting to make any money, his idea was to learn employable skills by running a website that functioned almost like a business, serving dynamic requests to a variety of users. A torrent tracker was
perfect in this regard: it used an SQL database to sort the torrents, and PHP to present them to users.

On May 30, 2004, Oink’s Pink Palace went live. The site was served from Ellis’ home PC, in an off-campus house he shared with five other people. Ellis announced the launch of the tracker by posting to the forums on other torrent sites and inviting in a few trusted confidants. There wasn’t much interest. In the wake of the Pirate Bay’s popularity, hundreds of other private trackers were opening. Most would stick around for a few months, maybe a year, then sputter out of existence. Ellis expected the same future for Oink, although this didn’t trouble him—he viewed the site as a hobby. Nor was he expecting any legal trouble. When he registered for the domain name “Oink .me.uk,” Ellis paid with his own credit card and used his real name.

In its first few weeks Oink’s Pink Palace attracted just a few hundred users. The site was so quiet that Ellis occasionally shut down the Web server software on his PC to play computer games. But then a niche opened in the tracker ecosystem. Avoiding the headache of the public download networks like LimeWire, for some time Ellis had been sourcing music from another private site, Raiden.se, which was, like the Pirate Bay, hosted in Sweden. But in the summer of 2004 Raiden had mysteriously folded after technical difficulties, and its entire database of torrents had been lost. Without the site, the music files themselves, hosted on laptops and personal computers around the globe, were disorganized and inaccessible. In twentieth-century terms, it was like walking into a library and burning down the card catalog.

Ellis saw an opportunity. Returning to the torrent forums, he announced that Oink was rebranding and would no longer host movie or software files. Instead, it would be an exclusive music tracker, long on quality and short on quantity. Unlike the Pirate Bay, which acted mostly as a link repository, with limited oversight or quality control, Oink would be something else entirely: a carefully curated digital archive with a fanatical emphasis on high-fidelity encodings.

He began an aggressive branding campaign. He ran a contest to determine the site’s mascot. The winner was a plump piglet wearing a pair of headphones, christened Oink. The branding campaign put a friendly face on the tracker’s increasingly demanding technical requirements.
Ellis was becoming a quality snob.
He permitted only mp3s ripped from the original compact discs, and emphasized archival completion. The site’s rules for uploads rivaled the Scene’s in their complexity. And there were further rules—rules governing how music was to be tagged and cataloged, rules regarding how torrents were to be uploaded, rules regarding album art and liner notes, rules regarding behavior in the site’s moderated forums. There were even rules outlining how “cute” members’ avatars had to be, the precedent set by the hard-rocking piglet himself.