ome of the world's biggest record companies,
facing rampant online piracy, are quietly financing the development
and testing of software programs that would sabotage the computers
and Internet connections of people who download pirated music,
according to industry executives.
The record companies are exploring options on new
countermeasures, which some experts say have varying degrees of
legality, to deter online theft: from attacking personal Internet
connections so as to slow or halt downloads of pirated music to
overwhelming the distribution networks with potentially malicious
programs that masquerade as music files.
The covert campaign, parts of which may never be carried out
because they could be illegal under state and federal wiretap laws,
is being developed and tested by a cadre of small technology
companies, the executives said.
If employed, the new tactics would be the most aggressive effort
yet taken by the recording industry to thwart music piracy, a
problem that the IFPI, an industry group, estimates costs the
industry $4.3 billion in sales worldwide annually. Until now, most
of the industry's anti-piracy efforts have involved filing lawsuits
against companies and individuals that distribute pirated music.
Last week, four college students who had been sued by the industry
settled the suits by agreeing to stop operating networks that swap
music and pay $12,000 to $17,500 each.
The industry has also tried to frustrate pirates technologically
by spreading copies of fake music files across file-sharing networks
like KaZaA and Morpheus. This approach, called "spoofing," is
considered legal but has had only mild success, analysts say,
proving to be more of a nuisance than an effective deterrent.
The new measures under development take a more extreme and
antagonistic approach, according to executives who have been
briefed on the software programs.
Interest among record executives in using some of these more
aggressive programs has been piqued since a federal judge in Los
Angeles ruled last month that StreamCast Networks, the company that
offers Morpheus, and Grokster, another file-sharing service, were
not guilty of copyright infringement. And last week, the record
industry turned a "chat" feature in popular file-trading software
programs to its benefit by sending out millions of messages telling
people: "When you break the law, you risk legal penalties. There is
a simple way to avoid that risk: DON'T STEAL MUSIC."
The deployment of this message through the file-sharing network,
which the Recording Industry Association of America said is an
education effort, appears to be legal. But other anti-piracy
programs raise legal issues.
Since the law and the technology itself are new, the liabilities
criminal and civil are not easily defined. But some tactics are
clearly more problematic than others.
Among the more benign approaches being developed is one program,
considered a Trojan horse rather than a virus, that simply redirects
users to Web sites where they can legitimately buy the song they
tried to download.
A more malicious program, dubbed "freeze," locks up a computer
system for a certain duration minutes or possibly even hours
risking the loss of data that was unsaved if the computer is
restarted. It also displays a warning about downloading pirated
music. Another program under development, called "silence," scans a
computer's hard drive for pirated music files and attempts to delete
them. One of the executives briefed on the silence program said that
it did not work properly and was being reworked because it was
deleting legitimate music files, too.
Other approaches that are being tested include launching an
attack on personal Internet connections, often called
"interdiction," to prevent a person from using a network while
attempting to download pirated music or offer it to others.
"There are a lot of things you can do some quite nasty," said
Marc Morgenstern, the chief executive of Overpeer, a technology
business that receives support from several large media companies.
Mr. Morgenstern refused to identify his clients, citing
confidentiality agreements with them. He also said that his company
does not and will not deploy any programs that run afoul of the law.
"Our philosophy is to make downloading pirated music a difficult and
frustrating experience without crossing the line." And while he said
"we develop stuff all the time," he was also quick to add that "at
the end of the day, my clients are trying to develop relationships
with these people." Overpeer, with 15 staff members, is the largest
of about a dozen businesses founded to create counterpiracy methods.
The music industry's five "majors" the Universal Music Group, a
unit of Vivendi
Universal; the Warner Music Group, a unit of AOL
Time Warner; Sony Music Entertainment; BMG, a unit of
Bertelsmann; and EMI have all financed the development of
counterpiracy programs, according to executives, but none would
discuss the details publicly. Warner Music issued a statement
saying: "We do everything we feel is appropriate, within the law, in
order to protect our copyrights." A spokeswoman for Universal Music
said that the company "is engaging in legal technical measures."
Whether the record companies decide to unleash a tougher
anti-piracy campaign has created a divide among some music
executives concerned about finding a balance between stamping out
piracy and infuriating its music-listening customers. There are also
questions about whether companies could be held liable by
individuals who have had their computers attacked.
"Some of this stuff is going to be illegal," said Lawrence
Lessig, a professor at Stanford Law School who specializes in
Internet copyright issues. "It depends on if they are doing a
sufficient amount of damage. The law has ways to deal with copyright
infringement. Freezing people's computers is not within the scope of
the copyright laws."
Randy Saaf, the president of MediaDefender, another company that
receives support from the record industry to frustrate pirates, told
a congressional hearing last September that his company "has a group
of technologies that could be very effective in combating piracy on
peer-to-peer networks but are not widely used because some customers
have told us that they feel uncomfortable with current ambiguities
in computer hacking laws."
In an interview, he declined to identify those technologies for
competitive reasons. "We steer our customers away from anything
invasive," he said.
Internet service providers are also nervous about anti-piracy
programs that could disrupt their systems. Sarah B. Deutsch,
associate general counsel of Verizon
Communications, said she is concerned about any program that
slows down connections. "It could become a problem we don't know how
to deal with," she said. "Any technology that has an effect on a
user's ability to operate their computer or use the network would be
of extreme concern to us. I wouldn't say we're against this
completely. I would just say that we're concerned."
Verizon is already caught in its own battle with the recording
industry. A federal judge ordered Verizon to provide the Recording
Industry Association of America with the identities of customers
suspected of making available hundreds of copyrighted songs. The
record companies are increasingly using techniques to sniff out and
collect the electronic addresses of computers that distribute
pirated music.
But the more aggressive approach could also generate a backlash
against individual artists and the music industry. When Madonna
released "spoofed" versions of songs from her new album on music
sharing networks to frustrate pirates, her own Web site was hacked
into the next day and real copies of her album were made available
by hackers on her site.
The industry has tried to seek legislative support for aggressive
measures. Representative Howard L. Berman, Democrat of California,
introduced a bill last fall that would have limited the liability of
copyright owners for using tougher technical counterpiracy tactics
to protect their works online. But the bill was roundly criticized
by privacy advocates. "There was such an immediate attack that you
couldn't get a rational dialogue going," said Cary Sherman,
president of the recording industry association. He said that while
his organization often briefs recording companies on legal issues
related to what he calls "self help" measures, "the companies deal
with this stuff on their own."
And as for the more extreme approaches, he said, "It is not
uncommon for engineers to think up new programs and code them. There
are a lot of tantalizing ideas out there some in the gray area and
some illegal but it doesn't mean they will be used."