La Societe Des Producteurs De Phonogrammes En France (SPPF), which represents recording labels in France, is suing three P2P software vendors, Shareaza, Azureus and Morpheus. They are suing because recent French legislation suggests that all P2P programs must have a feature to block the transfer of unauthorized copyright media, a feature the mentioned clients don’t have. More detailed background to the case can be found here.
An important player in this action is one Jonathan Nilson, so to begin, we need to clarify exactly who he is and how he fits into this legal action against Shareaza. TorrentFreak spoke to Wout000, an admin at Shareaza. He told us:
“Shareaza.com was firstly registered by Mike Stokes, the creator of Shareaza. Mr. Stokes registered the site, and went live with his groundbreaking client ‘Shareaza’ that contained multi-network swarming and the revolutionary network G2.
Mr. Stokes was, at that time, unemployed. When Shareaza gained popularity and was noticed by other companies that use P2P networks in their programs, he received a job offering. He went for it but this meant he had to leave Shareaza to other developers and distance him from the client. Therefore he made Shareaza open source and transferred the domain to a user he trusted. This user was Mr. Jonathan Nilson.
Mr. Nilson has had control over the domain name for years, and is being prosecuted because of that. His name was the only viable name they could dig up (whois) and therefore he is being made responsible for the entire Shareaza vs SPFF debacle. He has cut communication with the Shareaza team and doesn’t respond to emails. The calls that are made to him, end up in a legal banter that is forced upon him by his lawyers. Mr. Nilson has no ties whatsoever to the Shareaza community at present and this will presumably remain this way.”
Recently, we reported that the Shareaza.com domain had been ‘hijacked’, in that it is no longer controlled by Mr Nilson but is now in the hands of MusicLab – who just happen to be associates of SPPF. Mr Nilson would neither confirm nor deny that he had sold the domain, but speculation from sources close to the case suggest that he may well have sold the domain to MusicLab – after striking a deal with the prosecutor to drop the case against him.
Speculation maybe, but it can’t be denied that MusicLab like getting control of P2P related domains, with assistance from their friends in the RIAA. Neither can it be denied that they took control of iMesh as part of its settlement with the RIAA and that iMesh is run by Robert Summer, ex-Sony boss and ex-president of the RIAA.
MusicLab also took control of BearShare as part of its settlement with the RIAA and also now hosts those services on their server located at 18.104.22.168. MusicLabs, it seems, is taking each P2P client one by one – and assimilating them into a Borg-like collective.
And now, in 2008, it’s also impossible for MusicLabs to deny that somehow, the Shareaza.com domain name owned by Mr Nilson now points to the very same server detailed above, where they have created a fake Shareaza site, complete with graphics taken from the official site, in order to pass off their software – most likely an iMesh clone – as Shareaza. It’s not, it’s a complete scam designed to ruin the good name of Shareaza, by trading on its success to draw traffic to a counterfeit site.
Also on the same server was shareazaweb.com, another Shareaza scam site but they’ve taken that down now.
Anyone noticing a pattern here?
Open Letter to La Societe Des Producteurs De Phonogrammes En France
Refutation of claims made by the SPPF against Jonathan Nilson and Shareaza
The Writ of Summons issued before the Paris Regional Court on 18th September 2007 contains many fanciful claims against Jonathan Nilson and Shareaza. Many of the facts as they are presented in that document are simply not true, and have resulted in great harm to Nilson and the Open Source software project Shareaza, namely legal threats against a person not residing within any French jurisdiction and the loss of the shareaza.com domain name.
Nilson does not receive money for Shareaza
The most serious (and false) claims made by the SPPF is that Shareaza is a commercial software product and that Jonathan Nilson has benefited financially from his involvement with Shareaza.
As the SPPF itself notes, the Shareaza software is Open Source and the code is available to anyone at no charge via the SourceForge site also named in the Writ. There is no charge, fee or any other form of compensation made by users of the software to anyone involved with the development of the software, including Jonathan Nilson. The former shareaza.com website did not contain any form of advertising material. The Shareaza software did not and does not contain any form of advertising material. Examination of Shareaza’s source code will reveal that no user information is sent back to the Shareaza development team that could be used to generate financial income (such as statistical information on files being accessed by users or personal information that may be used to contact Shareaza users for commercial or other purposes).
In summary, there is absolutely no money involved at any level of the Shareaza project. It is given away at no charge to anyone who wants to use or modify it.
The real extent of Nilson’s involvement with Shareaza.
Jonathan Nilson is not actively involved with Shareaza at all. His only involvement is on an intermittent basis and consists solely of registering the Shareaza.com domain name and listing himself as the administrative and technical contact for it as required by the governing internet body ICANN.
The SPPF claims (in some parts) that Shareaza.com is “clear[ly] and without possible question” a company and that Jonathan Nilson is that company’s representative. In actual fact, Shareaza.com is not a company (later admitted by the SPPF) nor is it facilitated by any company and Nilson is simply the individual who registered the domain name. As the cost of registering a domain name is nominal and may be done in advance for periods of up to 10 years, it is easy for a registrant to forget their registration details and there are many thousands of domain names on the web which are no longer maintained by their registrants.
False claim of financial loss
The SPPF claim to represent independent producers of recorded music (as defined in the Writ) and that it’s members have suffered financial harm as a result of users of the Shareaza software downloading music protected by copyright. The author of this letter challenges the SPPF to either provide proof of these claims (rather than continuing to make the vague assertions such as those included in the Writ), or to accept the following:
- That Peer To Peer software, including Shareaza, actually provides independent music producers with a free platform with which to promote (a) their music, (b) their live performances and concerts, (c) merchandise such as t-shirts, stickers, pins, etc and (d) the artist’s and/or producer’s website where other offers can be made to P2P users and the general public,
- That many independent producers and artists already use P2P software and networks in this manner to promote their creative works,
- That many independent producers and artists actually encourage the use of P2P software for the purposes of sharing their creative works,
- That many independent producers and artists have spoken publicly on the topic of P2P software and credit its usage and the sharing of their material as having a significant and positive effect on the revenue they receive from the production of their creative works.
- That if their members were surveyed, the majority would not agree with the SPPF’s actions in bringing this suite, despite the membership rules requiring them to do so.
Further to this, the SPPF claims that if people are able to obtain music at no charge, there is no reason for them to ever pay for music. This argument is clearly and demonstrably false. The cost of a glass of tap water is so small that it may be considered to be free, yet there is a multi-billion dollar per year global industry dedicated to providing bottled drinking water at a comparatively high cost to the consumer. As can be seen from this example and other examples specific to the music industry, even if something can be obtained at no cost there are still many people who are prepared to pay for it.
Shareaza Pty. Ltd. (Australia)
The SPPF claims that Jonathan Nilson benefited financially from his involvement with an Australian company registered as Shareaza Pty. Ltd. While the author of this letter has no direct knowledge of this claim, there are many scenarios under which such a company may be registered which do not involve Nilson benefiting financially and which are more plausible than the SPPF’s claims.
By way of some background, Shareaza’s original creator and sole developer Michael Stokes released the source code for Shareaza to the public under the GNU GPL v2 license on 1 June 2004 and until then he had been the only person with access to the source code. After releasing the code to the public, Stokes left the project and worked on the development of another software program named Mercora. Mercora used a similar method to Shareaza for the sharing of music files between users, however it was financially supported by payments from users and some of this revenue was paid to royalty collection societies and thus the artists were renumerated for the music being shared.
The author submits that it is more likely that Stokes had intended to steer the development of Shareaza towards this form of business model and later abandoned the idea than it is for Nilson to have and continue to benefit financially from the company Shareaza Pty. Ltd. Had the music industry, represented by the SPPF and similar organizations operating in other countries been willing to embrace a global web-based marketplace and adjust their business models in a competent fashion, Shareaza Pty. Ltd. may have been allowed to develop the Shareaza software in such a way as to provide a great opportunity for the SPPF’s members, however this opportunity was wasted and the company was de-registered (as the SPPF notes).
This scenario, however, is speculation. The Shareaza project is no stranger to imitators who hack the freely available source code and sell the resulting “clone” or access. In any event, the SPPF has not actually claimed that Nilson was ever involved in Shareaza Pty. Ltd., only that such a company once existed and it is entirely possible that this company was registered by someone intending to engage in such actions.
The Streamcast Case (U.S.)
As the SPPF notes, the court’s decision in a case brought against Streamcast Networks, developers of another P2P application in the United States found that P2P developers and distributors may be liable for the copyright infringements of their software’s users if the developers and distributors promote the use of the software for infringing acts.
The Shareaza developers and maintainers of the Shareaza website did not and have not promoted Shareaza as a tool for copyright infringement. The website has only ever included a technical description of Shareaza’s capabilities in general and generic terms (e.g. “Download any file-type” not “Download the latest blockbuster movie”).
The fact that Shareaza has many non-infringing purposes and capabilities and does not promote copyright infringement in the manner required by the Streamcast case proves that Shareaza complies with the Streamcast ruling.
Further to this, the Shareaza developers and community are located in places all over the world and are individually subject to many different legal jurisdictions, often with conflicting legal requirements. The developers and community do however make a good faith effort to adhere to the spirit of the law by taking steps such as being “Streamcast Ruling-compliant”, encouraging the sharing of material only where it is legal to do so and referring users with questions about the legality of Shareaza’s use back to the intellectual property laws of their own country or jurisdiction.
Copyright infringement by the SPPF and associates.
Since making the accusations against Nilson, the domain name shareaza.com now points to a website that does not distribute the Shareaza software. Instead, it points to another website similar in appearance to the old Shareaza website which offers visitors an application named ShareazaV4.exe. That application is a different piece of software which the owner of the site falsely claim is the Shareaza software but which is actually a similar application that has been re-labeled and is owned and controlled by MediaLab, who are associates of the SPPF. The website and re-labeled software both use copyrighted artwork and logos from the real Shareaza website and software (without permission) in an attempt to trick visitors into downloading and using MediaLabs’ software.
The SPPF has therefore been complicit in the facilitation of copyright infringement and deception by threatening a foreign citizen with no means to defend himself in a French court and extorting from him the control of the Shareaza.com domain so that it may be used by SPPF’s associates to infringe copyright and deceive web users into downloading their own software application.
The author of this letter and the Shareaza community of users and developers are outraged by the SPPF’s actions and their hypocrisy by infringing copyright in a misguided attempt to protect their own.
Since the rise in popularity of P2P networks and software the music industry, represented by the SPPF and their international associates have refused to take advantage of new opportunities and new markets and are only just beginning to offer web users with attractive digital offerings. At the same time, they have waged an unconscionable war on competitors who refuse to co-operate with them, software developers and even their own customers.
In bringing suit against Jonathan Nilson, the SPPF have used a tactic that has been developed in collusion with their international counterparts and used the intricacies of their local legal system to force an individual with no capacity to defend themselves to bow to their demands and accept a proposition that no fair minded person would consider reasonable. It is this deliberate targeting of weak opponents that allows them to exercise control over any weaker person or organization of their choosing, innocent or guilty, without oversight as demonstrated by the fact that Shareaza’s co-accused SourceForge.net (a registered company with the capacity to respond to legal threats) has not lost control of it’s domain as Shareaza has, nor to the best of the author’s knowledge, paid a cent in compensation to the SPPF.
The author of this letter considers La Societe Des Producteurs De Phonogrammes En France to be cowardly, deceitful, underhanded and, by engaging in this reprehensible domain-raping action, a threat to any person who values a free and open culture.
Users can obtain the real Shareaza by visiting their SourceForge pages