Kan, for example, believes that he's safe from any blame for Gnutella-facilitated piracy: "Insofar as my role with Gnutella is concerned, I would question what benefit there would be in coming after someone like me," he says. "First off, there are many like me. And secondly, what would they get? There would be little potential for recovering any financial damage, there is absolutely zero potential of shutting down Gnutella and in any case Gnutella is nothing but a communications protocol. It'd be like suing English."

Or, as Sidwall believes, "The RIAA would have taken action by now, I bet, if they were going to."

Gnutella fans may be lowering their guard a bit too soon. The RIAA has made it clear that it does have its eye on Gnutella. Cary Sherman, general counsel of the RIAA, explains that "Gnutella is certainly one of the issues on our radar screen." Sherman says that he is already thinking about ways that Gnutella could be legally threatened, if necessary. As he observes, "Gnutella is the name of a program that is a P2P network; to the extent that there's no central source running it like Napster, it's true that an injunction can't bring it down. But there are also people disseminating the program, and people who are using it to disseminate materials. There could be legal strategies to address that." He also observes that the free-riders research done by Adar and Huberman proved just how few hosts there really were: "There's an enforcement strategy there if we wanted to pursue it," he says. "We'll monitor the situation and proceed accordingly."

The RIAA may try to make an example of Kan, Sidwall or any of a multitude of Gnutella users or developers, even if they can't shut the P2P protocol down. And if enough users are scared off, Gnutella will lose the critical mass it needs to be successful. Those who are left could potentially splinter Gnutella into dozens or even hundreds of secret sub-networks in order to evade legal scrutiny -- creating smaller groups of hosts linked together, perhaps around specific interests, rather than the one mega-network that currently exists -- but this would basically turn Gnutella into an insiders-only club: hardly the kind of mass phenomenon that would be a threat, or useful, to anybody.

The RIAA could also, conceivably, sue AOL, since AOL programmers originally created the program. But odds are that they won't. Time Warner's EMI and Warner Music are heavyweight members of the RIAA so AOL's ties to the RIAA are close, to say the least. Indeed, had Gnutella been created by anyone but AOL, many observers think that the RIAA already would be serving up legal papers.

The RIAA's Sherman scoffs at the notion that AOL is being given an easy ride by the record industry. "That's absolutely not the case," he says. But others plan to take AOL to task for its role in the creation of Gnutella. MP3Board.com, a Santa Cruz, Calif., start-up that offers several Web interfaces for finding MP3s -- including Gnutella -- is currently being sued by the RIAA. In a third-party complaint filed in early September, MP3Board struck back at AOL, claiming that if MP3Board is found guilty of copyright infringement by the RIAA, then AOL should also be found guilty since it produced Gnutella in the first place.

MP3Board's lawyer Ira Rothken argues: "AOL owns the intellectual property [of Gnutella], they own the copyright, they put it up on the Web site, they should have known it didn't have safeguards in place for Digital Millennium Copyright Act compliance. They had the right, given the fact that they own the copyright to the code, to go out and get a restraining order against people who did use it. And they didn't." So if MP3Board goes down, he thinks it's only fair that AOL goes down too -- if, that is, MP3Board can afford to battle the monolith of AOL in court.

In any case, Gnutella's fate is undeniably tied to that of Napster. If Napster wins its fight against the preliminary injunction next week, Gnutella developers will be able to breathe easy for a while; as long as Napster is still around, Gnutella developers should be able to work on fixing the software's problems without an onslaught of MP3 trader traffic. But if Napster loses to the RIAA, it will be an entirely different story.

Gnutella and Scour Exchange are the only two file-sharing applications that have even a tiny amount of the critical mass required to make the systems work smoothly. But Scour Exchange is owned by a corporate entity and is already facing a lawsuit from the RIAA; if Napster is closed then Scour will probably face the same future. Gnutella, if it survives the onslaught of millions of new users and grows into the biggest MP3 trading community, would be the RIAA's next target -- and this time, the RIAA would have a legal precedent in its pocket that declares that technologies that let users infringe on copyrights are illegal.

Yes, there will always be another P2P file exchange program -- CuteMX, Napigator, OpenNap, MojoNation and Freenet are some lesser-known programs that would happily step into Gnutella's place -- but if Gnutella, which has some of the best open-source programmers on the Net behind it, can't survive the technical or legal challenges of critical mass, how will the other programs be any better prepared?

At least that's how it looks right now. But perhaps Gnutella's problems will be fixed, and future versions will be both technically sound and truly anonymous, making it impossible to figure out who's doing what where. It's worth remembering that Gnutella is as much an ideology as it is a software program. There's a great deal of emotion invested in Gnutella, and in the long run that passion may well prevail. The subtext of the chant that "there's always Gnutella" is a giant middle finger waved in the face of a music industry that is perceived as greedy and exploitive.

As Justin Frankel himself put it in June, "Nullsoft is and was about all these good things that ultimately don't matter to most businesses. The people, the environment, the blatant disregard for conventional thinking. We did shit because it was cool, and because it was what we wanted to do." Or, as Rob Lord, one of the original Nullsoft employees, is quoted on the Nullsoft home page: "We didn't get into this 'space' cuz we're Internet gold-seeking cockos. We're legitimate nihilistic media terrorists, as history will no doubt canonize us."

Justin Frankel, the patron saint of P2P? Let the church of Gnutella endure forever. Amen.

The Free Software Project
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