Fighting the War on File Sharing aims at a multi-faceted understanding of why peer-to-peer services currently fail to gain their full potential in our society. The analysis focuses on music-file sharing. Three parts of the book ('The Morality of Regulation by Architecture', 'The Economics of Peer-to-Peer in Music' and 'Intellectual Property Rights for Music File Sharing') investigate the positions and opinions that individual disciplines can offer. As these analyses yield partial solutions, the final part of the book provides an institutional framework and applies it to produce new and crisp results on a tough, otherwise almost comprehensively researched subject. The framework recognizes the influence of outstanding work from law and information technology (Lessig), political anthropology (Douglas, Geertz, Smits), new institutional economics (Coase, North, Greif) and jurisprudence (Fuller, Bobbitt, Tamanaha). Its application allows a glimpse of veritable multidisciplinary co-operation concerning the perplexities of regulating the regularities in our social behaviour.

Aernout Schmidt and W. Keuvelaar are both affiliated to elaw@Leiden, Centre for Law in the Information Society at Leiden University Wilfred Dolfsma is affiliated to the Utrecht School of Economics and to Maastricht University (UNU-MERIT)

Preface	p. V
Summary of contents	p. VII
Preliminaries	p. 1
Peer-to-Peer Problems	p. 3
The World According to Lessig	p. 5
Cultural and Institutional Theories	p. 6
The Morality of Regulation by Architecture	p. 8
Structure	p. 8
The Morality of Regulation by Architecture	p. 11
IT as a Relevant Discipline	p. 13
Asking a Question	p. 15
Roles in IT practice	p. 16
The story	p. 17
Booting	p. 18
Some history: Moore's law, law, standards	p. 19
The operating system	p. 22
Handles for regulation during boot	p. 24
The desktop	p. 25
As a part to the operating system: policies	p. 26
As a port to applications: stand-alone, client-server, peer-to-peer	p. 26
Two application semantics, four efficiencies (intermezzo)	p. 27
The reference approach	p. 28
The convention approach	p. 30
Application characteristics by convention	p. 31
Asking a question (summing up)	p. 34
Regulation by Design and Deployment	p. 35
Application design methodology	p. 35
The ITdesign framework Sections	p. 37
The ITdesign framework Chapters	p. 37
Remodelling Napster	p. 38
Regulation by design and deployment (summing up)	p. 48
The Morality of Regulation by Architecture	p. 48
Eight conditions	p. 49
Moral challenges for regulation by architecture	p. 52
Five questions	p. 53
Is regulation by architecture a one-way projection of authority?	p. 53
Who can make legitimate regulation by architecture?	p. 54
What are the institutional roles?	p. 55
What are the role moralities involved?	p. 56
How is interaction placed in regulation by architecture and its administration?	p. 56
Basic assumptions on the morality of regulators by architecture	p. 57
The morality of regulation by architecture	p. 57
Morality of duty (M1)	p. 58
Morality of aspiration (M2)	p. 62
The Economics of P2P in Music	p. 63
Introduction	p. 65
Markets for Information Goods	p. 67
Some Economics of Intellectual Property Rights	p. 71
The music industry: digitisation	p. 72
Market Standards, Business Models and Future Music	p. 77
Three Models Assessed	p. 85
Products & Prices: Welfare Implications	p. 88
Conclusions	p. 92
Intellectual Property Rights for Music File Sharing	p. 93
Preface	p. 95
Approach	p. 95
Copyright, neighbouring rights and file sharing	p. 95
Problem definition	p. 96
Context	p. 97
Restrictions to the research project	p. 98
Research goal	p. 98
Plan of work	p. 98
The WIPO Treaties	p. 99
Introduction	p. 99
Exploitation rights	p. 99
The right of reproduction	p. 99
The right of distribution	p. 100
The right of rental	p. 100
The right of communication and making available to the public	p. 101
Limitations	p. 102
Exercise and enforcement	p. 102
Technical protection measures	p. 102
The Application of Copyright and Neighbouring Rights	p. 103
Introduction	p. 103
The right of reproduction	p. 103
The right of distribution	p. 105
The right of rental	p. 106
The right of communication and making available to the public	p. 106
New questions and problems	p. 107
The Application of the Restriction of Private Copying	p. 108
Introduction	p. 108
Private copying in Directive 2001/29/EC	p. 108
Private copying according to current law	p. 109
Private copying according to future law	p. 110
New questions and problems	p. 111
The non-commercial criterion	p. 111
A home copying levy on other equipment	p. 112
Determining the amounts of fair contribution and retribution	p. 112
The need for collective administration	p. 113
The Exercise of Copyright and Neighbouring Rights	p. 113
Introduction	p. 113
Individual or collective	p. 113
Exercising musical copyright	p. 114
Exercising neighbouring rights with respect to music	p. 115
New questions and problems	p. 116
Legitimacy of collective administration organizations	p. 116
Increasing importance of competition law	p. 117
Territorial boundaries and (national) collective administration	p. 117
The Enforcement of Copyright and Related Rights	p. 118
Introduction	p. 118
Civil law enforcement	p. 118
Penal law enforcement	p. 118
Directive on measures and procedures to ensure enforcement	p. 119
Liability of software providers	p. 120
Napster	p. 120
Grokster and Streamcast	p. 121
KaZaA	p. 123
New questions and problems	p. 124
Mass infringement and privacy	p. 124
Careful behaviour of software providers	p. 125
Digital Rights Management	p. 126
Introduction	p. 126
The legal framework for digital rights management	p. 126
New questions and problems	p. 128
Position of 'open information' initiatives	p. 128
Accountability, individual normative choice	p. 128
Summary	p. 129
Postscript	p. 129
Understanding the War	p. 133
Introduction	p. 135
Mainstream IT, economic and legal analyses	p. 136
IT	p. 136
Economics	p. 137
The law	p. 141
Preliminary conclusions	p. 145
Framing for Multidisciplinary Analysis	p. 146
War	p. 148
War and peace as a multilevel affair	p. 150
Danger and dirt	p. 151
Cultures	p. 152
Monsters	p. 153
Organizations	p. 155
Domain and jurisdiction-organizations as normative systems	p. 156
Intermezzo: an interpretation of law-system morality	p. 159
Externalities	p. 161
Markets	p. 162
Institutions	p. 163
Multidisciplinary institutional analysis	p. 166
Institutional Analysis of the War on Music-file Sharing	p. 168
Regularities in social behaviour	p. 169
The music industry	p. 169
Sharers	p. 169
Providers	p. 169
Courts	p. 170
Two questions	p. 170
Institutional analysis	p. 171
Collective interests	p. 171
Domains	p. 172
Markets	p. 173
Rule-sets	p. 174
Policies	p. 176
Norm-sets	p. 178
Organizations	p. 179
Individuals	p. 182
(Market) feedback mechanisms	p. 184
Belief-sets	p. 187
The war path	p. 188
Recommendations and Conclusions	p. 190
Institutional understanding	p. 190
Monster, monster domains, monster markets	p. 190
Monster-managements strategies	p. 193
Institutional interpretation	p. 194
The battles over hacked containers: piracy and private use	p. 195
The battle over unprotected containers: sharing	p. 197
Recommendations	p. 202
Conclusions	p. 202
Afterthought	p. 204
References	p. 205
About the authors	p. 213
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