IP: VERY interesting defense of Brilliant/Kazaa

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: "David P. Reed" <dpreed () reed com>
Date: Tue, 09 Apr 2002 09:07:43 -0400
To: Farber () cis upenn edu
Subject: VERY interesting defense of Brilliant/Kazaa

We've learned some lessons in the past few years about the difference
between strict interpretations of the "rules" and treating your
constituencies (stockholders, voters, customers) openly and without intent
to deceive.   Not everyone learns, I guess.   We might well ask, what is
"end user permission", and if the law doesn't define it in a way that makes
sense, should we accept that the law is the final word?

- David

Excerpted from 
http://www.zdnet.com/anchordesk/stories/story/0,10738,2860521,00.html :
---------------------------------
Brilliant responds: Now YOU be the judge
David Coursey

In Friday's column, I challenged Brilliant Digital Entertainment, the
company at the center of the Kazaa controversy, to explain itself. Whatever
else I think of the company, I have to admit that its CEO, Kevin
Bermeister, has been up front about answering his company's critics. So I
was only a little surprised to get a response from him the same day that
column ran.
As background: Last week, ZDNet's John Borland reported that Brilliant's
software was being distributed with file-swapping software downloaded from
the Kazaa network. Brilliant's software allows it to create its own
peer-to-peer network on users' computers, potentially without their
knowledge. (Brilliant's licensing agreement was embedded deep inside
Kazaa's.)

Huge controversy ensued. CNET's Downloads.com even pulled Kazaa from its
system--a pretty strong punishment for what had been the service's top
download. In its defense, Brilliant said it has no evil intentions and
would never use someone's machine (or hard drive or Internet connection)
without their permission.
But let me let Kevin speak for himself--and let you judge for yourselves.

AnchorDesk: How is Brilliant's use of Kazaa to propagate its software any
different from the distribution methods used by computer viruses?
Bermeister: The piggyback methods we deploy are no different from those
deployed currently and in the past by companies like Microsoft, AOL, and
RealNetworks. There are many current and historical examples indicating
that this practice is alive and well across the broader industry. As for
your choice to associate us with viruses, I think this is an alarmist
approach manifested in your writing. Our software is not a virus, it does
not have the same effect on your computer as a virus, it is there with
end-user permission. There are many other examples of this that you could
have focused upon in the past, had you truly thought this was an issue you
wanted to address for your users. Brilliant is following established
industry protocols in regard to distribution.
Anchordesk: How is Brilliant's software different from a Trojan horse that
gives a third party access to a user's computer without his or her
knowledge?
Bermeister: Your assumption that Brilliant is a Trojan horse is incorrect.
I would direct you to review our policies. These are very clear. We have NO
intention of accessing computers without the users' knowledge. In actual
fact, Altnet is a user-initiated system where the end user has, and
retains, FULL control over the access to and use of their computing
resource and therefore the aggregate of all computing resources in the
Altnet distributed computer community.
Anchordesk: You added your user agreement to Kazaa's--so thousands, if not
millions, of users have already agreed (in many cases unwittingly) to let
you use their computers. Why did you choose this clandestine method of
licensing?
Bermeister: This is not a clandestine method of licensing. It is the same
method followed by others in the industry, as discussed in my points above.
Having said this, I believe ALL industry licensing issues to be a bigger
concern by virtue of the ease at which end users have become accustomed to
accepting many of the terms in end-user agreements. However, you will
notice by reading our full agreement that end users ARE required to grant
Brilliant access to their computer resource BEFORE the resource is used.
Anchordesk: You promise that, in the future, you'll ask people for
permission to use their machines and (somehow) to compensate them. Why are
you doing this now? And why didn't you start this way?
Bermeister: We have ALWAYS been required to get end-user permission, and we
have always intended to compensate users for the use of their resource.
These can be more clearly seen in our recent 10-K SB SEC filing and our
current end-user agreement, from which I quote: "... in the event usage of
your computer is initiated by a party other than you, BDE will grant you
the ability to deny access."

<snip>



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