P2P and Complicity in Filesharing

I think about peer to peer (P2P) filesharing on a reasonably regular basis, for a variety of reasons (digital surveillance, copyright analysis and infringement, legal cases, value in efficiently mobilizing data, etc.). Something that always nags at me is the defense that P2P websites offer when they are sued by groups like the Recording Industry Association of America (RIAA). The defense goes something like this:

“We, the torrent website, are just an search engine. We don’t actually host the infringing files, we are just responsible for directing people to them. We’re no more guilty of copyright infringement than Google, Yahoo!, or Microsoft are.”

Let’s set aside the fact that Google has been sued for infringing on copyright on the basis that it scrapes information from other websites, and instead turn our attention to the difference between what are termed ‘public’ and ‘private’ trackers. ‘Public’ trackers are available to anyone with a web connection and a torrent program. These sites do not require users to upload a certain amount of data to access the website – they are public, insofar as there are few/no requirements placed on users to access the torrent search engine and associated index. Registration is rarely required. Good examples at thepiratebay.org, and mininova.org. ‘Private’ trackers require users to sign up and log into the website before they can access the search engine and associated index of .torrent files. Moreover, private trackers usually require users to maintain a particular sharing ration – they must upload a certain amount of data that equals or exceeds the amount of data that they download. Failure to maintain the correct share ratio results in users being kicked off the site – they can no longer log into it and access the engine and index.

I don’t want to get into a question of whether or not copyright infringement is right or wrong; what I want to consider is whether private trackers are more complicit in copyright infringement than public trackers. It seems to me that, when you use a public tracker, there are (relatively weak?) social norms that suggest that you should upload a certain amount of data, but this is a ‘soft’ regulatory system. Private trackers, on the other hand, guide the learning of P2P norms by applying a ‘hard’ regulatory system – if you ignore norms, you are prevented from accessing the P2P website. In the case of this ‘hard’ system, it seems as though the P2P site is actively encouraging a wider breadth of infringing behavior than the public tracker; in the public tracker you can simply download and walk away, whereas in the private environment you are required to share infringing material. Private trackers mandate that you embrace your (potential) criminality, whereas a weaker social norm guides individuals do this in a public system.

This is likely mind-numbingly obvious to many people who have already reached this conclusion well ahead of me, but I’d invite your thoughts. Avoiding the larger question of whether the present infringement system is just or not, does the argument that private trackers are more complicit in copyright infringement than public trackers hold together? Does scope even matter, when uploading even a single packet counts as infringement?