As part of my
series on BitTorrent, I want to talk about some of the things that have allowed BitTorrent to avoid the kind of legal problems that doomed Napster, and to a lesser extent Kazaa and Limewire.
I think one of the smartest things Bram Cohen did in starting up is that he began as an open source project. All of his code was available, which meant that anyone considering trying to shut the network down would have to go after ANYONE developing a compatible technology. While the RIAA has shown a willingness to go after tens of thousands of people at once, it might pause when considering going after developers in other countries. Heck, the folks at Pirate Bay would have been likely to release their own protocol called something like Baywatch as soon as such a lawsuit began.
However, being open source meant that something even MORE important occurred. Folks who were developing other open source projects were willing and able to use BitTorrent to be their main mechanism of distribution. This means that for the first couple of years that there was at least as much legitimate and "non-infringing" use of the transport as there was use for doing things like trading music or video files.
As most folks know, part of the reason for the Supreme Court ruling in favor of Sony for video tapes was that there were significant non-infringing uses. Napster by it's design was almost exclusively for audio files, and at a time when there wasn't nearly as much of an independent music scene as there is now. Kazaa and LimeWire had the capability, but never saw a business case for advertising such use, and so did not develop the "non-infringing" uses as much as they should have from a legal standpoint.
The third advantage of the open source decision was that other folks could make compatible front-ends who were more talented at doing so. While the original BT client was "ok", the clients that were later developed by Azureus and uTorrent made the use of BitTorrent much simpler for beginners while providing powerful tools for more advanced users.
To answer the original question, BitTorrent has never been sued because such a suit would have a hard time identifying all of the likely defendants, would be difficult to win dues to having significant "non-infringing" uses, and because of the difficulty in preventing multiple variations being quickly developed that could not be effectively prosecuted.
Tune in tomorrow for more on my
series on BitTorrent.