Trying to put the GEnie Back into the Bottle – Napster and the Digital Distribution of Music

The question of property has found itself confronted with a paradox in the digital era: if my

possession of a good does not prevent your possession of the same, what are the consequences for

digital property rights? In other words, if limitless and lossless duplication is possible, how can digital

intellectual property rights be properly protected from such duplication? This is the conundrum

confronting the proprietary rights owners of intellectual property in the age of distributed data transfer

protocols that make no distinction between legally protected and unprotected bits, which appear in any

case as only so many ones and zeros traveling through the network.

The solutions to this question are varied and have been offered from nearly all quarters of

society, from the content creators and intellectual property rights owners to academics and business

analysts. Each of these groups, and more, are split over the correct approach to resolving this Gordian

knot. One element of the puzzle remains clear to all, however, which is that users - those who consume

digitized intellectual property – have passionately taken to the benefits of this technological change,

downloading billions upon billions of copies of intellectual property since the widespread adoption of

the world wide web and other elements of the internet in the mid-1990s1. This has happened in spite of

the fact that, in many (and some would suggest most) cases, users are violating the law through their

actions. Whatever outcome is eventually reached for establishing institutionalized rules governing the

digital distribution of intellectual property, it will have to consider and account for this newfound desire

of the public to be able to locate and access digitized intellectual property in a manner that emphasizes

ease of use and convenience for the user. If such a solution is not provided, users will most likely

continue to operate in the manner that they have grown accustomed, whether or not it is legal.

In this essay, I will briefly review a narrow history of the digital distribution of music in the

United States, focusing on the infamous peer-to-peer (p2p) service Napster, and will consider some of

the methods that have been proposed and attempted for enforcing intellectual property rights. I will

also discuss several competing views of the correct approach to regulating the digital distribution of

1 Metro-Goldwyn-Mayer Studios, Inc. v Grokster, Ltd. (04-480) 545 U.S. 913 (2005)
intellectual property and their effects on the interest of consumers of intellectual property. Finally, I

will conclude by suggesting a framework for understanding the motivations of users who make use of

p2p software to download copyrighted music in spite of its legal status, and the consequences for

intellectual property in the digital era.

Digital Distribution: The Question of Napster

For the purposes of this essay, I will focus on the development and growth of the music

downloading program Napster, which experienced massive popularity in the first years of the 21st

century before being shut down pursuant to court orders that had been instigated by incumbent music

industry rights owners and their advocacy group, the Recording Industry Association of America

(RIAA). Although the brand name and logo of Napster lives on in the form of a subscription-based

music streaming service, I am only concerned with discussing and studying the free, p2p-based

software that initially gained public attention and popularity. First I will give a brief summary of the

history of Napster and p2p technology before continuing on to discuss the response of the music

industry, the various efforts that have attempted to mitigate the effects of file sharing and the impact

that this has had on the ability of consumers to access digital media content.

Napster was launched in 1999 by a young computer programmer named Shawn Fanning who,

having grown dissatisfied with downloading music via Internet Relay Chat (IRC), wanted to develop a

better way to index and find music files online (Alderman, 103). The program, which allowed members

of the network to share mp3 files (a type of digital file format popular for music) with each other, was

not necessarily used for the purpose of swapping copyrighted material; any mp3 file could be shared.

However, because the majority of mp3 files that individual users kept on their hard drive had come

from commercial compact discs that they had collected, the majority of content that was made available

via Napster was copyrighted material. Users could search for and download files at will, and because

the software was written in such a way that the individual users acted as a server for their own

collection (that is, users connected directly with each other to transfer music files), Napster was not
actively infringing on copyright by sharing the files from servers under its control.

Naturally, the RIAA and its members did not appreciate this activity which it saw as a free-for-

all of copyright infringement. The group quickly filed suit against Napster to protect its copyrights,

although while legal proceedings carried on, users continued to swap files at a frantic pace, with the

service eventually reaching more than 50 million registered users (Alderman, 170). Ultimately, the

rights-owners prevailed in court2, winning an injunction requiring Napster to remove copyrighted

material from its network, a crippling and ultimately terminal blow to the company. Napster declared

bankruptcy, closed up shop and eventually sold the brand to the current owner which operates a

subscription-based paid service of streaming music (streaming files do not reside on a users hard drive

and thus are not generally possible to share in the same way as mp3 files).

But if Napster was defeated, the users were not. Although the music industry spent heavily on

public awareness campaigns to educate internet users about legal dangers of downloading copyrighted

music, as well as directly targeting individual users with costly lawsuits, Americans have not lost their

enthusiasm for file sharing. Various software suites and services have risen and fallen since Napster,

and although their names (Gnutella, eDonkey,KaZaa, BitTorrent) might not be as infamous as Napster,

and the specific nature of their technology different, the end result of users downloading music via

peer-to-peer networks remains the same. The music industry did not take the continued growth of file

sharing after Napster lightly, and began to introduce technologies aimed at limiting the ability of users

to copy and share their music files through Digital Rights Management (DRM) software. Although

DRM addressed the interests of the rights' owners to prevent illicit copying and sharing of their

intellectual property, it was very unpopular with consumers because it was seen to limit the versatility

and portability of lawfully obtained music. In some ways it could be said that the music industries'

attempts to lock down their content with DRM actually worked against them, driving consumers to find

unlocked content on p2p networks that they could listen to in various settings, from their home stereo

to their computer to portable mp3 players and their car stereo. Consumer confidence in DRM hit new

2 A&M Records, Inc. v Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)
lows in 2005 when the DRM software bundled with some compact discs sold by Sony-BMG were

revealed to contain software features that compromised the security of users computers in an effort to

monitor and prevent the illegal copying and distribution of their intellectual property.3 In response to

consumer concerns and preferences, most of the major labels have now begun selling music without

DRM protection4 while still fiercely protecting their copyright through legal action and consumer

education. Today many legal venues for purchasing digital copies of copyrighted music, both with and

without DRM, exist, with Apple's iTunes program being among the most prominent. Sales have been

growing year on year – iTunes recently announced that they have sold over four billion songs5 - but

illicit downloads number in the hundreds of millions each month, continuing to pose a challenge to the

record companies and rights holders.

Why File Share?

It has been shown that users have a desire to download music content, and given the opportunity

to do so, they have accessed that content in massive numbers via p2p software. Significantly, given a

convenient and easy opportunity to purchase music, users have shown a willingness to pay a fair price,

even if many more continue to download from more legally ambiguous sources such as BitTorrent. So

why is it that generally law-abiding people are willing to illegally download copyrighted works? What

is it about the digital medium that makes people pirate? And what can the rights owners do to change

consumer behavior?

I would propose that the answer to this question has psychological, ideological and

technological facets. Psychologically, there are elements of the users relationship with the computer,

through the virtuality and perceived anonymity of the internet, that encourages them to download

3 The software included a 'rootkit', which allows remote access to the root, or administrative, functions of the computer.
This sort of software is normally associated with malicious hackers, not trusted media corporations. For a detailed
description and examination of Sony-BMG's rootkit, see Microsoft Technical Fellow Mark Russinovich's discovery and
explanation at: http://blogs.technet.com/markrussinovich/archive/2005/10/31/sony-rootkits-and-digital-rights-
management-gone-too-far.aspx
4 See, for instance, Universal Music Group's press release announcing the decision:
http://new.umusic.com/News.aspx?NewsId=539
5 “Apple to launch movie rentals from iTunes platform”, Agence France-Presse, 16/01/2008
music. Ideologically, the prospects of 'sticking it' to the media conglomerates that sell music combined

with an ethos of the internet, descended from the hacker ethic but now widespread among ordinary

users, justifies the sharing of music. Technologically, the file transfer protocols of p2p networks,

coupled with the lossless nature of digital copies, enables users to easily download and share music on

the internet. The combination of these three elements results in a situation that allows internet users to

download and share copyrighted content while satisfying their conscience that what they are doing is

socially acceptable, despite the constant barrage of messages to the contrary from the record labels and

the courts.

Computers, and in particular networked computers, introduce old moral and ethical questions in

a new light. The use of a computer, which can be seen as a mediating agent through which users

interact with software and networks such as the internet, offers opportunities for moral ambiguity and a

removal from the consequences of one's actions. Friedman and Kahn (1992, 55), when investigating

questions of ethics and computing, suggested that a responsibility lay with the designers of computer

systems and software to mitigate as much as possible this sense of diminished agency on the part of the

user: “Responsible computing often depends on humans' clear understanding that humans are capable

of being moral agents and that computational systems are not ... To the extent that humans experience a

diminished sense of agency, human dignity is eroded and individuals may consider themselves to be

largely unaccountable for the consequences of their computer use.” In such systems, users can ascribe

their actions as simply the functions of a program, rather than the result of deliberate choices on their

own part. In the context of p2p file sharing software, users may fall into the trap of presuming that, if

the software allows a transfer to take place, then it must be a legitimate action and not illegal

(Merriden, 23). Faced with such a diminished sense of agency, users moral values may be sufficiently

placated or confused that they will not object their actions and will be encouraged to participate in file

sharing.

However, such an explanation cannot fully explain the widespread use of p2p software to

download copyrighted material. Certainly many users are well aware of the illegality of their actions,
and yet they continue to file share. What justifications do they offer for their actions? Some suggest

that the institution of intellectual property, due to its non-rivalrous nature coupled with the lossless

capabilities of digital information, has become outdated and irrelevant (Benkler, 122, Lessig, 134). In

this “new information environment”, the greater distribution of information represents a greater public

good. As a result, social sharing becomes “a modality of economic production” (Benkler, 92), and one

that is freed from the barriers to entry that once existed under a restrictive physical media production

regime. In the short term intellectual property rights owners may suffer, but in the longer term there

will be a leveling out, with vastly more producers able to enter the market and share their products

resulting in a greater benefit for the public (Vaidhyanathan, 23).

Other users justify their conscious downloading of copyrighted material in the context of a class

struggle. In this case, copyright owners are seen as exploiting the work of artists by enforcing ruinous

contracts upon them and pocketing the bulk of the profits from their sale (Wark, 021). Previous

incarnations of this class struggle, from the pastoral and industrial ages, are seen as continuing in the

digital era with those who produce knowledge and information products being exploited by a new

ruling class that controls the channels of commercializing intellectual property. “Information, like land

or capital, becomes a form of property monopolized by a class, a class of vectoralists, so named

because they control the vectors along which information is abstracted, just as capitalists control the

material means with which goods are produced, and pastoralists the land with which food is produced.”

(Wark 029) Although the feudal lords and industrial capitalists were able to subjugate the working

classes in their own eras, the information producing class (referred to by Wark as hackers, although not

strictly in the context of computer programmers and engineers) retain some autonomy from the

vectoralist class through their mastery of abstraction and the still unfolding development of power

relations that actions such as illegal duplication of digital information represent. In this context, p2p file

sharing is seen as an act of solidarity with the hacker class, fully in accord with the hacker ethic: “The

fundamental act of friendship among programmers is the sharing of programs.” (Stallman, 1985)

Even in the absence of either of the previous motivations for downloading music, the simple
fact that such an act is possible can be a powerful motivating factor for users. Indeed, perhaps far more

important than the above psychological and ideological factors in the emergence and massive

popularity of Napster were the intersection of the capabilities of the technology, its ease of use and

instant gratification combined with the recently improved broadband infrastructure and a culture

amongst computer users of exploration of the possibilities of this novel technology (Lehman-Wilzig

and Cohen-Avigdor, 715). For many users Napster provided a salient harbinger for the promise of the

network society, and the competitive strength that it held in relation to an industry that previously

might have seemed so mighty and indestructible being so utterly humbled by a few hundred lines of

code written by a 19 year old college dropout. “Networked organisations outcompete all other forms of

organisation, particularly the vertical, rigid, command-and-control bureaucracies.” (Castells, 222)

Although the record labels and the RIAA rapidly regained their footing and went on the offensive

against this plucky upstart, managing to succeed in securing its closure by the courts, the actions of

users ever since Napster revealed the possibility presented by digital information and networked

technology suggest that the RIAA and its members may only have won a battle in a war that they will

be unable to win in their present form.

Conclusion

Napster was not the first service providing access to digital music files through the internet, but

it was the one that ignited in the American publics' mind the possibility of replicating media content

that was of interest to them in an eminently convenient and affordable (that is, free) manner. For the

more than 50 million active users of the service, it provided them with a new kind of service that would

forever change their expectations when it came to attaining and consuming digital media content like

music. Although for many there were psychological or ideological motivations behind their interests in

downloading music for free instead of purchasing it at the record store, for the majority of users the

motivations were more related to the convenience, as well as the opportunities, that digital distribution

offered. The record labels and the RIAA should take heart in knowing that this last group of users,
which is probably the most numerous, is not opposed to paying a fair price in exchange for the ease and

convenience of digital downloads of music and other media content. Although some ideologically

motivated users are likely to continue to download content illegally from p2p networks and through

other means in an ever-escalating technological arms race, the success of various commercial outlets

for digital music has shown that a lucrative market does exist for the sale of digitized intellectual

property.

As Neil Postman (1990) has written, technological change results in winners and losers. In the

case of digital downloads it may not be, as many futurists, socialists and broke teens have suggested,

that intellectual property is dead. Instead, it appears that it is the infrastructure of the previous physical

media regime – the compact disc manufacturers, the shipping companies and the retail outlets – that are

the ones dying out. The relationship between the producers of media content and the owners of that

content, whether it is symbiotic or parasitic, will continue so long as there is a market for such content

and so long as content owners provide a valuable service to content producers, who increasingly are

presented with viable options to own and market the product of their labor themselves. What is crystal

clear to all parties, and what will ultimately be the long-term legacy of Napster, is that nobody now

believes that it is possible to put the digital genie back in the analog bottle.