4.3.1 Napster – pirates' tool or celestial jukebox

We will look at the legal arguments in the Napster case later in the unit. Lessig argues that Napster has a number of features that make it a useful technology beyond what many people see as its core function – to share music files. It can be used to exchange preferences about music, helping to increase the overall demand for music. The increased demand could then be satisfied by Napster itself or by the usual retail outlets.

Lessig says:

But the extraordinary feature of Napster was not so much the ability to steal content as it is the range of content that Napster makes available … A significant portion of the content served by Napster is music that is no longer sold by the labels. This mode of distribution – whatever copyright problems it has – gives the world access to a range of music that has not existed in the history of music production … What Napster did more effectively than any other technology was to demonstrate what a fully enabled ‘celestial jukebox’ might be. Not just for the music that distributors want to push … but also for practically any recording with any fans using the service anywhere, the music was available.

I'm quoting directly from page 131 of the book here because it was one of the passages that made the biggest impact on me when I first read it. Napster seemed a pretty clear case where copyright holders had a legitimate complaint. There is no denying that Napster had significant copyright problems or that lots of people did use it to get Madonna's or Britney Spears' latest songs. However, this notion that it provided universal access to an unlimited range of music is a strongly reasoned one. Advocates, including Lessig, often use unfair tactics, some of which we will explore later, to get their point across. This, however, is a good example of using reason, through a story, to persuade someone to the advocate's point of view.

Let's look at another technology – guns. Gun ownership is protected by the US Constitution even though guns clearly have uses that infringe the law – e.g. shooting people. The employees of Smith & Wesson don't go to bed fearing that they might be jailed because somebody has used one of their guns to shoot a police officer. Crowbars, kitchen knives and a huge range of everyday objects have uses that infringe the law. Yet Napster was shut down by the courts because it is a tool that can be, and has been, used to infringe the music copyrights. It does, however, have positive features and functions that do not break any laws.

Whatever the detailed legal merits of the Napster case and the problems Napster created for the music industry, it is a technology that has ‘substantial non-infringing uses’.

Chapter 8 includes a similar analysis of P2P technologies. There is also a case study of P2P later in this section.