Napster

Digital Ethics and the Invisible Forced-Sharing Infrastructure

Like Sony, the question in A&M Records, Inc. v. Napster, Inc. was whether an entity that distributed copying technology (Napster) was indirectly (secondarily) liable for copyright infringement -- in this case, music files whose copyrights were held by A&M. Napster's technology, of course, differed from Sony's VTR because Napster included a distribution component. The fact that copying and distribution took place simultaneously (due to technological innovation) appears to have changed the courts' definition of Fair Use and "private" copying. Napster distributed a centrally enabled reproduction/distribution technology now commonly known as a "dual use" technology, one that can be used both for noninfringing and infringing activity. Note that in this case, under the common definition of P2P filesharing, Napster's technology wasn't true P2P because Napster provided users space on a centralized server where (mainly) music files were uploaded and then swapped. Therefore, the court held that Napster was contributorily liable because it had constructive knowledge of copyright infringement -- due to the central space it provided where copyright infringing materials were traded. The Napster fact pattern left the door open for the Aimster case. 

Napster matters to Kairos readers because, as DeVoss and Porter (2006) argue in “Why Napster Matters to Writing,” as composition and rhetoric teachers, we must now address the need in pedagogy for a theory and practice of “digital ethics.” They compellingly argue that because of the profound cultural shift our students have endured as members of the post-Napster generation, a new ethic, a digital ethic, is needed. A close analysis of the line of pre-Napster and post-Napster cases illustrates that this profound cultural shift requires not only teaching new digital ethics (because students often think that freely copying materials is OK) but also basic rhetorical analytic skills. For example, substantial evidence exists that many young persons who were trading copyrighted music files through Napster knew quite well that they were infringing and were celebrating that fact. The 2000 Pew Internet Project Survey indicated that 53% of all Internet users and 40% of all Americans thought that sharing music on the Internet was not wrong (cited in Wu, 2003, p. 725). But 47% of all Internet users and 60% of all Americans thought that sharing music was not acceptable, even though some of those surveyed did it anyway. Those who actively and consciously broke the law certainly need to be taught digital ethics (unless they were engaging in civil disobedience -- which can of course be legitimate if informed), but to the extent teaching digital ethics is not effective, additional pedagogical approaches are in order. Teach digital ethics, yes, but teach rhetorical evaluation as well. What I mean is, teach students not to be fooled by some savvy filesharing system that holds itself out as warm, fuzzy, and shar-y (like BearShare The Power to Share, which has as a logo of a cute, smiling bear). Napster executives did what they could to disenfranchise unsuspecting users from determining whether uploading and downloading copyrighted music files was "wrong." As DeVoss, Cushman, and Grabill (2005) argue: "If students are to be effective and critical . . . composers, they should be equipped with ways in which they can consider and push at practices and standards in strategic ways" (p. 16). Knowing the ways to push at boundaries strategically requires knowledge of the legal infrastructure as well as a mature, developed sense of digital ethics.

P2P filesharers (our students and us) also need to know about the forced-sharing paradigm that exists in networked systems, since the systems are technologically dependant on sharing. A 2000 study found that 70% of Gnutella users shared no files. Such user selfishness overloaded bandwidth and caused Gnutella's instability. In response, other filesharing companies like KaZaA and FastTrack developed systems that harvested high-bandwidth users (college students on university networks), making those users "supernodes" in the P2P system and thus stabilizing the network (Wu, 2003). KaZaA, which was probably not alone, shared user files without telling users in order to promote selfless behavior. In addition, Wu notes, "a 2002 Hewlett Packard study demonstrated that the KaZaA client made it difficult to know what files users were sharing. The study demonstrated that many users were sharing all of the files on their computers, but were totally unaware of that fact" (pp. 735-736). Besides teaching digital ethics, we should teach students basic research skills and help them become skilled in conducting rhetorical evaluations in order to know when and how their behavior is being shaped by Napster-like entities. This goes back to the need for attention to one's infrastructure when working in digitally mediated spaces. Surely it is important to understand that when working in networked environments, notions of "privacy" shift, especially if certain technological applications are "sharing" our digital texts without our knowledge or consent.

We must also look at the Napster case and the cases that follow on a more abstract level and be willing to be taught by students who have learned, implicitly, that in order to share they must avert centralized authority. It might be interesting to theorize how the Napster court shaped innovation, since estimates place 60% of all current Internet traffic as enabled through decentralized P2P exchange (Meserve, 2005; Duffy, 2005). As a brief written about the Napster case indicated, "mere notice from a potential plaintiff" inflicts a crippling blow (giving the distributors ensuing constructive knowledge), the viability of applications that might benefit from "centralized network-based system[s]" is jeopardized (see Brief of IEEE-USA as Amicus Curiae in Support of Neither Party). It is likely that Napster's holding pushed the development of network-based systems toward decentralized paradigms. Napster said: You can't share through an organized configuration with a central authority (like the traditional classroom space) because if users infringe, and the distributor receives knowledge, since the distributor has control, the distributor is liable. So in 2001 the question remained open: Can you share through a decentralized, ad hoc architecture? This is the question the Aimster case addressed. 

For more information see: A&M Records, Inc. v. Napster, Inc. (Cir. 2001).