Elsewhere in this weblog, I have talked at time about my feelings on file sharing and p2p networks. Most of my thoughts have been in regards to the negative effects of p2p - i.e. stealing content that does not belong to you and that you could go out and buy. Lessig, in Free Culture breaks down file sharing into four different types:
File sharers share different kinds of content. We can divide these different kinds into four types.
A. There are some who use sharing networks as substitutes for purchasing content. Thus, when a new Madonna CD is released, rather than buying the CD, these users simply take it. We might quibble about whether everyone who takes it would actually have bought it if sharing didn’t make it available for free. Most probably wouldn’t have, but clearly there are some who would. The latter are the target of category A: users who download instead of purchasing.
B. There are some who use sharing networks to sample music before purchasing it. Thus, a friend sends another friend an MP3 of an artist he’s not heard of. The other friend then buys CDs by that artist. This is a kind of targeted advertising, quite likely to succeed. If the friend recommending the album gains nothing from a bad recommendation, then one could expect that the recommendations will actually be quite good. The net effect of this sharing could increase the quantity of music purchased.
C. There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high. This use of sharing networks is among the most rewarding for many. Songs that were part of your childhood but have long vanished from the marketplace magically appear again on the network. (One friend told me that when she discovered Napster, she spent a solid weekend “"recalling" old songs. She was astonished at the range and mix of content that was available.) For content not sold, this is still technically a violation of copyright, though because the copyright owner is not selling the content anymore, the economic harm is zero — the same harm that occurs when I sell my collection of 1960s 45-rpm records to a local collector.
D. Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away. (Lessig 68-69, Free Culture)
This breakdown of file sharing seems quite logical to me - and for the most part, I have always ignored the last two. In a later discussion of Napster, Lessig makes a very poignant point that I hope we pay close attention to:
“But isn’t the war just a war against illegal sharing? Isn’t the target just what you call type A sharing?”
You would think. And we should hope. But so far, it is not. The effect of the war purportedly on type A sharing alone has been felt far beyond that one class of sharing. That much is obvious from the Napster case itself. When Napster told the district court that it had developed a technology to block the transfer of 99.4 percent of identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements “down to zero.”
If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement. There is no way to assure that a p2p system is used 100 percent of the time in compliance with the law, any more than there is a way to assure that 100 percent of VCRs or 100 percent of Xerox machines or 100 percent of handguns are used in compliance with the law. Zero tolerance means zero p2p. The court’s ruling means that we as a society must lose the benefits of p2p, even for the totally legal and beneficial uses they serve, simply to assure that there are zero copyright infringements caused by p2p. Zero tolerance has not been our history. It has not produced the content industry that we know today. The history of American law has been a process of balance... (emphasis mine) (Lessig 73-74, Free Culture)
The concept and fairness of zero tolerance has always eluded me. There is no such thing, as (it seems to me that) each situation is always being judged by its own circumstances. While we can come up with theoretical situations and systems in which a given issue is judged a certain and specific way, application of that event to real life circumstances usually changes our opinions. So, Lessig drives the point home that there are, indeed, legitimate uses for file sharing and some of those uses really do fall in the grey area of right and wrong according to common sense - not necessarily the law. The question for the day for me is: Does it make sense to have shut Napster down even though they were able to limit, to an enormous degree, illegal file sharing, but not perfectly so? Lessig has convinced me, no... for now.
