First: Why do so many people think it's OK to break the law and cheat artists out of their income? Second: If I'm so smart, what do I think the record companies should do?

These questions share some unspoken assumptions that are worth noting -- like a belief that the law is always unambiguous and unchangeable, and a notion that the interests of "artists" (creators) and record companies (distributors) are identically aligned. But the people asking the questions are sincere, and they deserve answers.

If the law of the land were always clear and obvious to all, we would need no courts, no judges and no lawyers to interpret it. Intellectual property laws and copyright laws are particularly complex. Even relatively simple and obvious laws, like the 55 mph speed limit, are sometimes routinely ignored by large numbers of otherwise law-abiding citizens. (Clay Shirky's excellent coverage of Napster in Feed first made the speed-limit analogy.) Laws depend on social consensus; when that consensus disappears, in most cases, the law must give way eventually.

The national 55 miles per hour speed limit is no more; it went the way of Prohibition. When millions of people break the law, the law's enforcers have no choice but to either look the other way, leaving an unenforced rule on the books and undermining the rule of law itself -- or to change the law to make it once more congruent with the society's shared beliefs and behavior. (Shakespeare's "Measure for Measure" has some interesting angles on this dilemma.)

This is what we pay our legislators to do and why we have periodic elections to reward or punish them based on how well the laws they create match our desires. But in arcane areas like the application of copyright law to new technologies, the work of legislatures can be distorted by the lobbying efforts of interested parties, leaving us with laws, like the Digital Millennium Copyright Act, that are shaped to suit the demands of large corporations rather than the social consensus.

In the case of Napster, 20 million people or so are now routinely "breaking the law" (if we accept for the moment the music industry's interpretation of copyright law). Yet plainly, they do think it's OK. Why?

For starters, keep in mind one fundamental difference between intellectual property and physical property: If I take your car or house, I prevent you from using and enjoying them. If I copy your Metallica album, you can still listen to it too.

So with MP3 trading à la Napster, there's no harm to the parties involved in the trade -- it's not a zero-sum transaction. Where before, one party could enjoy the goods, now two can. If there's harm, it is to the copyright holder -- which is why the record companies are now clamoring, Where's our cut of the deal?

The trouble is, right now with Napster, there is no deal. No money is changing hands. A cut of zero is zero. This is a problem for Napster, the company; the moment it tries to charge money for its service or sell ads on its site or "monetize" itself in any way, there's suddenly a "deal" again and a need to cut in the record labels.

But for now, no one is paying for anything. People are giving stuff away -- they're sharing files for free. That's one of the big reasons, I think, that millions of people don't see anything wrong with using Napster. It doesn't feel like theft; it feels like a great big communal swap meet, where anyone can explore the enthusiasms of like-minded fans.

The Free Software Project
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