A copyright cold war? The polarized rhetoric of the peer-to-peer debates by John Logie
Participants in the United States’ ongoing debates over peer-to-peer transfers of potentially copyrighted files have regularly trafficked in the rhetoric of warfare. While it is easy to understand how copyright holders would view peer-to-peer file transfers as a kind of attack, the rhetorical turn toward the discourse of military conflict has radiated throughout the debate. Individuals from across the spectrum of opinions on peer-to-peer file transfers both accept and reproduce the positioning of this public policy debate as a life-or-death struggle. The weaknesses of this comparison are illustrated through reference to the history of the Cold War, often cited as a model for the post-Napster period. Further, the relative immaturity of the peer-to-peer debate is demonstrated through reference to rhetorical analysis techniques suggested by stasis theory. This article concludes by suggesting ways in which the currently stalemated debate might be revitalized by principled interventions from scholars and concerned citizens.
Introduction: Slouching toward Armageddon
Declarations of war
Cold wars: Historical and virtual
Détente? Or stasis deferred?
Introduction: Slouching toward Armageddon
In a now infamous New York Times article from January, 2002, Jack Valenti, President of the Motion Picture Association of America (MPAA), likened his organization’s efforts in opposing peer-to-peer downloads of motion pictures via the Internet to a military engagement. Valenti said, "We’re fighting our own terrorist war," adding, "the great moat that protects us, and it is only temporary, is lack of broadband access" [ 1]. Valenti’s remarks position his industry as both a victim and a target, and span centuries of military history. The timing of Valenti’s comments makes it clear that his reference to a "terrorist war" was meant to be understood in the context of the United States’ response to the 11 September 2001 attacks on the World Trade Center and the Pentagon. Valenti was inviting readers of a newspaper serving the city hardest hit by these attacks to understand the film industry as having endured a parallel trauma. By contrast, Valenti’s description of the industry as temporarily protected by a "great moat," positions the MPAA as, at best, a medieval protectorate, and at worst, the sort of plutocratic castle-keep regularly targeted by Robin Hood.
Valenti’s remarks are especially striking given the recent successes of his constituents. For the United States motion picture industry the 2002 Memorial Day holiday weekend was among the most lucrative in history. American moviegoers stampeded box offices, spending over US$200 million on admissions. In June, 2002, Business Week Online reported that "box office receipts are 21 percent ahead of last year’s pace" [ 2].
But Jack Valenti was not happy. According to the Boston-based "digital solutions" corporation Viant the year’s 21 percent increase in box office receipts was paralleled by a 20 percent rise in illicit downloads of films, with roughly half a million copies downloaded each day [ 3]. These statistics prompted Valenti to observe, "It’s getting clear alarmingly clear, I might add that we are in the midst of the possibility of Armageddon" .
Valenti continued: "Eight out of 10 [movies] have to go to airlines, to hotels, to Blockbuster, to HBO, then to basic cable to get their money back. If you are ambushed in the early days of your theatrical exhibition, the chances of you recouping in a world that is mostly broadband would be very, very different" [ 5]. Valenti’s "Armageddon" is thus understandable as a "mostly broadband" world in which secondary and tertiary revenue streams for Hollywood films are threatened by Internet-enabled piracy. These comments reflect a loss of perspective all too common in Hollywood. But Valenti’s biography reveals that he has more than a passing acquaintance with the kind of apocalyptic threat his language trivializes.
Valenti is a decorated veteran of the Second World War. He was a close associate of Lyndon Johnson, and served Johnson as the United States ramped up its involvement in the Vietnam War. In short, prior to his assumption of the Presidency of the MPAA in 1966, Valenti was a true Cold Warrior, writing and supervising the bulk of Johnson’s speeches. He no doubt played a key role in the Johnson administration’s withering attack on Barry Goldwater, the 1964 Republican nominee for U.S. President. Goldwater had a well-earned reputation as a hard right-winger, once defending himself by claiming that "extremism in the defense of liberty is no vice." Valenti seized on this, arguing behind closed doors that "we ought to treat Goldwater not as an equal, who has credentials to be president, but as a radical, a preposterous candidate who would ruin this country and our future" [ 6]. Valenti’s successful deployment of his argument is testified to by the "Daisy" commercial, which ran once during the 1964 Presidential campaign, but nevertheless is generally understood to have had a devastating effect on the Goldwater campaign.
The Johnson Campaign's Infamous "Daisy" commercial[ 7]
Given Valenti’s history as an architect of Johnson’s media messages, Valenti’s invocation of "Armageddon" should almost certainly be seen as a calculated statement from a man familiar with the particularities of both public speaking and political conflict.
Even so, it remains tempting to dismiss Valenti’s statements as rhetorical excesses of a man predisposed to hyperbole. Valenti did, after all, claim in 1983 that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone" in sworn testimony before the United States Senate [ 8]. But Valenti’s rhetorical performances are far from anomalous in the ongoing debates over peer-to-peer downloads, in which the use and transmission of copyrighted materials are often recast as tactical warfare.
This paper offers critical analysis of recent discourse on peer-to-peer file transfers, illustrating the degree to which participants in the debates over the legality of Napster and its successors position themselves as combatants. Further, this paper maps this debate against the model of the Cold War (a model expressly invoked by Valenti and other participants in the debate) in part to point up how distant copyright questions are from actual warfare, and partly to illuminate the relative immaturity of the peer-to-peer debates. This point is underscored when the peer-to-peer debate is evaluated in terms of stasis theory, a classical rhetorical technique that, despite its vintage, provides a specific diagnosis for the impoverished discourse that has, to date, characterized this important public policy debate.
Declarations of war
Those representing the interests of copyright holders the "heirs and assigns " referenced in the current language of the U.S. Code’s copyright laws have consistently positioned peer-to-peer transfers as acts of war. The peer-to-peer music service Napster, in particular, prompted an outpouring of rhetoric notable for its aggressively militaristic tone. In August, 2000, Steve Heckler, a Sony vice-President mobilized a rhetorical gear which Trevor Merriden, author of the Napster history Irresistible Forces, properly describes as "almost Churchillian"[ 9]. Heckler cried:"The industry will take whatever steps it needs to protect itself and protect its revenue streams. It will not lose that revenue stream, no matter what. ... We will develop technology that transcends the individual user. We will firewall Napster at its source we will block it at your cable company, we will block it at your phone company, we will block it at your ISP. We will firewall it at your PC." [ 10]
Indeed, Merriden is understating his case by describing Heckler’s verbiage as almost Churchillian. Heckler’s presentation is expressly Churchillian, in that it effectively parodies a specific Churchill speech from 1940, routinely cited as an exemplary use of the rhetorical device of anaphora (see, e.g., the 2000 American Heritage Dictionary’s entry on anaphora), in which Churchill famously declared his opposition to the threat posed by Hitler’s armies: "We shall fight on the beaches. We shall fight on the landing grounds. We shall fight in the fields, and in the streets, we shall fight in the hills." To the extent that Heckler’s language invites comparison with Churchill’s, Heckler should be understood to be tacitly linking those he would describe as intellectual property pirates with Nazis.
Seagram heir Edgar Bronfman struck a similarly extreme tone when he argued, "If intellectual property is not protected across the board, in every case, with no exceptions and no sophistry about a changing world what will happen? Intellectual property will suffer the fate of the Buffalo" [ 11]. Bronfman proposed to counter this threat of extinction with his own program of extermination: "I am warring against the culture of the Internet, threatening to depopulate Silicon Valley as I move a Roman legion of Wall Street lawyers to litigate in Bellevue and San Jose" .
The above-cited examples of extreme rhetoric have all been drawn from opponents of peer-to-peer file exchanges, but peer-to-peer purveyors and enthusiasts are also implicated in the violent and militaristic rhetoric that too often characterizes these debates. In testimony delivered before the U.S. Senate, Napster CEO Hank Barry wrapped his defenses of his company in repeated descriptions of the software as heralding a vaguely defined "revolution." Barry first positions Napster inventor Shawn Fanning as a liberator:"Shawn Fanning began a revolution that is returning the Internet to its roots. ... Napster does not copy files. It does not provide the technology for copying files. Napster does not make MP3 files. It does not transfer files." [ 13]
Later, Barry’s attempts to reposition Napster as an essentially innocuous technology are undermined by Barry’s insistence on positioning Napster as marking a breaking point:"Napster simply facilitates communication among people interested in music. It is a return to the original information sharing approach of the Internet, allowing for a depth and a scale of information that is truly revolutionary." [ 14]
"Revolutionary" is, of course, a term that, in and of itself, constitutes effective marketing of any Internet-directed product, and Barry’s usage of the term should be understood as an attempt to establish novelty and primacy for Napster. But the language of revolution also carries with it an unmistakable threat to an established order.
As the debate between Napster and the major labels heated up, Napster enthusiasts took up their own rhetorical weapons in order to join Barry’s purported "revolution." On a Web site featuring the rallying cry, "Fight RIAA Let’s Get Those Bastards," we see Hank Barry’s rhetoric echoed in the site creator’s choice of "Live Free or Die" the Yankee motto from the American Revolution.
The logo for an anti-RIAA site; note the use of "Live Free or Die!" (bottom left).
The implicit argument of this site is, therefore, that the RIAA (Recording Industry Association of America) is to Napster users as King George III and the British were to the Yankee colonists.
A contemporaneous hacker site is even more violent in its rhetoric, headlining itself "Kill the RIAA." The site promotes a code-based protocol for direct artist-to-fan distribution. While welling up from within hacker culture, this proposal is fairly benign. It involves extension of code for MP3 files to facilitate listeners making direct contributions to the music’s creators, thereby cutting the RIAA and similar copyright holders out of the exchange, and eventually "killing" them.
A hacker site proposing "thrashing" the RIAA.
The hacker’s attempt to develop a protocol which would, in effect, eliminate the need for the RIAA is grounded in a utopian vision. The impulse driving the hacker’s discussion is the naïve presumption that the development of an effective code-based payment mechanism would be able to transform the existing music industry into something like "shareware," in which satisfied users of freely distributed software choose, on a voluntary basis, to compensate software developers. Unfortunately, this utopian vision is counterbalanced by the violence of the hacker’s rhetoric. Over the course of this discussion, the emphasis on a positive exchange between artists and fans is at odds with the "killing" and "thrashing" invoked to set the stage. And the RIAA is consistently positioned as an enemy combatant, foreclosing the possibility of negotiation or cooperation. The hacker’s attempts to find a code-based means of bringing the RIAA to its knees suggest an "arms race" of sorts, playing out in cyberspaces where music files are circulating.
In the following February, 2000 exchange from Slashdot, we see correspondents debating whether a particular Cold War era model ought to be applied to their circumstances. A correspondent going by "Rader" begins the exchange by observing:"RADER: We are possibly watching the breakup of a major cartel. My parents had Vietnam. I’ve got the dawning of the digital age. A digital world impacting huge corporations that spend 200 million dollars a year just in legal expenses. Why does Napster get more bad publicity than the PROOF of the Big-5 [ed. note: the five largest record companies] collaborating and setting illegal prices in stores?? Proof that Bo Didley [sic] has no money to his name, yet created Rock & Roll??
Maybe I’m the guy who ran to Canada instead of going to Vietnam, and you’re the ROTC punk who thinks it’s your duty to go to war. Whichever was right or wrong, it’s still a controversy today, much like this issue could possibly be." [ 15]
Rader’s comments are, at first blush, not particularly coherent or persuasive. It is not clear whether Rader means for the "breakup of [the] major cartel," or the "dawn of the digital age" to serve as the basis for his comparison to Vietnam. That said, Rader does demonstrate some understanding of the history of the Vietnam era, and allies himself with the so-called "draft dodgers" while lambasting another correspondent for, in effect, being a government dupe, much as volunteers and conscripts were sometimes criticized in the late 1960s and early 1970s. But the carelessness with which Rader draws this analogy prompted an incredulous response from another Slashdot correspondent:"ZIKZAK: Holy shit! Are you really claiming that the battle over mp3 pirating could be equivalent in importance to the Vietnam War?!? Fuck, I have now seen the absolute pinnacle of pathetic justification. Equating the slightly over-priced and admittedly greedy recording industry’s practices to the death of thousands and thousands of young men is absolutely the lowest thing I’ve ever seen on slashdot.
Congratulations. You have scraped absolute bottom." 
Zikzak’s outburst prompted what appeared to be an embarrassed silence from Rader, and other participants in this ongoing discussion, but eventually another participant in the discussion rose up to defend Rader’s analogy:"WAH: Well, there’s at least one part of the analogy that holds. Both are (were) being drawn up as a fight against communism (while the reality is (was) much less drastic). And if the laws we have here in the U.S. were universally enforced, you would have about 30 million people in jail for their entire lifetime. Some people are just trying to avoid another catastrophe, over-the-top analogies (as this is) are one way to make the direction we are currently headed (unwinnable war with massive loss of life(time) looming) clear." .
Wah’s post features a link to a legal site that houses Chapter 12 of Title 17 of the United States Code, in which the substantial penalties established by the Digital Millennium Copyright Act are outlined. Wah’s estimate of 30 million in prison is highly questionable. The Act specifies penalties of up to US$1,000,000 and 10 years in prison for those who circumvent copyright protection measures. Most Americans have neither the interest nor the technical skill needed to circumvent copyright protection systems. But within the context of Slashdot’s discussion over whether the Napster debate parallels Vietnam, Wah’s post draws a link between the conscientious objectors and draft dodgers imprisoned during the Vietnam era, and the potential prisoners who, in Wah’s estimation, conscientiously object to or "dodge" copyright protection in virtual spaces.
The positioning of peer-to-peer transfers and their attendant debates as acts of war is increasingly codified. Law professor Jessica Litman’s 2002 article "War Stories," features a conclusion in which Litman flatly equates the peer-to-peer debates with warfare:"Commercial content owners (and their copyright lawyers) believe they are in a war for their own survival, and are committing extraordinary resources to ensure that they emerge victorious. They are fighting the copyright wars using all of the public relations tools at their disposal. They are fielding armies of copyright lobbyists and making campaign contributions so substantial that members of Congress have started to wage turf battles of their own to get jurisdiction over copyright legislation." 
Litman is an astute critic of the copyright lobby, and her work as a whole points up the degree to which the public’s interest has been compromised by recent shifts in copyright law. Litman’s book Digital Copyright even contains a chapter entitled "Choosing Metaphors" which offers a sustained examination of the degree to which copyright policy has been influenced by a variety of suspect metaphoric constructions. And yet, the war metaphor is so entrenched that Litman here invokes it to frame her discussion despite her certain recognition of the profound distance between copyright violations and combat. We do well to ask why this metaphor has proven so resilient, persisting even as video and Internet-circulated images of the second U.S.-led war in Iraq offered a jarring reminder of the horrific consequences of military conflict.
Cold wars: Historical and virtual
While participants in the peer-to-peer debate from all sides of the issue routinely pursue analogies drawn from across centuries of military history, the most common comparisons remain those which repurpose the language and history of the Cold War (and of Vietnam, the paradigmatic "little war" within the bloated corpus of the Cold War). These comparisons grossly inflate the stakes of the debate. As Zikzak’s eruption rightly reminds us, there is no body count associated with peer-to-peer file transmission. Whatever the costs associated with "illegal" downloading might be, they pale before the awful human toll of Vietnam and the Cold War. Why then does the analogy prove irresistible to participants in this debate? The answer is, in part, that there are a number of superficial similarities between the history of the Cold War and the history of the peer-to-peer debates.
Historians typically date the Cold War as stretching from roughly 1947 to 1989. Most accounts point to the Cold War commencing during a brutal winter in Europe, which ratcheted up a contest between the United States and the Soviet Union over which country could provide more aid to the affected nations (most of which were already reeling from the after-effects of World War II). There is near-universal agreement that the Cold War ended with the fall of the Berlin Wall on 9 November 1989. While various labels are applied to the intervening periods, there is general agreement that the United States and the Soviet Union engaged in a pitched conflict with the very real possibility of nuclear confrontation after reaching a point of schism in the late 1940s. This nuclear threat persisted until the inauguration of a mutually acknowledged period of détente in 1968.
For years, no one was certain how close the two superpowers had come to what was then referred to as a "tactical nuclear exchange." But a recent conference on the 40th Anniversary of the Cuban Missile Crisis pointed up how real the danger had been. The New York Times’ coverage of the conference contained a harrowing account of the peak of the crisis, in which a Soviet submarine commander, responding to depth charges dropped by an American destroyer ordered the preparation of the submarine’s nuclear torpedo. The Times report quotes the commander as having said:"Maybe the war has already started up there, while we are doing somersaults here! ... We’re going to blast them now! We will die, but we will sink them all. We will not disgrace our navy!" [ 19]
The Cuban Missile Crisis functions as a generally recognized "flashpoint" within the history of the Cold War. It is the point at which the confrontation between the then-extant superpowers was most pitched, most pointed, and potentially, most destructive.
Within the context of the peer-to-peer debates, the showdown between the RIAA and Napster that culminated in the injunction that closed Napster parallels the Cuban Missile Crisis, featuring similarly intransigent parties mixing secret tactical exchanges with aggressive public posturing. Like the Missile Crisis, the peer-to-peer debate prompted high-level government hearings, with representatives from the parties concerned campaigning to earn comparisons to Adlai Stevenson, who famously unveiled the "smoking gun" photographs of Soviet military installations in Cuba in October, 1962 United Nations hearings. Surprisingly, Metallica drummer Lars Ulrich’s testimony proved both the most memorable and arguably the most effective. Ulrich closed his testimony by quoting New York Times columnist Edward Rothstein, who in an essay entitled "Swashbuckling Anarchists Try to Eliminate Copyright from Cyberspace," wrote:"Information doesn’t want to be free; only the transmission of information wants to be free. Information, like culture, is the result of a labor and devotion, investment and risk; it has a value. And nothing will lead to a more deafening cultural silence than ignoring that value and celebrating "the near perfect anarchy" of Freenet and Napster running amok." [ 20]
Ulrich subtly revised Rothstein, adjusting the final sentences to read "celebrating ... [companies like] Napster," [ 21] suggesting that he was uncomfortable with the positioning of the debate as a dispute between "investors" and "anarchists." Indeed, Metallica’s sharply critical assessment of the status quo on records like And Justice For All made the band an unlikely ally for the record industry. Yet by citing Rothstein’s essay, Ulrich trafficked in Rothstein’s polarizing rhetoric, which positioned Napster and similar programs as cultural doomsday devices.
But it remains important to recall that the question addressed by the U.S. Senate hearings on peer-to-peer was ultimately nothing more than whether the RIAA or Napster (or, perhaps, both) would ultimately profit from peer-to-peer file transfers. Further, while the peer-to-peer debates spiraled from courtrooms to the court of public opinion, all of the parties involved agreed to respect the will of United States judges and legislative bodies.
With the parallels between "flashpoint" confrontations in place, an extended chronology for Cold War comparisons can be established. The roots of the peer-to-peer debates can be traced back to the record industry’s shift from the 45 rpm vinyl single to the long playing album, followed by attempted shifts to reel-to-reel, 8-track tape, cassette, and, ultimately, the successful replacement of vinyl with the compact disc. The near-elimination of the "single" as a medium effectively required music consumers to purchase entire albums to secure copies of the individual songs they favored. And the introduction of four "long-playing" formats in a quarter century (each touted as superior to its predecessor) prompted many consumers to purchase their favorite music on as many as four different media. Prior to Napster, music consumers had become understandably wary of the record industry, and increasingly critical of the high prices of compact discs. Indeed, the major record companies have recently agreed to a settlement to recompense consumers for industry-wide price-fixing during the first decade of compact disc sales [ 22]. And five years before Napster, musician and producer Steve Albini wrote a scathing essay entitled "The Problem With Music," in which he documented how a successful major-label record release would net its record company over US$700,000, while the members of the band responsible for the record would receive less than US$5,000 each [ 23]. With these complaints circulating and meshing with high prices throughout the 1990s, it seems clear that if Napster hadn’t offered an avenue for music consumers to lash back at the record companies, another "flashpoint" would have materialized. While the slow-burning narrative of consumer dissatisfaction with the record industry does not offer the relatively sharp schism of the Cold War, it does provide a portrait of escalating hostilities setting the stage for a dramatic confrontation in which one side is ultimately forced to "stand down."
As for the period after the Napster "crisis," the current circumstance is suggestive of the pitched period in the 1960s when the United States and the Soviet Union heated up the nuclear rhetoric while confining themselves to indirect confrontations via espionage and "little wars" against small nations positioned as emblematic of "the enemy." Skirmishes between the record industry (and industry-supporting performers) and file-traders are increasingly common, and some of these battles have the jittery energy of the spy culture celebrated in the wake of the Cuban Missile Crisis. In a recent example, Madonna, fresh from having recorded the theme for the latest installment in the James Bond series, completed an album entitled "American Life" to surround the Bond theme (listed on the album as "'Die Another Day' from the MGM motion picture 'Die Another Day'"). In coordination with the Warner Music Group, Madonna recorded a profane challenge to downloaders (she snarls "what the fuck do you think you’re doing?") which was then disguised as leaked tracks from the "American Life" album, and uploaded onto the major file-transfer systems that rose up in Napster’s wake (e.g. KaZaA, Limewire). By flooding these networks with bogus files, Warner and Madonna hoped to at least slow, and perhaps impede altogether the traffic in "American Life" downloads. Shortly after the bogus files were uploaded, a hacker cracked Madonna’s site and posted a parodic response ("This is what the fuck I think I’m doing") followed by five genuine music files from "American Life." In addition to the hack, the Madonna soundclip has become the focus of "The Madonna Remix Project" [ 24] with dozens of downloaders preparing musical compositions featuring the snippet, usually mixed in with fierce and/or hilarious attacks on Madonna and Warner Music Group. Thus, as in the late stages of the Cold War, the "official" political actions of the competing parties are underscored by waves of secret, often anonymous activity directed at technologically undermining the opposition. As with theirCold War predecessors, all parties concerned appear to find this approach preferable to the "hot war" alternative.
But my ultimate goal in this review of the superficial similarities between the Cold War and the history of peer-to-peer file transfers is not merely to find the right sort of war to function as an analogy for this ongoing debate. Indeed, the acceptance of war as metaphor gives away too much of the game for those who hope for expanded opportunities for peer-to-peer exchanges, because it accepts military conflicts over real property as exemplary. Law professor Dan Burk has pointedly and persistently argued against the impulse to simply "port" law from terrestrial spaces to their supposed cyberspace counterparts. As early as 1997, Burk recognized, rightly, that there is "no coherent homology between cyberspace and real space," and that the real space analogies routinely deployed to explain cyberspaces were likely obscuring at least as much as they illuminated about the Internet [ 25]. In a similar vein, I argue here that the physical realities of terrestrial war (whether hot or cold) are absolutely removed from disagreements over even the wholesale appropriation of intellectual property. Recourse to war as the metaphoric frame for the debate obscures the degree towhich peer-to-peer exchanges complement and extend pre-computer modes of distributing and exchanging information.
Détente? Or stasis deferred?
The corrupted status of current rhetoric surrounding peer-to-peer exchanges is thrown into sharp relief by even ancient tools for understanding arguments. Though initially developed as an inventional technique for ancient Greek courts, the stasis theory advanced by Hermagoras of Temnos in the second century B.C.E. offers a powerful diagnosis of the disconnections in the peer-to-peer debates.
Despite a wave of recent articles hailing an agreement among the RIAA, the Business Software Alliance, and the Computer Systems Policy Project as ushering in an era of Détente [ 26], stasis theory illuminates the ongoing failure of parties in the peer-to-peer debate to arrive at the kinds of discourse needed to truly advance the discussion. Hermagoras’ theory offers four focus points (conjecture, definition, quality, and policy) as a means of tracing whether parties to an argument have identified the true source of their conflict. Janet Davis describes the process as follows:"The rhetor proceeds through a prescribed series of dichotomizing questions to locate and identify the unresolved matter. Locating the stasis within the system presents the rhetor with not only a name for the category of argument but also a recommended strategy for pursuing it." [ 27]
As Jeanne Fahnestock and Marie Secor have pointed out, Hermagoras’ questions are presented in hierarchical order. They observe:"Questions of fact or conjecture in the first stasis are prior to those of definition in the second; definitions in turn must be established before the quality is debated; and finally all three must be answered or assumed before an action can be recommended or taken in a specific case." [ 28]
Thus, according to first step in the stasis process, parties must arrive at an agreement that a specific act is occurring or has occurred. In the peer-to-peer debates, it seems clear that all parties involved would agree that peer-to-peer transfers of copyright-protected materials have occurred and will continue to occur via peer-to-peer systems, so stasis has been achieved with respect to questions of conjecture. Having established that a particular act has occurred and is occurring, we move to the second stasis.
The second stasis is the stasis of definition. Sharon Crowley and Debra Hawhee identify "How can the act be defined?" and "What kind of thing or event is it?" as core questions for the second stasis [ 29]. These questions foreground the fault lines of the ongoing debates with absolute clarity. The content industries have to a great degree shaped this debate in apocalyptic terms, with peer-to-peer exchanges positioned as at best failures of will, more typically as acts of theft or burglary, and surprisingly often as acts of war. As suggested by the examples above, peer-to-peer advocates have too often accepted these terms, but current references to peer-to-peer transfers as "file sharing" more accurately reflect the sentiments of the many communities taking advantage of peer-to-peer networks.
I have scrupulously avoided references to "file sharing" to this point, because the term functions as a troubling counterweight to the hyperbolic characterizations of peer-to-peer rising from the content industries. The rhetorical positioning of peer-to-peer exchanges as "sharing" fails to acknowledge the special nature of digital media. Prior to the advent of digital media, sharing a particular resource typically implied at least momentary depletion of that resource. The person offering the resource would lose at least the use of the resource for the time that the resource was being shared. But the ready reproducibility of digital media means that, as a practical matter, one can offer the use of a resource without any loss of access. Lawrence Lessig casts this distinction as one between "rivalrous" and "non-rivalrous" resources, and observes:"The system of control that we erect for rivalrous resources (land, cars, computers) is not necessarily appropriate for nonrivalrous resources (ideas, music, expression). Indeed, the same system for both kinds of resources may do real harm. Thus, a legal system, or a society generally, must be careful to tailor the kind of control to the kind of resource. One size won’t fit all." [ 30]
The notion of sharing is rooted in division or apportioning of a rivalrous resource. Lessig’s example highlights the dramatic difference between sharing rivalrous and nonrivalrous resources. If I agree to share my car or my laptop with someone, I understand that there will be times that I will not have access to those resources. But if I share an idea, we both have the idea. And if I "share" an mp3 file by serving it to others via a peer-to-peer network, my resource is never depleted. Rather its presence on the network facilitates the creation of additional copies of that file. The uncritical maintenance of "sharing" as the overarching metaphor for peer-to-peer file transfers distorts the debate. Thus, while advocates of peer-to-peer technologies are right to reject formulations that position them as pirates or terrorists by dint of their participation on peer-to-peer networks, they also should acknowledge that peer-to-peer transfers are not a form of ""sharing" as the term is conventionally understood.
The peer-to-peer debate is clearly stalled at the second stasis. The definitions used by the participants in the debate are so distant and so distorted that it is sometimes difficult to recognize that the act of transferring files between computers is, in and of itself, both unremarkable and morally neutral. While stasis theory advises participants in a debate to defer questions of policy until both the definition and the quality of an action are understood, the current debate has vaulted the second and third stases. The U.S. Congress is now actively considering the policy questions without these definitions and evaluations having stabilized, and the consequence will almost certainly be continuing imbalance in intellectual property policies as they relate to peer-to-peer technologies.
The path to fair and appropriate intellectual property policies addressing peer-to-peer technologies is, for the time being, obscured by the polarizing rhetoric often used by the participants in the debate. The content industries have repeatedly attempted to position peer-to-peer technologies as weapons, and peer-to-peer users as criminals and terrorists. These arguments, while demonstrably persuasive to the U.S. Department of Justice [ 31], tend to conflate peer-to-peer technologies with the uses to which they are being put. While some of these uses are at least unethical and potentially illegal, many are not. The content industries’ arguments to date threaten to disrupt growth and innovation in peer-to-peer technologies, which already offer computer users far more than free, easy access to the latest Eminem song. Traffic in just public domain materials would sustain many peer-to-peer networks, though these networks’ true potential will only be realized once U.S. culture settles on a means of expediting the movement of cultural artifacts into the public domain. The content industries’ continuing positioning of peer-to-peer as an assault on the producers of intellectual property will, inevitably, delay this realization.
But peer-to-peer advocates also traffic in rhetoric that misrepresents their use of peer-to-peer technologies. Relatively few peer-to-peer transactions can be fairly described as sharing in the conventional sense. Typically, it is not the creator or owner of a given cultural artifact who makes it available via a peer-to-peer network. And rarer still are cases where the circulator suffers a loss of access to the resource. For this reason, the implied moral high ground cannot automatically be claimed by those who choose to "share," resources of others’ making. While many uses of peer-to-peer technologies constitute productive, important, and legal applications of computer technology, these transfers only rarely meet conventional standards for "sharing," and ethical peer-to-peer enthusiasts will do well to move toward terms that more accurately reflect their fair uses of these technologies "to promote progress of science and the useful arts." Refusal to engage in the rhetoric of warfare perpetuated by the content industries is, in a sense, a form of conscientious objection. The next step is articulation of an ethical stance that bespeaks the conscience implicit in that objection.
About the Author
Dr. John Logie is an Assistant Professor at the Department of Rhetoric at the University of Minnesota.
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3. Dawn Chmielewski, 2002. "Online Film Piracy Cuts into Industry Profit," San Jose (Calif.) Mercury News (30 May), at http://www.bayarea.com/mld/bayarea/business/technology/3369706.htm.
6. Louis L. Gould, 1997 "Political Activities of the Johnson White House, 1963-1969" LexisNexis (June), at http://www.lexisnexis.com/academic/guides/political_history/lbj_political/lbjpol1.asp.
7. The "Daisy" commercial appears within this paper by means of an action which might be understood as an illegal download. The commercial is available for viewing on CNN’s Web site, on an archived page memorializing Barry Goldwater shortly after his death. Though my browser did not initially offer ready access to the file, I was ultimately able to save the video to my hard drive and then preserve it using Apple’s Quicktime Pro software. CNN might attempt to claim copyright for this particular file, though the underlying commercial is, as political speech from a presidential campaign, considered to be in the public domain. There is a remote possibility, however, that CNN would frame an argument that either the haphazard coloration of this movie file, or the digital artifacts created during the compression process establish this file as a derivative work, qualifying for protection despite the public domain status of its ancestor. In this case, my counter-argument would be that my taking of the file is protected under the fair use exception to copyright law, which specifically allows use of material for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." While CNN, Jack Valenti, and I might continue to disagree over whether this use was a fair use or not, this download without permission is certainly not the end of the world.
8. Jack Valenti, 1983. "Home Recordings of Copyrighted Works Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee of the Judiciary, House of Representatives." (12 April), at http://cryptome.org/hrcw-hear.htm.
9. Trevor Merriden, 2001. Irresistible Forces: The Business Legacy of Napster and the Growth of the Underground Internet. Oxford: Capstone, 2001, p. 35.
10. Op.cit., p. 36.
11. Quoted in John Alderman, 2001. Sonic Boom: Napster, MP3, and the New Pioneers of Music. Cambridge, Mass.: Perseus, p. 139.
13. Hank Barry, 2000. "Testimony of Hank Barry, Chief Executive Officer, Napster, Inc. before the Senate Judiciary Committee" (11 July), at http://judiciary.senate.gov/oldsite/7112000_hb.htm.
15. Rader, 2000. "Re: Look, this is silly," In: "Napster Helps RIAA Again; RIAA Ungrateful," Slashdot.org (26 February), at http://slashdot.org/comments.pl?sid=10781&cid=401120.
16. Zikzak, 2000. "Re: Look, this is silly," In: "Napster Helps RIAA Again; RIAA Ungrateful," Slashdot.org (26 February), at http://slashdot.org/comments.pl?sid=10781&cid=401213.
17. Wah, 2000. "Re: Look, this is silly," In: "Napster Helps RIAA Again; RIAA Ungrateful," Slashdot.org (26 February), at http://slashdot.org/comments.pl?sid=10781&cid=401279.
18. Jessica Litman, 2002. "War Stories," Cardozo Arts and Entertainment Law Journal, volume 20, p. 337, and at http://www.law.wayne.edu/litman/.
19. Edward Rothstein, 2000. "Swashbuckling Anarchists Try to Eliminate Copyrights from Cyberspace," New York Times (10 June), at http://www.nytimes.com/library/tech/00/06/biztech/articles/10copyright.html.
20. Lars Ulrich, 2000. "Lars Ulrich’s Testimony on Napster," (11 July), at http://www.yourcongress.com/ViewArticle.asp?article_id=407.
21. David Gonzalez, 2002. "At Cuba Conference, Old Foes Exchange Notes on 1962 Missile Crisis," New York Times (14 October, Monday, Late Edition Final), Section A, p. 6, column 1.
25. Dan Burk, 1997. "Jurisdiction in a World Without Borders" Virginia Journal of Law and Technology, volume 1, p. 1522, and at http://vjolt.student.virginia.edu/graphics/vol1/home_art3.html.
26. see, e.g. Declan McCullagh, 2003. "Antipiracy Détente Announced," C/NET News.Com (14 January), at http://news.com.com/2100-1023-980633.html?tag=bplst; Jonathan Krim, 2003. "Entertainment, Tech Firms Reach Truce on Digital Piracy," Washington Post (14 January), at http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A51958-2003Jan13¬Found=true.
27. Janet Davis, 1996. "Stasis Theory," In: Theresa Enos (editor). Encyclopedia of Rhetoric and Composition. New York: Garland, pp. 693-695.
28. Jeanne R. Fahnestock and Marie J. Secor, 1983. "Grounds for Argument: Stasis Theory and the Topoi," "Grounds for Argument: Stasis Theory and the Common and Special Topoi," with Marie Secor. In: David Zarefsky, Malcolm O. Sillars, and Jack Rhodes (editors). Argument in Transition. Annandale: Virginia: Speech Communication Association, pp. 135-146.
29. Sharon Crowley and Debra Hawhee, Ancient Rhetorics for Contemporary Students. New York: Longman, pp. 47, 50.
30. Lawrence Lessig, 2001. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Vintage, p. 95.
Paper received 18 June 2003; accepted 23 June 2003.
Copyright ©2003, First Monday
Copyright ©2003, John Logie
A copyright cold war? The polarized rhetoric of the peer-to-peer debates by John Logie
First Monday, volume 8, number 7 (July 2003),