Peers, Pirates, and Persuasion: Rhetoric in the Peer-to-Peer Debates

Peers, Pirates, and Persuasion

Rhetoric in the Peer-to-Peer Debates

John Logie

Parlor Press

West Lafayette, Indiana

www.parlorpress.com

Parlor Press LLC, 3015 Brackenberry Drive, Anderson, SC 29621

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 2.5 License, with no prejudice to any material quoted from Peers, Pirates, and Persuasion: Rhetoric in the Peer-to-Peer Debates or other texts under fair use principles. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/2.5/ or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA.

© 2006 by Parlor Press

All rights reserved.

Printed in the United States of America

S A N: 2 5 4 – 8 8 7 9

Library of Congress Cataloging-in-Publication Data

Logie, John.

  Peers, pirates, and persuasion : rhetoric in the peer-to-peer debates / John Logie.

       p. cm.

  Includes bibliographical references and index.

  ISBN 978-1-60235-005-2 (pbk. : alk. paper) -- ISBN 978-1-60235-006-9 (Adobe ebook)

1. Sound recordings--Pirated editions--United States. 2. Music trade--Law and legislation--United States. 3. Peer-to-peer architecture (Computer networks)--Law and legislation--United States. 4. Downloading of data--Law and legislation--United States. I. Title.

  KF3045.4.L64 2006

  346.7304’82--dc22

                                      2006103287

Cover and book design by David Blakesley

Digital Audio © by Ben Goode. Used by permission.

Skull and Cross Bones © by Lewis Wright. Used by permission.

Printed on acid-free paper.

Parlor Press, LLC is an independent publisher of scholarly and trade titles in print and multimedia formats. This book is available in paperback, cloth, and Adobe eBook formats from Parlor Press on the Internet at http://www.parlorpress.com or through online and brick-and-mortar bookstores. For submission information or to find out about Parlor Press publications, write to Parlor Press, 3015 Brackenberry Drive, Anderson, SC 29621, or e-mail [email protected].

For my wife, Carol, without whom . . .

Contents

Illustrations

Acknowledgments

1 Introduction: The Cat Is Out of the Bag

2 Hackers, Crackers, and the Criminalization of Peer-to-Peer Technologies

3 The Positioning of Peer-to-Peer Transfers as Theft

4 Peer-to-Peer Technologies as Piracy

5 The Problem of Sharing in Digital Environments

6 Peer-to-Peer as Combat

7 Conclusion: The Cat Came Back

Appendix: On Images and Permissions

Works Cited

Index for Print Edition

Acknowledgments

Scholars whose research addresses the field now referred to as intellectual property usually conclude that writing is by no means a solitary pursuit. In my case, this is especially true. As I complete this project, I am keenly conscious that I will not be able to offer a truly complete list of those who helped influence my thinking, productively challenged my arguments, or supported me in other ways as this project unfolded.

First I must thank my colleagues in the University of Minnesota’s Department of Rhetoric, especially Art Walzer and Alan Gross who were both kind enough to read and comment on early drafts of this project. I am also grateful to Vickie Mikelonis for organizing the trip to Ukraine that so powerfully illustrated that the U.S.’s approach to copyright was—to put it mildly—highly context-specific. I have also benefited from my work with my department’s exceptional graduate students, many of whom have prompted me to revisit and revise some of my most-favored arguments. Five particularly deserving of my thanks are Laurie Johnson, Krista Kennedy, Clancy Ratliff, Jessica Reyman, and Jeff Ward.

Lawrence Lessig and Siva Vaidhyanathan were both kind enough to meet with students in my graduate seminars. Both have also offered supportive comments as this project unfolded and, in general, demonstrated the collegial generosity that is especially common among scholars pursuing a critical reading of contemporary copyright.

I am also especially grateful to Andrea Lunsford and Jim Porter, both of whom have, for many years, served as leaders in scholarship addressing the intersections of composition and copyright. Andrea and Jim have always been generous with their time, and have on numerous occasions helped me to take important steps in my own development as a scholar. It was Andrea and Jim’s active, engaged leadership that attracted me to the Intellectual Property Caucus of the Conference on College Composition and Communication (CCCC-IP). This organization has consistently offered a rich site for engaged scholars to meet and discuss the implications of our ever-changing intellectual property laws for teachers of writing and rhetoric.

The University of Minnesota deserves my thanks for the Faculty Summer Research Fellowship that funded a critical period in my development of this project.

Special thanks go to Charlie Lowe at Parlor Press, whose comments prompted significant improvements in this text. Thanks also to Parlor Press publisher David Blakesley, who is bringing a spirit of adventure back to scholarly publishing.

Thanks also to Mike Cohen for having had the presence of mind to photograph the sticker on his first-generation iPod before unwrapping it. And thanks to the editors of both First Monday and The International Handbook of Virtual Learning Environments for publishing earlier versions of some of the material found herein.

But above all, I wish to thank my family. My immediate family—my wife Carol, and my daughters, Nora and Shane—deserve special acknowledgment for having put up with my diminished availability as I pursued the final stages of my first draft. I am immensely appreciative for their gifts of time and space to pursue this project. My parents, siblings, and in-laws have also been supportive and understanding as I pressed toward publication.

Finally, I am grateful to the musicians whose work I listened to as I wrote. I hope this work helps fuel a move toward Internet-based music distribution that fairly and fully compensates you for your tremendous contributions to our culture.

When a new technology strikes a society, the most natural reaction is to clutch at the immediately preceding period for familiar and comforting images. . . . What is called progress and advanced thinking is nearly always of the rear-view mirror variety.

—Marshall McLuhan and Quentin Fiore, The Medium is the Massage

1 Introduction: The Cat Is Out of the Bag

In the Spring of 2000 I was completing a shopping trip to Costco, a warehouse club located in a Minneapolis suburb, when I got an unexpected lesson in the burgeoning popularity of Napster, the peer-to-peer file-transfer program developed by Shawn Fanning in 1998. Costco makes a practice of having employees check off the merchandise on your receipt as an anti-theft measure, so the checker is effectively reviewing your purchases one by one. The roughly sixty-year-old man who was checking my receipt noticed I had purchased a CD labeling kit. His face brightened.

Hey, you use Napster? he asked.

Sometimes, I responded, warily.

Isn’t it the greatest? he exclaimed. I’ve been getting all the songs on my old records that they won’t put out on CD. I make my own mixes!

He went on to sing the praises of Napster, which was offering him and like-minded sexagenarians on opportunity to exchange their favorite music—mostly obscure album tracks by Bert Kaempfert and Herb Alpert and the Tijuana Brass, as near as I could tell—and recommended the service to me as a source for such lost gems.

Aren’t you worried about copyright? I asked.

I bought all these records back in the sixties, he answered, and if they reissue them on CD, I might buy them again. But right now I can’t get this stuff on CD. I know a bunch of people through Napster who are trading this music. Maybe the record labels will see how many of us like this stuff and get going on it.

To this point my own image of the stereotypical Napster user was epitomized by the self-presentation of Napster’s founder, Shawn Fanning, who maintained his ballcap-wearing, dorm rat persona well beyond the end of his career as a Northeastern University student. I also knew many of my own students were fans of Napster. Because my academic department has a strong undergraduate program in scientific and technical communication, my technologically inclined students are often early adopters of new technologies of all kinds. I had discussed Napster with some of them, and as a voracious consumer of popular music, I understood their enthusiasm for the kinds of discoveries Napster enabled.

But here, in his Costco vest, was another kind of Napster user, and one who was not simply using the software, but proselytizing for it. When I mentioned copyright as a concern, he had a ready defense. Indeed, he went as far as suggesting that his use of Napster was alerting a somnambulant music industry to the presence of a demand that they were not adequately addressing. Thus, to his way of thinking (or at least within his rationalization) Napster was helping record labels understand consumer demand.

While this gentleman may or may not have been absolutely clear on the dicey status of his actions with respect to U.S. copyright laws, he was clearly aware that Napster’s content was getting better and better as more and more people logged on. And even if I didn’t share his love for the Tijuana Brass, he understood that increasing the number of participants on Napster meant an increased likelihood of finding an obscure song via the service. For a brief moment, Napster users had a glimpse of the kind of expansive electronic library that copyright laws typically preclude . . . everything in no particular order, all day, all night, and in stereo. This from a service that had popped onto the U.S. public’s radar screen in March of 1999, mere months before my trip to Costco.

It is at times difficult to recall an Internet predating the peer-to-peer networking that is now so commonplace, but Napster, the program that popularized peer-to-peer exchanges, arrived fairly late in the life of the Internet—a full decade after the development of the http protocol that underpins the World Wide Web. Napster incorporated in May of 1999. The company’s website went live in August of that year, offering an elegant user interface for locating and downloading music files compressed in the MP3 format via the Internet. As word spread among savvy Internet users Napster’s network experienced exponential growth. Napster’s users began transferring not only current popular music, but also arcane, hard-to-find, and out-of-print music.

Within weeks of Napster’s launch, the traffic to and from Napster’s servers was becoming a significant problem for network administrators at universities across the U.S. Recognizing the significant likelihood that much of this traffic was enabling infringements of copyright, the Recording Industry Association of America filed suit against Napster in December of 1999. In January of 2000, after discovering that somewhere between 20 to 30 percent of all the traffic on its servers was Napster-directed, Northwestern University blocked student access to Napster on its networks (Gold). In April of 2000, the hard rock band Metallica, and hip-hop producer and performer Dr. Dre also sued Napster, alleging copyright infringement and racketeering (Borland). Napster, in the wake of the publicity afforded by these high-profile lawsuits, became far and away the most popular file-transfer service on the Internet. This prompted an additional wave of legal go-rounds and injunctions, ultimately resulting in the demise of Napster as a free peer-to-peer network, when its servers were shut down in July of 2001.

At its peak, Napster is estimated to have had more than 80 million registered users. In just the month of February of 2001, the best estimates suggest that 2.8 billion files were transferred over the network Napster facilitated (Kornblum). Because the Internet is international in its scope and reach, it is impossible to determine what percentage of these transfers were made by United States-based users, but given the general distribution of computer technology worldwide, it is almost certain that the vast majority of Napster’s users hailed from the U.S. And this use of Napster was transpiring despite the users’ awareness that the technology at the heart of Napster’s network was based on a questionable interpretation of U.S. copyright laws. In fact, Napster users’ knowledge of the possibility that a July 29, 2000 injunction could shut down Napster’s servers prompted a flurry of downloading in the few days before the injunction was to take effect (Konrad, Napster Fans). The dramatic spike in downloads suggests that Napster fans were actively indulging in a last call in anticipation of the court ruling Napster to be illegal. When Napster finally did shut down, in 2001, similar services, pursuing a second dot-com bubble, were leaping to fill the void.

In 2006, the number of users of post-Napster peer-to-peer applications including Kazaa, BitTorrent, and various Gnutella clients dwarfed Napster’s purported totals. And these users are downloading without evident regard for the lawsuits threatened by the Recording Industry Association of America. Indeed, peer-to-peer users have, by and large, persisted in the same patterns of behavior that they did via Napster, and have even extended their napsterization of cultural artifacts, freely downloading film, video, and photographic files via current peer-to-peer applications. And they are often doing so in defiance of the law as it is commonly (mis)understood.

Organizations representing the corporations and businesses associated with the marketing and sale of creative work, especially music and motion pictures, have argued for years that Internet-based transfers of media files threaten their livelihood. The particularly vociferous complaints of film studios, as represented by the Motion Picture Association of America (MPAA) and record companies, as represented by the Recording Industry Association of America (RIAA) have risen steadily as the Internet expanded. In the mid-1990s, as the Internet shifted decisively from its early roots in academia (reflected in the preponderance of dot edu domains) to a more commercial orientation (dot com), the consistency with which the film and music industry made parallel arguments critiquing Internet practices prompted the coinage of the umbrella term content industries, which now functions as a shorthand descriptor for the largest and most powerful media companies. As this book heads to press, the content industries seem to have both won and lost these arguments. Most U.S. residents have been persuaded (in some cases, incorrectly) that peer-to-peer networks trafficking in copyrighted materials are violating the law. That said, many people continue to download copyrighted materials in spite of their understanding that this activity is quite possibly illegal.

This book will address the content industries’ arguments, and the key terms and metaphors underpinning their arguments. This book will also interrogate peer-to-peer enthusiasts’ various responses to these arguments, and the limited applicability of this community’s favored metaphors and models. In particular, I will endeavor to explain how it is that the content industries’ efforts have proven demonstrably persuasive in U.S. courts and in the houses of Congress but also have demonstrably failed to persuade peer-to-peer enthusiasts to change their behavior. The arguments made throughout the peer-to-peer debates are often striking in and of themselves, but this book will place them in the broader context of how citizens persuade one another on matters of public policy, and the consequences of these persuasive efforts.

My training in rhetorical theory and history offers me considerable support in my efforts to understand the peer-to-peer debates. To my initial surprise, the peer-to-peer debates have been driven chiefly by appeals to emotion and to the personal credibility of the participants—Aristotle’s pathos and ethos appeals, respectively—at the expense of the logos appeal. At first blush, the peer-to-peer debate would seem resolvable almost solely through recourse to questions of logic and reason, the kinds of questions historically recognized as the province of logos. Indeed, because the peer-to-peer debates ultimately stem from a public policy question, we might anticipate the debate to be characterized by the kinds of persuasive strategies conventionally associated with logos appeals. In his treatment of logos for the Encyclopedia of Rhetoric and Composition, George Yoos offers the following exhaustive list of the logos appeal’s preferred rhetorical strategies: premises, warrants, evidence, facts, data, observations, backing, support, explanations, causes, signs, commonplaces, principles, or maxims (411). Yoos specifies that this list applies only to the disciplines of oratory and public address, argumentation, and forensics, acknowledging that logical operations outside these fields might take on additional forms. But even this circumscribed list initially seems adequate to the task of unpacking the peer-to-peer debates. Yoos’s fourteen favored logos strategies appear to encompass the arc of arguments rising from the debate.

But as the peer-to-peer debates unfolded, these persuasive strategies were repeatedly supplanted by arguments grounded in appeals to authority (ethos) and emotion (pathos). This narrative offers a telling index of the politics of persuasion in the 21st Century. The participants in the peer-to-peer debates have largely abandoned logos appeals because these appeals do not resonate with the general public as powerfully as ethos and pathos appeals.

In my decade as a rhetorician addressing questions of invention, authorship, and copyright, I have often wondered why arguments about copyright generate so much passion. Though most