Why Napster Must Die

from the because-some-columnists-don't-understand-the-nature-of-information dept

David Coursey’s latest column has caused him to drop several levels in my respect for his writings. It’s the same column people were writing a year ago saying that Napster is theft. I’ve gone through this argument a hundred times already. For a theft to occur someone has to be missing something. When I pass on a copy of a song, no one is missing something. It is not the equivalent to me walking off with a CD out of a store – because by me taking that CD, that’s one less CD the store has to sell. When I pass on a copy of a song, that’s not the same. If people want to argue about other aspects of legality and morality when it comes to Napster and file sharing, that’s fine. But, to equate it with stealing physical items is simply wrong.

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Comments on “Why Napster Must Die”

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Anonymous Coward says:


Is it theft. Plain and simple. Theft of physical property isn’t the only kind of theft. Theft of intellectual property is what’s involved here. Let’s say you write something, whether it’s a book, a program, a picture, a song or whatever. Now let’s say I obtain a copy of that item through legitimate means (I buy one). I then make a copy of it. I photocopy the book or, better yet, I scan it and use OCR to convert it into a text file. Then I send this info to other people, perhaps for free or with a charge. Am I not stealing from you, the author, by doing this?

How is this different from Napster?

It IS theft. Stop trying to weasel around it.

alternatives says:

Re: a different word...techdirt's claim to fame?

Yes. Theft rolls off the tounge. “removal of the economic advatange through the restriction of distribution of Intellectual property” does not. And, if you consider that applied to, oh, say metallica, the word intelluctual is even up for grabs.

Let techdirt be the crucible where the new word is forged to express the ‘theft’ that napster represents!

Snarg. “Techdirt – where snarged was created.”

Phillip says:

Theft in two senses

The problem is that Napster opponents are deliberately confusing theft in two contexts. What they really mean is “Napster is theft as it is denying us money we would have made had the user not obtained the song for free”. The tone and attitude they are trying to imply is “downloading a song from Napster is like walking into a record store and stealing a CD” which of course is not true. The difference between what they mean and what they imply makes legitimate consumers confused and angry: yes I use Napster but why are you calling me a thief since I spend x% of my income on CDs?
Is Napster stealing from the record companies? One way of looking at it is to go to the core argument: is Napster losing the record companies money? The record companies will claim that they are losing downloads x price of single. Not true. Evidence shows that CD sales have increased since Napster launched.
Personally I feel that you cannot blanket charge 50m people with downloading from Napster being immoral. I think there will be a mixture of motivations to download. Some want to listen to an album before deciding whether to buy. Others download songs they cannot obtain from any retail outlets. Some have the CD at home but want to listen to the tune at work. So many reasons. I, personally, don’t believe that most people are naturally thieves.


Mary says:

Re: Theft in two senses

There seems to be a bit of confusion going on here.

First of all, the idea that since the ability to swap files (without removing the physical copy) is new, that there should be a new term to cover what happens. The basic moral questions here don’t change just because the medium changed. The concept of intellectual property (developped primarily to prevent theft of idea implementations) is hundreds of years old. And if you look in any dictionary, there are usually examples of stealing things that are obviously not physical. Heck – one very old example of this is found in Genesis from the bible – the story of Jacob “stealing” his brother’s blessing. So the concept that one did not have to physically remove something in order to steal it goes back thousands of years…

Secondly, maybe it’s worth taking a look at the actual definition of stealing (synonym of theft)

1. To take (the property of another) without right or permission.
2. To get or effect surreptitiously or artfully: 3. To move, carry, or place surreptitiously.

The key here is that if the person or company that owns the property in question does not give you the right to have it, be it “physical” or not, then if you take it without their permission, you are stealing it.

The fact that it is easy to take a replica of whatever you are stealing, and thus do not physically remove the original, does not change the fact that it is still stealing. It’s a question of vocabulary. Just because you don’t like the negative connotations associated with the word doesn’t mean the definition somehow doesn’t apply. That’s called looking for a euphemism (The act or an example of substituting a mild, indirect, or vague term for one considered harsh, blunt, or offensive).

The point is that in our society, the people who create or purchase the rights to the creation of something (like a piece of music) have the right of control. And just deciding to ignore those rights is illegal. (Note: I’m not saying that illegal = wrong!)

Something to consider: whether something is illegal or not, called stealing or not doesn’t necessarily make it wrong. There are many precedents throughout history. My personal opinion on the Napster issue is that there are some uses of Napster that are wrong, and that there are some uses that aren’t. Each of us has to make their own choices about what is right and what is wrong. But all of us are subject to the laws of the country in which we live. And so, if you believe it is right to share music via Napster, even though it is considered illegal, even though you have an easy conscience, you will still have to live with the consequences.

In a case like this, you would either have to continue doing what you are doing and accept the consequences, stop the behaviour (even though you think it’s okay), try and change the law, get the copyright/property owners to agree to allow you to share the music (making the behaviour legal), or go live somewhere else. It’s how an ordered society works. Not everyone agrees with every law, but laws in general exist for a reason.

On a completely unrelated point: Phillip comments that the core argument is “is Napster losing the record companies money”. This is completely false. Whether the record companies are making money or not is completely beside the point. The core argument here is whether using Napster to download songs instead of buying them constitutes theft. And, since the record companies (who, for better or for worse own the copyright) say that you can’t share your right to play the music, then it is clearly stealing to use Napster to download or share copyrighted songs.

Whether record companies make money or don’t make money is merely a side show, over which ordinary consumers don’t have that much control. But you certainly have control over your moral choices.

And incidentally, the fact that CD sales have increased since Napster launched has little to do with anything. The amount of disposable income has also increased. Retail sales in general have increased. The real question is whether the increase is greater than could be expected given the overall increase in the economy, and if so, whether Napster is the cause of this or not. That’s not to say that Napster has not caused CD sales to increase, just a caution that no one really knows the answer to that, and it’s not as obvious on the surface as you might think. The only way to really find out if Napster actually increased sales would be to study CD purchasers and Napster users to look for a link. However, this is very difficult. First of all because what people say they do and actually do are two completely different things (well established fact). Second of all, because there is heavy polarization among pro-Napster and anti-Napster factions, which would make it very difficult to get a true picture of what is actually happening. And finally, because the results would be used by both sides to prove their respective (opposite) points.

In order to make a moral choice (whether to share music, or not)

Mike (profile) says:

Re: Re: Theft in two senses

Okay… a little more on why I think it’s difficult to “steal” intellectual property. I’ve made this argument before…

First, though, I’ll go back to David’s specific argument. He talks about his house and burglars taking stuff from his house. How would you feel if you went home one day and your house was exactly the same? You wouldn’t care. Now if you’re neighbor copied your house and painted everything the same way and bought all the same furniture. You’re not missing anything, and they’re just copying you. That’s how I see Napster. It’s not even like that. They may be copying my couch, but someone else’s bedroom set to find what they like.

If nothing is missing it’s tough to convince me that a theft occurred. As for the “biblical” example above – something was missing. He only had one blessing to give. Once he gave it, it was no good to give it to the other son.

That’s the real issue here. If something is limitless – ie, not scarce in the economic sense, and can be reproduced with no marginal cost, a competitive marketplace will price the good at the price to reproduce which is zero. This isn’t difficult economics. Price should equal the marginal cost to produce. Anything higher than that is caused by an artificial barrier.

All Napster has done is create a super efficient marketplace.

Besides, I still can’t see how having a song to listen to could ever be theft. If I play my CD for a friend of mine, has that friend “stolen” the music, since he never bought the rights to listen to it?

What other good is there (other than intellectual property goods) can you buy but not own? That’s the real oddity in intellectual property goods. Any other product I can buy, and then I own it. But with intellectual property, if I buy it, the record company or the software company still own the product. That seems more like a scam to me. I haven’t bought anything. Just some mythical “rights” to do certain things with the product. How would you feel if you bought a couch, but the furniture company told you where you could play it and would arrest you if you let more than 4 people sit on it, or had it facing the sun?

All I’m saying is that the idea that intellectual property which is infinite and the marginal cost to reproduce is zero is a very different type of product than a tangible good with costs to reproduce. In those cases, using the regular rules and laws and terms that apply to one to hold over for the second doesn’t make sense. If you want new laws, then fine, that can be discussed. But, any direct comparisons will probably fall short in my book and will cause more harm than good.

Ed says:

Re: Re: Re: Theft in two senses

Let’s pick at this “someone copies your house” analogy. The analogy is stretched, because we’re trying to represent intellectual property with furniture, but so be it. Say you hired an interior designer to decorate your house, then you neighbor magically duplicates the design you paid for. Wouldn’t you feel like a chump for paying for something that now everyone else can get for free? But the main component of the theft isn’t from you, it’s from the interior designer, who can’t sell her services any more because everybody is just copying designs she’s already done. (Again, that’s not a great analogy, especially since I doubt that interior designs are even copyrightable.)

It’s a mistake to think that intellectual property is a limitless resource. What’s scarce isn’t the bits, but the creativity required in arranging them for the first time. Copyright protection is a way to translate that creative scarcity into economic scarcity. Circumvent that and expect creativity to go away as a result.

Zakk says:

Re: Re: Re:2 Theft in two senses

> Circumvent that and expect creativity to go away as a result

I think that it’s stretching it to say that creativity will go away as a result of widespread copying. Creativity is an intrinsic human characteristic, it existed way before copyright and theft and will exist way after no doubt. Most creatives create because they are driven to it, not because they reckon they’re going to get rich or famous (although nowadays that seems to be a growing focus it seems). The point is that the artist DOES need to be paid, to eat or whatever, but there is nothing to say that Napster is stopping the food from reaching the mouth of artists any more than the record companies and rights management organisations are doing anyway. Check out Courtney Love’s excellent take on the subject in her Salon article at

Mike (profile) says:

Re: Re: Re:2 Theft in two senses

Copyright protection is a way to translate that creative scarcity into economic scarcity. Circumvent that and expect creativity to go away as a result.

This suggests that there was no creativity prior to intellectual property law. I find that hard to support.

Besides you could (and some do) make the exact opposite argument, that freeing up the ability to share intellectual property goods encourages more people to be creative since they suddenly have a much larger audience. More people are getting the fruits of the creativity.

Ed says:

Re: Re: Re:3 Theft in two senses

There are many incentives for creativity, economic and otherwise. Surely if the economic incentives go away, the people who create IP for economic reasons will no longer do so. However, the existence of these economic incentives does not stop those who wish to create for other reasons. You could argue that doing away with copyright protection would means less overcommercialized mainstream crap, but I’m considering creativity and IP to include mundane yet useful stuff like computer software, too. Would Oracle still be in business if they couldn’t sell their software?

Mike (profile) says:

Re: Re: Re:4 Theft in two senses

Well, you’re opening up a huge can of worms there which the open source zealots might like to talk to you about…

But, beyond that, there certainly is the possibility for other business models that provide economic incentives for creativity. For instance, there is the “commission” model, where someone does pay the artist upfront for their creative work, and they are not expected to earn any additional beyond that. They still have the incentive…

And, there are mass market comparable ideas as well. Last year Prince released an album only after a certain number of people agreed to pay a certain amount. He made all the money he wanted, the fans got the music they wanted quickly and paid what they thought it was worth.

I’m sure there are other potential business models as well that we haven’t thought of. The fact is that Napster is completely normal… and there’s really no way to get rid of it completely. So, trying to figure that out is a waste of time. Looking for new business models makes a lot more sense.

Pu Qimeng says:

Re: Re: Re:5 Theft in two senses

One other aspect I would like to add: I agree fully with Mary’s highly interesting and well laid out discussion of the current legal situation. Under current laws, napster provides its users with the ability to engage in copyright theft. But that does not mean that this is theft in a moral or practical sense. Laws are not independent from the societies in which they exist – their interpretation, execution and redefinement changes over time. Laws that are not enforceable and practcable any more due to new (social, technological etc.) developments will vanish. That is what will happen with P2P (whether it will come early enough for Napster is still open). Peer-to-peer networking is here to stay, music to any device over IP networks is here to stay. Laws or their interpretation will adapt to new realities or they will be worthless and unenforceable. Therefore, even if Napster enables theft under the current interpretation of law, it is very open whether it will remain theft in the future. Rather, Napsters (or P2P)’s acceptance by the society will change it. Something that everybody does, cannot be illegal.

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