FREE SOFTWARE PAGE
July 3, 2003
Copyright (c) 2003 Virginia Law Review Association
Virginia Law Review
89 Va. L. Rev. 505
LENGTH: 25179 words
ARTICLE: CHARISMATIC CODE, SOCIAL NORMS, AND THE EMERGENCE OF COOPERATION ON THE
Lior Jacob Strahilevitz*
* Assistant Professor, University of Chicago Law School. Thanks are owed to
Michael Abramowicz, Anne Alstott, Theodore Angelis, Robert Ellickson, Dan
Kahan, Doug Lichtman, Glynn Lunney, Mark Nadel, Leslie Pollner, Eric Posner,
Eric Shumsky, Cass Sunstein, Rebecca Tushnet, and Adrian Vermeule for their
helpful comments and criticisms on earlier drafts, and Colin McNary for his
valuable research assistance. In addition, conversations and exchanges with Amy
Adler, Robert Axelrod, Vicki Been, Richard Brooks, Karol Brown, Leandra
Lederman, Mark Lemley, Lawrence Lessig, Saul Levmore, Tracey Meares, Peter
Menell, Tony Miles, Kimberly Mills, Randy Picker, Bill Stuntz, and Tamara Watts
were instrumental in improving the Article. Finally, thanks to workshop
participants at the University of Chicago, Yale, Stanford, Berkeley, NYU,
Northwestern, Hastings, George Mason, and UCLA.
... THREE years ago, no one had heard of Napster or Gnutella. ... The
file-swapping hybrids generally
"scale" better than Gnutella does, which means that when a user logs in to the
network, he is able to access the content hosted by a larger number of users
and, accordingly, has a larger library of files from which to choose. ... The
default user settings on Napster, as well as on hybrid programs and more recent
Gnutella applications, were such that after a user downloaded a file, his copy
of that file would be available for other users to download from him. ...
Napster's norm entrepreneurs were the handful of programmers who created the
new network and the people who uploaded the initial copyrighted content, many
of whom were friends or acquaintances of Napster's primary programmer. ...
While individuals who download child pornography off Gnutella have been
subjected to minor shame sanctions, no one has ever thought to do the same to
the millions of individuals who are downloading copyrighted content off the
same network. ... Gnutella's creators have attempted to situate its users in an
environment that makes it appear as if a norm of sharing and cooperation exists
on the network. ...
THREE years ago, no one had heard of Napster or Gnutella. Over the past few
years, however, Napster and Gnutella, along with their subsequent imitators,
have grown into arguably the largest international networks of illegality in
human history. At its peak Napster had approximately 70 million users,n1 the overwhelming majority of whom used the service to obtain unlicensed
copies of copyrighted sound recordings by swapping music files with other users.n2 Although adverse court decisions eventually brought Napster to its knees,
file-swapping users have simply taken their
"business" elsewhere, and a plethora of file-swapping networks, including Gnutella, have
taken Napster's place. By 2002, another application, Kazaa, had twice as many
users as Napster had at its peak.n3 According to a recent estimate, as many as 40 million Americans use a
peer-to-peer network to obtain copyrighted content every week.n4
There is something else happening with these networks besides the widespread
copyright infringement they encourage, and it may be even more interesting. After all,
there is little mystery as to why
[*508] tens of millions of individuals have chosen to use these networks to download
free, high-quality sound recordings. The more puzzling question is why tens of
millions of individuals have chosen to upload free, high-quality sound
recordings to their fellow anonymous users. Downloading content from a
peer-to-peer network depends entirely on another user's willingness to upload
such content. While users of these networks have been free to download as much
content as they want without ever having to share their content, a substantial
number of users still elected to share. Seen in this light, the file-swapping
networks are a triumph of cooperation, and a shining beacon of kindness to
In this Article, I will provide an explanation for why so many Internet users
make their unlicensed copies of copyrighted content available to perfect
strangers despite the absence of obvious incentives for doing so. Drawing on
the social psychological literature that explores cooperation and altruism in
the face of anonymity, I will propose that file-swappers share their content
with anonymous strangers mainly because
"charismatic" technologies make the community of file-swappers appear to its users far more
cooperative than it really is. In so doing, the networks tap into deeply held
social norms of reciprocity that people develop offline and bring with them to
cyberspace. I will then use the file-swapping networks as a case study for
analyzing how cooperation and social norms emerge in an environment
characterized by anonymity and a lack of repeat-player interactions. In short,
I will present a hypothesis to explain the emergence of social norms in a
As this account suggests, robust, cooperation-encouraging social norms can
emerge where anonymity is widespread, provided the environment in which the
anonymous individuals interact is properly
[*509] structured. I will propose that, in this instance, the ingenious structures of
the file-swapping networks solidify a norm of sharing, and that this norm of
sharing is reinforced by users' notions of reciprocity. If my account is
correct, it suggests that rather than moving sequentially against the various
post-Napster networks, the
copyright industries should have helped create a norm of free-riding on the peer-to-peer
networks. In so doing,
copyright holders might have curtailed the cooperative uploading on which these networks
rely. I will consider this and other alternative strategies for preventing
copyright infringement in the final pages of this Article.
Part I of this Article will provide a technical, historical, and legal
introduction to the world of file-swapping on the Internet. This Part will
provide context so that the uninitiated may better understand the nature of the
social phenomenon being characterized in the remainder of the Article. It will
then explore the ways in which users of these networks cooperate despite the
apparent absence of incentives to do so, and the limitations on cooperation
that the networks' designers have had to attempt to overcome.
Parts II and III will examine the emergence of two kinds of social norms that
govern human behavior with respect to file-swapping activities. The first of
these, discussed in Part II, is the norm that renders downloading behavior
permissible regardless of what the
copyright laws might say. The emergence of this norm can be explained plausibly through
a standard economic analysis supplemented by a traditional account of norm
Part III will discuss a second norm - one that cannot be explained through the
existing tool set that social norms scholars have developed to analyze
close-knit groups. This norm holds that those who download content from
peer-to-peer networks should also make content available to other users. This
norm's emergence and survival can be best explained by reference to the social
psychological literature that examines why people generally cooperate with or
behave altruistically toward strangers. The literature suggests that even in
loose-knit environments, individuals can be persuaded to cooperate if they view
others as cooperating. Using this framework, Part III will argue that the
file-swapping networks have been so successful in large part because they have
created an online environment in which sharing appears to be far more prevalent
than it really is. This phenomenon is
[*510] emblematic of what I call
"charismatic code" - a technology that magnifies cooperative behavior and masks uncooperative
Part IV will apply some of the lessons gleaned from the foregoing discussion to
the policy choices that courts, legislatures, and private actors must confront
in regulating file-swapping on the Internet. It will suggest that courts and
copyright holders may have botched their initial efforts to respond to the challenge
posed by the file-swapping networks. This Part will then examine alternative
copyright holders could employ to weaken these networks - specifically, self-help and
pricing mechanisms that raise the cost of user cooperation. An understanding of
how social norms arise and thrive in loose-knit environments suggests
surprising strategies for undermining arguably pernicious cooperation by
file-swappers. To illustrate, I will suggest that the
copyright industries may be able to undermine the success of file-swapping networks by
releasing their own file-swapping programs that allow people to exchange files,
but that make uploading appear to be far less prevalent than it really is -
thereby undermining the norm of sharing. Alternatively, I will argue that the
record industry's well-publicized strategy of uploading flawed MP3 files onto
the peer-to-peer networks is much more likely to succeed if done
surreptitiously, so that users begin to blame each other for the presence of
these files, prompting them to eschew future cooperation. Insights about
charismatic code therefore can be useful to those wishing to control
copyright infringement, but they might also be useful to those who wish to strengthen
the networks. To that end, Part IV will suggest ways in which the networks
could boost the levels of cooperation that exist therein. A brief conclusion
I. An Introduction to Napster, Gnutella,
and the File-Swapping Hybrids
"killer app" is software industry lingo for a must-have application that profoundly alters
the experience of using a computer.n6 The explosive growth of the computer software industry during the 1980s and
1990s was sparked by killer apps such as Lotus
[*511] 1,2,3 (a spreadsheet program), Wordperfect (a word processor program), and
Netscape (an Internet browser). It is safe to say that during the year 2000
Napster became the killer app du jour.n7
1. Napster in Brief
Napster was a file-swapping program created in 1999 by Shawn Fanning, a
Northeastern University undergraduate who wanted to create a network that would
allow him to trade MP3 music filesn8 with his friends over the Internet.n9 Napster integrated two basic functionalities: It compiled a searchable
directory that allowed users to locate desired content on other users' machines
and combined that directory with a file transfer protocol, which allowed that
content to be copied from one computer to another.n10
Using Napster to exchange music files was straightforward: A user directed his
Internet browser to visit the Napster website and downloaded Napster's
MusicShare software.n11 That software catalogued the music files in designated drives on a user's
computer and stored this catalog on Napster's central servers. The software
then permitted the user to search through the catalog of MP3 files available on
other users' computers and download desired files.
[*512] These files were then transferred directly from the host user's computer to
the requester's computer via a peer-to-peer connection over the Internet.n12
Once a user logged in to the Napster network, she could locate files for
downloading in a couple of ways. Napster provided a search function whereby a
user could locate files in fellow users' directories after searching by artist
name or song title. She could then see not only which users had the files on
their directories, but also the speed of their respective Internet connections.
After conducting an initial search, the user had several search options. She
could search for another artist or song, or she could examine the file
directory of a particular user that showed files satisfying the first search
criteria to see what other files that user had made available for downloading.n13 For example, a user interested in expanding her jazz horizons might have
searched for files containing music by a well-known artist such as Miles Davis
or Louis Armstrong and subsequently looked at the directories belonging to
users who had extensive collections of Davis or Armstrong recordings. In that
way, users could find high-quality music by artists who were previously unknown
Napster users occasionally engaged in virtual conversations with the users who
were supplying them with music files. For example, a user looking for music by
a relatively obscure artist could find another user with a substantial
collection of that artist's works. The user could begin to download the music
and, at the same time, page the uploading user to see if he was interested in
exchanging instant messages about the artist. Napster also hosted chat rooms
that involved many users simultaneously.n14 Napster thereby permitted music lovers to share information and
conversation with others who had similar tastes.
2. Napster's Growth
A firm that monitors Internet usage reported that Napster was the fastest
spreading application ever tracked on the Internet.n15 By
[*513] the summer of 2000, less than one year after the program's launch, Napster use
was widespread. Of the thirty-seven percent of Internet users in the United
States who had listened to or downloaded music off the Internet,n16 fifty-four percent had used Napster to download music.n17 A little more than half of Napster's 70 million users were located in the
United States, but significant user populations also existed in Canada,
Australia, Brazil, Germany, and the United Kingdom.n18
Napster fueled an unprecedented surge in music downloading from the Internet.
Between July of 2000 and February of 2001, the number of Americans who had
downloaded music off the Internet increased by more than forty percent.n19 The majority of Americans between the ages of twelve and twenty-nine with
Internet access had downloaded music files via the Internet.n20 Napster users began amassing increasingly larger collections of MP3 files.
In April of 2000, the average file-sharing Napster user shared approximately
100 MP3 files.n21
3. The Napster Litigation and Its Fallout
On December 6, 1999, several record labels sued Napster in the United States
District Court for the Northern District of California for contributory and
copyright infringement.n23 The district
[*514] court denied Napster's motion for summary judgment on May 5, 2000, rejecting
the company's claims that its service fell within the safe harbor provisions of
the Digital Millennium
Copyright Act.n24 On July 26, 2000, the district court essentially sided with the record
labels on the merits, granting their motion for a preliminary injunction to
prevent Napster from engaging in contributory and vicarious infringement of the
copyrights.n25 The district court enjoined Napster from
"engaging in, or facilitating others in copying, downloading, uploading,
transmitting, or distributing plaintiffs' copyrighted musical compositions and
sound recordings ... without express permission of the rights owner."n26 The court placed the burden of removing access to copyrighted works on
Napster, but ordered the plaintiffs to assist Napster by identifying the works
in which they owned
copyrights.n27 Shortly before the injunction was to become effective, the United States
Court of Appeals for the Ninth Circuit granted Napster's application for a stay
pending appeal.n28 While the case was awaiting the Ninth Circuit's review, the free publicity
that Napster garnered through coverage of the litigation helped Napster's user
base grow dramatically.n29
On February 12, 2001, the Ninth Circuit affirmed the district court's
determination that Napster had likely engaged in contributory and vicarious
copyright infringement.n30 The court altered the district court's injunction somewhat, finding the
injunctive order overbroad to the extent that it placed upon Napster the
primary onus to ensure that its network was free of copyrighted content.n31 The court thought it more appropriate to
"place the burden on plaintiffs to provide notice to Napster of copyrighted
works and files containing such works available on the Napster system before
Napster has the duty to disable access to the offending content."n32
[*515] Three weeks later, the district court modified its injunction on remand.n33 The court required the plaintiffs to provide Napster with a list of songs
and names of artists whose copyrighted content was being traded on Napster.n34 The court further ordered Napster to be diligent in preventing
circumvention of the spirit of the court's injunction through
"variations of the filename(s), or of the spelling of the titles or artists'
names, of the works identified by the plaintiffs."n35 Under the court's order, Napster had three days to prevent a copyrighted
file that the plaintiffs had identified from being swapped via the network.n36 In order to comply with the injunction, Napster installed
"filtering" software on its servers to prevent certain copyrighted files from appearing
when one user searched another user's directory.n37 Moreover, Napster's search function was rigged so that when a user typed in
a search query such as
"Rolling Stones," the network immediately returned the response
"No files found." This injunction essentially killed Napster - by September of 2002, Napster was
no longer operating, had laid off virtually all of its employees, and appeared
headed for liquidation.n38
Approximately one year after Napster's creation, Gnutella, a new file-swapping
program, was released over the Internet.n39 Presently, there are several different Gnutella applications, all of which
use the same basic network and file-swapping technologies. The most popular
Gnutella applications when this Article went to press were BearShare, Limewire,
Qtraxmax, and XoloX.n40 Although their interfaces and features vary somewhat, all of these
[*516] share the same network, meaning that a BearShare user can exchange files with
a Limewire user without difficulty.
1. Gnutella's Structure
Gnutella's network is more versatile than Napster's was in that it allows
users to exchange software files in any format, rather than just MP3 files.n41 Scanned photographs, text files, and motion pictures can be exchanged over
the Gnutella network. Not surprisingly, the Gnutella network has become quite
popular among users who want to exchange copies of movies and pornographic
A user searching for software files on Gnutella does so in a manner somewhat
similar to searching on Napster.n42 After logging in to the Gnutella network, his computer connects to a number
of other computers running a Gnutella application. That user may then type any
search phrase into the software, be it an artist's name, album title, song
title, or some combination thereof. His computer then asks the other computers
to which it is connected whether they contain files that match the search
description. These computers in turn query the computers to which they are
connected, and so on.n43 Eventually, many of the computers connected to a particular network (a
maximum of 10,000 machines)n44 will be asked whether they have files that match the search query, and will
return any affirmative responses to the requesting computer.n45 The user is then able to sort the affirmative responses by variables such
as Internet connection speed or file size. Once the user requests to download a
particular file from a particular user, a peer-to-peer connection between their
computers is established via the Internet, and the file is copied from the
uploader to the downloader.
[*517] Until somewhat recently, Gnutella did not permit a user to scan the directory
of another user to see all the files he had made available. In place of that
handy Napster function, however, Gnutella introduced a fascinating voyeurism
"Monitor." A Gnutella user can observe, at any given time, a scrolling list of queries
that other users have recently entered into their Gnutella search engines. Such
searches reveal the eclectic tastes of Gnutella's usersn46 and often inspire users to duplicate a particular search.
Unlike Napster's software, the Gnutella network does not rely on a central
server to store a directory of the files available on users' systems.n47 Rather, all the computers plugged into the network function as
mini-servers. In an era when lawsuits and injunctions are the primary tools for
copyright infringement on the Internet, this decentralized structure makes it relatively
difficult to police (and ultimately shut down) Gnutella.n48 Indeed, Gnutella's creators bill their program and network as one that is
impervious to legal control.
Gnutella can withstand a band of hungry lawyers. How many realtime search
technologies can claim that? Not Napster, that's for sure. Just to emphasize
how revolutionary this is: hungry lawyers are probably more destructive than
nuclear weapons. There are a few things that will prevent Gnutella from being
stopped by lawyers, FBI, etc. First, Gnutella is nothing but a protocol. It's
just freely-accessible information. There is no company to sue. No one entity
is really responsible for Gnutella. Second, Gnutella is not there to promote
the piracy of music. It's a technology, not a music-piracy tool. The important
thing is that Gnutella will be
[*518] here tomorrow. It's reliable, it's sharing terabytes of data, and it is
This rhetoric may be overblown and unsophisticated, but neither lawyers nor
server failures have been able to bring down Gnutella since its birth.n50 Faced with the unattractive prospect of filing individual lawsuits against
copyright-infringing users on Gnutella's networks, the music and motion picture
industries initially held their fire against Gnutella's developers and users.n51 Not surprisingly, Gnutella's creators have exhibited a disdain for
capitalism in general and intellectual property rights in particular.n52
2. Gnutella's Growth
In part because it was initially less user-friendly and efficient than
Napster, in part because of Napster's first-mover advantage in the marketplace,
and in part because of less aggressive marketing, Gnutella's file-swapping
network did not catch on nearly as quickly as Napster's. Gnutella usage
received a major boost, however, after the Ninth Circuit ordered Napster to
start complying with
copyright laws. Indeed, Internet watchers reported a seventeen percent increase in
Gnutella usage on the day after the Napster decision was handed down.n53 That trend continued as Napster began making it more difficult for users to
access copyrighted MP3 files.n54 As Napster users began to anticipate the eventual demise of Napster as they
knew it, they, and new file-swappers, increasingly began using Gnutella as a
C. File-Swapping Hybrids
In the past two years, a number of hybrid software programs, such as
MusicCity's Morpheus, Kazaa, and Audiogalaxy Satellite, have been distributed
over the Internet. These programs combine Napster's efficient downloading with
Gnutella's decentralized structure and support of many different file formats.
Several of these networks, such as the one that serves Kazaa and Grokster,n56
[*520] are operated by companies based outside the United States.n57 The file-swapping hybrids generally
"scale" better than Gnutella does, which means that when a user logs in to the
network, he is able to access the content hosted by a larger number of users
and, accordingly, has a larger library of files from which to choose.n58 Moreover, whereas Gnutella servers use every computer on the network as a
mini-server to facilitate searching, hybrid applications automatically locate
the most powerful computers on the network with the highest speed connections
and use only those computers as mini-servers. The result is a noticeably faster
network and a more efficient process for searching.n59
While the Gnutella network has gained significant traffic in the wake of
Napster's downfall, the file-swapping hybrids have been the primary
beneficiaries.n60 During a single week in August of 2001, 2.8 million people downloaded the
three most popular hybrid applications.n61 Although it is difficult to gauge the precise number of users on these
networks, the two most popular, Kazaa and MusicCity's Morpheus, have been
downloaded more than 300 million times between them, and the next four most
popular, iMesh, Audiogalaxy Satellite, BearShare, and Limewire, account for an
[*521] additional 111 million downloads.n62 These numbers are rendered particularly important by the network
externalities that exist on the file-swapping networks; the more users a
network has, the more content generally will be available, and as a result, the
more attractive the network will become to new members.n63
The music and motion picture industries have recently begun to pursue legal
actions against the creators of these hybrid sites.n64 Some of these actions have been successful, such as the Recording Industry
Association of America's ("RIAA"'s)
copyright infringement lawsuit against AudioGalaxy, and the subsequent settlement that
required AudioGalaxy to block users from swapping the vast majority of the
songs that would otherwise be available over the network.n65 Despite these court victories, Congressman Henry Waxman, a recording
industry stalwart, recently offered the following assessment of the hybrids and
"Killing Napster created problems of even greater magnitude."n66
D. Cooperative Behavior on Napster, Gnutella, and the Hybrids
In order to describe user conduct on the peer-to-peer networks precisely, it
is necessary to deviate somewhat from the vocabulary
[*522] of network users. Members of the networks themselves refer to participation in
the networks as
"file-swapping." They use these two phrases interchangeably. In this Article, I use the phrases
to mean different things, and these divergent meanings will become quite
important in the text that follows. I refer to
"file-sharing" as making one's files available for others to download (that is, making at
least some of the media files on one's hard drive available to members of the
network). By contrast, I use
"file-swapping" to refer to general participation in the network, whether as a downloader, an
uploader, or both.n67
In the few years since the file-swapping applications were created, several
behavioral trends have remained constant. These trends have been observable on
Napster, Gnutella, and the hybrids. First, file-sharing, although entirely
optional, is sufficiently common to cause the network to function efficiently.n68 Second, the material available for downloading is generally of high quality
and accurately labeled. Third, transmission disruptions are relatively common.
Each phenomenon is worthy of further attention.
1. Files Are Shared in Sufficient Quantities
The file-swapping networks do not require those users who wish to download
files to make their own files available for others to download. There are few
reliable statistics on the extent of file-sharing on Napster and Gnutella. The
only comprehensive study, by Etyan Adar and Bernardo Huberman, looked at the
prevalence of file-sharing on the Gnutella network during a single
twenty-four-hour period in August of 2000.n69 According to that study, approximately sixty-six percent of those users who
were logged in to the network shared no files, and seventy-three percent of
users shared ten files or fewer.n70 The authors also concluded that bandwidth (the speed of an uploader's
Internet connection) did not affect file-sharing significantly.n71
In describing the implications of their data, Adar and Huberman predict that if
no more than one-third of all file-swappers continued to make their files
available for others to download, the Gnutella network could be destroyed
through what they call the
"tragedy of the digital commons."n72 In the authors' words:
"If distributed systems such as Gnutella rely on voluntary cooperation, rampant
free-riding may eventually render them useless, as few individuals will
contribute anything that is new and high quality. Thus, the current debate over
copyright might become a non-issue when compared to the possible collapse of such
systems."n73 Adar and Huberman thus predict the potential downfall of file-sharing on
Gnutella. As users become decreasingly willing to upload files to others, less
content is available on the network, and downloaders find that there is
increased competition to obtain the content that is available; after all,
uploaders can establish viable peer-to-peer connections with only so many
downloaders at a time.
Adar and Huberman's pessimistic characterization of file-sharing on the
Gnutella network mostly misses the mark. While they observe that only one-third
of Gnutella users make content available for downloading and predict the
collapse of the system as a result, they fail to recognize that this third
collectively makes more than enough content available for the network to
function effectively.n74 In the words of Clay Shirky,
"as long as even a small portion of the users [file-share] ... the system will
grow, bringing in more users, who bring in more songs."n75 Moreover, rather than focusing on why two-thirds of all users download from
the Gnutella network but do not upload to the network, a more pertinent inquiry
might ask why one-third of all Gnutella users upload despite the practical
absence of any incentive to do so. A more accurate picture of the file-swapping
networks emphasizes that the glass is not two-thirds empty, but rather
Gnutella's vulnerability stems not from the absence of sharing, but from the
relatively small number of users who create the new
[*525] content.n77 In order for a file to appear on the network, someone must go through the
trouble of converting media to digital format. In the case of MP3 files
"ripped" from existing CDs, this conversion is easily accomplished with widely
available software. In the case of recently released motion pictures, it
requires some level of industriousness. In any event, once this relatively
small group of users releases popular new content on the network, it can count
on the one-third of users who file-share to spread the new file.
While Adar and Huberman's data is interesting and useful, the lack of follow-up
work and peer review has been frustrating, particularly given the idiosyncratic
nature of the early Gnutella applications.n78 Free-riding appears to have been more prevalent on early Gnutella than on
other file-swapping networks. The default user settings on Napster, as well as
on hybrid programs and more recent Gnutella applications, were such that after
a user downloaded a file, his copy of that file would be available for other
users to download from him.n79 In other words, the user's download directory would, by default, be treated
"shared" directory from which other users on the network could download. Similarly,
Napster and Morpheus each contained a default setting whereby uploading was
enabled whenever the computer on which it was installed was activated.n80 A user with Napster installed, therefore, could be uploading copyrighted
material obliviously while she was writing a term paper using Microsoft Word.
As a result of these default
[*526] settings, the onus was on the free-riding user to opt-out of the file-sharing
system. Opting out usually required a user to select the application's
"options" button, and then check an easily visible box containing text stating that the
user was disabling sharing with other users. The cost of locating and checking
this box, though minimal, prompted lazy, unsophisticated, or ambivalent network
users to make their files available for others to download.n81 As a result, some users abided by the default choice regardless of whether
that choice was prosharing or antisharing.n82 Early Gnutella applications, by contrast, sometimes required users to
opt-in to file-sharing.n83 Thus, it is important to note that Adar and Huberman were studying a very
early version of the Gnutella network, one that was used by a relatively small
population of users, and one in which cooperation was relatively difficult.
In November of 2001, I conducted a follow-up study of the Kazaa/MusicCity
network, which was more popular, had many more users, and was easier to study
than Gnutella. Data from that study revealed that sixty-eight percent of music
file-swappers shared at least one file, and fifty-three percent shared more
than ten files.n84
[*527] The median downloader was sharing eighteen songs, the equivalent of less than
two typical music CDs. Just twenty percent of all users shared more than 100
files each. Yet, according to a survey conducted by Edison Media Research,
forty-three percent of file-swappers admitted downloading 100 or more files.n85 Evidently, a majority of file-swappers with large collections were choosing
to share only portions of those collections. Cooperation, albeit small-scale
cooperation, therefore was the norm on Kazaa/MusicCity. At least part of this
increased sharing, relative to Gnutella, surely stemmed from the defaults built
into these systems. That said, much of the sharing appears to have been
motivated by other factors because a majority of sharers evidently shared
content in a manner inconsistent with the defaults built into the MusicCity and
Kazaa applications.n86 Users of Kazaa/MusicCity, like early users of Gnutella, therefore made
conscious decisions about whether to
[*528] contribute content to anonymous others, and about the extent of those
contributions.n87 In short, millions of users of Napster, Gnutella, Kazaa/MusicCity, and
other file-swapping networks made files available for download by total
strangers, notwithstanding the users' lack of an obvious incentive for doing so.
2. Files Are Usually Accurately Labeled and of High Quality
It is exceptionally rare for files to be misidentified on Gnutella and the
other file-swapping networks (the same was true for Napster as well). A user
who downloads a file entitled
"Thelonius Monk - Straight, No Chaser," will almost certainly obtain that tune performed by that artist. In a few
instances, musical compositions are misidentified, but without any apparent
malicious motive. For example, there was widespread confusion among users of
the file-swapping networks as to who composed
"The Flight of the Bumble Bee."n88 Otherwise, the overwhelming majority of music files available on Gnutella
and the hybrid systems are accurately identified in terms of content.n89
Given the amount of mischief that generally pervades the Internet,n90 it is surprising that extensive downloading revealed little evidence of
song misidentification on the file-swapping networks. Recall that a small
percentage of the user population is responsible for creating the files that
hundreds of other users exchange on the Internet. Furthermore, because of the
technological defaults built into the software, many users of the hybrids
automatically make available for downloading any file they have downloaded. My
[*530] sample revealed that seventy-eight percent of sharers automatically shared a
file they had just downloaded. It follows from these premises that a small but
energetic band of uploaders could rapidly spread large numbers of intentionally
misidentified files through the Internet.n91
The best-publicized effort to misidentify files available on file-swapping
networks has involved child pornography. The trading of child pornography on
the Internet, and especially on Gnutella, is rampant.n92 One organization that was concerned about Gnutella's use by child
pornographers adopted the file misidentification strategy, albeit with a shame
sanctions twist.n93 The proprietors of the website Zeropaid.com posted a number of phony child
pornography files on Gnutella, then recorded the IP addresses of those who
downloaded them.n94 They then posted those addresses on their website's
"Wall of Shame."n95 While Zeropaid did not take the next step of tracing those IP addresses to
particular individuals, computer users with moderate sophistication could have
done so in many cases. According to the Zeropaid website, the Wall of Shame's
creators hoped to frighten and shame those who traffic in child pornography
into leaving the Gnutella network. To that end, Zeropaid's creators also
distributed a program called
"Fakeroo" that permitted individual Internet users to create their own walls of
[*531] shame.n96 Following Zeropaid's lead, several other Gnutella users have discussed
intentionally mislabeling content so as to confuse and harass those using the
network to traffic in child pornography.n97 Opponents of the Wall of Shame successfully ended Zeropaid's experiment in
rather short order. As the late Gene Kan noted:
The Wall of Shame met a rapid demise in a rather curious and very Internet way.
Once news of its existence circulated on IRC [an Internet chatting network],
Gnutella users with disruptive senses of humor flooded the network with
suggestive searches in their attempts to get their IP addresses on the Wall of
Zeropaid therefore elected to
"tear down that wall" after a brief run, although it did leave archived versions of the Wall on its
page for more than a year.
While not as rare as song misidentifications, faulty recordings also have been
an infrequent nuisance on the file-swapping networks. Some MP3 files contain
incomplete versions of songs, some are low-quality recordings, and some contain
mysterious screeches and pops that sound quite unpleasant when reproduced by
computer speakers.n99 Because these flaws in MP3 files are more difficult to detect than
mislabeling,n100 the existence of large numbers of flawed copies would quickly erode the
trust that has developed on the file-swapping networks.
3. A Failure of Cooperation: Transmission Disruptions Are Frequent
Obtaining files via a file-swapping network is necessarily a two-way street.
Thus, every file I download is being supplied by another user somewhere. The
nature of the transaction is such that it can be terminated by either user. It
appears that a few file-swappers leave their computers running file-swapping
software indefinitely, either by default or intentionally, and allow others to
download their files twenty-four-hours a day.n101 Most users, however, make their files available for downloading only while
they themselves are searching for new files. If these users behave
self-interestedly, one would expect that they would regularly log off their
networks regardless of whether anyone is in the midst of a lengthy download. As
it turned out, download cutoffs were one of the more vexing problems on the
Napster and Gnutella networks.n102 My own efforts to download large files - such as DVD movies or complete
albums - failed more often than not. Some portion of these interruptions are
attributable to network errors or failures, but a significant number can be
attributed to users shutting down their computers while an upload is in
There was an aspirational normn104 on the Napster and Gnutella networks holding that it was improper to log
off the system while someone else was downloading a file from you. This rule
was announced both through the software itself, which discouraged such behavior
with various warnings and beeps, and through general
[*533] discussions of Napster and Gnutella
"netiquette."n105 Some users apparently felt pangs of guilt when they logged off the network
while a download was in progress.n106
Efforts to secure widespread compliance with the aspirational antitermination
norm on Gnutella face a particular disadvantage: the low likelihood of repeat
player situations. Gnutella's public network consists of a series of networks.
Each time a user accesses Gnutella, she likely connects to a different segment
of the network and is linked with completely different users. In a close-knit
group it would be relatively easy for a user to retaliate against one who had
terminated in the midst of a transmission by doing the same to her - the
venerable tit-for-tat strategy.n107 In an environment characterized by anonymity and a lack of opportunities
for repeat playing, chances for payback against a user who has just logged off
will be rare.n108
The prevalence of transmission terminations suggests that the Napster and
Gnutella networks' ability to foster trust and benevolence among users ran up
against certain limits. Although a user may have believed it was
"wrong" to shut down his computer while someone else was downloading a large file, he
did so anyway if the alternative was to keep his computer running unnecessarily
overnight. Download terminations were particularly irritating to three groups:
(1) those who had slow Internet connections; (2) those who downloaded large
files; and (3) those who were in the process of downloading difficult-to-find
files that could not be downloaded readily from other users. In short, the
aspirational anti-termination norm turned out to be largely ignored in practice.
As a result of the inability of informal norms to solve the termination
problem, computer programmers turned to a technological
[*534] fix. The new Gnutella and hybrid file-swapping programs contain features
designed to minimize the termination problem by permitting simultaneous
downloads of the same file from different users.n109 Assuming that all users remain connected throughout the download, the
software will download a portion of the file from each. If one user disconnects
during the download, the other uploaders will automatically pick up the slack.
Moreover, the new applications generally permit users to continue aborted
downloads in progress.n110 Thus, technology created a safety net when uncooperative behavior was too
prevalent on the networks.
II. File-Swapping Norms
copyright infringement is nothing new. For years, users of copyrighted software have
exchanged unlicensed copies with family members and colleagues. Audio cassettes
have long been used to make copies of entire music CDs, which have been
distributed among friends. Choirs copy sheet music and perform songs without
ever thinking about obtaining public performance rights through legitimate
channels. As these behaviors suggest,
copyright laws were frequently ignored among members of close-knit groups. While making
a copy of an album or reading available to a friend may have been unlawful,
there was no social norm constraining such de minimis infringement behavior.n111 As a result, the
copyright laws were largely irrelevant, at least among certain close-knit groups of
Napster and its successors advanced a new norm. Napster empowered individual
computer users to obtain sound recordings not only from friends, family
members, and co-workers, but from anonymous individuals they had never met and
never would meet. It facilitated peer-to-peer file transfers among computer
users on different continents. The relevant universe of potential transaction
copyright infringers was expanded to unprecedented
[*535] levels.n112 An individual, aided by this technology, could easily engage in de maximus
copyright infringement without ever leaving his home.
Whereas popular norms during the 1980s likely would have tolerated an
individual's making a copy of the Pacman game for a trusted acquaintance, they
would not have tolerated that same individual's making hundreds of unauthorized
copies of Pacman and distributing them to strangers across the globe.n113 Yet that is precisely what a Gnutella user does by making such files
available for others to download. The transition from de minimis to de maximus
file-sharing has significantly weakened reverence for intellectual property
rights, even relative to where it stood a decade or two ago.n114 The file-swapping networks therefore represent a particularly brazen and
successful attack on intellectual property rights.
[*536] The simple account of how the types of transactions that Napster facilitated
became socially acceptable is based entirely on the emergence of the new
technology. On this account, the absence of an anti-de minimis infringement
norm was a function of transaction costs. Small-scale infringement was
relatively inexpensive for the individual infringer and evidently did little to
copyright holders' bottom lines. Indeed, under certain conditions, sharing among members
of a close-knit group may have increased
copyright holders' profits.n115 Historically, large-scale infringement was different in two ways. First,
it required significant investments in technology for duplicating digital
media. Second, and relatedly, it had the obvious potential to adversely affect
copyright holders' profits. Thus, a large-scale infringer was someone who had invested a
not-insignificant amount of resources in expanding his capacity to infringe,
presumably in order to recover a not-insignificant amount of revenue at the
copyright holders' expense. Napster dramatically lowered the transaction costs of
becoming a large-scale infringer and removed the necessary implication that a
large-scale infringer was trying to profit personally from her activities.n116 In short, large-scale Napster sharers looked more like altruists than
[*537] no longer deserved the scorn that had previously been reserved for those who
sold knock-off CDs on street corners. In my view, though, this technological
shift was a necessary, but not a sufficient, condition for the norm shift that
followed. A complete explanation requires at least some examination of the role
played by the media and other opinion leaders in promoting Napster.
A. The Social Norms Framework: The Emergence of Norms
Social norms are patterns of behavior that are widely adhered to by some group
of individuals, at least in part because of social pressures to conform to that
norm.n117 In close-knit settings, this social pressure may take the form of
ostracism or the loss of esteem for those who violate existing social norms,
and increased esteem for those who enforce or abide by these norms (the
"Richard McAdams theory"), or a desire to obtain the economic rewards that are conferred upon those who
signal their suitability for cooperative exchanges by enforcing or abiding by
existing norms (the
"Eric Posner theory").n118 Alternatively, as I will argue in Section III.D.1, the social pressure
engendering norm enforcement can be self-imposed: an individual may conform to
a norm because her self esteem depends on her compliance with it. Regardless of
how they arise, social norms often will have two components: normative (how
people ought to behave) and descriptive (how people do behave).n119
Three related insights are foundational in the social norms literature. First,
people's behavior often conforms more closely with social norms regarding how
people should behave than with laws that
[*538] instruct people how to behave.n120 Second, because of the power of social norms, those laws that parallel
social norms will be adhered to most widely and enforced most easily.n121 Third, under certain conditions, government laws and policies can alter
B. How the Pro-File-Swapping Norms Emerged
1. Norm Entrepreneurs
In the case of Napster and Gnutella, norm entrepreneurs played an important
role in fostering the emerging pro-file-swapping norms. Napster's norm
entrepreneurs were the handful of programmers who created the new network and
the people who uploaded the initial copyrighted content, many of whom were
friends or acquaintances of Napster's primary programmer.n123 This group
[*539] consisted of slightly more than thirty people.n124 Yet within a matter of days, the online word-of-mouth had spread news of
the new application, and Napster had been downloaded by 3000 to 4000 people.n125
Napster's primary creator evidently did not give any thought to whether his
network would be unlawful before he launched it,n126 yet he plainly intended to deprive the recording industry of its control
over access to and distribution of sound recordings.n127 The words and actions of these norm entrepreneurs were suggesting that it
was acceptable for computer users to exchange copyrighted sound recordings in
the MP3 format over the Internet. One message communicated by these actions was
copyright laws should have no application on the Internet. A second message implied that
regardless of what the
copyright laws said, technological imperatives and consumer demand would trump legal
2. Opinion Leaders
In Napster's first year of existence, a period in which its user base expanded
from thirtyn128 to 25 million,n129 Napster received surprisingly little attention from mainstream media
opinion leaders. Napster's test version was launched on June 1, 1999, and by
October of that year, Napster traffic accounted for twenty to thirty percent of
the bandwidth usage at major universities.n130 Yet during the remainder of the calendar year, Napster was virtually
ignored by mainstream media. A three sentence blurb in the Newsbytes wire
service appeared on July 23, 1999, touting Napster as a useful new
[*540] application for obtaining MP3 files.n131 Radio silence persisted again until November 2, 1999, when the Israeli
newspaper Ha'Aretz featured a brief description of the Napster service.n132 It was not until the RIAA sued Napster that the major media outlets began
to take notice of the growing phenomenon. Salon.com appears to have scooped the
news regarding the impending lawsuit on November 17, 1999,n133 and within a few weeks the Wall Street Journal began to cover the story.n134 Over the next year, Napster became the subject of thousands of mainstream
During these first few months, when Napster went from being a college student's
idea to a
copyright-infringement juggernaut, there was a dearth of commentary from opinion leadersn135 on the phenomenon. It is unclear why Napster received so little coverage
during its infancy. Major media outlets may have made a conscious decision not
to report on the service so as to avoid encouraging its use. More likely,
however, the major media outlets simply missed the story.
If the mainstream media abdicated their role as opinion leaders, who stepped
into the opinion vacuum? In this instance, the primary answer appears to be
ordinary Internet users who felt the need to spread the gospel of Napster. For
example, computer programmer David de Groot claims to have been the original
uploader of Napster to Download.com, which is the Internet's premier source of
downloadable software applications.n136 Download.com contains a system of
"user ratings" whereby those who download an application
[*541] rank it according to various criteria, provide a narrative discussing what
they like or do not like about the application, and provide an overall
"thumbs up" or
"thumbs down" assessment of the new product. Napster immediately received enthusiastic
responses from those who had downloaded it, and this positive word of mouth
spurred a cascade of further downloading. In the absence of commentary from
trusted opinion leaders, these untrusted opinion leaders were able to embrace
and spread the emerging norm. Other venues, such as college dormitoriesn137 and Internet chat rooms, provided alternative channels for enthusiastic
Napster users to spread their message.
That is not to say that mainstream opinion leaders played no role in the growth
of the file-swapping norm. When the major media outlets finally began reporting
on the story, many gave credence to Napster's argument that the legality of the
file-swapping service was a
"gray area" of the law.n138 By repeating the tenuous proposition that Napster (and by extension its
users) was not guilty of
copyright infringement, these opinion leaders emboldened users who were tempted to use
the new application. If the program provided a user-friendly way to access an
enormous library of free sound recordings, if its legality was unclear, and if
copyright holders were unable to convince the public that downloading copyrighted
content for free was wrong, then why should any computer user decide not to use
In the months following the Ninth Circuit's ruling in Napster, opinion leaders
showed little sign of changing their tune on file-
[*542] swapping. Perhaps the most telling sign of the emerging consensus appeared in
a front-page New York Times article on July 20, 2001.n139 The subject matter of the article was rather unremarkable in that it
reported on the phenomenon of users moving from Napster to Gnutella and the
hybrids in the wake of the court-imposed restrictions on Napster. The
surprising aspect of the article was the rather detailed instructions it
contained explaining how to obtain these file-swapping programs.n140 Thus, the most respected newspaper in the United States, owned by a
corporation whose profits are largely derived from its copyrighted content,
essentially concluded that the public had a right to know how to obtain
unauthorized copies of copyrighted sound recordings and motion pictures. Months
after the Ninth Circuit's Napster decision, when the legality of such
downloading was no longer subject to serious dispute, the New York Times
implicitly acknowledged that unlawful downloading would remain alive and well.
Within a week, other major newspapers were following suit, with the Orlando
Sentinel publishing a lengthy review of the various Napster alternatives and
comparing the advantages and disadvantages of each one.n141
3. Polling Data
The Napster district court concluded that Napster's exploits had
"contributed to a new attitude that digitally-downloaded songs ought to be free."n142 In order to test that conclusion, it is necessary to look at the polling
that has been done with respect to the perceived morality of Napster's
services. A number of public opinion polls have gauged Americans' views toward
the unauthorized downloading of copyrighted sound recordings. The most rigorous
and informative of these polls have been conducted by the Pew Internet and
American Life Project. According to a Pew poll taken during mid-2000,
seventy-eight percent of those Internet users who had downloaded music from the
Internet stated that they did not
[*543] consider themselves to be
"stealing" the music.n143 Among all Americans, however, forty percent stated that those who
downloaded music off the Internet for free were doing nothing wrong,
thirty-five percent believed that the practice amounted to stealing, and
twenty-five percent would not address the propriety of such activities or gave
The Pew Internet Project has not released any follow-up polling data to test
the influence that the Ninth Circuit's Napster decision has had on public
attitudes. However, a public opinion poll conducted in the summer of 2002 (more
than one year after the Napster decision was handed down) revealed an evenly
divided populace, with fifty-two percent of those polled agreeing that
"there is nothing morally wrong about downloading music for free from the
[*544] Internet," and forty-eight percent disagreeing with that statement.n145
As these numbers indicate, a significant portion of the American public
believes that users who download copyrighted content without paying for it are
behaving immorally. Yet these individuals do not perceive themselves as having
any personal stake in enforcing the norm. Those who feel file-swapping is
immoral are unlikely to be exposed to the activities of file-swappers because
much of this activity occurs in the privacy of file-swappers' homes. Moreover,
it is not at all clear that those who believe file-swapping is immoral feel
strongly enough about the issue to impose social sanctions on file-swappers.
a. Norm Enforcement - Anti-File-Swapping
While almost one-half of the American public believes that downloading
copyrighted sound recordings from Napster, Gnutella, or the hybrids is morally
wrong, there has been virtually no effort to use that sentiment to enforce laws
against unauthorized downloading. Members of the public who believe that
unauthorized downloading is theft have been unwilling to do anything to combat
the practice. Nor has any social disapproval been directed at the millions of
"thieves" who are stealing copyrighted content. File-swapping may well be like speeding
on the freeway - a widely tolerated, technical violation of a rule that invokes
virtually no moral outrage when done in moderation.n146
Young people frequently lend homemade CDs containing illicitly copied MP3 files
to friends. Known unauthorized downloaders are not shunned, blackballed, or
otherwise subjected to any kind of social sanction. While individuals who
download child pornography off Gnutella have been subjected to minor shame
sanctions,n147 no one has ever thought to do the same to the millions of individuals who
are downloading copyrighted content off the same network.
[*545] While large-scale file-sharers might be prosecuted, it is widely believed that
the public could not stomach widespread prosecutions of individual computer
users who had illicitly downloaded copyrighted content.n148 As Robert Litan concludes,
"it is highly doubtful that Americans would tolerate for very long, if at all,
the police raiding homes and arresting teenagers for copying music or movies."n149 Although a large segment of society may believe that unauthorized
downloading of copyrighted content is immoral, virtually no one in society
believes in these principles strongly enough to enforce an anti-file-swapping
norm. The only Americans who appear to have particularly strong feelings about
the morality of file-swapping are the file-swappers themselves and the creators
of copyrighted content. Because there are a great number of the former and very
few of the latter, informal enforcement of the private property norm has been
b. Norm Enforcement - Pro-File-Swapping
Norm enforcement among the pro-file-swapping portion of society is easier to
detect. Among those Americans who have never downloaded music from the
Internet, there are virtually no signs of pro-file-swapping norm enforcement
activities. The most significant exception is the celebrity status that has
been conferred upon Napster's founder, Shawn Fanning. As one author noted,
using only a bit of hyperbole,
"Fanning had been on more magazine covers than anyone since John F. Kennedy."n150 A gushing Time profile of Fanning summarized his status thusly:
As the creator of Napster, Fanning has reached a level of fame unprecedented
for a 19-year-old who is neither a sports hero nor a pop star. He's been on the
cover of Fortune, BusinessWeek, Forbes, and the Industry Standard and has been
profiled just about everywhere else. His name and his face - those piercing
blue eyes, wide cheeks and stolid expression under the ever present University
of Michigan baseball cap - have become synonymous with the promise of the
Internet to empower computer users and the possibility that some kiddie-punk
programmer will destroy entire industries. Strangers pick him out at the mall
buying a burrito or watching a San Francisco Giants game or just driving around
in his newly customized Mazda RX-7. He introduced Britney Spears at the MTV
Video Music Awards. Nike has offered him a shoe deal.n151
Fanning has garnered enormous social benefits as a result of his change-agent
activities. By valorizing him, the public encouraged the millions of teenagers
who follow in his (Nike-imprinted) footsteps and contribute content to his
The creators of the Gnutella network have not achieved the same level of fame
as Fanning, but that is not to say that their acts have gone unrewarded in
terms of social benefits. The programmers who created successful peer-to-peer
networks, or who solved technical problems that arose on the existing networks,
obtained the significant esteem of their peers. As Stephen McJohn has noted in
the context of open sourcen152 programmers:
Many open source authors are spurred to create code by incentives other than
copyright: the love of elegant problem solving (a.k.a. hacking), status among their
peers, the wish to further computer science and make things better generally,
and even animosity toward commercial software developers ... . Looking only to
material considerations, open source developers might appear to be acting
contrary to rational economic incentives, by giving away software. However,
when one considers the return in
[*547] terms of increased status among software developing peers (i.e., showing off
technical prowess, or receiving approval for participating in the open source
movement, or building relationships in the development process), ample
incentives become apparent.n153
It is this desire for the support of one's peers that is particularly
important in helping to craft subgroup norms.n154
Thus, the widespread popularity of downloading music files becomes
understandable when one recognizes how Napster's file-sharing technology
lowered the transaction costs of
copyright infringement and undermined the anti-infringement norms that had existed among
some members of the public. It is now appropriate to turn to the much more
interesting half of the file-swapping equation.
III. Charismatic Code and Cooperative Norms in Loose-Knit Groups
So far, my account of the file-swapping networks has focused predominantly on
the downloading aspect of the file-swapping transactions. It has explained how
downloading files from these networks became socially acceptable and why a
downloader of unlicensed copies of copyrighted content was likely to encounter
few, if any, social sanctions from those individuals who were exposed to the
real-world manifestations of this online behavior.
Although this account talks of norm transformations in society at large, the
social norms theories built upon discussions of how norms emerge and evolve
within close-knit groups are still pertinent. Hence potential file-swappers
respond to behavioral environments in their dormitories, high school
cafeterias, workplaces, and living rooms, and those environments partially
reflect the norms that are conveyed through the mass media. Societal norms may
be the mere aggregation of the norms that emerge from a multitude of
overlapping close-knit groups.
[*548] Where downloading from networks is easy and provides significant benefits at
low costs, little need be done to convince people to use these networks to
download content. The fact that file-swapping change-agents such as Shawn
Fanning and Gnutella creator Justin Frankel are valorized adds fuel to the
fire. Downloading is attractive, acceptable within the relevant peer groups,
and cool. So what if it's illegal? Such thinking has driven one-half of the
A robust account of these networks also requires one to consider the puzzling
question of why so many of the networks' users choose to share their content
with others despite the absence of obvious incentives for doing so. After all,
if no one - or very few people - contributed content to the networks, then the
networks would become an unattractive source for copyrighted content and would
lose much of their user base.
A. Charismatic Code Defined
Virtually everyone who participates in one of the file-swapping networks is
breaking the law in the process. Ordinarily, people are unlikely to trust
lawbreakers, especially anonymous lawbreakers. Yet a remarkable sense of trust
permeates these networks. As was suggested in Part I, it is possible to observe
significant levels of cooperative behavior, very little by way of destructive
behavior, and substantial trust among the anonymous users of these networks.
Furthermore, the networks have survived and thrived largely because of their
users' dogged willingness to engage in unlawful activities. As Glynn Lunney
"for private sharing to occur, someone must undertake the expense of loading the
work on her computer and then open her computer to others, with consequential
risks to security and her bandwidth usage."n155 While the cost of sharing is low for those sharing music files via
high-speed Internet connections, the cost is much higher for their modem-using
brethren. Yet those with slower connections appear to share content at
[*549] substantially the same (relatively high) rates.n156 Moreover, thousands incur a serious risk of severe criminal penalties by
uploading pornography (including child pornography) to strangers.n157 What on earth causes people to behave in such a manner?
In this Part, I argue that the primary answer to that question is
"charismatic code," a technology that presents each member of a community with a distorted picture
of his fellow community members by magnifying cooperative behavior and masking
uncooperative behavior. I then suggest that charismatic code is particularly
potent in this case because it successfully taps into internalized and nearly
universal norms of reciprocity.n158 The various applications are all cleverly designed to encourage
cooperation by as many users as possible. In one sense, the applications
harness the actual members of the community to become actors for norm
enforcement purposes by magnifying the actions of those who cooperate and
masking the actions of those who do not. In another sense, the applications act
as a substitute for the community of actors and enforcers, inculcating in their
users those norms most likely to lead to the success and expansion of the
networks. Finally, the applications' architecture underscores the reciprocity
on which the success of the file-swapping networks depends.
B. The Distorted Image
Some file-swappers will share their files with other network members
regardless of whether they believe others are sharing. It seems that a large
number of users, however, will engage in conditional cross-cooperation -
sharing their files only if they believe that a norm of sharing exists. The
challenge for creators of peer-to-peer networks is to convince these many
conditional cooperators to share.
I mentioned earlier that only about one-third of all users of the Gnutella
network apparently made any of their content available for downloading by
others.n159 The creators of the Gnutella network knew this, and yet they said it was
not so. Until recently, one of the first images a new Gnutella user was likely
to encounter upon installing the software for the first time and learning how
it works was a screen entitled
"What Is Gnutella?". That screen falsely told users:
"The other half of Gnutella is giving back. Almost everyone on GnutellaNet
shares their stuff."n160 While there is nothing terribly persuasive about telling a lie per se, the
genius of Gnutella is the way in which it makes that lie look like a reality to
its users. As we shall see, if that lie is persuasive enough, it can develop
into a self-fulfilling prophecy.
Gnutella's creators have attempted to situate its users in an environment that
makes it appear as if a norm of sharing and cooperation exists on the network.
Charismatic code is the primary tool in that effort. Because of the way the
networks are structured, the actions of those who share content are quite
visible,n161 while the actions
[*551] of those who do not share content are virtually invisible.n162 Particularly if a user is searching for content by an especially popular
artist, she will have no trouble locating scores of other users who have made
that artist's work available. Users who share no files, on the other hand, do
not appear in response to user searches. Therefore, other users generally will
have a very difficult time perceiving non-sharers' participation in the
networks. The architecture of the networks is such that although many users on
the networks do not share, the networks create an appearance that sharing is
the norm. This dynamic - the magnified visibility of sharers and the
invisibility of non-sharers - exists on every successful file-swapping
application I have seen.
Some of the networks are careful to present data that reinforces this image of
widespread file-sharing. For example, the MusicCity Morpheus application
prominently displayed the total number of users logged in to the network at a
given time, as well as the aggregate number of files being shared.n163 These statistics not only punctuate the ubiquity of usership, they also
imply the widespread prevalence of file-sharing, since the mean number of files
shared per user consistently exceeds one hundred, while the median number of
files shared per user is less than twenty. By providing only the raw data used
to calculate the mean, the network masks the fact that a fifth of all users are
providing the vast majority of the content that is available for downloading.n164
The applications not only provide information about the prevalence of
file-sharers, they also reveal some useful information about their users'
preferences. The file-swapping networks bring
[*552] together file-swappers with similar tastes in copyrighted content, thereby
convincing new users that people just like them are members of the
file-swapping community. The software is designed to underscore affinities
among uploaders and downloaders and to create empathy among anonymous users.
Although users exchanging files on the file-swapping networks are anonymous,
their preferences are not. When someone searches for music by the Cameroonian
vocalist Henri Dikongue, he is necessarily searching for users who, like him,
enjoy that artist's work. While this commonality may be more meaningful to
users who are interested in relatively obscure artists like Dikongue, the
affinity effect cannot be discounted in building trust within a community of
anonymous users.n165 By the same token, these affinities normalize file-swapping: Members of
the file-swapping networks stop being identified as
"rogue software pirates" and start being identified as
"people who, like me, have excellent musical taste."
The file-swapping networks also provide avenues of self-expression for those
particularly committed to the community of file-swappers. The file-swapping
networks generally contain discussion forums and
"Frequently Asked Questions" postings that provide the curious user with assistance in optimizing his use
of the networks.n166 My informal survey of postings in the forums revealed that the individuals
who responded to user queries in these discussion groups tended to be those who
are most committed to the success
[*553] of the network and, not coincidentally, the most dogmatic supporters of
file-swapping norms.n167 In these forums, there is a significant disconnect between those most
likely to post questions and those most likely to answer those questions. The
questioners will by and large be new users who have not figured out how to
optimize their use of the file-swapping networks. The answerers will be those
repeat players who have successfully figured out these problems and care enough
about the newer users to take the time to read and respond to their postings.
The question and answer forums therefore provide an excellent avenue for the
old-timers (that is, those most committed to the norm of sharing) to inculcate
their norms in the newest users.
It is worth noting further that these file-swapping network forums contain very
little by way of dissent with respect to either the propriety of file-swapping
or the necessity of file-sharing. While the file-swapping networks all contain
chat rooms and discussion forums, the number of people who join Kazaa/MusicCity
for the chat rooms and discussion fora is approximately equal to the number who
read The Economist for the photographs. Quite simply, only people looking for
copyrighted content will go through the trouble of running a Kazaa/MusicCity
host. Because of this homogeneity, dissenting views regarding the propriety of
their collective file-swapping activity are almost never voiced.n168 Despite the fact that anyone can log on to the networks, and that free
speech is generally encouraged, opinions expressed in the chat groups and
forums associated with file-swapping applications reveal almost total adherence
C. Reinforcing Reciprocity
Technologies that magnify cooperative behavior and mask uncooperative behavior
can succeed by tapping into deeply held social norms. In this instance, the
file-swapping networks have been successful in large part because they have
managed to tap into internalized norms of reciprocity. Recall the passage from
"What Is Gnutella?" screen quoted above:
"The other half of Gnutella is giving back. Almost everyone on GnutellaNet
shares their stuff."n169 In the previous Section, I focused on the second sentence of that excerpt,
but the first sentence -
"the other half of Gnutella is giving back" - is also important. The networks' creators are drawing upon reciprocal
intuitions that their users are likely to possess. Once again, the software is
designed to exploit those intuitions.
Because of the peer-to-peer nature of file-swapping transactions, it should be
reasonably clear to most users of the networks that their ability to obtain
content depends on other users' willingness to make their content available for
downloading. Nevertheless, the file-swapping applications make this
relationship particularly explicit. Applications such as MusicCity and Kazaa
display a user's downloads and uploads from a given session on the same screen,
usually in two adjacent windows.n170 This juxtaposition of downloads and uploads on the same screen cannot be
altered by the user.n171 Thus, to the extent that a user downloads much more than she uploads on a
given day, the application will remind her of that imbalance visibly. This
image and the running tallies that accompany it strongly suggest that a
downloader has an obligation to give something back to the networks' members.
In that subtle way, the file-
[*555] swapping applications tap further into norms of reciprocity that users bring
with them to these networks.n172
During 2001, several Gnutella applications introduced a new feature that is a
testament to the force behind the impulse to reciprocate. That feature allows
users to choose to share their files only with fellow users who are in turn
sharing their files. It also allows the user to specify the number of files
that another user must be sharing in order to gain access to the files in one's
shared directory.n173 Thus, a user could elect to share his own files only with those users who
have at least one hundred files in their respective shared directories. This
innovation has the potential to constrain the network's growth since it means
that new users (who will likely have few or no files available for sharing)
could have a much harder time locating desirable content. Its introduction also
implicitly concedes that not everyone on GnutellaNet really is sharing their
stuff, thereby weakening the charismatic nature of Gnutella's code. In order to
justify introducing this option, the network's creators must have been
motivated by two powerful countervailing intuitions: (1) the instinct that
users do care with whom they are
[*556] sharing their files; and (2) the insight that making this option available is
likely to convince many of the network's free-riders to begin sharing their
files. In short, Gnutella programmers may have looked at the Adar and Huberman
study and concluded that cooperation on Gnutella was insufficient, and that an
appeal to self-interest would bring enough free-riders into the uploading fold
to justify the real costs of introducing this innovation. So far it is
difficult to gauge what effect this innovation is having on the Gnutella
network, but my analysis suggests that the option of sharing only with other
sharers will prove to be a popular one.
Rhetoric matters too. Although the file-swapping networks encourage unlawful
copyright infringement, the networks by no means cede the moral high ground. In the
parlance of the file-swapping networks, those who infringe
copyrights employ the language of reciprocity.
"Freeloaders" are not those who download copyrighted content without paying for it, but
those who download content without uploading content to other users.n174 Behaviors such as making content that one has downloaded available to
other downloaders and labeling content accurately are consistent with a broader
societal norm of reciprocity - the golden rule.n175 As I argue below, because reciprocity is so strongly inculcated in most
members of society, file-sharing norms can piggyback on that meta-norm.n176
[*557] The file-swapping networks therefore are designed to reinforce the two
messages conveyed in the
"What Is Gnutella?" excerpt:
"The other half of Gnutella is giving back. Almost everyone on GnutellaNet
shares their stuff." Translation: Those who download should also upload, and virtually everyone on
the networks uploads. The surprisingly high levels of sharing observed on these
networks are a testament to the subtle ways in which these online spaces have
been successful in reinforcing that message. Relatively large numbers of
file-swappers, and in some instances a majority, have been persuaded that they
ought to make some of their content available to strangers. Yet, so far an
important premise has gone unstated: There is an intuitive connection between
the two sentences quoted above. If everyone else is sharing, and if I am
benefiting from their sharing, then refusing to share does seem particularly
problematic. But in an environment where an individual will suffer no external
sanctions if she chooses not to share, and can fully harness the benefit of
others' cooperation without sharing, why does that connection arise? Put
another way, the file-swapping networks' charismatic code is working, but why?n177
D. The Norm of Reciprocity in Loose-Knit Groups
The existing literature on social norms does a fine job of explaining the
emergence of social norms in close-knit groups. Analysis of close-knit groups
sheds light on the process by which file-swapping's visible manifestations are
becoming socially acceptable, and one can tell a plausible story about how
social pressures might spur file-swapping behaviors using either Richard
McAdams's esteem theory or Eric Posner's signaling theory.n178 Thus, there is little
[*558] mystery about how the mass media's glorification of Shawn Fanning might be
related to the social acceptability of college students trading homemade CDs
consisting of unlicensed sound recordings, or co-workers discussing the songs
they have acquired via Gnutella. Social norms, therefore, provide satisfactory
tools to explain the apparent growing acceptability of file-swapping's
manifestations in real space.n179
Social norms theory, so useful in real space, encounters difficulties in
cyberspace. Neither McAdams's nor Posner's theory can adequately explain the
emergence of cooperation among the loose-
[*559] knit community of users on the file-swapping networks.n180 Specifically, neither of these theories persuasively explains the
prevalence of cooperation in the face of anonymity. Although the cost of
sharing music is in some instances low, sharing is never costless, and a user
can download as much free music as she wants without sharing. Yet, sharing
behavior still emerges among a significant portion of the networks' users.
Moreover, even where the cost of sharing is relatively high - among users who
have slow Internet connections or those users who share pornographic content,
for example - file-sharing persists.n181 In a loose-knit setting - an environment characterized by user anonymity
and a low likelihood of repeat player interactions - neither
[*560] esteem theory nor signaling can explain this behavioral regularity.n182 Classical economics is also at a loss.n183
[*561] In proposing that charismatic code accounts for the prevalence of file-sharing
on the file-swapping networks, I attempt to provide an alternative explanation
for the creation of norms in loose-knit communities. That explanation suggests
that when users are presented with an image of a community in which cooperation
is magnified and noncooperation is masked by charismatic code, users are more
likely to cooperate. This
"monkey-see, monkey-do" phenomenon has intuitive appeal.n184 All that phrase does, however, is describe a phenomenon; it cannot explain
it. For the explanation, it is necessary to turn to the sociological and social
This literature introduces the notion of a
"norm of reciprocity."n185 The idea is a simple one. Under a norm of reciprocity, when A helps B, B
feels obligated to return the favor, either by helping
[*562] A, or by helping C (a third party, albeit one who shares at least some
relevant characteristic with A).n186 The norm is by no means limited to three-person interactions, and scholars
have begun to study its application to much larger groups of individuals, such
as a nation's taxpayers.n187 As the authors of this literature have recognized, the norm of reciprocity
is sufficiently powerful that the founding members of a new community are
likely to bring it with them into that community and see it potentially
flourish therein.n188 If the file-swapping example is illustrative, these reciprocity norms
[*563] may also cause people to engage in cooperative behaviors of the illegal
1. File-Sharing as Guilt Alleviation
Under the most plausible explanation for reciprocal exchange, file-swappers
elect to make their own files available for others to download based on what
Sally Ann Shumaker and James S. Jackson have dubbed the
"aversive effects of nonreciprocated benefits."n189 Drawing on a number of experimental studies, Shumaker and Jackson argue
that when an individual receives a benefit that obviously results from the
cooperation of others, she internalizes a feeling of indebtedness.
"Reciprocation ... serves as one method available to a recipient for alleviating
the tension produced by the indebted state."n190 The best way to remove these feelings of guilt is for her to reciprocate
directly. Failing that, however, Shumaker and Jackson found qualified support
for the theory that someone
"prevented from directly reciprocating the donor will help a third person."n191 Conducting their own experiment, the researchers determined that while
subjects who had been helped by others but were unable to reciprocate reported
[those] who were provided with an opportunity to benefit a third person did not
report feelings of guilt or unease ... . These data are the first to support
this study's hypothesis that reciprocating a third person may relieve at least
some of the tensions produced by being placed in an aversive state.n193
[*564] Thus, the authors concluded that while helping a third person may not
alleviate guilt as much as direct reciprocation, it is the next best thing.n194 Research by Shumaker and Jackson's peers has resulted in similar findings.n195 Indeed, the aversive effects of nonreciprocated benefits are likely to be
particularly pronounced among anonymous strangers.n196 By offsetting the guilt that accompanies purely selfish downloading,
file-sharing helps network members maintain a positive sense of self: They
conceive of themselves as sharers, team players, members of a community of
sorts, and cooperators.n197
[*565] They derive satisfaction from maintaining these positive self-images.n198
Notably, reciprocation does not require a one-to-one relationship between the
benefit received and the benefit conferred on another. Rather, smaller gestures
may suffice to alleviate the aversive effects accompanying the receipt of
valuable benefits from a stranger, and in some cases the reciprocation can take
a different form from the receipt of the benefit.n199 Thus, a user who reciprocates his 100 downloads by permitting twenty
uploads may well extinguish the guilt that accompanied the act of downloading.
Moreover, in many instances where a file-sharer has downloaded 100 files but
has only made twenty available, reciprocity levels might well approach a
one-to-one ratio because a user need only download a file once, but it can be
downloaded from him ad infinitum once it is in his shared directory. A user who
has made one-fifth of his collection available for downloading might be engaged
in one-to-one reciprocity if his shared songs are downloaded an average of five
times each. An uploaded file can be the gift that keeps on giving.
"aversive effects" model therefore provides one plausible explanation for why users of these
networks make their files available despite the absence of economic incentives
to do so. Napster, Gnutella, and the other file-swapping networks all operate
on the third party helping model described in the Shumaker and Jackson study.
Specifically, because a file transfer can be initiated only at the downloader's
request, opportunities to upload a file to someone from whom a file-swapper has
just downloaded are extremely
[*566] limited. File-swapping networks therefore provide their members with the
opportunity to do the next best thing - make their files available for third
parties to download. File-swappers need not upload as many files as they
download. Instead, their reciprocal instincts will often be satisfied by
engaging in minor to moderate file-sharing with others.
It generally will not suffice for a user to make his files available to just
any third party. Under the guilt alleviation theory, a user will prefer to
return the favor to someone who is similar, in the relevant respect, to the
donor whose largesse the user earlier received. He knows that the donor has
made his files available to others for downloading, so the user will feel
better about his uploading if he believes that the recipient is also a
file-sharer. If a user perceives that many of those downloading files from him
are not passing those files along to others, his desire to reciprocate will no
longer be satisfied through participation in the network. As Dawes and Thaler
"people have a tendency to cooperate until experience shows that those with whom
they are interacting are taking advantage of them."n200 By magnifying the extent of file-sharing on the network and masking the
prevalence of non-sharing, charismatic code attempts to persuade the individual
file-sharer that the beneficiaries of his generosity are just as deserving as
the people from whom he acquired his content. Charismatic code therefore avoids
the extinguishment of reciprocity obligations among its more cooperative users.n201
These studies of cooperation among anonymous strangers provide a persuasive
psychological account of what motivates users of
[*567] peer-to-peer networks to upload their files. Yet these experiments differ from
the peer-to-peer situation in one important respect: While the participants in
various experiments were anonymous, they were permitted face-to-face contact,
which allowed for greater empathy. Elinor Ostrom describes a consensus view
among scholars that participants in a public good provision experiment are
significantly more likely to cooperate if they are allowed face-to-face
communication than if they are required to communicate with each other via
computer terminals.n202 Seen in this light, the reasonably high levels of cooperation observed on
MusicCity are even more startling.
Whatever the experiments say, robust cooperation can and does emerge among
anonymous members of a computer network in the real world. Why the divergence
between the studies and the real world evidence? Two interesting possibilities
spring to mind. The first possibility is that charismatic code and the very
large numbers of sharers visible on these networks overwhelm the users'
reluctance to cooperate with unseen individuals. The second possibility is that
as users become increasingly familiar with the Internet, and have their social
experiences increasingly mediated through the Internet, they develop a greater
sense of empathy with anonymous, unseen users. Thus, a user who has grown up
participating in Internet chat rooms may feel just as much discomfort
free-riding on the cooperation of other anonymous users as she would if she
confronted those users face-to-face. Under this hypothesis, if one tested
Kazaa's users in a cooperation experiment, they would choose cooperative
strategies more frequently than those members of the general population who
formed the pool for the various cooperation experiments cited by Ostrom.
2. Reciprocity Cascades
Once the file-swapping networks succeed in tapping into the reciprocity norms
that their users bring to cyberspace, the networks can rely on several factors
to further solidify file-sharing behaviors.
[*568] Cooperation tends to engender more cooperation,n203 although there are several complementary explanations for why this is so.
First, when a file-swapper is exposed to the widespread file-sharing of his
fellow computer users, his own propensity to file-share will be reinforced.
Imitation is not only the most sincere form of flattery, it also validates and
solidifies the behavior of the person who is being imitated.n204 The feedback effects created by multitudes of computer users imitating
each other can spark a cascade of imitation that reinforces a behavioral norm
even in the absence of social sanctions directed against nonconformists.n205 Relatedly, visible sharing can make sharers out of members who have just
joined a network.n206
Second, when users try to assess the levels of file-sharing that exist on the
networks, they are likely to assume that the majority of network users behave
as they do. Psychologists have observed that members of a network generally use
their own level of cooperativeness as a heuristic for helping them estimate the
cooperativeness of others in that network.n207 File-sharers will thus tend to overestimate the extent of file-sharing on
the network, and those who only download will tend to underestimate the extent
of file-sharing on the network. By magnifying cooperation and masking
noncooperation, the creators of the file-swapping networks attempt to confirm
the hunch that solidifies reciprocal propensities among file-sharers. The user
is inclined to believe that most network members will share. He then logs in to
the network and sees that quite a lot
[*569] of members are sharing content,n208 and consequently he feels that his initial intuition has been validated.n209
Third, increased cooperation among members of a network ordinarily engenders
increased benefits for the cooperators.n210 This presumption is particularly true in the case of file-swapping, in
which more cooperators means more new content and more sources for obtaining
that content. As a file-swapping network thus comes to be characterized by
increased levels of file-sharing, participation in the network becomes
increasingly attractive for file-sharers.n211 Success of a file-swapping network breeds more success, as file-swappers
obtain more valuable benefits from participation and hence feel more need to
reciprocate. Reciprocity cascades therefore engender material rewards in
addition to psychic benefits.
[*570] There is, of course, a corollary to the notion of reciprocity cascades. Just
as cooperation can engender more cooperation, noncooperation can snowball.
Particularly when noncooperative behavior becomes malicious and harms
cooperators, antisocial behaviors can reverberate throughout a network,
punishing the innocent, and causing the innocent to punish the equally innocent.n212
Even outside the context of computer networks and reciprocity norms, scholars
have found that when community members falsely perceive particular practices to
be widespread, they are likely to conform their own behavior to the way they
believe others are behaving. The leading work in this area is that of H. Wesley
Perkins, who has documented the phenomenon of college students persistently
overestimating their peers' levels of alcohol consumption, and has argued
persuasively that these persistent misperceptions fuel more alcohol consumption
than there would be otherwise.n213 In the case of alcohol consumption, the most inebriated people tend to be
the most visible in social settings such as campus parties. This visibility
suggests that there is a norm of binge drinking, and tendencies to adhere to
that perceived norm cause more students to become severely intoxicated.n214 By the same token, those students who are not intoxicated are less visible
and less likely to be the subject of after-the-fact conversations.n215 Perkins writes:
With the accumulation of conversation over time, certain college social events
get the reputation (often encouraged by the sponsors)
"everyone goes" and
"everyone gets smashed." Thus a sensationalized view of the college community emerges. This powerful
mythology has a life of its own and actually encourages more students to attend
parties and get drunk than might otherwise do so.n216
Misperceptions regarding levels of alcohol consumption therefore can become
"self-fulfilling prophesies" and can snowball as visible intoxication fuels misperception, which in turn
fuels more intoxication.n217 Universities have paid attention to Perkins's scholarship, and when they
have implemented educational programs that attempt to correct misperceptions of
alcohol consumption, they have generally seen significant decreases in the
prevalence and severity of intoxication episodes. Campus programs that credibly
publicized the lower-than-expected incidence of binge drinking have lowered the
prevalence of overconsumption dramatically.n218
What explains why some users who download do not become file-sharers? Several
behavioral factors might overcome the reciprocity norms outlined above. For
some individuals, the increased cost of uploading, or the risk of adverse
consequences resulting from uploading, will dominate the reciprocity norms that
would urge them to share.n219 Some individuals will have less well-developed senses of reciprocity; it
is clear that individuals internalize
[*572] and act upon even these widespread norms to varying degrees.n220 Other downloaders, despite the better efforts of the network creators,
will not view uploading as
"helping," and therefore will not conceptualize the acquisition of content as a favor
that requires repayment.n221 Finally, some downloaders will conclude, based on the large number of
other downloaders making their content available, that there is more than
enough content to go around, even without their efforts. In social psychology
this phenomenon is referred to as the
"bystander effect," and its propensity to discourage altruism has been well documented, especially
in those situations where the costs of helping are high.n222 Indeed, charitable organizations conducting fund raisers must constantly
walk a fine line between extolling the virtues of achieving an ambitious goal
and appearing not to need the contributions of the individual being solicited.
Hence fund-raising letters might contain schizophrenic language such as
"last year we raised a record $ 5 million for our school, but this year it's
more important than ever that you join your fellow alumni in contributing to
this worthy cause." Such language plays on the recipient's desire to participate in a successful
cooperative endeavor and reminds him that bad things will happen if he
withholds his contribution.n223 The same is true on the file-swapping networks: Some users are motivated
to cooperate when exposed to the purported ubiquity of file-sharing, while
others feel less guilty about free-riding.
4. Alternative Explanations
As this discussion of holdouts suggests, the user population of the
file-swapping networks is hardly monolithic. Some file-sharers will be
motivated by strong reciprocity urges; for others, the desire to reciprocate
will be too weak to overcome the costs of sharing. That said, it is worth
exploring some alternative explanations for file-sharing on these networks to
determine whether they are consistent with the observed cooperation.
One possible explanation for file-sharing is that individuals are engaging in
that behavior because they derive satisfaction from thumbing their collective
noses at the recording industry and other
copyright holders.n224 Along the same lines, these users might have some taste for rebellion
against the law and gain utility from flouting it. According to this reasoning,
file-sharing is a type of civil disobedience directed against those entities
that improperly use the
copyright laws to siphon off revenue that rightly belongs to artists.
While this type of sentiment may have helped motivate the creators of these
file-swapping networks to release their software to the public, it is unlikely
that most of the file-sharers on the network share their files because of such
feelings. After all, my data suggests that the majority of the file-sharers on
the Kazaa/MusicCity network engaged in low-level sharing - making no more than
a few CDs worth of music available to the network's users.n225 If file-sharers make their content available because of a desire to harm
copyright holders' economic interests, or because of a taste for breaking
copyright laws, then one would expect them to share their entire collections of MP3
files rather than just a small portion of their collections.n226
[*574] Sharing a portion of one's MP3 collection is consistent with a reciprocity
story,n227 but inconsistent with an antipathy/civil disobedience story. Because the
population of users who share their entire MP3 collection with others appears
to be relatively small, and because acceptance of the Kazaa/MusicCity defaults
can account for at least some portion of that subgroup's behavior, the
hypothesis that users share their content to rebel against
copyright holders or
copyright laws provides an unconvincing explanation for the behavior of most
A related alternative explanation views uploading copyrighted content as an
expressive act. Under this theory, explaining why anonymous individuals make
their content available to other anonymous individuals on the network is no
more difficult than explaining why hundreds of thousands of people have created
personalized web pages that can be viewed by other web surfers, or why tens of
thousands of teenagers feel the need to blast their favorite music from the
speakers of their automobiles or dorm rooms. Certainly, people will engage in
those types of expressive activities even in the absence of economic incentives
to do so.
While this expressive theory explanation probably explains the conduct of a few
file-sharers, there are several reasons why it provides a relatively
unsatisfying explanation for why the vast majority of file-sharers behave as
they do. First, file-swappers are quite capable of discerning which sound
recordings are widely available on the networks, and which are in short supply.
If the expressive explanation accounted for most of their cooperation, then one
would expect file-sharers to fill their shared directories with music by more
obscure artists whose works are difficult to obtain on the networks.n228 As it happens, users do precisely the opposite. A common
[*575] complaint among network users is that popular, mainstream music is vastly
overrepresented on the networks and more cutting edge music is too hard to find.n229 A review of users' shared directories confirms this phenomenon, revealing
that the overwhelming majority of listeners are content to share yet another
copy of an already widely available Jennifer Lopez or Britney Spears song,
rather than files by artists who have small but deeply dedicated followings. If
the expressive theory really explains why people share, then one would expect
to find a very different mix of files available for downloading.
Second, unlike most instances of expressive activity, the type of expression
that occurs on the file-swapping networks is completely anonymous. So while an
individual's web page almost always contains an email address that allows a
user browsing the Internet to contact the publisher, the expressive activity
that occurs on Kazaa/MusicCity or Gnutella is not conducive to such contact or
association between the publisher and the matter published.n230
Third, there is a cross-cutting motivation that may dampen the impulse to
reciprocate. By making a particular artist's content available for downloading,
a user who enjoys that artist's work is both disseminating the artist's work
and potentially depriving that artist of revenue. A network user who adores a
particular artist may therefore view placing that artist's work in his shared
directory as an imperfect avenue for
"spreading the gospel" about his favorite musician.
IV. Understanding and Shaping the File-Swapping Movement
Having introduced a theoretical framework and discussed the ways in which the
file-swapping movement and file-sharing sentiment emerged, it is worth
exploring some practical implications. This Part begins by analyzing the
aftermath of the Ninth Circuit's A
& M Records. v. Napster, Inc. decision.n231 Although the Napster decision was successful in purely legal terms - it
established clear rules and largely resolved the dispute among the parties - it
was unsuccessful in two respects: It evidently failed to rally the public
around the cause of combating
copyright infringement on the Internet; and it ultimately diverted Napster users to
other file-swapping networks without making them second-guess the morality of
their actions. This Part then explores alternative strategies for addressing
the societal and economic changes that Napster and its successors have
A. Napster and the Failure of Law as an Expressivist Tool
On February 12, 2001, when the Ninth Circuit handed down the Napster decision,
the court had a significant opportunity to persuade the public about the
immorality of file-swapping. The decision had been eagerly anticipated for
months, received enormous media attention, and its consequences would be felt
immediately. Although the Ninth Circuit decisively rejected the legal arguments
put forward by Napster's attorneys,n232 the opinion evidently did little to stem widespread participation in the
networks. To the contrary, the haphazard way in which the decision dealt with
injunctive remedies may well have done more collective good than harm to the
networks. Two years after the court's ruling, file-swapping is as widespread
and prominent as ever.n233 While the court's ruling may alter social norms in the long run, the early
evidence should encourage supporters of file-swapping.n234 What accounts for the apparent failure of the Napster decision to alter
1. The Importance of the Injunction
While the Napster court devoted barely two pages of its opinion to questions
involving the scope of the injunction, it was this aspect of the opinion,
rather than its primary holding, that was most important in setting the tone
for the events that followed.n235
After ruling that Napster had been guilty of contributory
copyright infringement and that Napster's users were themselves engaged in
copyright infringement,n236 the Ninth Circuit elected to exercise restraint at the remedial stage. The
court first faulted the district court for improperly allocating the burdens of
copyright compliance.n237 It then remanded the case to the district court for a reassessment of the
proper remedies.n238 The decision to remand effectively stayed injunctive relief until the
district court could rule. Three weeks passed before the district court finally
ruled on the scope of the injunction. Under the revised injunction, record
labels would be held responsible for informing Napster of the artists and song
titles to which they held
copyrights. Upon receiving notice of a particular copyrighted file, Napster would be given
three business days to remove that and all identical files from its directory.n239
As a result of this delay in the enforcement of the Napster injunction, several
weeks passed before users observed a tangible difference in the quantity of
copyrighted files available on the system. As one might imagine, the publicity
generated by the Ninth Circuit's ruling brought millions of users to Napster's
web site. Some were old-timers seeking a last opportunity to stock up on files;
[*578] were newcomers who wanted to see firsthand the application that had generated
so much controversy.n240
2. The Porous Filter
Millions of users logged in to the Napster network and, for several weeks, saw
that virtually nothing had changed. The courts had declared file-swapping
illegal, yet file-swapping proceeded at a record pace. Recall that part of what
made Napster such a seductive network is that it advertised and magnified
copyright laws.n241 On Napster, users easily learned what content individual users had and
what those users were downloading. Napster users logged on to the system in the
wake of the Ninth Circuit's ruling and witnessed massive noncompliance with the
spirit of the court's order. Indeed, even the filtering system that Napster
installed pursuant to the court's order was quickly thwarted by not-so-clever
coding systems (for example, the Beatles became the
"John, Paul, George, and Ringo," etc.).n242 Witnessing thousands of other users' attempts to circumvent the injunction
only fortified Napster users' resolve. The obvious noncompliance with the law
and with the spirit of the court's injunction encouraged other users to ignore
the law and disregard the injunction. Just as behavioral cascades can occur in
the reciprocity context, flouting of the law can also be self-reinforcing.
3. The Clearinghouse for Napster Alternatives
In some sense, the continued circumvention of Napster's
copyright filtering mechanisms was the least of the recording industry's worries.
Immediately after the Napster decision, Napster users thronged to the online
Napster discussion forum, where they discussed
[*579] not only various methods of getting around Napster's screening software, but
also alternative file-swapping applications they would use in the event of
Napster's ultimate downfall.n243 Various options, such as BearShare or AudioGalaxy Satellite, were promoted
feverishly, and users were directed to the many Napster alternative
applications available on download.com. Napster's parting blow to the record
industry was therefore a decisive one: Users who still adhered to the
file-swapping norms espoused by Napster used Napster itself as a forum for
promoting alternative file-swapping networks.
Copyright holders were at least partially to blame for this post-injunction use of
Napster. The Napster plaintiffs did not seek an injunction covering chat rooms
or message boards on Napster,n244 presumably based on concerns that such an injunction might not withstand
First Amendment scrutiny.n245 Because the injunction never
[*580] applied to these forums, the recording industry could do nothing while the
chat rooms and message boards became communications hubs for those seeking to
undermine the spirit of the court's ruling.
4. The Youth Vanguard
It is likely that the high visibility of successful screening circumvention on
Napster made a particularly profound impression on younger Napster users. These
are the users who were most committed to the morality of unauthorized
downloading and most likely to engage in such behavior prior to the issuance of
the injunction.n246 At the time of the Ninth Circuit's injunction, the file-swapping
communities were particularly attractive to young computer users. Teenagers
like Shawn Fanning and Justin Frankel had become role models for younger peers.n247
For younger Internet users, the rebelliousness embodied in the various efforts
to circumvent the Napster injunction undoubtedly
[*581] proved quite attractive.n248 Noncompliance with the law became glamorous, and circumventing the law
became a kind of game. Whatever political capital the Ninth Circuit and the
copyright enforcement had with the adult public, these institutions would receive little
deference from younger users who had cut their teeth in the era of free music.n249 Because the law and the federal judges who interpreted it commanded less
respect among teenagers than among the public at large, the Ninth Circuit could
not tap into a base of goodwill among many Napster users. Those teenagers and
college students who disregarded the Ninth Circuit's decision were valorized as
courageous, not dismissed as scofflaws. Teenagers understandably had little
fear of facing legal repercussions for their actions,n250 and all the social incentives pointed toward circumventing the newly
announced law. Peer pressure and peer-to-peer norms were perfectly aligned.n251
The teenagers who playfully flouted the Ninth Circuit's injunction in the first
weeks after its ruling and ultimately moved on to other file-swapping sites
when the injunction was tightened undoubtedly drew a number of conclusions from
the experience. On
[*582] the basis of the injunction-circumvention experience, many of these teenagers
have been socialized to believe that the
copyright laws and the courts are largely ineffectual, and that noncompliance with the
spirit of the law is socially acceptable. Through their exposure to a system in
which the law says one thing, but everybody does the opposite, they may well
have developed enduring attitudes toward intellectual property laws.n252
5. The Injunction in Retrospect
Today, it is fair to say that Napster was brought to its knees by the Ninth
Circuit's injunction.n253 The movement that Napster spawned, however, is alive and well. The few
weeks following the Ninth Circuit's ruling in Napster was a critical period.
The decision itself galvanized file-swappers and, for a brief period, generated
enormous free publicity for file-swapping applications. The porous Napster
injunction emboldened hackers and users alike, convincing them that while the
courts could deal a setback to the file-swapping movement, the government could
never eradicate it.
B. The Self-Help Strategy
The RIAA succeeded in convincing the Ninth Circuit to set an important pro-copyright precedent in Napster, just as it had succeeded in persuading Congress to enact
aggressively pro-copyright laws such as the Digital Millennium
Copyright Act.n254 While it seems likely that the recording industry will be able to continue
this success against some of the hybrids that have emerged in the wake of
Napster's downfall, the Gnutella network presents the labels with a serious
conundrum. They may have to pursue legal actions
[*583] against individual music listeners or politically powerful Internet Service
Providers if they are to clamp down on illicit file-swapping effectively. The
future for the recording industry portends significant legal costs as well as
bruising public relations battles, as the industry confronts an environment in
which a significant percentage of the public is evidently skeptical of the need
copyright protection of MP3s.
Given this rather unappealing scenario, it is somewhat surprising that the
recording industry has only recently begun to pursue extra-legal strategies to
deal with the file-swapping networks. A few self-help strategies are discussed
1. Uploading Inferior or Incomplete Copies
As discussed above, the greatest assets that the file-swapping networks
possess are their ever-improving technologies and the widespread, accumulated
trust among members within the network. The technology will only continue to
improve as time passes, but the trust is vulnerable. Had the RIAA devoted its
resources to hiring saboteurs rather than investigators and attorneys, it might
have undermined confidence in file-swapping during the important time period
when the technology was developing a critical mass of users. While it would
have been easier to do so when the networks were in their embryonic stages, a
committed group of several dozen mischievous uploaders might still wreak havoc
on the Gnutella or hybrid networks. After all, a tiny segment of the
file-sharing community is responsible for creating and uploading the vast
majority of the content appearing on the network, so a small group of
hyperactive uploaders could accomplish a great deal.
Doug Lichtman and David Jacobson suggested in 2000 that the RIAA could launch
an effective counterattack against file-swapping by creating a large number of
MP3 files that are the same size and share the same titles as widely circulated
copyrighted files that are swapped over the network.n256 This could be accomplished
[*584] rather easily. The RIAA versions, however, would be flawed in one of several
respects: They might contain annoying pops, screeches, skips, and buzzes
throughout the record; alternatively, the songs might be interspersed with
public service announcements about the importance of respecting
Two years after Lichtman and Jacobson proposed the idea, the RIAA apparently
began using such a strategy. In June of 2002, three of the major record labels
"deluging popular services like Morpheus, Kazaa and Grokster with thousands of
decoy music files that look identical to a sought-after song, but are filled
with long minutes of silence - or 30-second loops of a song's chorus."n257 While some avid file-swappers posting in a Gnutella forum report not
having come across any such files since they were released, a large percentage
expressed significant annoyance at having come across the files and began
brainstorming ways in which the recording industry's efforts might be thwarted.n258 This apparent RIAA strategy coincides with the introduction of
controversial legislation in Congress that would authorize
copyright holders to employ technology-based, anti-infringement measures against the
file-swapping networks and their users.n259
Because most users who upload MP3 files have their defaults set to make those
files they have just downloaded available for download by others, the faulty
files have spread quickly beyond the
[*585] RIAA's computers. The increased prevalence of these files on the network has
increased the effective cost of obtaining
"free music." The minority of users who share files indiscriminately might respond to this
development by changing their default settings so that only those files they
have listened to would be available for downloading. If many users took this
step, the availability of files on the networks would decline noticeably. That
said, revealing itself to be the creator of these files was a strategic blunder
by the RIAA. By making no secret of its involvement, the RIAA ensured that the
frustration of file-swappers would be directed at it alone. Had the RIAA put
its plan into practice surreptitiously, it might have successfully pitted the
file-swappers against each other, since some ordinary users would falsely
suspect fellow users of having intentionally spread the corrupted copies. If
users of the peer-to-peer networks began having adverse experiences with
greater regularity and did not have a solitary, unsympathetic target for their
anger, there could have been a cascade of animosity reverberating through the
Theories of reciprocity suggest that while increasing the cost of uploading
will result in fewer downloads, framing file-swappers for the
"crime" of passing along tainted files would cause far greater long-term damage to the
networks. I have argued that file-sharing exists on these networks because some
segment of the user population determines that making their files available to
the entire user population is a good substitute for repaying those from whom
they have downloaded files. But this presupposes that file-swappers actually
feel indebted to those who have provided them with content. If covert actions
by the RIAA caused file-swappers to feel angry with those who had provided them
with content, the reciprocal chain motivating their cooperation would have
2. Mischievous Misidentification
The self-help strategies need not be limited to providing users with inferior
copies of content they actually desire. An even more
[*586] mischievous strategy would misidentify certain relatively undesirable songs as
popular songs. For example, by labeling various polka melodies as Britney
Spears hits and distributing Mongolian throat singing MP3s as popular Celine
Dion vocals, a few dozen mischievous uploaders could quickly undermine the
trust that thus far has characterized the file-swapping networks. Once again,
these uploaders would only need to distribute the misidentified copies on the
Internet every so often and could count on unsuspecting users to spread those
3. Potential Drawbacks
The RIAA might well be concerned about
"sinking to Gnutella's level" by attempting a self-help approach. Yet, it is not at all clear that this is a
well-founded concern. The RIAA's actions in creating spoof files were widely
reported, but hardly editorialized. Newspaper coverage has been generally
neutral,n261 and while file-swappers themselves have been angered by the moves, there
is no evidence that music listeners generally have changed their views about
the record labels or
copyright laws as a result of these efforts. Those Gnutella users who have complained
about the flawed MP3 files will likely find an unsympathetic audience outside
the network since they assumed the risk of imperfection when they tried to
obtain copyrighted materials for free.
A more sensible cause for concern among recording industry executives is that
the file-swapping networks would be able to combat misidentified or flawed file
uploads through various technological innovations. Indeed, by introducing an
eBay-like technologyn262 that allowed its users to rate a particular file's quality, the Kazaa
network attempted to put such an infrastructure in place.n263 On Kazaa, however, such a rating system required a user to report on the
quality of the downloaded file. Because doing this was cumbersome,
[*587] I observed relatively few users employing it. What works on eBay when an
auction participant must rate a handful of buyers or sellers will not work as
well on a file-swapping network, where a typical user might engage in dozens of
transactions during a single day. Less cumbersome ratings systems conceivably
might be introduced in response to a serious mislabeling threat, but only after
some time had elapsed. It may well be that the recording industry could develop
technologies that would leapfrog whatever protections the file-swapping
programmers invented.n264 The recording industry does not need to prevent all file-swapping; it only
needs to make file-sharing more difficult and less attractive.n265
C. Taxing Uploading
Charismatic code has helped trigger a cooperative cascade on peer-to-peer
networks, but it has its limits. The cost of uploading is minimal for many
users, so they can be convinced to behave altruistically. Of course, the cost
of uploading need not be minimal. Students receive free high-speed Internet
access at many universities. Subscribers to DSL and cable modem services
generally pay a flat monthly fee rather than paying for bandwidth based on
usage. As an increasing number of file-swappers obtain these high-speed
connections, they are able to upload files more rapidly and without slowing
their downloading times appreciably. In Europe, by contrast, flat-rate schemes
have been rejected as a pricing model among residential Internet subscribers.n266
copyright industries enjoy the benefit of a sympathetic Congress and sympathetic courts,
but they lack the popular support to enforce criminal or significant civil
penalties against file-swappers. The
copyright industries' various attempts to enforce their
copyrights via what Dan Kahan calls
"hard shoves" have been largely unsuccessful because of the lack of public support for harsh
[*588] against individual
copyright infringers.n267 And because there is not a strong social norm against either downloading
or uploading, shame sanctions that try to target file-swappers are unlikely to
work: There would be little or no shame accompanying a public identification of
an individual as a file-swapper. In order to create a moral consensus that
copyright status of sound recordings, the
copyright industries therefore may wish to explore less punitive strategies.
Perhaps the most effective
"gentle nudge" that
copyright holders could employ would be to convince Congress to enact a regulation on
Internet Service Providers banning flat-fee pricing on uploads by residential
customers.n268 Residential Internet Service Providers based in the United States, whether
commercial providers or universities, could be required by law to charge users
incrementally for every upload based on the amount of data transferred.n269 This fee need not be high. A charge of one dollar per 50,000 kilobytes
would easily do the trick, especially in deterring students.n270 Indeed, as Clay Skirky notes,
"Napster not only takes advantage of low marginal costs, it couldn't work
without them. Imagine how few people would use Napster if it cost them even a
penny every time someone else copied a song from them."n271 Alternatively, the federal government could tax such uploads directly, and
collect through the Internet Service Providers.
The introduction of such a charge on residential uploading would constitute a
self-enforcing effort to shut off the flow of free
[*589] content that has made the file-swapping networks possible.n272
Copyright holders would be recognizing that they could neither stop Internet users from
visiting file-swapping sites nor adequately deter them from infringing
copyrights through those sites. Instead, this pricing regime would alter the incentives
sufficiently so that those users living in the United States could no longer be
convinced to upload files by charismatic code or the change agents who created
it. As the continued prevalence of file transfer disruptions on the
file-swapping networks suggests, there are limits to the kinds of sacrifices
that users will make for the benefit of anonymous fellow users, even in the
face of charismatic code's attempts to instill a cooperative norm of
reciprocity.n273 If the pricing scheme governing uploads were altered, sharing content
would no longer be an almost costless virtue for users on the file-swapping
network. Such a regulation would expose the limits of people's willingness to
be kind to strangers.
An incremental charging scheme will of course be overinclusive. Professors who
wish to share their own writings with others would face increased costs, as
would rappers trying to build their audiences by giving away content, and
family members sending digital photographs over the Internet. In that sense,
the Internet would look less like a free network for exchanging information and
more like a parcel post system, where the cost of transmitting material depends
on the amount of material sent. Such an alteration of the nature of the
Internet could eviscerate much of what makes it such an attractive tool for
democratic self-expression and decentralized debate, among other things.n274 Reasonable people may well conclude that the tradeoffs involved exceed any
[*590] benefits.n275 That said, it is worth underscoring that peer-to-peer file-sharers will be
far more sensitive to price than their photograph swapping counterparts. People
have demonstrated a willingness to pay incremental fees to share reprints with
colleagues or photographs with loved ones, but a peer-to-peer network that
charges users for the
"privilege" of sharing their copyrighted content with anonymous strangers is unlikely to
succeed. Thus, in this instance where legitimate uses of a network are far less
sensitive to price than illegitimate uses, a somewhat overinclusive marginal
pricing mechanism may well be net socially beneficial.
D. The Power of Information and Un-Charismatic Code
copyright industries will conclude that the threat to their revenues does not justify
arguably extreme measures such as self-help or incremental taxes on uploading.
copyright holders still wish to combat
copyright infringement, but wish to do so via less controversial means, they might mount
a new sort of public relations campaign. So far, the
copyright industries' propaganda efforts have been largely limited to educating the
public - and students in particular - about the importance of respecting
intellectual property.n276 By and large, these efforts have failed to sway popular sentiment. Users
have continued to engage in file-swapping and file-sharing despite these
campaigns, and despite Napster's holding that such activities amount to
copyright infringement. At the present time, it appears that it will be quite difficult
copyright industries to alter the perception that participation in these networks is
copyright industries, however, might be able to weaken file-sharing through a less
ambitious education campaign. The charismatic code hypothesis suggests that if
cooperative behavior is magnified
[*591] and uncooperative behavior is masked, then members of a community are more
likely to cooperate. If the
copyright industries could somehow magnify noncooperative behavior and mask cooperative
behavior, they should be able to undermine cooperation and perhaps even trigger
a cascade of noncooperative behavior. How might these goals be accomplished?
One strategy would be for the
copyright industries to publicize statistics that reflect actual rates of sharing on the
file-swapping networks. For example, the Adar and Huberman study's finding that
two-thirds of all Gnutella users share no files presents a damaging
counterpoint to the impression of widespread file-sharing that is presented by
Gnutella's charismatic code. Particularly if follow-up work reveals that
Gnutella's rates of file-sharing have not increased significantly in the time
since Adar and Huberman collected their data, the
copyright industries could devote resources to convincing Gnutella users that a norm of
free-riding exists on Gnutella. If Gnutella's users believe this data - and
that is a big
"if" - then that statistic could make file-sharing scarcer still. Of course, if the
Kazaa/MusicCity network (on which my data suggests sharing is more common than
free-riding) is typical of the hybrids, publicizing such data might not have a
detrimental effect on file-sharing rates.
A significant problem with such a simple education program is that its message
is unlikely to be internalized by the members of the target audience.
File-swappers may view any claims made by the
copyright industries or their surrogates as inherently suspect in light of those
industries' motives for causing people to believe that there is a norm of
free-riding.n277 Moreover, even if people hear the message that free-riding is the norm on
Gnutella and believe it at some level, if that message is inconsistent with the
observed distortion created by the charismatic code, then the statistic may
"real" than the distortion.n278
[*592] An alternative
"education" strategy might confront charismatic code on its own terms. Given the
open-source nature of the Gnutella applications for file-swapping, the record
labels are free to create
"patches" (or updates) to existing versions of Gnutella. The recording industry might
find it worthwhile to develop and distribute software patches that expose users
to the many free-riders on Gnutella and magnify the actions of those
free-riders. For example, the program might prominently identify free-riders
and those sharing very few files in response to search queries. Alternatively,
the patch might prominently gather and display real time updates concerning the
number of free-riders on the network and the median number of files being
shared. Similarly, the record labels or their allies might release a Kazaa
patch that either magnifies the extent of the free-riding on Kazaa, defaults
users into free-riding, or, as the Kazaa Lite application has already done,
allows free-riders to download files more efficiently than most file-sharers.n279 In order to convince file-swappers to download these patches, the creators
of these patches would need to create desirable improvements that enhance the
experience of using these applications, and bundle these improvements with the
un-charismatic code elements. If such patches were widely disseminated, the
recording industry might effectively combat the distortion created by
charismatic code. By providing file-swappers with a more realistic assessment
of their peers or strengthening the appeal of free-riding, the recording
industry might well prompt file-swappers to imitate the free-riding behavior
that is still somewhat common on these networks.
E. Strengthening the File-Swapping Movement
The foregoing discussion presumes that the reader's orientation is toward
copyright infringement. But one can use insights about charismatic code and reciprocity
to buttress the file-swapping networks as well. Indeed, while the Napster court
almost certainly reached the proper result under existing
copyright laws, the wisdom of those laws is open to serious question. Those who see
file-swapping as a laudable effort to undermine an inefficient
copyright regime, subject to interest group capture, and irreconcilably contrary to
social norms regarding the appropriate use of media files, ought to be thinking
about ways in which the applications' code can better tap into norms of
While the various file-swapping networks all employ some sort of charismatic
code with varying degrees of success, each application could do a better job of
encouraging uploading. For example, in the past MusicCity allowed a user to
peek at the shared directory of another user who was downloading from him. By
making such searches available, the software potentially permitted a user to
discover that some portion of those users who were downloading from him were
not sharing with others. By disabling this feature, MusicCity could have
rendered invisible those users who were sharing no files. Alternatively, the
software might identify new users by using a particular color code or symbol
during the users' first week of participation in the network. By doing so, the
network's creators would indicate to its membership that these newer users, who
were relatively unlikely to have amassed large collections of MP3 files, were
not being uncooperative, but had merely not had a chance to engage in
substantial sharing. In the most recent version of Kazaa, the software creators
have gone so
[*594] far as to provide uploading users with information about each downloader's
propensity to share.n281
The networks might also begin showing users how their own sharing can
reverberate through the system. For example, the software easily could be
designed to track not only the number of uploads a particular user had
provided, but the number of times the copies he passed along had themselves
been copied. Such information would demonstrate to users that others were
cooperating as well by sharing the files they had acquired, and would also
emphasize that a single upload was likely to engender benefits for many
downstream users of the network.
The file-swapping networks present a fascinating case study for those who
study networks of illegality and technologies for intellectual property
infringement. A third group of scholars also ought to be quite interested in
studying file-swapping networks. These scholars - the social norms theorists -
examine instances in which behavioral regularities arise among groups in
response to social pressures, especially when those regularities have little or
no resemblance to formal law. In this instance, tens of millions of
file-swappers are behaving in ways that flout the nation's
To date, the norms theorists have said little about the file-swapping
phenomenon. That silence stems in part from norms theorists' understandable
caution in moving beyond the realm of close-knit groups. Yet, as social
psychologists have demonstrated, there are persuasive explanations for why one
might see cooperative behavior even in those environments where free-riding is
easy, repeat player interactions are rare, and anonymity is widespread. The
explanations are different, but they are no less compelling.
[*595] As one who is sympathetic to the social norms perspective, but cognizant of
its present limitations, I have begun to explain how these behavioral
regularities might arise in loose-knit groups. My Article suggests that in
certain environments people may internalize norms of conditional cooperation.
It further suggests that community members' favorable perceptions of their
peers can be self-fulfilling, and that the file-swapping networks' creators
have successfully designed a world in which their members see each other
through rose-colored glasses. Charismatic code, which magnifies cooperative
behavior and masks uncooperative behavior, can be a powerful tool for
instituting a cooperative arrangement and solidifying nascent cooperative
norms. Although they are almost as loose-knit a community as one can imagine,
the file-swappers trading files on Gnutella and the hybrids have come to
acquire some of the cooperative attitudes and customs that one would ordinarily
expect to find in much closer-knit groups. Indeed, for many file-swappers,
reciprocal predilections easily trump any preference for behaving lawfully.
The strategies that
copyright holders have employed so far have failed to reduce the prevalence of
Copyright holders, like legal scholars generally, have focused too much attention on
what the law should be with respect to
copyright infringement via the Internet and too little attention on understanding the
powerful motivations that have caused tens of millions of Americans to ignore
copyright laws. If norms, and not the law, are what motivate consumers to act, then a
wiser strategy for the RIAA and its allies might be to think about ways in
which they could weaken the cooperative norms that have arisen among users of
these networks. Creators of copyrighted content should try to understand what
makes users cooperate with anonymous strangers. Once they have figured that
out, they might redirect their creativity toward developing strategies for
undermining the substantial but vulnerable trust that permeates these online
communities. Because uploading, not downloading, is the weak link in these file
transfers, strategies that weaken the impulse to upload are most likely to
n1. Matt Richtel, With Napster Down, Its Audience Fans Out, N.Y. Times, July
20, 2001, at A1; Kelly Zito, Online Music Firm Settles Lawsuit with Publishers,
S.F. Chron., Sept. 25, 2001, at C1.
A & M Records v. Napster, Inc., 114 F. Supp. 2d 896, 902-03 (N.D. Cal. 2000) ("The evidence shows that virtually all Napster users download or upload
copyrighted files and that the vast majority of the music available on Napster
n3. Amy Harmon, Gazing into 2003: Economy Intrudes on Dreams of New Services -
Music Attracting Consumers to the Online Jukebox, N.Y. Times, Dec. 30, 2002, at
C3; see also Gwendolyn Mariano, Napster Rivals Winning Popularity Contest,
ZDNet Austl., at http://www.zdnet.com.au/printfriendly?AT=2000024981-20261702
(Nov. 6, 2001) (on file with the Virginia Law Review Association) (noting that
the Kazaa/Grokster network was predicted to have passed Napster in terms of
number of simultaneous users by November of 2001); Richard Menta, RIAA and MPAA
Sue Morpheus, Grokster, and KaZaa, at
http://www.mp3newswire.net/stories/2001/sue_morpheus.html (Oct. 3, 2001) (on
file with the Virginia Law Review Association) ("According to WebNoize, 3.05 billion files were downloaded in August via the
leading Napster clones. At its peak last February Napster delivered 2.79
n4. Doug Bedell, Pay to Play? No Way: New Legislation, Record Labels Are Going
After File-Sharing Networks, San Diego Union Trib., July 29, 2002, at E3
(citing a recent study by the San Francisco research firm Odyssey).
n5. Close-knit environments are those in which repeat players can identify each
other. See, e.g., Robert C. Ellickson, Order Without Law: How Neighbors Settle
Disputes 177-78 (1991) ("A group is close-knit when informal power is broadly distributed among group
members and the information pertinent to informal control circulates easily
among them."). Loose-knit groups, by contrast, are clusters of individuals who are unlikely
to be repeat players, or are otherwise unlikely to be able to identify each
other in repeat interactions. While the legal literature on close-knit groups
is well-developed, the literature on loose-knit groups is not. See Lior Jacob
Strahilevitz, Social Norms from Close-Knit Groups to Loose-Knit Groups,
70 U. Chi. L. Rev. 359 (2003).
n6. See SearchWebServices.com, Definitions, Killer App, at
(last updated Oct. 30, 2002) (on file with the Virginia Law Review
n7. See Clay Shirky, Listening to Napster, in Peer-to-Peer: Harnessing the
Benefits of a Disruptive Technology 21, 26 (Andy Oram ed., 2001) ("Whatever one thinks of Napster's probable longevity, Napster is the killer app
for this revolution."); Karl Taro Greenfeld, Meet the Napster, Time, Oct. 2, 2000, at 60, 62 ("[Napster] already ranks among the greatest Internet applications ever, up there
fastest growing in history ... ."); see also
Napster, 114 F. Supp. 2d at 927 (finding that Napster
"has contributed to illegal copying on a scale that is without precedent").
n8. MP3s are a form of compressed music files that produce near CD-quality
sound at a tenth the size of a WAV file, which was the prior standard software
format for music. Robert T. Baker, Finding a Winning Strategy Against the MP3
Invasion: Supplemental Measures the Recording Industry Must Take to Curb Online
8 UCLA Ent. L. Rev. 1, 6 (2000).
n9. Damien A. Riehl, Peer-to-Peer Distribution Systems: Will Napster, Gnutella,
and Freenet Create a
Copyright Nirvana or Gehenna?,
27 Wm. Mitchell L. Rev. 1761, 1766 n.28 (2001).
n10. Expert Report of Professor Lawrence Lessig Pursuant to
Federal Rule of Civil Procedure 26(a)(2)(B) at P48, A
& M Records v. Napster, Inc., No. C 99-05183 MHP, 2000 U.S. Dist. LEXIS 6243
(N.D. Cal. May 5, 2000).
n11. Riehl, supra note 9, at 1768.
A & M Records v. Napster, Inc., 114 F. Supp. 2d 896, 906-07 (N.D. Cal. 2000).
Id. at 907.
n15. Amanda Lenhart
& Susannah Fox, The Pew Internet
& Am. Life Project, Downloading Free Music: Internet Music Lovers Don't Think
It's Stealing 4, at http://www.pewinternet.org/reports/toc.asp?Report=23 (Sept.
28, 2000) (on file with the Virginia Law Review Association).
n16. Id. at 7.
n17. Id. at 11.
n18. Jupiter Media Metrix Reports Multi-Country Napster Usage Statistics for
February 2001, PR Newswire, Apr. 5, 2001, available at LEXIS, Wire Service
n19. Mike Graziano
& Lee Rainie, The Pew Internet
& Am. Life Project, The Music Downloading Deluge: 37 Million American Adults and
Youth Have Retrieved Music Files on the Internet 2, at
http://www.pewinternet.org/reports/toc.asp?Report=33 (Apr. 24, 2001) (on file
with the Virginia Law Review Association).
n21. Id. at 3.
n22. One who, with knowledge of the infringing activity, induces, causes, or
otherwise materially contributes to the infringing conduct of another is
potentially liable for contributory
copyright infringement. Vicarious liability arises when one party has direct control
over an infringer and benefits from that infringer's unlawful activities. See
Aric Jacover, Note, I Want My MP3! Creating a Legal and Practical Scheme to
Copyright Infringement on Peer-to-Peer Internet Applications,
90 Geo. L.J. 2207, 2221 (2002).
& M Records v. Napster, Inc., No. C 99-05183 MHP, 2000 U.S. Dist. LEXIS 6243, at
1 (N.D. Cal. May 5, 2000).
17 U.S.C. 512(a);
Napster, 2000 U.S. Dist. LEXIS 6243, at 29-30.
A & M Records v. Napster, Inc., 114 F. Supp. 2d 896, 918-22, 927 & n.32 (N.D. Cal. 2000).
Id. at 927.
id. at 927 n.32.
n29. John Alderman, Sonic Boom: Napster, MP3, and the New Pioneers of Music 143
A & M Records v. Napster, Inc., 239 F.3d 1004, 1020, 1024 (9th Cir. 2001).
Id. at 1027.
& M Records v. Napster, Inc., No. C 99-05183 MHP, 2001 U.S. Dist. LEXIS 2186
(N.D. Cal. Mar. 5, 2001).
n34. Id. at 3-4.
n35. Id. at 5.
n36. Id. at 6-7.
n37. See Ernest A. Jasmin, Crossing Swords with Pirates: Despite a Crackdown,
Pirating Music Is More Common than Ever, News Trib. (Tacoma, Wash.), Oct. 6,
2002, at D1.
n38. Matt Richtel, Napster Says it Is Likely to Be Liquidated, N.Y. Times,
Sept. 4, 2002, at C2.
n39. Gene Kan, Gnutella, in Peer-to-Peer: Harnessing the Benefits of a
Disruptive Technology, supra note 7, at 94, 95; Riehl, supra note 9, at 1774.
n40. MP3 Search Tools, Download.com, at
http://download.com/3150-2166-0-1-4.html? (last visited Feb. 13, 2003) (on file
with the Virginia Law Review Association).
n41. For an excellent, detailed overview of Gnutella's history and an
explanation of how Gnutella works, see Kan, supra note 39, at 94-122.
n42. The text that follows is based on a description of BearShare, a popular
application for searching the Gnutella network. The user experience varies
slightly on other Gnutella applications.
n43. See Expert Report of Professor Lawrence Lessig Pursuant to
Federal Rule of Civil Procedure 26(a)(2)(B) at PP 50-51, A
& M Records v. Napster, Inc., No. C 99-05183 MHP, 2000 U.S. Dist. LEXIS 6243
(N.D. Cal. May 5, 2000).
n44. See Kan, supra note 39, at 111; What Is Gnutella?, at
http://www.gnutellanews.com/information/what_is_gnutella.shtml (last visited
July 1, 2001) (on file with the Virginia Law Review Association).
n45. What Is Gnutella?, supra note 44.
n46. For example, a random search I conducted on August 4, 2001 revealed that
users were searching for popular music ("matchbox 20,"
"Cypress Hill," and
"Classic Rock"), motion pictures ("Top Gun,"
"Sleepy Hollow," and
"Enemy at the Gates"), computer software applications ("Easy CD Creator 5"), and pornography ("Kiddie mpg,"
"Girls Gone Wild," and
"Barely Legal 6").
n47. Tim Wu, Compliance
& Code: Is Peer-to-Peer Really a Challenge to Law?, 89 Va. L. Rev. (forthcoming
June 2003) (manuscript at 21, on file with the Virginia Law Review
n48. See Robert E. Litan, Law and Policy in the Age of the Internet,
50 Duke L.J. 1045, 1068-69 (2001).
n49. What Is Gnutella?, supra note 44.
n50. As Damien Riehl explains:
copyright holders have been able to sue questionably infringing sites because the
companies are identifiable, have a physical presence in a jurisdiction, and can
be found on a machine in a specific geographic location ... . Those considering
legal action against Gnutella, however, would not have the luxury of an easy
target to sue, since the infringers and their computers may be located around
the world and could number in the millions. Since there is no one company
behind Gnutella, but it is only a loose-knit group of individuals who often
participate in non-commercial file exchanges,
copyright holders are left without any significant coffers to sue and some nearly
insurmountable jurisdictional hurdles to overcome. Furthermore, any attempt by
copyright holders would likely be a legal and public relations nightmare. The minimal
damages that could be recovered from infringing users would not justify the
cost and time involved in attempting to assert jurisdiction against millions of
individuals in a myriad of jurisdictions.
Riehl, supra note 9, at 1778-79; see also Jon Healey, Gnutella Targeted for
Piracy Control, L.A. Times, Mar. 29, 2001, at C5 (discussing the legal
difficulties faced by the RIAA if it wishes to shut down Gnutella).
n51. John Borland, RIAA: Gnutella not yet a Threat, News.com, at
http://news.com.com/2102-1023-255005.html (Mar. 29, 2001) (on file with the
Virginia Law Review Association). In 2003, the music industry changed tactics.
See Recording Indus. Assoc. of Am. v. Verizon Internet Servs., Civil Action 02-MS-0323 (JDB), 2003 U.S. Dist. LEXIS 681 (D.D.C. Jan. 21, 2003) (holding that Verizon must supply to the Recording
Industry Association of America the identity of anonymous users of its Internet
service who have allegedly violated the Digital Millennium
Copyright Act of 1998); Alan Goldstein, Tune-Swapping Issue Gets Personal, Dallas
Morning News, Jan. 29, 2003, at 1D ("A federal court ruling last week grants entertainment companies the right to
unmask the identities of subscribers suspected of swapping unauthorized music
over peer-to-peer file sharing services.").
n52. See Alderman, supra note 29, at 148-49.
n53. Victory or Defeat?, Salon.com, at
(Feb. 12, 2001) (on file with the Virginia Law Review Association) (quoting
Kelly Truelove, CEO of Clip2); see also Janelle Brown, The Music Revolution
Will not Be Digitized, Salon.com, at
1, 2001) (on file with the Virginia Law Review Association) (discussing the
spike in Gnutella usage after the Napster decision).
n54. See Richtel, supra note 1 ("Figures to be released today show that a precipitous drop in Napster's traffic
over the last several weeks has been paralleled by marked growth in more than
half a dozen less centralized services."); Ron Harris, Napster: Company Is Not Dead, at
http://gareth.membrane.com/news/mp3news/mp3050301.html (May 3, 2001) (on file
with the Virginia Law Review Association); Napster Use Slumps as Screening
Technology Takes Hold, at
http://gareth.membrane.com/news/mp3news/mp3031601.html (Mar. 16, 2001) (on file
with the Virginia Law Review Association).
n55. See Baker, supra note 8, at 17; Elaine O'Connor, Who Needs Napster?
Peer-to-Peer Sharing Thrives: Record Companies Have Shut Down the Best-Known
Site, but Music
"Sharing' Continues to Grow, Ottawa Citizen, Aug. 17, 2002, at J1.
n56. In February of 2002, Morpheus switched over from the network that it
shared with users of Kazaa and Grokster to the Gnutella network. Farhad Manjoo,
Sour Notes, Salon.com, at
30, 2002) (on file with the Virginia Law Review Association).
Metro-Goldwyn-Mayer Studios v. Grokster, Ltd., No. CIV.A.01-08541, 2003 WL 186657, at 1 (C.D. Cal. Jan. 9, 2003) (noting that Kazaa's parent company is organized
under the laws of Vanuatu, with its principal place of business in Australia).
n58. See Michael Miller, Discovering P2P 165 (2001); Wu, supra note 47
(manuscript at 36). For further discussions of scalability, see also Steve
McCannell, The Second Coming of Gnutella, at
http://www.webreview.com/mmedia/2001/03_02_01.shtml (Mar. 2, 2001) (on file
with the Virginia Law Review Association) (discussing Gnutella's scalability
problems); Erick Schonfeld, Goodbye Napster, Hello Morpheus, ZDNet, at
http://zdnet.com.com/2100-1107-861914.html (Mar. 18, 2002) (on file with the
Virginia Law Review Association) (discussing the scalability of hybrids).
n59. See Wu, supra note 47 (manuscript at 36).
n60. See Mark Lewis, Does Morpheus' Architecture Save MusicCity from Legal
Liability?, at http://news.webnoize.com/item.rs?ID=13863 (Aug. 23, 2001) (on
file with the Virginia Law Review Association) (noting that use of the combined
Morpheus, Kazaa, and Grokster networks grew by eighty-nine percent in June, and
that by August there were more than 700,000 users on the network
simultaneously); Farhad Manjoo, Gnutella Bandwidth Bandits, Salon.com, at
http://archive.salon.com/tech/feature/2002/08/08/gnutella_developers/ (Aug. 8,
2002) (on file with the Virginia Law Review Association).
n61. These statistics are updated weekly at Download.com. See
http://download.com (last visited Apr. 2, 2003) (on file with the Virginia Law
n62. According to Download.com, as of April 2, 2003, Kazaa had been downloaded
209,618,921 times, Morpheus 110,323,729 times, iMesh 46,767,579 times,
Audiogalaxy 31,362,750 times, BearShare 18,185,931 times, and LimeWire
15,273,726 times. MP3 Search Tools, Download.com, at
http://download.com.com/3150-2166-0-1-4.html? (last visited Apr. 2, 2003) (on
file with the Virginia Law Review Association). There is certainly overlap
among downloaders, since some users may have experimented with several
different applications. Some users may have downloaded the same applications
more than once because of installation difficulties. Still, a conservative
estimate extrapolating from this data suggests that at least 100 million
computer users have experimented with file-swapping applications.
n63. Mark A. Lemley, The Law and Economics of Internet Norms,
73 Chi.-Kent L. Rev. 1257, 1281-84 (1998); Amitai Aviram, Regulation by Networks 9-16 (Sept. 10, 2002) (unpublished
manuscript on file with the Virginia Law Review Association).
n64. See Jane Black, Napster's Sons: Singing a Different Tune?, Bus. Wk.
21, 2002) (on file with the Virginia Law Review Association).
n65. See Eliot Van Buskirk, File Sharing After Audiogalaxy, MP3 Insider, at
http://electronics.cnet.com/electronics/0-3219397-8-20067407-1.html (June 21,
2002) (on file with the Virginia Law Review Association).
n66. See John Snell, What Napster has Spawned; Porn Pervasive on Successors;
Also Viruses, Spyware, Seattle Times, Feb. 24, 2003, at C3 (quoting Congressman
n67. Thus, based on the definitions above, someone who downloads files from
others but does not upload any files is a file-swapper but not a file-sharer.
Someone who both uploads and downloads files is a file-swapper and a
n68. It is surprising that all of the major file-swapping networks have relied
on norms to encourage uploading rather than enforcing hard and fast rules
requiring uploading. More precisely, it would be possible for programmers to
design a file-swapping network that allowed users to download ten files for
free and subsequently required users to upload one file for every five files
they downloaded. Why has no successful system adopted this strategy? Part of
the explanation may be that tracking individual users' uploading-to-downloading
ratios requires storage of such information, and storage of such information
potentially makes it available to subpoena by
copyright holders, which could then target the most active uploaders for legal action.
By the same token, requiring their users to upload might make the peer-to-peer
networks more plainly guilty of vicarious
copyright infringement for all member uploads, since having control over an infringer's
actions is an element in vicarious
copyright infringement. Finally, recall that the peer-to-peer networks compete with each
"market share." Individual network creators may have decided that instituting any impediments
to downloading would have placed them at a competitive disadvantage vis-a-vis
other networks that had no such impediments. Thus, even though file-sharers
would prefer to upload files to other file-sharers, they might also prefer a
system where they did not have to monitor their own upload/download ratios in
order to acquire content.
n69. Eytan Adar
& Bernardo A. Huberman, Free Riding on Gnutella, 5 First Monday (Oct. 2000), at
http://www.firstmonday.org/issues/issue5_10/adar/index.html (on file with the
Virginia Law Review Association).
n71. Id. But see Posting of Chakotay, Distributed File Sharing System
Problematics, to kuro5hin.org, at
http://www.kuro5hin.org/story/2000/10/23/3027/2141 (Oct. 23, 2000) (on file
with the Virginia Law Review Association) (providing anecdotal evidence that
free-riding on Napster is largely a function of users' connection speeds). If
no one chose to download songs from those with slower-speed connections, then
there would be nothing surprising about the lack of differential in sharing
rates. The architecture of the networks indicates, however, that dial-up
uploaders do not get a free pass. The recent versions of peer-to-peer software
permit users to
"swarm download," that is, download different identical files from several machines
simultaneously to speed up the transfer time. See infra note 109 and
accompanying text. The peer-to-peer applications thus encourage users to
download portions of the same file from several other users at one time,
meaning that a single download will burden both the slower and faster machines
serving a particular file. As a result of this innovation, those with slower
Internet connections now serve more uploads than they used to when users were
only able to download a file from one machine at a time. Moreover, my own
experience with searching for relatively obscure sound recordings reveals that
a server with a modem connection is often the only source for a particular file
on the Gnutella network. This trend is particularly pronounced for music by
non-Western artists. In such instances, where a modem user is the only provider
of particular content, she can expect that downloads will absorb significant
quantities of her bandwidth. See infra text accompanying note 155.
& Huberman, supra note 69.
n74. The 33,335 hosts sampled by the Adar and Huberman study were sharing some
3,100,464 files. Id.
n75. Shirky, supra note 7, at 33.
n76. The appropriate analogy for file-sharing may be to a professional baseball
player whose batting average is .333, which is considered to be very high, even
though it means that he gets a hit in far less than half of his at bats. In
some other instances, thirty-three percent noncooperation would prove entirely
unviable in maintaining a system. For example, if even one-third of all
beach-goers littered indiscriminately, the beach would quickly become spoiled
and lose much of its appeal. Cristina Bicchieri, Norms of Cooperation, 100
Ethics 838, 845 (1990).
n77. See Healey, supra note 50, at C5.
n78. See http://www.limewire.com/index.jsp/net_improvements (last visited Feb.
11, 2003) (on file with the Virginia Law Review Association) (noting that the
defaults of the Gnutella prototype, version 0.56, did not cause downloaded
files to be shared); Posting of Finney.org, Incentives for Sharing in P2P
Networks, to geocrawler.com, at
http://www.geocrawler.com/archives/3/5025/2001/6/50/5957312 (June 13, 2001) (on
file with the Virginia Law Review Association) (arguing that free-loading is
less common where a file-swapping network's default configuration is to allow
sharing of all downloaded files, and that many Gnutella applications that were
popular at the time of the Adar and Huberman study did not permit users to
share files); see also Janelle Brown, The Gnutella Paradox, Salon.com, at
(Sept. 29, 2000) (on file with the Virginia Law Review Association) (noting
that in the year 2000 Gnutella developers were considering adjusting the
default settings to increase sharing).
n79. See Kelly Truelove
& Andrew Chasin, Morpheus Out of the Underworld, OpenP2P.com, at
http://www.openp2p.com/pub/a/p2p/2001/07/02/morpheus.html (July 2, 2001) (on
file with the Virginia Law Review Association).
n81. See Philippe Golle et al., Incentives for Sharing in Peer-to-Peer Networks
7 (2001), at http://crypto.stanford.edu/<diff>pgolle/papers/peer.pdf (on file with the Virginia Law Review Association).
n82. For discussions of the power of defaults generally, see Cass R. Sunstein,
Switching the Default Rule,
77 N.Y.U. L. Rev. 106 (2002) (arguing that people conform with default choices in a variety of
employment-related contexts); Richard H. Thaler, Psychology and Savings
84 Am. Econ. Rev. 186, 191 (1994) (noting that inertia, loss aversion, and transaction costs cause employees to
accept the default options connected to their employers' 401(k) plans). From a
rational choice perspective, users' widespread failure to opt out of sharing is
puzzling, given the often high cost of sharing.
n83. See supra note 78.
n84. The sample size for my study consisted of 208 unique users who downloaded
MP3 files from my hard drive during several sessions in November, 2001. For the
purposes of my study, I compiled a shared directory containing a broadly
representative sample of music files - some new, some old, some desirable, some
evidently not so desirable. For each download I recorded the downloader's user
name, the file being downloaded, the number of files being shared in the user's
directory, whether the user was sharing files that were identified as
pornography or child pornography, and whether the file downloaded appeared in
the downloader's own shared directory at the conclusion of the file transfer.
There are several potential sources of bias resulting from my methodology.
First, the sample missed those users who are pure passive uploaders - those who
constantly upload but rarely download content from others. This group is
evidently small but not nonexistent. Cf. infra note 101 (noting that some
Gnutella users had been logged on for days at a time). At the same time, it is
worth noting that this group will only be somewhat underrepresented in my
sample because even passive uploaders need to acquire content in order to share
content, and downloading MP3 content from others will usually be less
cumbersome than creating it anew. Second, the sample missed those who are
interested in obtaining non-music content, such as DVD movies and pornographic
images. Because of legal, logistical, and moral constraints, I did not include
those files in my sample directory. Third, to the extent that my music sample
was unrepresentative of the music content sought on the network, there may be a
further source of bias. All three sources introduce the potential for minor
sample bias into the study.
n85. Edison Media Research, The National Record Buyers Study II (2002), at
http://www.edisonresearch.com/R&RRecordBuyersII.htm (last visited Feb. 7, 2003) (on file with the Virginia Law Review
Association). Edison's data is based on a survey conducted in May of 2002,
approximately six months after I collected my data. See also Bill Husted, And
the Beat Goes On: Music Downloads Are Going Strong Despite Napster's Setback,
Atlanta J.-Const., Jan. 20, 2002, at 1 (providing anecdotal evidence suggesting
that some users have enormous music collections - numbering in the
"thousands, if not tens of thousands, of songs").
n86. Thirty-two percent of users elected not to share any files, contrary to
MusicCity's defaults. Twenty-two percent of sharers opted not to pass along
files they had just downloaded, behaving in a manner that is both inconsistent
with the software defaults and technically difficult. Finally, it appears,
based on the Edison Media Research survey quoted in the text above, that at
least one-half of the remaining sharers elected to share only a portion of
their MP3 collections, which is also inconsistent with the software's defaults.
In other words, although forty-three percent of file-swappers reported
downloading 100 files or more, only twenty percent of the downloaders in my
sample shared 100 files or more. (It is evidently common for users to move
files from their shared directories to non-shared directories from time to
time, which allows increased sharing as the size of their shared directories
grows with subsequent downloads. It would have been much simpler for users to
opt not to share any files, yet relatively few chose that option.) See Edison
Media Research, supra note 85.
n87. One study concludes that many Kazaa users do not realize they are sharing
files with other users. See Nathaniel S. Good
& Aaron Krekelberg, Usability and Privacy: A Study of Kazaa P2P File-Sharing 8,
at http://hpl.hp.com/shl/papers/kazaa/KazaaUsability.pdf (last visited Jan. 12,
2003) (on file with the Virginia Law Review Association). The methodology of
this study, however, is seriously flawed. During a twelve-hour period, the
researchers conducted 443 searches of the Kazaa network looking for users who
were sharing a Microsoft email file entitled
"Inbox.dbx." In these twelve hours, their searches turned up 156 such users. Id. at 2. On
the basis of this data, the authors conclude that
"a large number of users are currently sharing personal and private files
without their knowledge." Id. at 1. However, 156 is not a large number when compared with the millions
of Kazaa users who are not sharing their inbox files. For example, on January
12, 2003, there were 3,896,624 users logged in to the Kazaa network at 7:30
p.m. Central Standard Time. My search at 7:30 duplicating Good and Krekelberg's
methodology revealed only two users, Angel10005@kazaa and Sparky8403@kazaa, who
were sharing what appears to have been their inbox files. Placed in context,
the finding that during the course of twelve hours 156 users were therefore
unknowingly sharing their personal email hardly suggests that ignorance about
what content is being shared is widespread.
The second part of Good and Krekelberg's study is even less convincing. The
authors configured twelve computers to run Kazaa and share all of the files on
their hard drives. Good and Krekelberg then invited twelve subjects to use
these computers and asked them to determine whether they thought they were
sharing their files with network users. Id. at 7. Two subjects correctly noted
that all files were being shared, and eight subjects noted that some content
was probably being shared, but did not realize that all their files were being
shared. Id. at 8. The remaining two subjects incorrectly believed that no files
were being shared. Id. On the basis of that data, Good and Krekelberg concluded
"the majority of the users in our study were unable to tell what files they were
sharing, and sometimes incorrectly assumed they were not sharing any files when
in fact they were sharing all files on their hard drive." Id. at 1.
Good and Krekelberg fail to notice an obvious explanation for their users' poor
recognition. While the experimenters enabled sharing in the Kazaa software,
they also prevented any other members of the networks from actually downloading
files from their computers. An easy and intuitive way to determine whether a
Kazaa-enabled computer is set to share files with other members of the network
is to look at the
"uploads" window in Kazaa and wait for another user to begin downloading content. The
uploads screen, as the authors recognize, appears adjacent to the downloads
window in Kazaa. Id. at 6. It is only natural that after seeing no one download
any of their files during an entire Kazaa session, many users would conclude
that file-sharing was disabled. Had the firewall not been in place, and had
third parties actually been able to download files from the subjects'
computers, the subjects easily would have seen that sharing was enabled. In
light of the way that Good and Krekelberg skewed the test, it is remarkable
that five-sixths of their subjects actually stated that they believed sharing
was enabled. In a real-world scenario, the sharing of content on Kazaa is
n88. A Gnutella search reveals that approximately an equal number of
"Flight of the Bumble Bee" files identify its composer as Beethoven and Rimsky Korsakov. Rachmaninoff is
the next most popular answer, followed by Tchaikovsky, and even Mozart.
n89. From March to August 2001, I downloaded a large sample size of MP3 files
from Napster, Gnutella (using BearShare), and MusicCity's Morpheus. As best I
can determine, less than one-half of one percent of these files were
substantially mislabeled as to artist or title. One mild form of
misidentification is common: Pornographic files are often labeled using obvious
pornographic terms in addition to the name of a popular artist. For example, a
"Christina Aguilera" on Gnutella will turn up hundreds of MP3 files by that artist and a few
hardcore pornographic files in which the word Aguilera is surrounded by
sexually explicit words. This method is apparently used by pornography lovers
as a way of exposing their pornographic content to a large group of potential
downloaders. Of course, no one who downloads such a file would entertain the
notion that the file has even the most remote connection to Christina Aguilera.
This mislabeling therefore has little effect on trust among members.
n90. See, e.g., David Anderson, SETI@home, in Peer-to-Peer: Harnessing the
Benefits of a Disruptive Technology, supra note 7, at 67, 73 (discussing the
SETI@home application, which allows computer users to donate their excess
processing capacity to the analysis of radio waves pursuant to the search for
extraterrestrial life, and noting that a number of participants
"doctored their result files, making it appear that their computers had found a
n91. One effort to mislabel files is described at Cuckoo Egg FAQ, at
http://www.hand-2-mouth.com/cuckooegg/eggfaq.htm (last visited Jan. 12, 2003)
(on file with the Virginia Law Review Association).
n92. See John Schwartz, File Swapping Is New Route for Internet Pornography,
N.Y. Times, July 28, 2001, at C1; MSNBC, Gnutella Ignites Porn, Pirate Worries,
ZDNet, at http://zdnet.com.com/2100-11-519877.html (Apr. 12, 2000) (on file
with the Virginia Law Review Association).
n93. For illuminating discussions of shame sanctions, see Eric A. Posner, Law
and Social Norms 88-111 (2000); Dan M. Kahan, What Do Alternative Sanctions
63 U. Chi. L. Rev. 591 (1996); James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?,
107 Yale L.J. 1056 (1998).
n94. An IP address is an Internet Protocol address. Each computer connected to
the Internet is assigned a unique IP address. Some Internet Service Providers
use dynamic IP addresses, meaning that someone logging in to the Internet on
multiple occasions would be assigned a different IP address each time.
n95. Kan, supra note 39, at 118-19; MSNBC, Gnutella Porn Surfers Exposed,
ZDNet, at http://zdnet.com.com/2100-11-520437.html?legacy=zdnn (May 3, 2000)
(on file with the Virginia Law Review Association).
n96. See Zeropaid Clan, Fakeroo, at http://www.zeropaid.com/busted/fake.php
(last visited Nov. 24, 2002) (on file with the Virginia Law Review
n97. For an extended discussion, see Music City: We Can't Stop Child Porn, at
http://www.zeropaid.com/news/articles/auto/09192001a (last visited Dec. 1,
2002) (on file with the Virginia Law Review Association).
n98. Kan, supra note 39, at 119.
n99. Approximately one and one-half percent of the MP3 files in the sample I
downloaded were significantly flawed. Most of these songs were incomplete, and
a few songs contained harsh and mysterious noises.
n100. Mislabeling ordinarily can be detected within a note or two, and a user
who plays a song on his computer before burning it onto his CD would likely
delete the mislabeled version and try to find a properly labeled version. By
contrast, a degraded version of a song that skips or cuts off early might not
be detected by a user until it is burned onto a CD and listened to in its
entirety. At that point, the user generally will not be able to erase the
flawed file, and will need to endure the imperfect version or burn a new CD.
n101. At the time I was conducting my research in late 2001, BearShare, a
Gnutella program, permitted users to examine how long users who had made files
available had been logged in to the system. (Note, however, that this data was
provided only with respect to about half of all users.) The data generally
showed that the majority of users logged on to the network for less than a few
hours, but that a (not insignificant) minority of users logged on for days at a
n102. See High-Speed Hookup Could Let You Download Napster Better, Houston
Chron., May 12, 2000, at 4; Kelly Truelove, Gnutella: Alive, Well, and Changing
Fast, The O'Reilly Network, at
http://www.openp2p.com/lpt/a//p2p/2001/01/25/truelove0101.html (Jan. 25, 2001)
(on file with the Virginia Law Review Association).
n103. See Truelove, supra note 102 ("Hosts may go offline or change their content between the point of advertising a
file and the point of receiving a download request.").
n104. For a discussion of aspirational norms that are not strongly adhered to,
see Lior Jacob Strahilevitz, How Changes in Property Regimes Influence Social
Norms: Commodifying California's Carpool Lanes,
75 Ind. L.J. 1231, 1240-41 (2000).
n105. See generally Gnutella Forums: Gnutella Network Discussion: being nice
http://www.gnutellaforums.com/showthread.php?s=18602f5a72f0507e902dc801c84ba751&threadid=1988 (last visited Nov. 24, 2002) (on file with the Virginia Law Review
Association) (displaying postings of various users that discuss the
"netiquette" of signing off the Gnutella network while another's download is in progress).
n106. See id.
n107. See Robert Axelrod, The Emergence of Cooperation Among Egoists, 75 Am.
Pol. Sci. Rev. 306, 308-16 (1981).
n108. For discussions of anonymity on the Internet and its influence on social
norms, see Lawrence Lessig, Code and Other Laws of Cyberspace 30-34 (1999);
April Mara Major, Norm Origin and Development in Cyberspace: Models of
78 Wash. U. L.Q. 59, 95-102 (2000).
n109. See, e.g., Why LimeWire?, at http://www.limewire.com (last visited Feb.
7, 2003) (on file with the Virginia Law Review Association) (noting that
""swarm' downloads from multiple hosts help get files faster").
n110. See id. (describing the availability of
n111. See Wu, supra note 47 (manuscript at 25) (noting
"widespread anecdotal evidence to suggest a normative difference between
commercial and non-commercial copying") (citation omitted).
n112. Before Internet access became widespread, computer Bulletin Board
Services ("BBS"'s) made hacked copies of computer games and other software available to their
members, often for free. That said, the universe of members was ordinarily
constrained geographically to those for whom dialing into the BBS would be a
local call. (Given the slowness of downloads on the modems of the day, very few
individuals would find it worth their while to pay long distance telephone
rates in order to access a remote BBS.) Moreover, BBS system operators ("sysops") who made copyrighted content available numbered only in the thousands
domestically. Sysops were an odd bunch - I know, as I used to be one during my
teenaged years - and very dissimilar from society as a whole. For more on sysop
culture, see Jonathan Marshall, Boom in Computer Bulletin Boards: Off-Roading
Beyond the Internet, S.F. Chron., Dec. 5, 1994, at A1. Once Napster brought in
tens of millions of domestic file-swappers, it began dealing with a user
population that was much more reflective of society as a whole and mainstream
n113. See Comments of Peter K. Schalestock, Panel One: The Road to Napster:
& Digital Content,
50 Am. U. L. Rev. 363, 381 (2000).
n114. One needs to be cautious in suggesting that popular attitudes have
shifted in response to technological change. Not surprisingly, Gallup never
thought to ask the people it polled in the early 1980s whether it would be
morally wrong to obtain free sound recordings from strangers over computer
networks; existing technologies simply did not make such behavior feasible, and
so it never occurred to anyone to ask about it. What one can do is compare the
survey responses of Americans socialized during the pre-Internet era to those
of Americans who grew up in the last decade to see whether they view
file-swapping differently. If we detect a difference in the two groups'
responses, then we may be in the midst of a shift in norms, with older
Americans adhering to the norms they acquired during their formative years and
younger Americans embracing a new norm. It turns out that different age groups
view the morality of file-swapping quite differently.
According to a Pew poll taken shortly before the Napster decision, sixty-four
percent of those between the ages of eighteen and twenty-nine believe that
there is nothing wrong with downloading music for free off the Internet.
& Fox, supra note 15, at 6. By contrast, forty-three percent of those aged
thirty to forty-nine and twenty-eight percent of those aged fifty to sixty-four
believe that there is nothing wrong with such downloading. Id. Fifty-one
percent of Internet users aged eighteen to twenty-nine had downloaded music by
February 2001, compared to only twenty-three percent of those aged thirty to
forty-nine, and fifteen percent of those Internet users aged fifty or older.
& Rainie, supra note 19, at 4. Edison Media Research asked respondents whether
they agreed with the following statement:
"There is nothing morally wrong about downloading music for free from the
Internet." Edison Media Research, supra note 85. Seventy-four percent of those aged
twelve to seventeen agreed with the statement, as did fifty-nine percent of
those aged eighteen to twenty-four. Yet only forty-five percent of those aged
twenty-five to thirty-four and thirty-nine percent of those aged thirty-five to
forty-four agreed with the statement. Id. While a change in norms is the most
plausible account for these differential polling results, it is also
conceivable that older respondents are naturally more skeptical of technologies
that challenge existing property regimes or that older respondents have a more
informed understanding of the justification for providing record labels with a
revenue stream through album sales. The passage of time will resolve this
question, as pollsters will have an opportunity to examine whether today's
youthful cohorts carry their pro-file-swapping views with them into middle age.
n115. Yannis Bakos et al., Shared Information Goods,
42 J.L. & Econ. 117, 123 (1999).
n116. Napster also flourished at a time when CD burning technology was becoming
inexpensive. Raymond Shih Ray Ku, The Creative Destruction of
Copyright: Napster and the New Economics of Digital Technology,
69 U. Chi. L. Rev. 263, 273-74 (2002).
n117. See Strahilevitz, supra note 104, at 1234 n.11.
n118. McAdams posits that norms are enforced and effective because individuals
value esteem among their peers, and compliance with and enforcement of existing
norms are ways of obtaining esteem from peers. See Richard H. McAdams, The
Origin, Development, and Regulation of Norms,
96 Mich. L. Rev. 338, 355-72 (1997); see also Robert Sugden, Spontaneous Order, 3 J. Econ. Persp., Fall 1989, at
85, 95-97 (articulating a similar theory). By contrast, Posner argues that
norms are enforced and adhered to because compliance with norms is a means by
which a member of society signals to his peers that he is an individual with a
low discount rate, and hence someone who would be a good partner for future
cooperative relationships and transactions. Posner, supra note 93, at 18-27.
n119. Strahilevitz, supra note 104, at 1234 n.11.
n120. See Neal Kumar Katyal, Criminal Law in Cyberspace,
149 U. Pa. L. Rev. 1003, 1009 (2001); Tom R. Tyler, Trust and Law Abidingness: A Proactive Model of Social
81 B.U. L. Rev. 361, 398-99 (2001).
n121. See Robert D. Cooter, Decentralized Law for a Complex Economy: The
Structural Approach to Adjudicating the New Law Merchant,
144 U. Pa. L. Rev. 1643, 1694 (1996); Dan M. Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem,
67 U. Chi. L. Rev. 607, 607-09 (2000); Saul Levmore, Norms as Supplements,
86 Va. L. Rev. 1989, 1998-99, 2006-08 (2000); Tyler, supra note 120, at 402.
n122. See Lessig, supra note 108, at 92-93; Cass R. Sunstein, Social Norms and
96 Colum. L. Rev. 903, 910 (1996).
n123. See Spencer E. Ante, Inside Napster, Bus. Wk., Aug. 14, 2000, at 112,
114-15. It is worth noting that Napster's programmers did not create their new
network out of whole cloth. Rather, the Napster network was made possible by a
number of technological innovations during previous years, including the
development of various file transfer protocols, the spread of high-speed
Internet access, and the creation of the MP3 format for compressing sound
recordings. Baker, supra note 8, at 6; Sheldon W. Halpern, The Digital Threat
to the Normative Role of
62 Ohio St. L.J. 569, 569 (2001). Another factor that helped make Napster possible was the proliferation of the
"Netscape business model," whereby software creators obtained venture capital financing that would allow
them to give away their software applications to end users. See generally David
& David Post, Law and Borders - The Rise of Law in Cyberspace,
48 Stan. L. Rev. 1367, 1384-85 (1996) ("One such strategy has already begun to emerge: giving away information at no
charge - what might be called the
"Netscape strategy' - as a means of building up reputational capital that can
subsequently be converted into income (for example, by means of the sale of
services).") (citation omitted). The theory behind this business model was that giving
away content would allow applications to gain market share and that this market
share could later be exploited to generate revenue through advertising, sales
of upgrades, and the like. Napster followed the Netscape model.
n124. Ante, supra note 123, at 115.
n126. Comments of Ann Bartow, Panel Three: New Business Models, Regulatory
Options and the Future of
Copyright on the Internet,
50 Am. U. L. Rev. 425, 442 (2000); Greenfeld, supra note 7, at 64. Evidently, his uncle, an important business
strategist for the start-up, did give the legality of Napster a great deal of
thought, and consulted with legal counsel rather early on during the company's
existence. Ante, supra note 123, at 115.
A & M Records v. Napster, Inc., 114 F. Supp. 2d 896, 903 (N.D. Cal. 2000); Shirky, supra note 7, at 28.
n128. Ante, supra note 123, at 115.
n129. Becky Beaupre, Suit Can't Stop Napster from Gaining, Chi. Sun-Times, Aug.
28, 2000, at 26 (suggesting that by July of 2000, Napster had
"at least 25 million" users).
n130. Ante, supra note 123, at 115.
n131. Martyn Williams, Internet Update, Newsbytes, July 23, 1999, available at
LEXIS, Wire Service Stories File.
n132. Zvika Alberger, Cutting the Chords: MP3 Has Replaced Sex as the Biggest
Thing on the Internet, Ha'Aretz (Tel Aviv, Israel), Nov. 2, 1999, available at
Westlaw, Westnews, AP Newswires - Plus File.
n133. See Janelle Brown, MP3 Crackdown, Salon.com, at
http://www.salon.com/tech/log/1999/11/17/riaa/index.html (Nov. 17, 1999) (on
file with the Virginia Law Review Association).
n134. See Don Clark, Recording Industry Group Sues Napster, Alleging
Copyright Infringement on Net, Wall St. J., Dec. 9, 1999, at B18.
n135. For a discussion of the role that opinion leaders generally play in
transforming norms, see Robert C. Ellickson, The Market for Social Norms, 3 Am.
& Econ. Rev. 1, 16 (2001).
n136. David de Groot, Napster: A History, Epinions.com, at
http://epinions.com/cmd-review-38E8-2919A149-3A426109-prod2?sp=ink (Dec. 21,
2000) (on file with the Virginia Law Review Association).
n137. See Reuters, Napster Users Majority on Campus, Wired News, at
http:/www.wired.com/news/culture/0,1284,36354,00.html (May 15, 2000) (on file
with the Virginia Law Review Association).
n138. Clark, supra note 134, at B18; see also Ante, supra note 123, at 114 ("In an e-mail obtained by Business Week, John Fanning even suggests that there
is only a 10% chance that Napster could lose a court case."); Greenfeld, supra note 7, at 66 (quoting the assertion of Napster attorney
David Boies that the company had a fifty-fifty chance of prevailing in the RIAA
lawsuit); Eric Boehlert, The Great MP3 Love Fest: Has the Press Given Napster a
Free-ride?, Salon.com, at
1, 2000) (on file with the Virginia Law Review Association) ("From the get-go, disturbing signs suggested the press was more interested in
advancing Napster's story as a David-vs.-Goliath tale than in seriously
addressing the intricate issues at hand."). But see Brown, supra note 133, ("While ripping yourself an MP3 copy of a CD you've purchased for personal use is
perfectly legal, it is illegal to share that file with anyone else.").
n139. See Richtel, supra note 1.
n140. See id.
n141. See Ron Harris, Testdrive: File Sharing Applications, Orlando Sentinel,
July 27, 2001, available at LEXIS, Global News Wire File.
A & M Records v. Napster, Inc., 114 F. Supp. 2d 896, 910 (N.D. Cal. 2000) (emphasis added).
& Fox, supra note 15, at 5. As with any poll, the way the question is posed
alters the results somewhat. When specifically asked about
copyright infringement, a larger minority of Internet users expressed concerns about the
morality of their activity. Sixty-one percent of downloaders stated that they
do not care whether the music they downloaded is copyrighted, whereas
thirty-one percent stated that the music's copyrighted status was something
that concerned them. Id.
n144. Id. at 6. Another poll of home Internet users conducted during the summer
of 2000 revealed similar results. Just 23.4% of those polled agreed with the
"downloading music without paying for it is a form of piracy and should be
illegal," whereas 46.3% disagreed. Poll Suggests Home PC Users Favor Napster's
Arguments, Tech L.J. (July 27, 2000), at
http://www.techlawjournal.com/intelpro/20000727.asp (on file with the Virginia
Law Review Association). A mere 15.6% favored shutting down services such as
Napster and Gnutella, whereas 45.1% opposed such a shutdown. Id. Finally 55.9%
of those polled agreed with the statement that
"downloading music over the Internet is simply a harmless way of allowing free
exchange of music," whereas 17% disagreed. Id. The wording of the Tech Law Journal questions was
somewhat problematic (for example, everyone ought to agree that downloading
public domain music without paying for it should not be illegal, but the poll
did not distinguish between authorized and unauthorized downloading of free
music). These concerns aside, the results of that poll generally comport with
those of the Pew Center's more reliable poll. A similar poll conducted at
approximately the same time revealed similar results. See Press Release,
Majority of Americans Agree that Downloading Free Music from the Internet Will
Increase, Taylor Nelson Sofres Intersearch, at
http://www.intersearch.tnsofres.com/press/releases/violations.htm (Feb. 22,
2001) (on file with the Virginia Law Review Association) (finding that 18% of
Internet users said downloading music from the Internet without paying is wrong
and that they would not do it; that 11% of users said it is wrong, but everyone
else does it, so they would probably do it too; and that 59% said it is not
wrong and they would probably do it).
n145. Edison Media Research, supra note 85. Edison Media also asked those who
had downloaded music off the Internet in the past whether they had reservations
about doing so in the future. Thirty-eight percent said they had no
reservations about doing so, fifty-four percent said they had some reservations
about doing so, and five percent stated that they would not download in the
n146. See Strahilevitz, supra note 104, at 1242 n.53.
n147. See supra text accompanying notes 92-95.
n148. See Melanie Warner, The New Napsters, Fortune, Aug. 12, 2002, at 115, 116
("The RIAA is considering a far riskier strategy - suing individuals who share
large numbers of files on Kazaa, Grokster, or Morpheus. It's a tactic
guaranteed to infuriate and alienate music fans, and it underscores the awful
bind record labels are in.").
n149. Litan, supra note 48, at 1070; see also Deborah Tussey, From Fan Sites to
Filesharing: Personal Use in Cyberspace,
35 Ga. L. Rev. 1129, 1158-59 (2001) (noting that owners are more likely to target commercial enterprises because
of the unpopularity and difficulty of targeting individual users); Aaron M.
Bailey, Comment, A Nation of Felons?: Napster, the Net Act, and the Criminal
Prosecution of File-Sharing,
50 Am. U. L. Rev. 473, 514 (2000) (discussing the factors that prevent prosecutions of individual
n150. Alderman, supra note 29, at 163 (referring to a statement made by Senator
n151. Greenfeld, supra note 7, at 66.
n152. Most of the Gnutella applications are open source applications, meaning
that the code is made public, so any programmer is licensed to alter and
distribute applications that contain elements of the original open source
program, provided she in turn makes her own applications available to the
n153. Stephen M. McJohn, The Paradoxes of
9 Geo. Mason L. Rev. 25, 42 (2000). For a balanced and insightful account of the open source programmers'
incentives and motivations, see David McGowan, Legal Implications of
2001 U. Ill. L. Rev. 241 (2001). For discussions of social norms among computer hackers, with whom Gnutella
creators may also identify, see Lessig, supra note 108, at 194, and Major,
supra note 108, at 77-78.
n154. Major, supra note 108, at 76.
n155. Glynn S. Lunney, Jr., The Death of
Copyright: Digital Technology, Private Copying, and the Digital Millennium
87 Va. L. Rev. 813, 868 n.186 (2001); see also Brown, supra note 78 (""There's very little reward for you sharing your files, and there's a high cost
... because [due to bandwidth limitations] even if you're on a DSL connection
you can't do other things that you want to do.'") (quoting a statement made by Eytan Adar).
n156. See supra note 71 and accompanying text.
n157. See, e.g.,
18 U.S.C. 2252 (2000) (criminalizing the uploading of visual depictions of actual minors
engaging in sexually explicit conduct).
n158. This discussion is foreshadowed in Lemley, supra note 63, at 1287 ("Code can also serve to enforce social norms. Rules of behavior can be designed
into the architecture of the Net itself, or written into software that is used
in particular cases ... . If the code is written with Net norms in mind, it can
reinforce those norms ... ."). My discussion is complementary to the approach expressed in Lessig, supra
note 108, at 85-90. Lessig identifies four
"regulators" in cyberspace: law, markets, norms, and architecture. Id. at 87-88. In
Lessig's view, architecture, or code, is a particularly powerful regulator of
liberty in Cyberspace. Id. at 86. Lessig sees code as rules that are built into
the architecture of the Internet and software applications. See, e.g., Lawrence
Lessig, Reading the Constitution in Cyberspace,
45 Emory L.J. 869, 896 (1996) ("These are constraints, just as law and social norms are constraints, but they
are not constraints that one chooses to follow or not. One cannot flout the
password requirement."). The example of the file-swapping networks demonstrates that code itself can
significantly influence social norms and user behavior.
n159. Supra text accompanying notes 69-70.
n160. What Is Gnutella?, supra note 44.
n161. Of course, like many acts on the Internet, file-sharing is quite visible
in cyberspace, but virtually invisible in real space. In real space,
file-sharing consists mostly of an individual using his home computer to run a
file-swapping application. Few of the file-sharer's neighbors are likely to
learn of the
copyright infringement that is occurring in such close proximity to them. Yet to fellow
file-swappers in cyberspace, the transaction will be quite visible, even if the
parties' true identities are not. Cf. Tussey, supra note 149, at 1160 (noting
that downloading copyrighted materials off the Internet,
"while accomplished in private surroundings, is essentially a public transaction"). In this sense, file-swapping networks, which broadcast the extent of
criminal behavior, are different from other forms of criminality on the
Internet. See generally Katyal, supra note 120, at 1109 ("Unlike crimes in realspace, those in cyberspace are almost always invisible.
There are no bars on the windows to glimpse and no loiterers and panhandlers to
avoid."). The important exception arises in college dormitories, where students have
little privacy and file-sharing therefore may be quite visible, even in real
n162. Until recently, Gnutella applications did not allow a user to locate
non-sharers on the network - they were essentially invisible. On
Kazaa/MusicCity, non-sharers are exceedingly well camouflaged. To locate
non-sharers on these networks, a user must make content available for
downloading, wait for other users to download the content, and then peek at the
downloaders' shared directories during the transfer, or shortly thereafter, to
determine whether these users are sharing any files. That is the methodology I
employed in my study of the Kazaa network, and I can testify to its cumbersome
and tedious nature.
n163. This statistic apparently includes the number of non-unique files being
shared. Thus, a thousand identical copies of the song
"Piano Man" would be counted as a thousand files being shared, not one file being shared.
n164. See Miller, supra note 58, at 77.
n165. See Peter J.D. Carnevale et al., Effects of Future Dependence, Liking,
and Repeated Requests for Help on Helping Behavior, 45 Soc. Psychol. Q. 9, 12
(1982) (introducing empirical research to suggest that even among individuals
who have known each other for only a few minutes, individuals were more likely
to help those whom they liked than those whom they did not like); Jane Allyn
& Hong-Wen Charng, Altruism: A Review of Recent Theory and Research, 16 Ann.
Rev. Soc. 27, 36, 47, 50 (1990) (presenting empirical evidence that affinity
and empathy between the donor and the donees engender increased helping
behavior); Jane Sell et al., Are Women More Cooperative Than Men in Social
Dilemmas?, 56 Soc. Psychol. Q. 211, 214 (1993) ("Literature concerning one type of social dilemma - resource replenishment -
suggests that in-group identity helps to build cooperation.") (citation omitted); cf. Jerome Rabow et al., Altruism in Drunk Driving
Situations: Personal and Situational Factors in Intervention, 53 Soc. Psychol.
Q. 199, 210 (1990) (discussing the importance of affinities among intoxicated
individuals and observers in prompting observers to intervene to prevent
intoxicated persons from driving vehicles).
n166. See, e.g., FAQ for BearShare, at http://www.bearshare.com/help/faq.htm
(last visited Feb. 6, 2003) (on file with the Virginia Law Review Association)
(posting responses to frequently asked questions about BearShare).
n167. See, e.g., Posting of Zeroshadow, Gnutella Forums: Gnutella Network
Discussion: being nice (etiquette), to gnutella.com, at
http://www.gnutellaforums.com/showthread.php?s=18602f5a72f0507e902dc801c84ba751&threadid=1988 (June 27, 2001) (on file with the Virginia Law Review Association).
n168. For a discussion of the consequences of increased homogeneity in
subgroups on the Internet, see Robert D. Putnam, Bowling Alone: The Collapse
and Revival of American Community 177-79 (2000). For an examination of how
limited exposure to dissenting views can cause members of a group to adopt
increasingly extreme viewpoints, see Cass R. Sunstein, Deliberative Trouble?
Why Groups Go to Extremes,
110 Yale L.J. 71, 89-90 (2000).
n169. Kazaa's creators use similar language. See Sharing and the P2P
Philosophy, Kazaa.com, at
http://www.kazaa.com/us/help/glossary/p2p_philosophy.htm (last visited Feb. 7,
2003) (on file with the Virginia Law Review Association) ("Responsible sharing is the cornerstone of a useful peer-to-peer experience. In
order for everyone to benefit from the collaboration, users need to share
appropriate files. Successful peer-to-peer is a two way street.").
n170. Gnutella applications are exceptional in this respect. On Gnutella,
different tabs denote uploads and downloads, so that a user may elect to look
only at his download screen without ever looking at his upload statistics.
n171. A user on MusicCity's Morpheus or Kazaa can increase or reduce the size
of the windows during a particular session, but these modifications cannot be
saved. So, while a user might shrink his upload screen into oblivion, the next
time he logs in to the network he will again see two adjacent screens of equal
size: one for uploads and the other for downloads.
n172. Earlier networks for trading copyrighted content built reciprocity rules
into their architecture and publicized reciprocity data as a means of
encouraging cooperative behavior. Roger Dingledine et al., Accountability, in
Peer-to-Peer: Harnessing the Benefits of a Disruptive Technology, supra note 7,
at 271, 307 ("In the bulletin board systems of the 1980s and early 1990s, one of the more
important pieces of data about a particular user was her upload/download ratio.
Users with particularly low ratios were derided as
"leeches,' because they consumed scarce system resources (remember, when one
user was on via a phone line, no one else could log in) without giving anything
in return."). Some bulletin board systems required users to maintain a set ratio of
uploads to downloads if they wished to continue to enjoy the
"privilege" of downloading.
n173. The most recent Kazaa release contains a somewhat similar feature. When a
user downloads a file, her
"participation level" is revealed, reflecting the extent of her sharing. Users with higher
participation levels now receive priority in downloading. See Participation
Level, Kazaa.com, at
http://www.kazaa.com/us/help/glossary/participation_ratio.htm (last visited
Jan. 19, 2003) (on file with the Virginia Law Review Association).
Unfortunately for Kazaa, computer programmers developed applications such as
Kazaa Lite, which falsely reports that each Kazaa user is an extreme sharer,
enabling Kazaa Lite free-riders to jump to the head of the downloading queue.
This Article was written in 2001 and 2002, when encouraging voluntary
cooperation was the dominant strategy for peer-to-peer networks, but as the
Article goes to press in 2003, it appears that the networks are embracing a
model of coerced cooperation. I believe this shift in tactics is unnecessary
and counterproductive for the file-swapping networks.
n174. See, e.g., Gnutella Forums: Options for Freeloading Prevention?, at
http://www.gnutellaforums.com/showthread.php?threadid=12038 (last visited Aug.
8, 2002) (on file with the Virginia Law Review Association) (displaying
postings of various users); Gnutella Forums: Stop Freeloading, at
http://www.gnutellaforums.com/showthread.php?threadid=9558 (last visited Aug.
8, 2002) (on file with the Virginia Law Review Association) (same). Those who
favor strong intellectual property protections are more likely to use the term
"freeloader" to refer to those users who are distributing content for which they have not
paid. See, e.g., Trotter Hardy, Property (and
Copyright) in Cyberspace,
1996 U. Chi. Legal F. 217, 220 (1996).
n175. Shirky, supra note 7, at 33 ("As long as Napster users are able to find the songs they want, they will
continue to participate in the system, even if the people who download songs
from them are not the same people they download songs from.").
n176. See infra Section III.D. See generally Lemley, supra note 63, at 1273
(arguing that norms based on intuitively reciprocal behaviors are likely to be
particularly effective); Major, supra note 108, at 83 ("Many non-digital social norms have greatly influenced the evolution of social
behavior in cyberspace."); Sugden, supra note 118, at 93 ("If it is a matter of common knowledge that a particular convention is followed
in one situation, then that convention acquires prominence for other, analogous
n177. Charismatic code may play an important role in creating and internalizing
social norms among people in the other loose-knit environment I have studied in
detail. Just as Napster's charismatic code masked the uncooperative behavior of
freeloaders, San Diego's FasTrak program masked the behavior of drivers who
were using toll/carpool lanes without authorization by making it more difficult
to determine whether a solo driver was using a carpool lane unlawfully.
Strahilevitz, supra note 104, at 1259-60. FasTrak also (unintentionally)
utilized drivers who were participating in the program to enforce the program's
norms. Id. at 1257-58. Charismatic technologies that mask uncooperative
behavior and magnify cooperative behavior may therefore help enforce social
norms in varied loose-knit environments.
n178. See supra note 118. McAdams might argue that by amassing large
collections of music and letting their real-world neighbors know they acquired
them, file-swappers demonstrate that they are (1) cultured (or at least in tune
with pop culture), (2) industrious, (3) on the cutting edge of technology, (4)
appropriately frugal, and/or (5) willing to embrace a counterculture.
Regardless of which of these social meanings is transmitted by file-swapping,
the relevant social meaning is perceived as socially beneficial, and so the
underlying behavior is sanctioned or even encouraged by a file-swapper's peers,
neighbors, or co-workers. File-swappers therefore gain esteem as a result of
their file-swapping behavior - at least from its visible manifestations - and
the potential to earn this reward attracts more file-swappers.
Posner might assert that by engaging in file-swapping, an individual signals to
others his discount rate and his suitability for future cooperative
transactions. So, for example, an employee who divulges his file-swapping
activities to his co-worker signals his resourcefulness, technological prowess,
or knowledge of popular music. When that co-worker subsequently seeks out the
file-swapper to discuss music, hire him as a disc jockey, or provide advice
about new speakers available at a computer store, the file-swapper's activities
n179. That is not to say that social norms provide the only satisfactory tool
for explaining such behaviors. It may be the case that the theory of loose-knit
groups' social norms articulated here provides a robust explanation for human
behavior in certain close-knit groups as well. Members of close-knit groups
might adhere to close-knit groups not out of concerns about being held in high
esteem or enticing others to engage in cooperative relations with one's self,
but because of internal guilt about violating a rule to which everyone else
appears to be adhering. The best test cases for such a theory are those
instances in which it is in the interest of a close-knit group's individual
member to violate a norm, and that member knows she can do so with zero risk of
being detected. In such situations, traditional accounts of social norm
conformity would have trouble explaining an individual's compliance with a
norm, but theories that focus on internalized feelings of guilt do not. In that
sense, then, the norm violation might not be detected by a third party, but it
is detected by the violator herself, and that detection confers disutility on
the violator. See generally Paul R. Amato, Urban-Rural Differences in Helping
Friends and Family Members, 56 Soc. Psychol. Q. 249, 261 (1993) (arguing that
norms of reciprocity in rendering assistance may be more strongly adhered to in
larger urban areas than in close-knit rural communities). I intend to take up
that issue in subsequent writings. For the time being, I adhere to the
plausible accounts put forth by Ellickson, Posner, and McAdams.
n180. Traditionally, social norms scholarship has focused on norms arising
among close-knit groups, such as cattle ranchers in a rural county or merchants
who can expect to deal with each other in the future. See, e.g., Ellickson,
supra note 5, at 177-78; Lisa Bernstein, Merchant Law in a Merchant Court:
Rethinking the Code's Search for Immanent Business Norms,
144 U. Pa. L. Rev. 1765, 1787-88 (1996). My scholarship seeks to explain the development and enforcement of social
norms in loose-knit environments. See Strahilevitz, supra note 104, at 1273
& n.216 (studying commuters on the San Diego highway system); Strahilevitz,
supra note 5, at 359 (discussing the emergence of social norms in a variety of
loose-knit and intermediate-knit settings).
Analyses of social norms in loose-knit communities present daunting challenges
and highlight the limitations of the existing scholarship regarding the
development of social norms. In response, it might be tempting for scholars to
deem Napster, Gnutella, urban freeways, and other loose-knit communities as
environments in which social norms as such do not arise. See, e.g., Jon Elster,
Social Norms and Economic Theory, J. Econ. Persp., Fall 1989, at 99, 100:
Social norms differ from private norms, the self-imposed rules that people
construct to overcome weakness of will. Private norms, like social norms, are
non-outcome-oriented and sustained by feelings of anxiety and guilt. They are
not, however, sustained by the approval and disapproval of others since they
are not, or not necessarily, shared with others.
Id. (citation omitted). I disagree with such a characterization. My argument
is that members of the loose-knit file-swapping networks cooperate with each
other largely because the networks' creators give their users a distorted
picture of the community - one likely to harness deeply engrained norms of
reciprocity. Those norms are private in the sense that they are internally
enforced - through file-swappers' desire to avoid feelings of guilt and
selfishness or to experience the warm glow associated with group solidarity.
While these norms are enforced and internalized differently than social norms
in close-knit groups, they are no less powerful, and they are by no means
n181. See Adar
& Huberman, supra note 69 (presenting data to support the hypothesis that
"the speed of a peer's internet connection will not influence the likelihood to
free-ride"); supra text accompanying note 92 (discussing the wide availability of
pornography on peer-to-peer networks).
n182. Indeed, one study of the prevalence of altruistic acts found that in the
pre-Napster world, helping strangers was the exception, rather than the rule.
Paul R. Amato, Personality and Social Network Involvement as Predictors of
Helping Behavior in Everyday Life, 53 Soc. Psychol. Q. 31, 34 (1990) ("Overall it is apparent that most of the helping was provided to familiar
others; complete strangers accounted respectively for only 11 percent and 9
percent of the helping behaviors reported by students and by nonstudents."). That was true even though the study included as
"helping" such low-cost steps as opening a door for someone who has his hands full,
giving the time of day to someone, and holding an elevator door open for
someone who wants to get inside before the doors close. Id. app. at 41-42.
Social psychologists also argue that the motivations for and impediments to
seeking help from strangers are quite different from those involved with
seeking help from friends or family members. E. Gary Shapiro, Is Seeking Help
from a Friend Like Seeking Help from a Stranger?, 43 Soc. Psychol. Q. 259, 262
n183. See Robert Sugden, Reciprocity: The Supply of Public Goods Through
Voluntary Contributions, 94 Econ. J. 772, 773-74 (1984); see also Lunney, supra
note 155, at 859-60 ("As part of the development of the free-rider concept, economists often begin
with the assumption that each consumer makes decisions to maximize her utility
based a narrow view of rational self-interest ... . Economists have ...
recognized that these assumptions are unlikely to prove generally accurate.
Self-sacrifice, cooperation, and charitable contribution, just to name a few
examples, are all extremely common and tend to refute ... to some extent, the
Robyn Dawes and Richard Thaler identify several instances in which people
behave altruistically even though their essential anonymity would allow them to
free-ride without suffering any social sanctions.
"Public television successfully raises enough money from viewers to continue to
broadcast. The United Way and other charities receive contributions from many
if not most citizens. Even when dining at a restaurant away from home in a
place never likely to be visited again, most patrons tip the server." Robyn M. Dawes
& Richard H. Thaler, Anomalies: Cooperation, J. Econ. Persp., Summer 1988, at
187, 188. These instances are interesting, but the case of file-sharing is
perhaps even more puzzling. After all, one common thread for PBS, the United
Way, and restaurant waiters is that they need money, probably more than the
donor needs money. PBS's annual struggle to meet its budget is well-documented
in its pledge campaigns; the United Way provides funding to organizations who
seek to accomplish good works and help those most in need; and waiters and
waitresses are generally poorer than their customers, and it is widely
understood that they
"live off" their tips. Similarly, the recipients of blood donations all need blood. From
these examples, sociologists have generalized that altruism is largely
dependent on the recipient's need for assistance. See C. Daniel Batson,
Prosocial Motivation: Is it Ever Truly Altruistic?, 20 Advances Experimental
Soc. Psychol. 65, 95 (1987); William Howard
& William D. Crano, Effects of Sex, Conversation, Location, and Size of Observer
Group on Bystander Intervention in a High Risk Situation, 37 Sociometry 491,
504 (1974). But cf. R. Lance Shotland
& Charles A. Stebbins, Emergency and Cost as Determinants of Helping Behavior
and the Slow Accumulation of Social Psychological Knowledge, 46 Soc. Psychol.
Q. 36, 38-39 (1983) (finding that while the recipient's
"need" for help did not affect a potential helper's propensity to render assistance,
the potential helper was more likely to render assistance if he perceived the
situation as an emergency). When a file-sharer makes a file available to
everyone on the Gnutella network, he necessarily gives it away to both those
starving students who cannot afford to purchase a licensed copy and those
middle-aged yuppies who could easily afford to buy the album but prefer to get
it for free. In short, a file-sharer's altruism is need-neutral. File-swapping
is in that sense more akin to intentionally leaving a twenty dollar bill on the
sidewalk than to donating twenty dollars to the Salvation Army. That said, even
though the contribution is need-neutral, individual users may assume that the
beneficiaries of their largesse are like themselves and, therefore, worthy of
receiving free music. See supra text accompanying note 165 (discussing affinity
effects). Indeed, where a recipient of altruistic assistance is completely
anonymous, the donor may even be inclined to imagine the recipient as
particularly needy, perhaps because doing so maximizes the psychic benefits
associated with the altruistic act. See J. Keith Murnighan et al., The
Volunteer Dilemma, 38 Admin. Sci. Q. 515, 535 (1993).
n184. An example with which many will be familiar illustrates that the
charismatic technologies I discuss in this Article are not entirely new - they
are just more sophisticated than previous versions. During the 1970s, situation
comedies typically introduced
"laugh tracks" onto the sound tracks of their television programs, cuing recorded laughter
after every punch line. The theory was that viewers at home would be more
likely to laugh if they heard others laughing along with them. These hackneyed
technologies fell out of favor after listeners became able to discern the
difference between laugh tracks and an actual studio audience. Today, many
comedy programs pay audience members to show up and provide real laughter,
albeit with much prodding from stage managers. Although the analogy is
imperfect, we can conceptualize charismatic code as an extremely sophisticated
laugh track that makes the program seem much funnier than it actually is.
n185. Alvin W. Gouldner, The Norm of Reciprocity: A Preliminary Statement, 25
Am. Soc. Rev. 161 (1960), is generally regarded as having initiated this
literature. Surveying the literature, Elinor Ostrom concludes
"that humans [likely] inherit a strong capacity to learn reciprocity norms" and that
"reciprocity is a basic norm taught in all societies." Elinor Ostrom, A Behavioral Approach to the Rational Choice Theory of
Collective Action, 92 Am. Pol. Sci. Rev. 1, 10 (1998).
n186. I borrow this definition, not from Gouldner, but from Takahashi. Nobuyuki
Takahashi, The Emergence of Generalized Exchange, 105 Am. J. Soc. 1105, 1108
(2000) ("Once an actor receives resources, she is obligated to return to someone else in
the future."). Takahashi has referred to the situation where A helps B and B helps A as
"restricted exchange," and the situation where A helps B and B helps C as
"generalized exchange." Id. at 1106; see also Martin A. Nowak
& Karl Sigmund, Evolution of Indirect Reciprocity by Image Scoring, 393 Nature
573, 573 (1998) (presenting a model showing how generalized exchange, which
"indirect reciprocity," might arise through evolutionary processes); Theo Van Tilburg et al., The
Measurement of Reciprocity in Ego-Centered Networks of Personal Relationships:
A Comparison of Various Indices, 54 Soc. Psychol. Q. 54, 55 (1991) (discussing
indirect reciprocity). File-swapping consists almost entirely of generalized
n187. Dan M. Kahan, Trust, Collective Action, and Law,
81 B.U. L. Rev. 333, 340-43 (2001). Truman Bewley has argued persuasively that reciprocity explains corporate
managers' general reluctance to reduce employees' wages. See Truman Bewley,
Fairness, Reciprocity, and Wage Rigidity (Cowles Found. Discussion Paper No.
1383, Oct. 2002), available at http://cowles.econ.yale.edu/P/cd/d13b/d1383.pdf.
n188. See Gouldner, supra note 185, at 176 ("The norm is not only in some sense a defense or stabilizing mechanism but is
also what may be called a
"starting mechanism.' That is, it helps to initiate social interaction and is
functional in the early phases of certain groups before they have developed a
differentiated and customary set of status duties."); sources cited supra note 176; see also Michael W. Macy, PAVLOV and the
Evolution of Cooperation: An Experimental Test, 58 Soc. Psychol. Q. 74, 78
(1995) ("Norms of reciprocity and conformity pose a start-up problem: if contribution
requires moral or social pressure, and if this pressure increases with the rate
of contribution, what gets the system started? One possibility, Elster
suggests, is the
"everyday Kantian' norm to act as you would have others act. This avoids the
start-up problem because the obligation to cooperate does not depend on the
extent of cooperation by others in the group."). Recent research suggests that when two players both cooperate in a
prisoner's dilemma situation, portions of their brains associated with the
production of pleasurable sensations are activated. See James K. Rilling et
al., A Neural Basis for Social Cooperation, 35 Neuron 395, 395-403 (2002).
Revealingly, some of the same brain areas were not activated when the subjects
were told they were cooperating with a computer in a prisoner's dilemma game.
Id. at 398. Because all subjects in the research were adults, the study does
not resolve the question of whether these neurological benefits from
cooperation are learned or innate. For an interesting discussion of that
question, see Neven Sesardic, Recent Work on Human Altruism and Evolution, 106
Ethics 128 (1995).
n189. Sally Ann Shumaker
& James S. Jackson, The Aversive Effects of Nonreciprocated Benefits, 42 Soc.
Psychol. Q. 148 (1979).
n190. Id. at 149 (citing M. Greenberg, A Theory of Indebtedness, in Social
Exchange: Advances in Theory and Research (K.J. Gergen et al. eds., 1980)).
Shumaker and Jackson's study casts doubt on an alternative explanation - that
those who are helped experience improved moods as a result, and that being in a
good mood makes one more likely to help others. Id. at 155-57.
n191. Id. at 149.
n192. Id. at 156.
n193. Id. A subsequent study provided further support for this conclusion.
Amato, supra note 182, at 40 ("The finding that help received from friends and family was associated with
spontaneous helping (mainly to strangers) is curious. It may reflect
generalized reciprocity; that is, people who receive a good deal of help
through their networks may feel a general obligation that can be discharged
partly by helping anyone - including strangers.") (citation omitted).
& Jackson, supra note 189, at 157.
n195. See Daniel Bar-Tal et al., Reciprocity Behavior in the Relationship
Between Donor and Recipient and Between Harm-Doer and Victim, 40 Sociometry
293, 298 (1977) (describing the feelings of indebtedness and obligation to
reciprocate after receiving assistance.); Martin S. Greenberg
& Solomon P. Shapiro, Indebtedness: An Adverse Aspect of Asking for and
Receiving Help, 34 Sociometry 290, 290-300 (1971) (describing a study that
showed participants were less likely to ask for help when they did not
anticipate being able to reciprocate); Roberta G. Simmons et al., The
Self-Image of Unrelated Bone Marrow Donors, 34 J. Health
& Soc. Behav. 285, 291 (1993) ("Donating bone marrow was seen as indirect reciprocation, a token of gratitude
for their own good fortune.") (citation omitted); see also Paula F. Levin
& Alice M. Isen, Further Studies on the Effect of Feeling Good on Helping, 38
Sociometry 141 (1975) (proposing that people help strangers after receiving
help from an anonymous stranger because receiving help put them in a good mood,
but presenting data consistent with an aversive effects explanation for
helping). The study of bone marrow donors presents one of the better case
studies by researchers seeking to understand why people would help strangers.
In the case of bone marrow donations, the costs of donating are relatively
high, consisting of pain, recovery time, and the risk of complications from the
procedure. Simmons et al., supra, at 287. As a result, the population of bone
marrow donors was unusually altruistic, and quite unlike a random sample of the
population. Id. at 290. Like file-swappers, bone marrow donors made sacrifices
(albeit much greater ones) to help people they had never met.
n196. See Bar-Tal et al., supra note 195, at 297 ("Individuals tend to feel most gratitude when they are helped by acquaintances
or strangers and least gratitude when they are helped by parents or siblings."); Shapiro, supra note 182, at 262 ("Friends are relatively unaffected by temporary imbalances in their relationship
since they have continuing exchanges and their past histories are generally
equitable. Strangers, having no past histories nor expectations of future
interaction, may find temporary imbalances much more disturbing.").
n197. It is unclear whether the brain registers the pleasure associated with
the avoidance of guilt and the pleasure associated with feeling good about
helping another differently. Rilling et al., supra note 188, at 400. I have
characterized guilt avoidance as the primary mechanism motivating cooperation
because that hypothesis seems to have the most support, but subsequent research
might suggest that humans affirmatively enjoy cooperating more than they
dislike non-cooperation. Bibb Latane and James M. Dabbs considered both the
guilt-avoidance and pleasure-seeking explanations for why people help strangers
and concluded that the view
"that people help others reluctantly in order to avoid feeling bad, is probably
the most popular in American social science today." Bibb Latane
& James M. Dabbs, Jr., Sex, Group Size, and Helping in Three Cities, 38
Sociometry 180, 190 (1975); cf. Dawes
& Thaler, supra note 183, at 192 ("Another type of altruism that has been postulated to explain cooperation is
that involved in the act of cooperating itself, as opposed to its results.
"Doing the right (good, honorable, ... ) thing' is clearly a motive for many
people. Sometimes termed impure altruism, it generally is described as
satisfaction of conscience, or of noninstrumental ethical mandates."); Piliavin
& Charng, supra note 165, at 32 (discussing the important connection between
altruism and an individual's self-image).
n198. See Simmons et al., supra note 195, at 287-97.
n199. See Greenberg
& Shapiro, supra note 195, at 300; see also Amato, supra note 179, at 254
(presenting the results of a study showing that people consistently
overestimate the amount of help they have given others and underestimate the
amount of help they have received from others).
& Thaler, supra note 183, at 191.
n201. It is possible that another guilt-alleviation story is working in the
background. Perhaps some file-swappers feel somewhat guilty about violating
copyright laws but manage to eliminate those feelings of guilt by sharing files. See
supra note 145 and accompanying text (noting that fifty-four percent of
"some reservations" about obtaining free music off the Internet). To be sure, sharing compounds
the illegality, but because sharing and cooperation are generally seen as
positive behaviors, such file-sharing might ameliorate the guilty pleasures
associated with downloading. Cf. Scott Rosenberg, But Isn't it Against the
Law?, Salon.com, at
7, 2000) (on file with the Virginia Law Review Association) ("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 ... .").
n202. See Ostrom, supra note 185, at 6-7 (reviewing the literature on these
kinds of experiments).
n203. Robert Cooter, Do Good Laws Make Good Citizens? An Economic Analysis of
86 Va. L. Rev. 1577, 1589-90 (2000); Sugden, supra note 183, at 774-75, 783.
n204. See Michael C. Roberts, On Being Imitated: Effects of Levels of Imitation
and Imitator Competence, 43 Soc. Psychol. Q. 233, 233 (1980) ("Models are attracted to an imitator and tend to subsequently imitate those
people who first imitate them ... . Imitation is a form of behavioral
similarity which provides consensual validation and thus decreases uncertainty
and unpredictability in the model. This then makes the model more confident of
an attitude or behavior ... .").
n205. See id. at 239.
n206. See also Piliavin
& Charng, supra note 165, at 41 ("Experimental studies have consistently shown that children display greater
generosity when they are exposed to generous models than to selfish models.") (citations omitted).
n207. See Tomonori Morikawa et al., The Advantage of Being Moderately
Cooperative, 89 Am. Pol. Sci. Rev. 601, 601 (1995); John Orbell
& Robyn M. Dawes, A
"Cognitive Miser" Theory of Cooperators' Advantage, 85 Am. Pol. Sci. Rev. 515, 515, 517 (1991);
Takahashi, supra note 186, at 1130.
n208. The Gnutella networks arguably do a better job of exploiting bounded
rationality to create an appearance of widespread sharing than networks such as
Kazaa. When a user types in a search request to Gnutella, the search will keep
running indefinitely, and the list of matching files will continue to scroll
down the screen. Kazaa, by contrast, defaults to show no more than 100 or so
n209. Cf. Ostrom, supra note 185, at 12 ("Reciprocators are likely to be more optimistic about finding others following
the same norm and disproportionately enter more voluntary social dilemmas than
nonreciprocators. Given both propensities, the feedback from such voluntary
activities will generate confirmatory evidence that they have adopted a norm
which serves them well over the long run."). There is anecdotal evidence to suggest that some community members are
likely to cooperate when they see that no one else is cooperating and when they
know that their own cooperative acts will engender significant benefits for the
group or its members. This helps explain the existence of heroically
cooperative acts, such as gentiles' harboring of Jews in Nazi-occupied Europe
during the Second World War. See Kristen R. Monroe et al., Altruism and the
Theory of Rational Action: Rescuers of Jews in Nazi Europe, 101 Ethics 103,
112-13 (1990). Even if that anecdotal evidence is indicative of a general
trend, it is not inconsistent with the theory of cooperation relied upon in
this Article. The propensity to cooperate may still be a function of the number
of cooperators perceived by someone who must decide whether to cooperate, but
the relationship between perceived cooperation and the propensity to cooperate
would be parabolic rather than linear. The instinct to cooperate is therefore
initially high when no one else visibly cooperates, slopes downward
dramatically when a few members in a large group are seen to be cooperating,
and slopes upward dramatically as perceived cooperation increases and
reciprocity instincts are triggered.
n210. See Atip Asvanund et al., An Empirical Analysis of Network Externalities
in P2P Music-Sharing Networks 1-4, 7 (Carnegie Mellon Univ. H. John Heinz Sch.
of Pub. Policy and Mgmt. Working Paper No. 2002-37, July 2002), available at
n211. See Sugden, supra note 183, at 781-82.
n212. Bar-Tal et al., supra note 195, at 293 ("Recently, several investigators have extended the principle of reciprocity that
is applied in helping situations to contexts in which harm-doing occurs. The
results of these studies have suggested that, in general, individuals tend to
reciprocate harm done to them.") (citation omitted). Bar-Tal et al. point to one potential constraint on
anti-cooperation cascades in loose-knit environments. Id. at 297 ("Individuals tend to feel most resentment when they are harmed by parents or
siblings and least resentment when they are harmed by strangers.").
n213. H. Wesley Perkins, College Student Misperceptions of Alcohol and Other
Drug Norms Among Peers: Exploring Causes, Consequences, and Implications for
Prevention Programs, in Designing Alcohol and Other Drug Prevention Programs in
Higher Education: Bringing Theory into Practice 177, 183-94 (1997). Perkins's
data shows that while only nineteen percent of students at a liberal arts
college said they viewed frequent intoxication as acceptable even if it
interfered with other responsibilities, sixty-three percent perceived that view
as the dominant one among their fellow students. Id. at 184.
n214. Id. at 190.
n215. Id. at 190-91.
n216. Id. at 191.
n217. Id. at 192.
n218. See Michael P. Haines, A Social Norms Approach to Preventing Binge
Drinking at Colleges and Universities 11 (1996); Perkins, supra note 213, at
194. A similar dynamic emerges when taxpayers are informed that, contrary to
what they might believe, the overwhelming majority of taxpayers do not cheat on
their taxes. Taxpayers in Minnesota who received letters referencing the
pervasiveness of compliance with tax laws paid their taxes at higher rates than
did members of a control group. Stephen Coleman, Minn. Dep't of Revenue, The
Minnesota Income Tax Compliance Experiment: State Tax Results 18-19, 25 (Apr.
1996), available at http://www.taxes.state.mn.us/reports/complnce.pdf.
n219. See, e.g., Ramayya Krishnan et al., The Virtual Commons: Why Free-Riding
Can Be Tolerated in File Sharing Networks 2 (Carnegie Mellon Univ. H. John
Heinz Sch. of Pub. Policy and Mgmt. Working Paper No. 2002-36, Jan. 2002),
available at http://www.heinz.cmu.edu/wpapers/detail.jsp?id=4255 ("While users share downloaded content, by default, they can and frequently do
turn off this feature to economize on their own private allocation of bandwidth.").
n220. See Piliavin
& Charng, supra note 165, at 32.
& Shapiro, supra note 195, at 291 ("It must be pointed out, however, that reciprocation is neither the only mode
nor necessarily the preferred mode for reducing indebtedness. The individual
can reduce the magnitude of indebtedness by cognitively restructuring the
situation. For example, he might devalue the help received and/or increase the
magnitude of his costs and the donor's rewards for giving.").
& Crano, supra note 183, at 493, 501-02; Latane
& Dabbs, supra note 197, at 185-88; Piliavin
& Charng, supra note 165, at 35.
n223. I have heard National Public Radio stations report that only ten percent
of their listening audience contributes during membership drives. At the same
time, National Public Radio supplies anecdotal evidence to suggest that
"listeners like you" are contributing: hence, the audible ringing of telephones in the background
during appeals for contributions, and the publication of donors' names and
hometowns over the airwaves.
n224. See, e.g., Michael Goldberg, 20 Million Napster Fans Can't be Wrong,
InsiderOne, at http://insiderone.net/drama/drama003.html (Aug. 14, 2000) (on
file with the Virginia Law Review Association) ("Like smoking a joint or chugging a six-pack, using Napster lets a 15-year-old
give mom and dad the finger and express solidarity with fellow members of what
Spin has called
"Generation Mook.' But it's not just the kids who are ripping off the
copyright holders. I know one 45-year-old man who's filled his hard drive with music he
hasn't paid for. He's not rebelling. He says he's a victim of a corporate music
business that charges too much for music.").
n225. See supra text accompanying notes 84-85.
n226. My data on the types of sound recordings downloaded by Kazaa/MusicCity's
users suggests that there are not broad cultural differences in the levels of
sharing prevalent on the network. For example, those who downloaded Spanish
language sound recordings shared their files at almost precisely the same rates
and levels as those who downloaded English language sound recordings.
Sixty-four percent of those downloading Spanish language songs shared files,
versus sixty-nine percent for all other music downloaders. These results
suggest that file-sharing is not driven by any peculiar attributes of
Anglo-American culture. That said, some caution is in order in interpreting
this data in light of the small sample size (thirty-nine downloads of Spanish
language music), and the increasing, albeit still limited, popularity of
Spanish language music among those who speak only English.
n227. See supra note 199 and accompanying text.
n228. My account presumes that users do not derive much expressive value from
anonymously mimicking their peers' mainstream expressions.
n229. See Asvanund et al., supra note 210, at 12 (noting that
"song availability was very low for a random selection of songs from all artists" on the OpenNap P2P network); cf. Eric Boehlert, Napster Sound Bite: Feelin'
Groovy, Salon.com, at
19, 2000) (on file with the Virginia Law Review Association) (providing
examples of popular musical hits downloaded by Napster's own executives).
n230. Kazaa and the latest Limewire application both permit users to chat with
other users, so some contact might occur with
"publishers." Notably, significant numbers of network users appear to disable the chat
function, precluding other users from contacting them. During my study of
Kazaa, which entailed scores of hours spent online, only one other user
attempted to chat with me.
239 F.3d 1004 (9th Cir. 2001).
id. at 1024-27.
n233. See supra text accompanying note 4.
n234. See supra note 145 and accompanying text.
Napster, 239 F.3d at 1027-28.
id. at 1014-22.
Id. at 1027.
Id. at 1029. As per usual Ninth Circuit practice, the court's mandate was withheld pending
an application for rehearing en banc. In extraordinary cases - such as Napster
- the court has the option of having its mandate issue immediately. See
Fed. R. App. P. 41(b); see also 9th Cir. R. 41-1 advisory committee's note ("Only in exceptional circumstances will a panel order the mandate to issue
immediately upon the filing of a disposition. Such circumstances include cases
... where an emergency situation requires that the action of the Court become
final and mandate issue at once.").
& M Records v. Napster, Inc., No. C 99-05183 MHP, 2000 U.S. Dist. LEXIS 6243, at
6-7 (N.D. Cal. May 5, 2000).
n240. See supra notes 53-55 and accompanying text.
n241. See supra Section III.B.
n242. See P.J. Huffstutter, Users Outwit Napster's Effort to Block Copyrighted
Songs, L.A. Times, Mar. 6, 2001, at C1 ("Fans are also flocking to
"translator' Web sites, where they can type in the name of an artist or a song
title and learn what permutations are being used on Napster."); Graziano
& Rainie, supra note 19, at 3 ("Users give multiple titles to individual songs, in some cases, in apparently
deliberate attempts to ensure popular songs are not recognized by Napster's
copyrighted-song sniffing system.").
n243. See Richard J. Gilbert
& Michael L. Katz, When Good Value Chains Go Bad: The Economics of Indirect
52 Hastings L.J. 961, 979 (2001) (observing that the recording companies alleged that Napster allowed its
electronic bulletin boards to be used to disseminate information on renaming
A & M Records v. Napster, Inc., 114 F. Supp. 2d 896, 917 (N.D. Cal. 2000).
n245. Had Napster been forced to take its web site offline temporarily pursuant
to the court's injunction, it likely would have censored any discussion of
Napster alternatives in its forums upon the service's re-launch. After all, the
discussion of Napster alternatives that occurred in those forums spurred many
of Napster's users to switch to other services, so it was hardly in Napster's
commercial interest to permit such discussions in its own forums.
Whether a court could have directed Napster to shut down its forums pursuant to
a preliminary injunction presents difficult constitutional questions. Such
injunctive relief would necessarily constitute state action implicating the
First Amendment. The propriety of restricting communications in those forums,
however, would largely depend on the means by which a court would analyze the
communications and relief at issue. On the one hand, the mere posting of the
Internet addresses associated with alternative file-swapping sites is arguably
nonspeech that can be regulated without implicating the
First Amendment. Compare Universal City Studios v. Corley, 273 F.3d 429, 447-49, 451-53 (2d Cir. 2001) (holding that decryption software code is speech, but that it also contains
"nonspeech components" and therefore can be restricted more severely by government than traditional
Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000) (holding that posting software source code on the Internet is protected
Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585 (2d Cir. 2000) (holding that a top level Internet domain name is not speech, but that
lengthier domain names may be speech), and Orin S. Kerr, Are We Overprotecting
Code? Thoughts on First-Generation Internet Law,
57 Wash. & Lee L. Rev. 1287, 1290-93 (2000) (criticizing Junger and arguing that source code generally is not protected
speech). See generally
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) ("Numerous examples could be cited of communications that are regulated without
offending the First Amendment, such as the exchange of information about
securities, corporate proxy statements, the exchange of price and production
information among competitors, and employers' threats of retaliation for the
labor activities of employees. Each of these examples illustrates that the
State does not lose its power to regulate commercial activity deemed harmful to
the public whenever speech is a component of that activity.") (citations omitted). Alternatively, a court might hold that because a
restriction on speech is necessary to avoid the thwarting of the court's order
regarding remedies, such a restriction withstands First Amendment scrutiny. Cf.
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984) (holding that the First Amendment does not bar courts from issuing protective
orders to prevent others from publishing information obtained through pre-trial
On the other hand, one can argue persuasively that the speech that occurred in
Napster's forums should be analyzed as commercial speech or even political
speech. To the extent that users of other file-swapping networks were urging
Napster users to join them, such speech might constitute commercial speech,
albeit speech not motivated by a blatant profit motive. If so categorized, the
arguably unlawful nature of the commercial transaction being proposed might
give the government significant leeway to restrict speech promoting it. See
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563-64 (1980). Yet, at least some of the discussion that occurred in Napster's forum was
classic political speech - such as speech by those seeking to organize Napster
users to contact Congress to express their disapproval of the court's actions.
If a court felt that such political speech was significant and that encouraging
some speech was at least part of the purpose behind Napster's creation of the
forum, it would be quite reluctant to restrict speech therein.
n246. See supra note 114.
n247. Frankel was nineteen when he began working on MP3 technologies in 1996.
Alderman, supra note 29, at 55.
n248. See generally Gary Schwartz
& Don Merten, The Language of Adolescence: An Anthropological Approach to the
Youth Culture, 72 Am. J. Soc. 453, 458 (1967) (discussing the prevalence of
rebelliousness as an admired quality among youth).
n249. See Ellickson, supra note 135, at 40.
n250. Teenagers are essentially judgment proof, so the record labels would have
little incentive to pursue them. In 2001, the sound recording industry began
pressuring Internet Service Providers to terminate the accounts of
copyright infringing users. This type of threat - potentially depriving users of
something they value - may be effective. See Amy Harmon, Internet Services Must
Help Fight Online Movie Pirates, Studios Say, N.Y. Times, July 30, 2001, at C4;
John Borland, File-Trading Pressure Mounts on ISPs, CNet News, at
http://news.com.com/2100-1033-270568.html (July 25, 2001) (on file with the
Virginia Law Review Association).
Copyright holders can also deter teenagers in other ways - for example, by getting them
into trouble with their parents or schools.
The large number of teenaged
copyright infringers and the lack of public support for prosecutions of file swappers
make legal sanctions an unattractive tool for regulating behavior. In this
vein, Tom Tyler has argued forcefully that the threat of sanctions is an
ineffective deterrent against unlawful behavior in general, and that this is
particularly true in the intellectual property context, where the chances of an
individual infringer being punished are quite remote. See Tom R. Tyler,
Compliance with Intellectual Property Laws: A Psychological Perspective,
29 N.Y.U. J. Int'l L. & Pol. 219, 223-24 (1997).
n251. See also Tyler, supra note 250, at 225 (arguing that peer disapproval is
an important element in determining whether individuals comply with the law).
n252. See Michael X. Delli Carpini, Stability and Change in American Politics:
The Coming of Age of the Generation of the 1960s, at 9 (1986). Social norms can
migrate from the Internet to society at large. See Major, supra note 108, at
90. Ergo, it seems possible that file-swappers' disrespect for intellectual
property laws in cyberspace will carry over toward their attitudes about
intellectual property laws in general. This logic suggests, for example, that
plaintiffs in patent infringement cases might confront less sympathetic jury
pools in the coming years.
n253. See Matt Richtel, Turmoil at Napster Moves the Service Closer to the Day
the Music Dies, N.Y. Times, May 15, 2002, at C1.
17 U.S.C. 512 (2000). For a discussion of Napster's status under the Digital Millennium
Copyright Act, see John W. Belknap, Recent Developments,
Copyright Law and Napster,
5 J. Small & Emerging Bus. L. 183, 193-200 (2001).
n255. A brief discussion of encryption as a self-help strategy against
file-swapping networks can be found in Gilbert
& Katz, supra note 243, at 974-75, 980.
n256. Doug Lichtman
& David Jacobson, Anonymity a Double-Edged Sword for Pirates Online, Chi. Trib.,
Apr. 13, 2000, at N25; see also Ramayya Krishnan et al., The Economics of
Peer-to-Peer Networks 9 (Carnegie Mellon Univ. H. John Heinz Sch. of Pub.
Policy and Mgmt. Working Paper No. 2002-34, Aug. 2002), available at
http://www.heinz.cmu.edu/wpapers/detail.jsp?id=4252 (proposing that the RIAA
flood the file-swapping networks with thousands of flawed sound recordings).
The rock group Barenaked Ladies has adopted this strategy, but did so openly,
and on a very small scale. See Bev Wake, Canadian Band Gets Last Laugh in MP3
"Sneaky' Barenaked Ladies Dupe Online Music Pirates, Ottawa Citizen, Sept. 22,
2000, at A8.
n257. Dawn C. Chmielewski, Labels Open New Fire on Piracy: Barrage of Decoy
Music Aims at Online Services, San Jose Mercury News, June 28, 2002, available
2002 WL 21858536; see also Nick Wingfield, Behind the Fake Music: Record Industry Plants Decoys
to Foil Fans of Free Web Tunes; A Decoy for Sheryl Crow, Wall St. J., July 11,
2002, at D1 (discussing the recording industry's tactic of planting decoy songs
on file-sharing services).
n258. See Gnutella News Forum, Spoof Files on P2P Networks? Tell Us!, at
http://www.gnutellanews.com/article/5015 (last visited Aug. 8, 2002) (on file
with the Virginia Law Review Association) (displaying postings of various
n259. A Bill to Amend Title 17, United States Code, to Limit the Liability of
Copyright Owners for Protecting Their Works on Peer-to-Peer Networks, H.R. 5211, 107th
Cong. (2002); See Teresa Wiltz, Music Debate Heads to the Hill, Wash. Post,
Aug. 21, 2002, at A8.
n260. Indeed, if reciprocity runs in both directions, then file-swappers may
decide to retaliate against the uploader by intentionally making the flawed
file available to other downloaders. In that sense, a norm of cooperation might
degenerate into a norm of feuding and revenge.
n261. See sources cited supra note 257.
n262. See Tamar Frankel, Trusting and Non-Trusting on the Internet,
81 B.U. L. Rev. 457, 471 (2001); Feedback Forum, at http://pages.ebay.com/services/forum/feedback.html (last
visited Nov. 16, 2002) (on file with the Virginia Law Review Association)
"Feedback Profile" that every eBay user develops based upon comments from other users).
n263. See Integrity Rating, at
http://www.kazaa.com/us/help/glossary/ratings.htm (last visited Jan. 19, 2003)
(on file with the Virginia Law Review Association).
n264. See Lessig, supra note 108, at 129-30. Lessig has argued that trusted
systems ultimately may become a technological fix for
copyright infringement. See id. at 130. Lessig, perhaps because he was writing in a
pre-Gnutella era, uncharacteristically underestimates the possibilities for
hackers to spread, via the Internet, innovative tools for circumventing trusted
n265. See id. at 57.
n266. Litan, supra note 48, at 1076.
n267. Kahan describes a
"hard shove" as a law that severely condemns behavior, and a
"gentle nudge" as a law that encourages the desired behavior without forcing it down the
throats of an unsympathetic public. Kahan, supra note 121, at 609.
n268. For a general discussion of the potential for regulating user conduct via
Internet Service Providers, see Katyal, supra note 120, at 1095-1101.
n269. If the law also governed business customers, it would be more difficult
to circumvent, but political opposition would likely be fierce. Companies that
distribute software applications, upgrades, or web content over the Internet
could see their costs of doing business skyrocket. Moreover, it would raise the
cost of the
copyright industries' efforts to sell their content to end users.
n270. Under such a charging scheme it would cost approximately ten cents to
upload the average song in MP3 format and a little over one dollar to upload
the average album (for example, The Beatles' Magical Mystery Tour, which is
n271. Shirky, supra note 7, at 33.
n272. My reciprocity analysis suggests that such a change in the pricing regime
would increase the intensity of indebtedness feelings when an individual did
successfully download a file from a domestic file-sharer. I suspect, however,
that most people would find ways other than making their own files available to
alleviate their guilt after such a transaction. Perhaps an instant messaging
thank you note would do the trick. Alternatively, it might make the cost of
sharing so high and so obvious that downloaders would be deterred from
acquiring content from uploaders in the first place. Cf. Shapiro, supra note
182, at 262 (noting that people are particularly reluctant to seek help from
strangers, but not from friends, when the costs of helping are high).
n273. See supra text accompanying notes 101-06.
n274. See Lawrence Lessig, The Death of Cyberspace,
57 Wash. & Lee L. Rev. 337, 341-43 (2000).
n275. Alternatively, policymakers might craft a better tailored scheme that
would make refunds available to those individuals who could prove to a
non-governmental third party payer that they had uploaded public domain
materials or had a license to share their content. Consumers could then permit
these third parties to audit their Internet transactions to ensure that their
uploads were indeed authorized as a condition for participation in the refund
n276. See Recording Industry Association of America, Anti-Piracy: Education,
Innovation and Enforcement, at http://www.riaa.org/protect-online-3.cfm (last
visited Nov. 16, 2002) (on file with the Virginia Law Review Association)
(discussing the RIAA Soundbyting education campaign).
n277. Cf. Perkins, supra note 213, at 198 ("If they are highly committed to their own misperceptions, some students will be
skeptical of results from campuswide polls about substance use norms. This may
be true of both problem users and other students, who will explain
discrepancies as the result of an odd sample, poor questions, poor
participation, and so forth.").
n278. Cf. id. at 181 ("If people perceive situations as real, those situations are real in their
consequences. Subjective perceptions, be they accurate or inaccurate, must be
taken as important in their own right since people act on their perceptions in
addition to acting within a real world.") (citation omitted).
n279. See supra note 173 (discussing Kazaa Lite and the way it undermines the
effectiveness of Kazaa's new
"participation levels" feature). Kazaa Lite is an unauthorized version of Kazaa's proprietary
software. See Pete Rojas, Kazaa Lite: No Spyware Aftertaste, Wired News, at
http://www.wired.com/news/mp3/0,1285,51916,00.html (Apr. 18, 2002) (on file
with the Virginia Law Review Association). Of course, as the defendants in an
RIAA lawsuit alleging massive
copyright infringement, Kazaa's creators are not in a particularly strong position to
urge a crackdown on Kazaa Lite's infringement of Kazaa's
n280. As someone who is for the time being agnostic about the desirability of
strong versus weak
copyright protections for sound recordings, I feel the most troubling aspect of the
current regime is the stark conflict between
copyright law and social norms regarding the scope of noncommercial use of sound
recordings. I would be inclined to allow
copyright holders and the governments sympathetic to them some time to mount a campaign
to alter social norms governing the use of MP3 files. But if those efforts
should fail because the message or messenger is unappealing, then I would favor
copyright laws to reflect popular attitudes.
n281. See supra note 173. Because a number of network users employ Kazaa Lite
software that misidentifies its users as maximally cooperative, the extent of
sharing on Kazaa is unintentionally magnified. In any event, given the
propensity of most Kazaa users to engage in small-scale sharing, in the absence
of the Kazaa Lite distortion, one could expect that Kazaa's new
"participation levels" feature would discourage both free-riding and large-scale sharing.
Paradoxically, as an increasing number of Kazaa users learn about Kazaa Lite's
availability, the contributions made by actual large-scale sharers will become
Prepared: July 3, 2003 - 5:02:29 PM
Edited and Updated, July 4, 2003
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