shirky.com Clay Shirky's Writings About the Internet
Economics and Culture, Media and Community, Open Source

I’m the only person on the panel who’s not actually in the music industry. I’ve been 
in the internet industry doing one thing and another since ‘93, and I’ve always as part 
of that written about cultural and economic effects of the internet and have been 
following Napster and the related peer-to-peer space for about, I guess a little over a 
year now. I’d like to talk about revolution, which is an overused and under-understood 
word, as it relates to Napster. 

To begin I’d like to stipulate, as the lawyers say, two things that I sort of take for 
granted going into this conversation. One, Napster is a tool for stealing music. There 
are a lot of people out there trying to make arguments that there’s some moral component 
to this, or that somehow that it helps people sell CDs. Everybody making those arguments 
looks like a ninny. It’s obvious that Napster is a tool for stealing music. The other is 
that in a democracy, when the will of the people and the rule of law diverge too widely 
and too deeply for too long, it is the law that changes. So here is a place where we have 
those two forces colliding. And so my interpretation of Napster is that it constitutes a 
kind of massive civil disobedience. And I don’t mean to make that sound like it’s a moral 
cause, like the civil rights movement was, this is a civil disobedience born out of 
selfish motivations. That’s what’s driving the revolution right now. And so, I want to 
make the argument in as specific and as literal a way as possible that if enough people 
do it, it’s not stealing. And I’m not suggesting that that’s the way it should be, but 
rather historically that is what has happened. And I’d like to introduce two historical 
parallels that I think will illustrate this idea of revolution. 

The first, of course, and probably the most apt as a comparison to Napster is the 55 
mile an hour speed limit. The basic facts are pretty simple. In the early 1970s, with 
twin arguments of fuel efficiency and increased highway safety, the government lowered 
the speed limit from 70 to 55. Their inability to get the majority of people to obey that 
law cannot be overstated. It was a nearly total failure, especially in the western states. 
And in the 1980s, they repealed the law. So we have this sort of cycle of intolerable 
legal regime being imposed and then removed again. There’s a couple of things that are 
important parallels between that and Napster. From the driver’s point of view, the crime 
was committed with an object you owned. It was your car. From the driver’s point of view 
the decision about breaking the law or not was a selfish decision made in a private space. 
The government had no direct intrusion into your car, there’s no security camera over your 
shoulder watching the speedometer or anything. And the proximate cause of the crime, the 
accelerator pedal, is part of the standard operating equipment on a car, it’s not some 
extralegal add-on that lets you break the law, it’s how cars work. So the government was 
faced not with a mass movement but rather with a massive movement of individuals making 
selfish choices. In the end, they rolled back the law, and it’s important to note that 
when they rolled it back it wasn’t because the twin arguments of fuel efficiency or 
highway safety were overturned, it was simply rolled back because it was unsupportable. 
No one went back to the original legal arguments for the reasons the law existed in the 
first place.

The government had three choices in that situation. One was to simply create a regime 
which was so intrusive that they could force people to obey the law. And whatever they 
told you in your American Civics class about the blood of the patriots and bla bla bla, 
the driving force of democracy is complacency. Democracies which do not produce 
complacency get replaced. People have to be largely satisfied or the government falls. 
So the government looked at this option and said “We can enforce this, we have a 
legitimate monopoly on the use of force, but to do that would wreck the complacency that 
lets us stay in power.”

Their second option was to leave the law on the books. “Well, you know, nobody really 
drives 55 anyway.” But they can’t really afford to say to people “Well, you know, you can 
figure out which laws we’re serious about and which laws we’re not serious about.” There 
can’t really be that many laws they’re not serious about. There’s an obvious parallel 
here with the war on drugs, which is a similar problem, particularly as it gets to the 
enforcement of laws related to marijuana use. But the government can’t afford to have the 
mass of the population be lawbreakers, and so option three was to simply roll back the 
law.

The other obvious historical parallel is prohibition. I won’t go into the historical 
arguments here, they’re well understood, but I think there’s three important things to 
observe about the creation and rolling back of prohibition. One was that prohibition, 
like the 55 mile an hour speed limit, was entirely born of selfish motivations. There was 
no moral argument here. The argument was essentially “I don’t care what the government 
thinks, I’m a grown-up, I’m gonna have a drink.” The second important thing about 
prohibition is that the thing they were trying to control, fermentation, is a natural 
process. There was no point at which they could stop that from happening, and so it 
became something that was possible to do - you could make gin in your bathtub, as the 
famous example goes. And the third thing is that prohibition was put into the 
Constitution, the body of the American republic. The Constitution is the document that 
says “How should this republic be constituted?” And even with the law at that level, in 
that sacred document, the Bill of Rights, could not compel people to behave, to obey a 
law that they didn’t agree with, and so the law again was repealed. None of the arguments 
against drinking, none of the arguments for prohibition, were rolled back, prohibition 
itself was simply rolled back.
 
So the parallels with Napster I think are obvious. It’s your computer. The decisions 
about whether or not to infringe on copyright, and again I’m not making an argument that 
this isn’t illegal, but the decisions about whether or not to infringe on copyright are 
made in relative privacy. There is no government intrusion at the level of your computer 
right now. And the thing that’s putting the music industry in a tizzy, which is an 
unlimited number of perfect copies, that’s how computers work. That’s not some add-on to 
the side. If I send you a piece of email, I don’t send you a piece of email like I send 
you a piece of paper mail where the paper I write is the paper that gets to you. I compose 
a piece of e-mail. My computer makes a copy on the first router. The first router makes a 
copy to the second router and then deletes it. The second router makes a copy to the 
third router and then deletes it. There are as many perfect copies of my email between 
me and you as there are hops over the network. So making unlimited numbers of perfect 
copies is the absolute fabric of the network. So there’s no, like the accelerator pedal, 
like fermentation, there’s no easy way to go in and flip the switch that makes that 
impossible. 

So this is where we are. We’re in this kind of rupture created by civil disobedience that 
is on the order of tens of millions of participants in the Napster universe alone if, and 
we don’t really know sort of what the activity - you might, actually - the sort of the 
size of the activity outside of the world of Napster. So, plainly, this is a major, major 
shift, as we saw earlier.

Now we get to the question of revolution. A lot of people use the word revolution as a 
synonym for major change. And then everybody wants to say, “Oh, well, is it revolution 
or is it evolution?” And that can often be a dead-end argument. But evolution is anything 
where you get from point A to point B in a series of small steps. Doesn’t matter how 
quick or slow those steps are, but it’s gradual change. Revolution means rupture. 
Something is revolutionary if and only if you can point to a moment where the old system 
absolutely fell apart. So plainly, by that definition Napster is a revolution. What has 
been the norm in the music industry has fallen apart. 

So now, and I’ve seen this happen several times in the years I’ve been in the Internet, 
the usual techno-anarchist crowd comes out of the woodwork and says “Oh, we’re really 
stickin’ it to the man, and this is power to the people, and we’re going to live without 
the government…” It’s like they’re primed, y’know, they’re just spring-loaded so that 
when anything happens this rhetoric starts to come out. So this time they’ve managed to 
convince themselves that they’re making common cause with 50 million people who think 
that free Britney Spears music is a good idea. And that’s not really much of an anarchic 
core. 

So, revolution is plainly cyclical, hence the name. Old order, rupture, new order. We’ve 
gone from the old order part to the rupture part, and now this little techno-anarchist 
core is sort of imagining we always live in the rupture. But that actually never happens. 
Look at the two historical examples. When people were breaking the 55 mile an hour speed 
limit, they were not saying, “Well, y’know, the government has no business regulating 
how I drive my car.” Imagine a world with no stoplights. People were not agitating for no 
regulation, they were agitating for different regulation. And it only took ten years of 
massive civil disobedience, and it only took a 15 mile an hour change in the speed limit 
to restore most of the driving public to a law-abiding state. In prohibition, during 
prohibition, people who ran speakeasies were sort of glamorous, and soignée, and then 
afterwards bootleggers were seen as these kind of strange, odd creatures. So, people 
doing exactly the same thing, but once the government and the industry offered a way to 
get what people wanted within the law, the tolerance for breaking the law fell. When 
the - most of you guys are too young to remember this, but when the speed limit was 55, 
and you drove by and you’d seen the cops pull somebody over you were like, “Oh, those 
cops, razzin frazzin.”  When the speed limit went to 70 and you saw them pulling over 
some hotshot bond trader in a Maserati you were like “Yeah.” And that’s all it took, 15 
miles an hour was the difference between most of the public willing to tolerate breaking 
the law vs. most of the public willing to live within the law. This is the key failure 
of the techno-anarchist argument. You do not need to stop every single person from 
infringing or living outside the law. You just need to stop enough people living outside 
the law so that the public is willing to tolerate the government and industry going 
after the lawbreakers. And that number is actually much smaller. 15 miles an hour. Legal 
liquor. It’s much smaller than the techno-anarchist front often imagines. 

So. Revolution implies new order. And we’ve seen now the rupture, and the essence of the 
rupture is digitality. The contents of the CD have been separated from the physical 
layer of the CD forever. Right? Once something is digital, I can download it, I can save 
it onto a hard drive, I can save it onto a ZIP disk, I can email it to you, I can put it 
onto a memory stick. The old days of “Oh, I have a plastic circle with some music on 
it.” And the plastic circle and the music are kind of fused together? That’s gone and 
that’s not coming back. That’s the difficulty with SDMI, by the way, the digital rights 
management solutions, is those are largely attempts to bring all of the inconvenience of 
the physical world onto the internet, and then to say “Well, you should pay more for 
this because it’s costing us so much to make it this inconvenient.” That’s an argument 
that people are having a hard time with for obvious reasons.

Now I’m not going to predict the specific shape of the second half of the revolution 
where some new order is established. Partly because I’m not that vain, and partly because 
I’m not actually a member of the music industry. So I’ll leave it to these guys. But I 
will say that the thing that digitality disrupts, because of this separation of data and 
object, is it disrupts per unit pricing. The days where you buy - you pay for an album as 
opposed to simply getting access to the music. Imagine a Disneyland pricing model where 
you pay to get into the park but all the rides are free. So, in a world where the physical 
bottlenecks disappear, people will still pay for access to music. And anyone making the 
argument that “Oh, this stuff is free and it’s always going to stay free…” That’s just 
silly. There’s no real argument that over the long haul people aren’t willing to pay for 
music. They’ve always been in the past. The thing they’re agitating for is probably much 
more in the zone of the 15 mile an hour - the change in the speed limit, which is to 
say “Fewer restrictions than now, but not no restrictions.” 

What I will say about the shape of a future music industry is: In a world where the 
physical bottlenecks to production and distribution disappear, it becomes easier to 
produce music. There is more music. And all of the bottlenecks in the outside world are 
gone, leaving only one bottleneck, the permanent bottleneck, which is the bottleneck of 
your attention. How much time do you have budgeted each day to listen to mostly bad music 
so that you can find one or two songs you like? Maybe 5 minutes. And if the bottleneck of 
physical distribution goes away, it’s not like they’re going to give you extra minutes. 
“Oh, we’ve made the day 24 hours and 17 minutes so people can listen to more bad music.” 
Not happening. So, between this world of much more music and your same bottleneck of 
attention, here’s what you need. You need somebody to find new music. Somebody who 
probably has to be paid to listen to it because it’s mostly so bad. You need someone to 
record that music. And then you need someone to market that music so that you know about 
it. “Oh, if you like Backstreet Boys, you’ll also like N*Sync!” Whatever it is. I mean 
God forbid, but you get the point.

Is that one of yours? I was just trying to pick two that are almost identical.

There is one group that’s already good at all of those things and that is, lo and behold, 
the music industry. As we’re beginning the second half of the revolution, where the new 
order gets established, the questions aren’t “Are people going to continue to break the 
law forever?” Plainly not. Most people want to be law-abiding citizens and most 
governments will create - and certainly any democratic government will create a situation 
where that is possible. The question isn’t “Will people ever pay for music?” Plainly 
they will. The question is, “Who’s going to provide the functions that you need for 
digital music in a post-unit transaction world?” The obvious candidates for the new 
music industry are the members of the current music industry. How they grapple with this 
and whether or not they’re up to the task or get replaced or augmented by new players 
is fortunately not my problem. 


Write clay@shirky.com with questions or comments.

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shirky.com Clay Shirky's Writings About the Internet
Economics and Culture, Media and Community, Open Source