<nettime> Navigating through the Crisis of Copyright

[Rasmus Fleischer <rasmus.fleischer@post.utfors.se>]

[This is an edited conglomleration of lectures held in the autumn
of 2006, at Wizards of OS (Berlin) and at Art|Net|Work (Aarhus
university). Concepts are based on Piratbyran's (www.piratbyran
collaborative experiences from the copyfight, for example the ongoing
controversies after the raid against thepiratebay.org.

KEYWORDS: darknet, metadata, grey zones, kopimi, symbolic/imaginary/ 
real copyright, originality, compensation, DRM, P2P,  
individualization of peers.]


BETWEEN ARTWORKS AND NETWORKS:
NAVIGATING THROUGH THE CRISIS OF COPYRIGHT

Copying is an universal fact. It's nothing we can decide for or
against, but it can take place more or less public. That assumption is
the simple basis for the concept of darknets. Piracy in itself is not
dependent on one single infrastructure. It finds lots of ways besides
the open file-sharing networks, including physical offline routes.
Thus the alternative to *peer-to-peer* piracy is not *no* piracy,
but rather *person-to-person* piracy. Quite similar to the good old
trading of cassette tapes, the digital person-to-person piracy can for
example use local wireless networks, burned dvd:s, usb memory sticks,
chat software or, not to forget, e- mail.

The attempts to stifle file-sharing networks aim at downscaling
piracy. But in effect, it's not so much about reducing the total
quantity of copyrighted data that is exchanged, as it is about the
scale of the networks themselves. Downscaling the swarms of peers
accessing each others' archives, while keeping bandwidth constant:
That does not mean less piracy, but less *pluralism* in what is really
shared.

If you have to rely on the archives of your personal social networks
? that is, on darknets ? then your available archive is so much
more limited that in the end of the day, the dominant players of
the copyright industry will keep a great amount of control over in
what directions you will be able to develop your taste, even if they
cannot inhibit the reproduction of their own "content". That means a
certain amount of predictability for them, which they regard as highly
important. During the second half of the last century, they adapted
business models that was all about finding more and more sophisticated
methods for predicting and controlling tastes. Thus they tried to
ensure that the huge investments made in an artist's first hit would
be more than returned by a whole series of albums that would sell well
regardless of their quality. In a larger perspective, the ongoing
war against file-sharing networks is more a war for securing this
predictability, market synchronization and control, than it is about
defending copyrighted works against their unauthorised reproduction.

A pyramid. That is the default image used by the Motion Picture
Association of America to visualize online piracy. The "pyramid
theory" rhetorically suggests that anti-piracy measures can "cut the
head of piracy". By taking away the small number of "suppliers", the
whole networks will dry up. Needless to say, this assumes that file-
sharing networks are basically about distributing blockbuster movies,
and only blockbuster movies. And indeed, if you've made your whole
career in a business where the top ten is everything, then you will
probably get such an impression when just looking at the top ten list
of The Pirate Bay.

But what happens if we instead of the pyramid take the well-known
image of "the long tail", that lets us consider the quantitative
relation between the few hits and the many non-hits? Then it becomes
clear that the war against piracy is attacking the distribution of all
those smaller niches that together makes up the majority of data in
larger file-sharing networks ? while pirated copies of the big hits
are usually possible to get hold of anyway.

Copyright enforcement in the 21st century has changed its fundamental
character. Anti-piracy today is NOT an all-out war against the
unauthorised copying of copyrighted data. Such a war would be
impossible to wage, as the weapons of mass reproduction are already
decentralized into every single home. Rather, anti-piracy fights
against the copying of UNcopyrighted METAdata; against the indexing,
interlinking and globalizing of private archives. That is exactly what
the ongoing case against The Pirate Bay is about: Not the distribution
of copyrighted data itself ? which takes place between millions of
peers ? but the distribution of metadata such as filenames, checksums
and addresses.

Of course, copyright *cannot* today be about regulating protecting
an exclusive right to copying. Using digital information, even if
only visiting a website, means copying that information to another
place, beyond the possible supervision of any copyright enforcer. A
computer works by copying bits all the time: From ROM to RAM, from
www to cache, from device to device or client to client or peer to
peer. Wireless networks and portable devices complicates the question
of how to distinguish local file transfers from file-sharing between
different systems. Developments in network architectures, software and
hardware, continue to undermine the foundations of copyright law.

Enforcement therefore has to rely on rather arbitrary metaphors, in
order to single out the data replications that should be practically
regulated. Consider the artificial distinction between "downloading"
and "streaming" of music, regarded as equivalents to record
distribution and radio broadcasting, respectively. These notions from
one-way mass-media are forcefully applied to the internet, although
it is basically the same data transfer that is taking place in both
cases. The only difference between "streaming" and "downloading" lays
in the software configuration at the receiving end, where the digital
signal is either saved as a file or directly converted to an analog
output.

In order to understand the permanented crisis of the copyright system,
we can identify three intersections, three conceptual divisions in a
complex relationship to each other. They have never been fixed, but
without a relative stability, without a basic discoursive agreement
about where to draw these lines in any given context, the copyright
system does in fact collapse.


PRIVATE/PUBLIC.
- - Question: What is a copy?

In a social network, it's unquestionably legal to invite some friends  
to watch tv and listen to music in your private home, without  
permission from any rights holder. But how large and how open may an  
assembly be until the media use is defined as "public"? The classroom  
and the small office, birthday parties and prayer meetings: these are  
just some examples of settings where the drawing of the private/ 
public line has become an intricate task for copyright lawyers. But  
also for contemporary artists are playing with and questioning the  
same distinction.

In a network of electronic devices, the corresponding question is  
about deciding when copying transgresses some kind of private sphere,  
and if a data transfer should be considered permanent or temporary.  
Here we can situate the whole DRM debacle, usually questioned mainly  
because its inability to permit the fully legal private copying, like  
transferring music files from a computer to the same person's  
portable player. Yet it's less about binary permissions saying a  
simple "yes" or "no", and more about how everyday habits are shaped  
by the much more subtle technical barriers and possibilities:  
Interfaces, standards, traffic shaping, asymmetric connections.
- - By enforcing distinctions between private and public, copyright  
operates in the Real.


IDEA/EXPRESSION.
- - Question: What is an artwork?

Copyright protects expressions but not ideas themselves; that is  
written into every copyright law. Without such an form/content- 
distinction, worked out in the late 18th century by philosophers like  
Johann Gottlieb Fichte, copyright would either implode or explode.  
You can't claim copyright on facts, words, chords or colours, but if  
you take a suffucient number of them and combine them according to  
your own soul, you might pass the "threshold of originality" into the  
realm of artworks.

But how high is this treshold? Dan Brown took a ready-made conspiracy  
theory from an earlier book as core plot for his own bestseller but  
was taken to court but freed. On the other hand, hip hop producers  
cannot use a few seconds of sampled sound without special permission  
? they did it in the 1980s, but since then the line between idea and  
expression in music has been redrawn, creating a harsher copyright  
climate.

There is not one single norm, but a lot of very different customs for  
different types of expression: For example, spoken words are not  
enclosed by copyright to any degree even close to that which  
regulates the use of musical sound, simply because a strict  
interpretation in that field would render mainstream journalism  
impossible. Photography has its own norms, very different from other  
visual arts.

When it comes to computer software or databases, the distinction  
between idea content and expression form gets terribly confused.  
Sampling, appropriation and remixing practices dispute the drawing of  
this line. One brilliant example is Sven König's software art  
performance sCrAmBlEd?HaCkZ!, using spectral analysis to rebuild  
musical sounds with fragments of other musical sounds, developed from  
his initial intention to "split the atom of copyright". Constructing  
signifying chains by playing with notions of form and content,  
presenting the one as the other: Is that not a characteristic of much  
contemporary art, ever since Duchamp?
- - By enforcing distinctions between idea and expression, copyright  
operates in the Symbolic.


PRODUCER/CONSUMER.
- - Question: What is an author?

References to an imagined class of "the authors" seems to be
inescapable in any discussion focusing on copyright. Thus, the
fragmented reality of cultural production is replaced by a coherent
whole. In reality there are old hitmakers and upcoming talents,
pornographers and poets, living and dead, rich and poor. Ideology
washes away all contrasts and instead presumes a common interest in
strenghened copyright.

Legally, copyrights are assigned to individuals regardless of their
profession; anyone who has ever written a line on the web is a
copyright holder. However, during the 20th century a practical
process of collectivization took place. The copyright system expanded
through the institution of numerous "collecting societies", assigned
to collect license fees for broadcasting and public performances, in
order to redistribute it to the actual rights holders.

With today's statutory fees on storage media like cassette tapes and
hard disks, the arbitrariness of this model takes on a whole new
dimension. "Compensation" cannot even theoretically be motivated by
the real use of the storage media, but the money is given out to an
imaginary class defined through arbitrary statistics from older media.
Dogmatic thinking about copyright presents producers and consumers
as opposite poles, implicating the ideal of a "balance". But isn't
it more appropriate to characterize contemporary cultural production
not as the opposite of consumption, but rather as a deviant kind of
excessive and passionate consumption? Think about Walter Benjamin's
book collector who at a certain point turn to writing new books that
he couldn't acquire otherwise, or about the record collector whose
passionate consumption smoothly glides into DJ:ing and further to
producing new records.

As one and the same device can be used for both operations, read and  
write, the intermingling of roles gets even trickier. The difference  
between author and audience does not disappears, but it gets  
functional, varying from time to time. To produce and to consume are  
verbs, but copyright ideology treats them as nouns.

- - By enforcing distinctions between producer and consumer,  
copyright operates in the Imaginary.

Local/public, form/content, producer/consumer. It's not that these
three fundamental distinctions are disappearing, but they are
deterritorialized and reterritorialized in ways far too complex,
and far too different between different media and artforms, for
one single system to handle. As the foundations are shaken and the
concepts are getting fuzzy, a lots of greyzones are opening. We can
recognize both a positive grey and a negative grey. Intensified
surveillance, scare tactics, paid infiltrators, pressure against
hardware and network suppliers, spamming of networks with damaged
files, screen dumps as legal evidence, private organizations building
databases over suspected file-sharers, and of course the raid against
The Pirate Bay: These are some examples of the *negative greyzone*
in which anti-piracy activities are operating. On the other hand,
there is a *positive grey* that affirms the intermingling of concepts
through undertakings that may be artistic or commercial, ethical
or technological. Its basic characteristic is not anti-copyright,
but rather an attitude of estrangement, or plain unconcern, towards
copyright.

This positive greyzone connects all the everyday cultural exchanges
that might formally constitute copyright infringement, but where no
one would even care to claim that, as there is not even a dissatisfied
rights holder to find. All the shades of grey between the penguin
white of a creative commons licence and the pitch black of a zero day
blockbuster release. Between what is formally allowed and what can
practically be done, there is a space for multiplication of small
habits that we call the Grey Commons.

In the middle of this sea of techno-cultural turbulence we have to
navigate with the help of language. Copyfights are continuously
raging at this conceptual level, deep under the legal and political
surface. Rather than trying to solve the copyright issue, we try to
keep it boiling and give space for a more shades of grey in the way
we talk about everyday cultural life. Early compromises that tries to
reform copyright law, usually just move the problem around, from one
of the destabilized distinctions to another. Some common dead-ends
can be identified in contemporary discussions about peer-to-peer
file-sharing. The first is "consumerism" ? usually characterized
by treating downloading as something separate from uploading. But
file-sharing is a horizontal activity, where "up" and "down" are only
very temporary distinctions, especially since the break-through of
bittorrent swarming. Instead of justifying file- sharing as a response
to high prices, we should focus on how it differs from the top-down
record store model of selling pre-packaged information.

Another trap we see in so-called "alternative compensation systems";
institutional models promising to legalize filesharing by putting
a fee on communication media and using the money to "compensate"
copyright holders. There is no need to polemicize, but interesting
enough to explore the unarticulated assumptions of that discourse.
For example how to draw the line between files worthy of compensation
and ordinary webpages, or between authors and non-authors, or between
local and public file transfers. There is simply no water-proof
way of measuring what is shared on an entity like "the internet",
wherever that ends or begins, in order to locate the authors that need
"compensation".

The very focus on reforming the copyright law is itself a common
trap. First of all, because sweeping discussions about one entity
called "copyright" obscures the plurality in how all the different
cultural practises relate or do not relate to copyright. Some
might need copyright, some might not ? and some cultural forms we
might not need to preserve at all. Instead we should shift our
attentions to the very particular and concrete ways in which cultural
production and circulation works today and discuss each one on
its own terms: How they relate to computer networks and how they
can make themselves less dependent on copyright. Focusing on the
copyright law itself also bears the danger of ignoring the practical
effects and non-effects of the law. No matter if you want a soft
copyright that keeps some limited rights but also guarantees some
freedom, or a hard copyright law banning everything unauthorized.
The price for effective enforcement will be the same. In any case,
it demands that an individual can be made responsible for every
single data transfer. Every IP address and every mobile device must
be identified to a physical person. Implementing that means first of
all a ban on all anonymous sharing of connectivity. Any attempt to
general enforcement of copyright in the context of computer networks
necessarily leads to the same ambition: Defining, shaping and locking
up the way our networks are organized and used. That (rather than any
loss of privacy) is also the most significant aspect of the ongoing
implementation of the European Data Retention Directive.

The big question taking shape on the horizon is: Free establishment
of communications, or individualization of peers? Free communications
means the right of any peer in a network and to be the gateway
to a new network ? be it with a wireless router, or a web server
allowing anyone to connect and communicate. That is not an utopia,
but rather how the internet has developed as long as we know it.
Individualization of peers, on the other hand, means that any activity
in the network has to be identified to a responsible individual.
Such an ambition demands that Internet Service Providers are held
responsible of delivering the information about which individuals
that have had access to a certain IP address, and that every web
community needs to identify their users, which is clearly incompatible
with free networking. The result is oligopolization: A few licensed
network providers, connecting the many individualized network ends by
over-prized asymmetrical connections. If, on the other hand, network
providers are not held responsible, then our networks have no ends
and may expand in all kinds of unexpected and interesting directions,
connecting network to network to network, with lots of inputs and
outputs, giving a potential locality to the internet experience. But
that also means the end of the state's ambition to identify every
person behind a certain IP address ? for good and bad. Obviously, the
copyright industry will fight with its claws for not giving up that
control.

A computer is a machine that can simulate any other machine. Hence it
can also do a perfect digital simulation of the copyright system. But
the ideal notion of a pure "content industry" implies copyright to be
the only machinic configuration. It wants the computer to simulate
only one machine ? and we don?t mind if a network somtimes simulates
a crappy machine, as long as it?s able to simulate good ones as well.
It?s not about finding the perfect solution to be used in the future,
but to exploit the grey zone to allow for a thousand of unforeseeable
futures to blossom, and to let art and music keep playing with the
disctinctions that copyright instead wants to keep rigid. We will
always choose a large amount of half-ass solutions over the one
totalizing master plan. There are techno-cultural complexities beyond
our human capacity to compute.








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