<nettime> on IFPI, "ISP Responsibility" and indexing the grey zones

["Rasmus Fleischer" <rasmus.fleischer@gmail.com>]

Pretty much related to the current developments in Denmark. Here's a
short talk i gave last Friday, at Transmediale in Berlin in a panel
led by Felix Stalder, titled "The Greying Of The Commons: IP, The Law
And The Street".

- - -

Yesterday [Jan 31, 2008], the Swedish prosecutor finally had to
get his case against The Pirate Bay to court. The operators of the
bittorrent tracker are *not* accused for any handling of copyrighted
material, but with "conspiracy to breach copyright", by letting others
use their service to exchange any kind of files between their hard
drives. In short, the supposed crime of The Pirate Bay consists in
*indexing* and *linking*.

One interesting contrast is the German company RapidShare, which is
running a site with even more visitors than The Pirate Bay. Their
business model is to let users upload files to their service ? we're
here talking about several petabytes of unauthorized copies ? and then
let other users pay for unlimited downloads of it. Yet, there has
been no police raids against RapidShare. Is this because RapidShare
technically is the exact opposite of The Pirate Bay? While The Pirate
Bay is a large centralised index, pointing at a decentralised archive,
RapidShare is a large centralised archive with no public index and no
search function, leaving it to the users to build small decentralised
indexes by posting links in web forums and private chatrooms. Another
difference is of course that RapidShare makes no political statements.
They remove files on notice from copyright holders, who however never
can find all "their" material as they at any given time can't access
more than tiny fractions of the distributed index.

There's absolutely no doubt that the popularity of RapidShare's
centralised archive represents a regressive tendency in terms of
information infrastructure, while the popularity of The Pirate Bay's
decentralised archive represents a progressive one. However, the high
level of centralization of indexing in today's bittorrent networks
remains a problem, which in best case future file-sharing protocols
will begin to overcome.

An even more striking comparison is that to Google. Both Google and
The Pirate Bay are essentially search engines. As is now repeatedly
pointed out in the Swedish debate, also Google is indexing and linking
pirated files (as well as being a good place to search for torrent
files). In addition, Google Image Search is hosting millions of
copyrighted artworks on their servers, showing them for free along
advertisements without any given permission. Yet a police raid against
Google's server halls seems unthinkable today.

When copyright enforcement is moved from the actual level of the
copyrighted files in themselves, up to the meta-level of links, tools
and attitudes, the whole net moves even deeper into the grey zones,
into a permanent state of exception. Digital Rights Management, the
na?ve belief in a black-an-white technological implementation of
social relation, is yesterday. In it place comes Political Rights
Management.

At the same time, this whole so-called "file-sharing debate" can
only be perceived as a strange kind of theatre. A theatre in which
there is not even a consensus about where the stage is or who
the actors are. Mass media wants decisive moments and clear-cut
opponents: authors verses pirates. Also when established politicians
are joining the cause for decriminalized file-sharing, like a large
minority of Sweden's governing Moderate party did during January, the
mass-medial logic reduces the question to a clash beteen two different
"rights": the right to privacy versus the author's rights. This
humanist focus on individual rights tends to obscure other alarming
long-term consequences on the level of power relations in the network
infrastructure.

For IFPI, the record industry lobby, the top priority this year
is what they call "ISP responsibility". First of all, that means
compulsory blocking of certain internet addresses. It's unclear how
such a blacklist would be decided. What's certain is that if such a
mechanism comes into place, its uses will not be limited to copyright
enforcement, but will step by step be widened to include politically
or morally inconvenient websites. Secondly, the IFPI wants legal
mechanisms to cut the internet conection for persons suspected of
unauthorized file-sharing, following the model implemented by Sarkozy
in France. Of course people are right to criticize that from the
standpoint of individual rights, but there are other aspects, which in
the long run seems to be even more serious. One very basic question,
which no one seems to even reflect on, is this: What is an ISP? We
think about all the big telcom companies, but they are not the only
"operators of electronic communications networks and services", as is
the phrase used by the European court when it recently discussed the
responsibility of ISP:s. It seems like, for example, an university
which are splitting up one connection to thousands of students and
employees, would also have to be defined as an ISP in order for these
regulations to be effective. But where to draw the line? In theory,
anyone owning a wireless router, as well as anyone having a blog or
hosting a web forum, could be included in the definition, and thus be
made responsible for controlling identities of their users. Instead
of appeals to protect the individual broadband consumer, maybe a
better counter-approach would be to say: We are all internet service
providers!

The files have been downloaded. Digital reproducibility is a fact.
The question can't be if we should have file-sharing or not. The
real alternatives are rather these two: Either we keep on forever
reproducing this spectacle of for and against, or we begin thinking
"after copyright".

Thinking "after copyright" means abolishing the dream about the One
solution, as a singular model for all kinds of artistic practice have
never existed and will never exist. It means finding ways to create
meaning from a situation of cultural superabundance, an assumption
that disqualifies any discussion about the intrinsic value of a
digital copy.

The answers to the questions posed by the digital, can not be found
within the digital. They are only to be found in the relation to what
is *not* digital: Time. Space. Relationships between human beings.
That's where digital copies may get a value. But the rethoric of
copyright paranoia, on the other hand, implicitly reduces not only
"authorship" but also "culture" to simply the production of even more
pure information: Content without context.

The logic of lack and the anxious search for a solution is a necessary
step in posing any political problem. But their solution always
demands identifying a certain point where this anxiety must be left
behind. Only then we'll be able to address the new problems posed by
the current situation of superabundance.

- - -

http://copyriot.se/2008/02/04/indexing-the-grey-zone-a-talk-at-transmediale08/






#  distributed via <nettime>: no commercial use without permission
#  <nettime>  is a moderated mailing list for net criticism,
#  collaborative text filtering and cultural politics of the nets
#  more info: http://mail.kein.org/mailman/listinfo/nettime-l
#  archive: http://www.nettime.org contact: nettime@kein.org