On the Legislation of Information and Creativity

On the Legislation of Information and Creativity

(Speech on the Occasion of a demonstration against surveillance and ACTA)

We have every reason to celebrate but to remain vigilant.

Attempts by commercial interests to influence public policy have been around for a long long time. In recent years with the massive development of cyber-infrastructure the role legislation plays in the culture of daily life is no longer restricted to education, publication, music and cinema as it was for such a long period of time. Today connectivity, social media, the information economy and society are intertwined, where every ripple on the digital pool has results for everybody. Today we are gathered here to voice our concerns and hopes for the future of the information society.

After ten years of professional research on digital culture and technology I have observed a worrying trend in recent years regarding how the architecture of the information economy is maintained. The massive acceptance of apps, enclosed programs mostly run in isolation on mobile devices by single users, is a great analogy for how many large corporations would like to see the Internet. You buy the app and then the channel is open for you to purchase content or receive updates from the source of the technology. In effect you live in a walled garden; you and your app. You are enjoying each other’s company but finding it difficult to meet others and share content with them. The “Like” button on Facebook works on a similar principle. You register an opinion but you really share nothing. Exactly what large corporations want; identifiable individuals consuming.

Into this growing environment of lonely consumption come the corporate lobby groups. They have been doing ok recently, thanks to new systems such as subscriptions for streaming content, apps, DRM licensing, and of course government legislation regarding copyright. However, there are still massive leakages in their revenue systems. There are strong desires from the corporate sector to see further gains in Intellectual Property Rights control.  Young people are being targeted by organizations such as the International Trademark Association (INTA), and anti-counterfeiting and the need for harmonization of existing laws (which means making more laws) are the reasoning behind recent campaigns for increased IP legislation.  Free trade agreements have been used in Australia and India to bring in tighter controls on IP, often to the detriment of small time traditional industries and crafts. Negotiations on bills to be put before governments in both Europe and the United States have seen the unparallelled presence of interest bodies from rights and patent holders and managers. The artists are not so extremely vocal in relation to increased control for rights holders, as many of them do not control the publication of their own works.

However, we do have a lot to celebrate today:

Cyber Intelligence Sharing and Protection Act (CISPA) - the White House said Mr Obama would veto the act if it reached his desk.

Anti-Counterfeiting Trade Agreement (ACTA) –

The ACTA agreement was signed in October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea, and the United States. In January 2012, the European Union and 22 countries that are member states of the European Union signed as well. No signatory has ratified (formally approved) the agreement, which would come into force after ratification by 6 countries. After entry into force, the treaty would only apply in those countries that ratified it.

Helena Drnovšek-Zorko, Slovenian ambassador to Japan, issued a statement on 31 January 2012 expressing deep remorse for having signed the agreement. "I signed ACTA out of civic carelessness, because I did not pay enough attention. Quite simply, I did not clearly connect the agreement I had been instructed to sign with the agreement that, according to my own civic conviction, limits and withholds the freedom of engagement on the largest and most significant network in human history, and thus limits particularly the future of our children," she said

The ACTA treaty is unlikely to be ratified by the European Union, according to Neelie Kroes, the powerful European commissioner for telecoms and technology.

"After the tremendous mobilization of citizens around the world against Sopa and Acta, it would be extremely dangerous politically for the commission to propose a new repressive scheme," said Jeremie Zimmermann, from Internet advocacy group La Quadrature du Net.

In this environment of change and challenge, we stand here with the desire to maintain freedom of information and expression, to allow the poor of the world to access medicines, and to allow for innovation and development driven from the sector where the talent and creativity are strongest and not solely dependent upon money. The legislation of information and creativity pushed by corporate concerns is an ominous sign. The greatest periods of human civilization have not been the times when the lawyers ruled, but rather when education and culture was the domain of the many. The establishment of law for the benefit of the many must be coupled with the opportunity to create and share. In this digital age we now possess tools that allow for this on an unprecedented scale. I hope that my grandchildren can look back at this time and see it as the beginning of a golden age, rather than the start of a culture based on surveillance, control and capital power.

Thank you.

James Barrett

Döbelns

Umeå

12 May 2012.

The Pirate Bay to be Sold

It has just been announced that world in/famous torrent tracker site, The Pirate Bay (TPB) is to be sold to Global Gaming Factory X AB, the owner of Entropia. The community using the site does not seem to be too happy about it if we are to judge by the comments on TPB blog:

"Way to sell out for the money :D
Where is your ideals gone now friends?
Ha, I cannot believe I supported you guys.
Same old same old. Where will it end?" driver779

"I'd say this is the death of PirateBay, they wanna make PirateBay a legit place if I understand the news being spread around.
Thats is done by removing all the illegal files (90%+ of the torrents?)
And this will make most people go away too." Mith0s

I have heard the sum of 60 million Swedish Crowns (30 in cash and 30 in stocks) being accepted for the sale of the site. TPB 'heads' are speaking abut a transfer and new impetus in the operation. I am not sure about this and I tend to agree with many of the comments on the blog site. However, TPB was always a limited thing and the end was in some way inevitable. I am disappointed that it was the private sector which stepped up and took over the machinery of TPB. It should have been made a research object for the people of Sweden to be used to develop new web applications and architetcures.

The collected resources of TPB (those that survived the legal onslaught of the past three years) is now passing into the hands of entrepreneurs. The business community perhaps has a better idea of the worth of such network ventures that TPB represents. The law however restricts what can be done with such a developed network structure. I have seen this recently in my experimentation with Spotify, another Swedish innovation that attempts to deliver unlimited streamed music over the net. While Spotify does deliver music, its network possibilities are extreamly limited. One cannot share play lists within the program (email of links is the only option), link to other users, watch other users for tips and so on. In effect one is alone on Spotify. TPB is/was a community and that was its strength and greatest weakness in the eyes of the law. By allowing for a horizontal spread of network connections users were/are able to share things. How this can be adopted to a legitimate business model by something like Global Gaming Factory X AB will be interesting to see.

Sweden and the Pirates

When the Swedish Pirate Party was launched three years ago, the majority of the mainstream press viewed them with skepticism, with some simply laughing them away. Times have changed though. As the government works to introduce harsher copyright laws and others that threaten the privacy of Sweden’s citizens, the party is growing stronger and stronger.

In a recent poll, 21 percent of all Swedes indicated that they would consider voting for the Pirate Party in the upcoming European Parliament elections. Among men in the 18-29 age group, this number goes up to a massive 55% - an unprecedented statistic.

Aside from the support in this poll, more people have joined the party recently. During the last quarter the membership count increased by 50% - from 6000 to 9000 - which makes the party larger than the Green Party which currently holds 19 seats in the Swedish parliament.

Swedish Pirate Party Leader Rick Falkvinge told TorrentFreak that the Internet played a big part in the recent successes of the party. “We couldn’t have done this without the dialog infrastructure that the Net provides. Oldmedia has lost control of the discourse,” he said. With all the controversy surrounding the new anti-piracy and wiretapping legislation, the Pirate Party was often mentioned on blogs, since they are the most outspoken opponent.

For the upcoming European election, the Pirate Party requires 100,000 Swedish votes to get a seat, a goal that is within reach in the current political climate. Falkvinge is optimistic too, and said “We need to grow by another 50%, counting from the Swedish election two years ago, to get seats in the EU parliament and shake the political copyright world at its core. It’s hard, it’s supposed to be hard, but the numbers show we can do it. We can do this, and the charts are going stratospheric.”

The Internet will probably play a big role in this election for the Pirate Party, and recent history has shown that this is not only true for parties that carry “pirate” in their name. Elections to the European Parliament will be held in June 2009, and it’s going to be very interesting to see how the Pirate Party fares.

Post from: TorrentFreak

Freedom Fry — "Happy birthday to GNU"

Mr. Stephen Fry introduces you to free software, and reminds you of a very special birthday.

What Happened to the Pirates?

you teacher used teach about Pirate Hawkins
you teacher used teach about Pirate Morgan
And you said he was a very great man
you teacher used teach about Christopher Columbus
And you said he was a very great man
you teacher used teach about Marco Polo, so

You can't blame the youth
You can't fool the youth
You can't blame the youth of today

In a recent radio program on Swedish National Radio, "Pirates and Money" (I have blogged about earlier) the leading lawyer with the Swedish Anti-Piracy Bureau, Henrik Pontén made the following statement:

"Engelskmannen var dem som besegrade piraterna till slut, med nya taktiker och nya fartyg lyckades engelskmannen besegra piraterna i 1700s."

(The English were the ones which defeated the pirates in the end, with new tactics and and new ships the English succeeded in defeating the pirates in the 1700s.)
Henrik Pontén, SR Radio "Media", 22 March 2008

I thought about this statement for a while after I first heard it, as it seems altogether too one dimensional and certain to accurately reflect 1. History, and 2. the mass of events, peoples and actions that became the British Empire. At the moment I am reading Niall Ferguson's Empire: How Britain Made the Modern World, not by choice (I actually set some of it for reading on a course I am teaching) and I am critical of it (Mr. Ferguson chooses his examples well in a sort of Boys Own Annual meets The Economist). However, Ferguson writes well and much of his (carefully selected) source materials do have a significant bearing on how "an archipelago of rainy islands off the north-west coast of Europe came to rule the world" (xi) How this happened began with, and depending on who you ask continued for quite some time, with piracy.

This is where Henrik Pontén is mistaken in what he believes he is fighting, that is what has been come to be termed piracy today (aka file sharing over Internet). I believe the similarities are minimal with the violent acquisition of land, property and human life that was the practice and profession of the pirates to which Pontén refers to in the above quote. But he has drawn the parallel, and we should explore it somewhat. In Ferguson's book there are several references to pirates and piracy, which includes:

"The buccaneers called themselves the "Brethren of the Coast" and had a complex system of profit sharing, including insurance policies for injury. Essentially they were engaged in organized crime. When Morgan led another raid against the Spanish town of Portobelo in Panama, in 1688, he came back with so much plunder - in all, a quarter of a million pieces of eight - that the coins become legal tender in Jamaica. That amounted to to £60 000 from just one raid. The English government not only winked at Morgan's activities, it positively encouraged him. Viewed from London, buccaneering was a low-budget way of waging war against England's principle European foe, Spain. In effect, the crown licenced the pirates and 'privateers', legalising their operations in return for a share of the proceeds. Morgan's career was a classic example of the way the British Empire started out, using enterprising freehand as much as official forces." (2)

"Morgan's career perfectly illustrates the way the empire building process worked. It was a transition from piracy to political power that would change to world forever." (12)

"Once pirates, then traders, the British were now the rulers of millions of peoples overseas - and not just in India.[...] But if British rule in Bengal was to be more than a continuation of the smash-and-grab tactics of the buccaneers a more subtle approach was needed." (38)

The "new approach" was supposed to be the appointment of Warren Hastings as the first Governor-General of British India in 1773. In 1788 Hastings was on trial in London for, among other things "gross injustice, cruelty and treachery" as well as "impoverishing and depopulating the whole country of Oude". (49) As the British East India Company was what the Governor-General really managed it was "the state of near perpetual warfare" (44) waged by the Company in India (and their potential profits) that had resulted in it being taken over by the British Government under the new India Act of 1784. According to the Act:

the work of trading had to be separated from the work of ruling India

a six-man Board of Control from the Privy Council, headed by the Chancellor of the Exchequer, was to be appointed. This meant that the Board of Control would change with the government.

the ministerial board was to have sight of all the papers of the Company and was to issue orders to the directors of the Company which they were bound, in practice, to obey. The Board of Control could, in case of emergency, transmit the orders direct to India.

the appointment of offices in India was retained by the Company subject to the king's over-riding power to veto or remove

the Governor-General in Calcutta and his council was given absolute power with regard to foreign policy over the other presidencies in Bombay and Madras

the Governor-General had the power to over-rule his council (this came with an amendment in 1786)

British subjects were made responsible to English courts for wrongs done in India. All returning "nabobs" were to declare their fortunes

It was never the case, as Pontén hopefully supposes (repeatedly), that Britain simply "defeated the pirates in the end, with new tactics and new ships the English succeeded in defeating the pirates in the 1700s." Rather it was a complex series of moves and counter moves, where the actions of pirates were used to the advantage of the British government when it suited. The pirate/privateer Morgan himself ended up becoming Lieutenant Governor Admiral Sir Henry Morgan of Jamaica in 1673. Those pirates that went against what was expected of them or began getting too independent, such as Edward Teach (Blackbeard -who bought a pardon once from the British Governor Charles Eden of North Carolina but then abandoned settled life and the offer of subsequent pardons), met with violent deaths at the hands of their former business partners.

My own Great Great Grandfather in 1859 was part of an expedition that left Sydney and sailed up the east coast of Australia with 12 muskets and a cannon in response to "The New South Wales Government [which] in 1859 has posted a reward of 2000 pounds to anyone who discovered a suitable harbour north of Port Alma (near Rockhampton)." They found one, Port Denison at Bowen and while they did not get the reward the township of Bowen was founded by Captain Henry Daniel Sinclair, his partners James Gordon (my ancestor) and Benjamin Poole in 1861. From 1861-1866 the area around Bowen was closed to Aborigines, with none allowed to enter its boundaries. Today the area is a vibrant tourist location and source of primary produce. It began as a 'claimed' territory in the tradition of all great piracy.

If history is to be our teacher in regards to the debates around file sharing and intellectual property, I diverge considerably from the position of Henrik Pontén. I think the Swedish Anti-Piracy Bureau should be offering jobs to those involved in the Pirate Bay, BitTorrent, Pirate Bureau and so on. It is the only hope they have of solving this problem if the lessons of the past still hold true today.

An Easter Radio Special on File Sharing in Sweden

If you can understand Swedish you may be interested in listening to the Swedish National Radio special on Pirates and Money (Streamed online for the next 30 days and available as a Mp3 download). It is an attempt to present the so many diverse opinions around peer to peer file sharing in Sweden, which is done by 1.3 million Swedes. Money is a central concern, innovation and new media models is another. Swedes pay around 6-7 billion crowns (around $1 billion US) per year for broadband connection, plus what is payed for Mp3 players, blank CDs and all the rest of the gear that goes with file sharing. File sharing is not free. Money is the prize not the music.
"Inte jaga en hel ungdomsgeneration" (Not hunt down a whole youth generation)is the quote repeated from the politicians from the major Swedish parties. However, they seem at a loss regrading how they are going to please the industry and be able to give consumers a model they are happy with. "Creative solutions" are needed but there are few being offered. Politicians admit they have problems with their own children and downloading of copyright protected material in their own homes. One film maker was telephoned to ask about file sharing, Hannes Holm, who has campaigned against file sharing. His daughter answered the phone and explained that "pappa gets angry with me when I download films", and that "grätis är gott" (free is delicious)- it is clear that the model of P2P file sharing is one that fits with the consumption that is taught to the young in our society from the earliest years of their lives. Why shouldn't they do it?
Another interesting point mentioned in the broadcast but rarely taken up is how the Internet relies on localised sub networks, P2P sections, to run. At the beginning of the broadcast the journalist mentions how when the Pirate bay torrent tracker was taken offline briefly in 2006 there was a noticed decline in Internet traffic. Imagine if all torrent networks were closed down and information generally went through the main channels at the center of the network. The congestion would be severe, as a 2007 study pointed out:

Three distinct regions are apparent: an inner core of highly connected nodes, an outer periphery of isolated networks, and a mantle-like mass of peer-connected nodes. The bigger the node, the more connections it has. Those nodes that are closest to the center are connected to more well-connected nodes than are those on the periphery. (Proceedings of the National Academy of Sciences)
Interesting. A review of the study in The Technology Review summarized the findings as; "Routing traffic through peer-to-peer networks could stave off Internet congestion, according to a new study." (previous post)

IP Number Access for Sweden

The Swedish Culture and the Justice Ministers made a joint announcemnt yesterday that they would be soon introducing legislation into the national parliament that would allow copyright holders (i.e. publishers and artists) to obtain the IP numbers throught the courts for those which either download or distibute copyrighted material,which the do not have the rights to, over peer to peer networks on the internet.
The coalition parties in the government have agreed in prinicple to the legislation proposal, following debate over whether or not it should be possible for the authorities to close down internet accounts (and therefore access) of those that continue to distribute and download after having recieved a warning. It was decided that closure of accounts would not be the goal and legal proceedings with fines and jail time would be.
When asked about the details of the plan the Justice Minister Beatrice Ask replied:

"Vi har inte gått in på detaljer än, men det går att få fram att en IP-adress använts för fildelning. Hur det tekniska ska gå till är inte helt utarbetat. Men självklart har inte rättsväsendet tid att hålla på med vilka småärenden som helst."

(We have not gone into details yet, but it is possible to obtain the IP-address that is used in file sharing. How the technology shall be organised is not completely worked out. But obviously the legal department does not have the time to go through every small detail.)

The reaction in the blogosphere concerning the announcment has been for the most part silent. At this stage there are no details for the plan and with well over a million Swedes currently sharing material over P2P networks (out of total population of 9 million) the proposal itself seems somewhat top heavy.
The spokesperson for the anti-pirates Henrik Pontén said he welcomed the decision because he beleives it will provide the creators with a degree of protection ("kreatörerna får ett visst skydd"). However, how an artist would go about obtaining the hundreds of thousands of IP numbers used in distributing a popular download like the recent most downloaded DVDrip on BitTorrent "The Mist" remains to be seen.

The Continuing Saga of P2P and Sweden

The fog has not lifted on the situation concerning peer to peer (P2P) file sharing and Swedish law. Today the main stories in the news are:

1. The European Court of Justice ruled in regard to disclosure of ISP numbers:

"Community law does not require the Member States, in order to ensure the effective protection of copyright, to lay down an obligation to disclose personal data in the context of civil proceedings" Full Ruling (3 pages PDF) here.

So basically nothing changes there.

2. The public prosecutor found no copyrighted material on the Pirate Bay servers that were seized by Police and Anti-Pirate Beuaure officials in May 2006. Therefore in the case that is being prepared at the moment, with summons for 5 Pirate Bay identities expected to be issued, there will be a call to forbid the linking to copyrighted material. In Australia this has already been tried in the High Court as "secondary copyright infringement" with a successful conviction. More on that HERE. Since there is no way of paying royalties for a link to copyrighted material, the issue of linking as "secondary copyright infringement" seems tenuous. This was found to be so in Oklahama in July 2007 in Capitol Record v. Debbie Foster, where the RIAA sued an Oklahoma woman over copyright infringement. The case was dissmissed with prejudice:

"The Copyright Act does not expressly render anyone liable for infringement committed by another. Rather, the doctrine of secondary liability emerged from common law principles," wrote Judge Lee. "Under those common law principles, one infringes a copyright contributorily by intentionally inducing or encouraging a direct infringement."

3. Finally the Pirate Bay is expanding and plans to launch a P2P video network similar to YouTube in the near future. They are also hiring two new people to work at the organisation.

Interesting times......

What is Stealing?

The situation for peer to peer file sharing in Sweden (apparently its quite popular here) is about to get more interesting. Firstly the application for summons is going to be delivered by prosecutor Håkan Roswall to the public prosecutors office this week after a 20 month investigation into the organisation. It will probably result in some sort of legal action against the Pirate Bay (currently hosting 1 million torrents and 10 million seeders) but spokespeople for the Bay have already said they are prepared to take it all the way to the European Court so it will be years before any binding decision is made. Even Håkan Roswall does not believe the Pirate Bay can be stopped with a case mounted in Sweden and according to the driving force behind the case against the Bay, IFPI "Internationally there are 20 illegal downloads of music for every legal one". The situation seems difficult for the anti-pirates, however that does not stop them.
Liza Marklund (who ironically runs a publishing company called Piratforlaget - The Pirate Publishing House) published a column in the Expressen newspaper ("Stop Complaining Net Pirates"), which was a hard attack against not only the act of illegal downloading, but the ideology of those who propose that the laws surrounding publishing rights need to be changed. The final sentence in Marklunds diatribe attempts to summarise those in the Pirate Party (which actually is a very separate organization from the Pirate Bay and the Pirate Bureau):

Vi är ett gäng lata, snåla nättjuvar som snyltar på andras arbete.
("We are a gang of lazy, stingy net thieves who sponge on the work of others.")

Marklund must have been having a bad day when she wrote this as it seems to have little to do with the situation that is P2P sharing technology and law today. Wheather or not those that download share their own materials that they have themselves created (and I am sure many do) is not really the point. There are over 450 comments on the article which summarize a number of positions in relation to it (if you can read Swedish). However, I wanted to comment also on the article but the comments have been closed off now, so I thought to add something here. From Techcrunch:

The era of paid music downloads is coming to an end (despite the fact that online sales are growing).

Qtrax, which has signed all four major labels (EMI, SonyBMG, Universal Music Group and Warner Music Group), launched yesterday with 25 million songs (compared to around 3 m for Amazon and 6 m for iTunes). Note: See update below.

It isn’t pretty - the downloaded songs are not compatible with iPods and have to be played via a proprietary player built on the Songbird platform. Ads are displayed during playback, even on music devices. For now the service is Windows only, so Mac users are left out. And right now the service is down completely from all the attention it’s getting.

For most people, BitTorrent and the music search engines are all they need for their illegal-but-highly-convenient music needs. Any additional hurdles means not a ton of usage. And since services like Imeem and Last.fm provide free on demand streaming music with ads, there is already real competition out there for Qtrax.

I really do not think that Marklund and those she represents understand what is going on here. Calling people names is not going to solve the problems of new technology colliding with old industry. A legal result (and it is at least 5 years away if the Pirate Bay take the upcoming case to the European Court) may make some difference to the situation, but with access to the law dependent upon financial and political power it seems that the result will just contribute to the already bi-polar situation we have at the moment. Many people no longer see culture as property but rather experience has become the commodity they are prepared to pay for. A concert, festival, exhibition, reading will be well attended and make money. Distributing the products of an artist introduces the public to the work of the artist. They will pay to experience the work of the artist but not to have a track on an Mp3 player or some images from a film. Once people realize that the cultural ecomony we are now living in is not the same as that one that existed even 10 years ago then we can begin to set up a new system where artists are rewarded for their work. Holding out for a return to the past is only depriving artists of income and the support they need to make new works. Insisting on payment for every megabyte is dumb.

UPDATE: Tomorrow at 9:30 am the European Court of Justice will deliver a decision making it possible or not for Internet Service Providers to be obliged to provide police with ISP numbers of those who download large amounts of information over the internet. The details of the case are:

Reference for a preliminary ruling - Juzgado de lo Mercantil no 5, Madrid, Spain - Interpretation of Articles 15 (2) and 18 of Directive 2001/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1), Article 8 (1) and (2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p.10) and Article 8 of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45) - Treatment of data generated by communications made in the context of the supply of an information society service - Duty of operators of electronic communications networks and services, providers of telecommunications network access and providers of data storage services to retain and make available such data - Not where civil proceedings are concerned.
Advocate General : Kokott

Of course Sweden will have to comply with the ruling of the court. Professor of Media Technology at the Royal Technical College in Stockholm, Roger Wallis describes the rational behind ISP surviellance for P2P file sharing as:

Sverige är nästan längst fram i världen när det gäller små företag i mediebranschen som utvecklar nya affärsmodeller som går ihop med internet och fildelning. Det ses som ett jättehot från de stora skivbolagen som satsar allt mer pengar på allt färre artister, och de har inte råd med en flopp.

("Sweden is almost foremost in the world when it comes to small companies in the media industry which develops new business models that include internet and file sharing. That is seen as a huge threat by the big record labels which devote more and more money to fewer and fewer artists, and they cannot afford to produce a flop")

Exploring the online music market: consumer characteristics and value perceptions

From our friends at Copyriot comes the news of a new thesis on dissident forms of digital textuality, be it from the side of the Orthodox:

Exploring the online music market: consumer characteristics and value perceptions
By Styvén, Maria
The advent of the Internet and the digitization of music has resulted in a multitude of new challenges and opportunities for the recording industry. So far, sales of digital downloadable music have not compensated for the decrease in CD sales throughout the twentyfirst century. To attract new customers and successfully compete with file-sharing networks, commercial online music services need to meet customer expectations by delivering what they value. Therefore, to increase the understanding of prospective customers, the purpose of this thesis was to explore and describe customer value and target groups within the online music market. Data were collected through a survey of Swedish consumers between 16 and 60 years old.

Customer-perceived value of downloadable music, in terms of expected value for money, was found to be quite low. Value could, however, be increased by improving the most important benefits. In addition to fundamental functions, such as ease of use and search, a large music catalogue, and good sound quality, flexibility in use is essential. This involves ensuring transferability, compatibility, possibility to duplicate files, and opportunity to sample. The high level of desired flexibility suggests that digital rights management (DRM) restrictions decrease value by making it difficult for consumers to use the product freely. Furthermore, perceived value could be enhanced by decreasing privacy risk, such as concerns about paying with credit card online, and, most importantly, lowering prices. Consumers, on average, thought that a downloadable song should cost 5–6 SEK, i.e. about half of the current price. However, providing better value in terms of the proposed benefits, combined with lower risk, would improve consumers' willingness to pay.

The study also found that current potential target customers of online music services are between the ages of 25 and 45, have a higher-than- average interest in music, low concerns about risk, and are experienced users of the Internet and digital music overall. Clearly, use of file- sharing networks and commercial online music services is not mutually exclusive. In fact, P2P users in the study were generally more likely than P2P non-users to be customers of commercial services. Moreover, increased customer value of pay-per-download services is more likely to result in higher usage intentions among consumers with current Internet music download experience. An important challenge for commercial online music services, therefore, is not only to attract more file sharers, but also to retain occasional customers by increasing the perceived value.

While Rasmus at copyriot feels embarrassed to be part of the academy that produces such work (and I can understand why as well, with the stench of business so close at hand). I, however, think there is some value in any discussion on how information, such as music, is consumed today. We live in a society that is totally formed by consumption and nobody can ignore that. The idea that

P2P users in the study were generally more likely than P2P non-users to be customers of commercial services. Moreover, increased customer value of pay-per-download services is more likely to result in higher usage intentions among consumers with current Internet music download experience.

may render the 'pirate' image of the socially defined P2P file sharer somewhat harder to maintain in its gross totality. Many who download also buy. The argument about P2P file sharing is not about the technologies, but is rather about the profits of copyright holders. Many P2P file sharers also support the industry they rally against in their choice of hardware, buying blank CDs, paying ISP charges, and so on (even in clothing and going to concerts). Of course the profits of the top five media mutlinationals could be even greater if all P2P networks were closed tomorrow, but in reality they are doing fine and many pirates are paying their way. It almost impossible not to.

Communique from Oil 21

Today I am taking in the Oil 21 workshop Beyond Intellectual Property: From File Sharing to Distributed Archive at Umeå Art Academy. Some very interesting things are being discussed. The 'leaders' of the workshop are Sebastian Lutgert, and Jan Gerber from Berlin. They created in the first six months of this year the Oxdb film data base and search engine. As an excercise in intergrated visualization of information the Oxdb is a nice piece of work. It pulls in information from online torrent downloads of films. The Oxdb does not offer any sort fo downloads but rather it shows what is in circualtion at any time from what people are downloding. The films are then arranged in stll time lines with director, location, production, and more displayed. There are short samples from the films but no more than 30 seconds. As a research archive the Oxdb has a huge potentail for use.
We are now watching the Danish documentry Good Copy Bad Copy (2007) It is of course online and free for all.

Beyond Intellectual Property: From File-Sharing to Distributed Archiving

For all of this coming week I want to spend as much time as I can at the Acadamy of Fine Arts here in Umeå. The are hosting an Oil 21 event this week, The Oil of the 21st Century, Beyond Intellectual Property: From File-Sharing to Distributed Archiving. The first three days (Monday-Wednesday) are open and Thursday and Friday require registration. It seems to be related to the even that took place in Berlin October 26 to October 28 (program and news). The Umeå event will include films, discussions and more:

Beyond Intellectual Property: From File-Sharing to Distributed Archiving" is a workshop and a symposion with Sebastian Lütgert, artist, writer, theorist, and Jan Gerber, programmer and video artist, both from Berlin. Special Guest on Friday, Nov.9: Rasmus Fleischer, Historian, writer, musician and conceputalist; cofounded the collective Piratbyrån in 2003.

Situated at the core of this workshop is an ongoing research project on images and information on the internet: who owns this information - allegedly the most valuable good in this century - and who has the right to produce and distribute it? These question arise from working with images, texts, music and film, and may demand for a set of entirely new artistic strategies. Archive and context – both key words in the arts during the last 15 years – are of particular interest and subject to new definitions.

Questions (in no particular order):
- What is the masterplan behind "Rights Management"?
- What does file-sharing mean for the relation between production, distribution and consumption?
- What do we do now that all files have been downloaded?
- What is "Pirate Cinema"?
- What can we expect from the "Creative Commons"?
- What modes of subjectivation exist beyond the "Small Author"?
- What is the answer of the artist / the filmmaker / the fotographer to these emerging questions?

The reading list is an interesting thing in itself and all the texts are online:

Beyond Intellectual Property – Reading List

1. Control and Rights Management
Gilles Deleuze, Postscript on the Societies of Control
John Perry Barlow, Censorship 2000

2. Copyright and the Commons
Tim O'Reilly, Piracy Is Progressive Taxation
Joost Smiers, Abandoning Copyright
Rasmus Fleischer - "Content Flatrate" and the Social Democracy of the Digital Commons

3. Music and Piracy
Courtney Love, Music and Piracy
Steve Albini, The Problem with Music
Steve Jobs, Thoughts on Music

4. Détournement and Pirate Cinema
René Vienet,The Situationists and the New Forms of Action Against Politics and Art
Situationist International, With and Against Cinema
Situationist International, Cinema and Revolution
Situationist International, The Role of Godard
Steven Daly, Pirates of the Multiplex

5. Small Authors and Material Reproduction
Franz Kafka, Intellectual Property
Walter Benjamin, The Work of Art in the Age of Mechanical Reproduction
Jorge Luis Borges, Pierre Menard, Author of Don Quixote
Roland Barthes, The Death of the Author
Michel Foucault, Author Function
Robert Luxemburg, The Work of Art in the Age of Digital Reproduction

OHHH what a week......

If you want to aquaint yourself with what the SI thought of Goddard, I put up a series of Situationist comics on my Flickr site quite a while ago...but they are still here.

Music Networks a Threat to Static Management

Record company executives must be finding it difficult to get up in the morning and go to work some days I reckon. This morning the news that Radiohead have earnt an estimated few millions pounds in the first day of offering their new album for download 'by donation' from their own website must have made a few record executive a little bit grumpy. The need for a record deal is becoming less and less as each month goes by. According to the Sydney Morning Herald with 1.2 million downloads from the Radiohead website on the first day:

A poll by The Times of 3000 fans who bought the album found the average price paid was £4 ($9.20) - about half the usual price of an album on iTunes. On those figures, on the first day alone, the band would have collected more than $10 million, and by cutting out the middle man - the record company - the band will receive every cent of it.

If contracted to a record company, the band would have had to sell 10 times that number of physical albums to collect the same profit.

Yesterday on local radio I heard an interview with David Sylvian (does anyone remember Gentlemen Take Polaroids?) who is now doing more interesting things with music. He has abandoned the idea of needing a recording studio and having the musicians in one place in order to make a recording. In the interview (streamed from the link) Sylvian says he is part of a global network of musicians who send files to each other over the net (sounds familiar to me). Each contributes to the recording process in their own time and place and then it is all mixed down at the end somewhere else by someone else.

The use of Internet by both Sylvian and Radiohead seems to me to make recording contracts, and the companies that offer them, irrelevant. Unless the companies can offer something more than manufacturing and distribution they are doomed. I think companies that work with musicians, if they want to continue making profit, need to move into touring, venue management, experience design using musical concepts and the manufacture of more trans medial artifacts (DVDs with books and interactive media components).

IPRED2

I have picked up Debora J Halbert's Resisting Intellectual Property Rights again after a week of Self-ish pleasure reading a novel. Reading Halbert has raised a few thoughts of the IPRED2 proposal I wrote about a few days ago. This quote from Halbert

"The Digital Millennium Copyright Act (DMCA) is Congress' attempt to apply copyright to the Internet. The DCMA makes it illegal to link to a site that may violate copyright. Thus server providers may be prosecuted for copyright infringement if they allow pirated materials to appear on their sites. The DCMA provides "safe harbor" protection for "unknowing" infringers, a phrase that became important in the Napster litigation. Critics contend that the DCMA ignores the public interest and is another step towards privatizing the Internet and allowing copyright to be used as a tool for censorship." (Halbert 73).

From my readings of IPRED2 there seems to be a marked degree of harmony between the EU Directive proposing the "attempting, aiding or abetting and inciting such infringements, are treated as criminal offences" and the DMCA, which is now law in the USA, making the committing of an act that allows for copyright infringement an offence in itself. The threat of possible infringement increases the power of copyright holders as they can threaten with a cease and desist order and then avoid the test provided by a court case. An atmosphere of fear builds upon the threat of litigation.

There is a petition online:

We believe that IPRED2's new criminal sanctions pose a risk to legitimate business and respect for individual freedoms in the EU.

We ask that the European Parliament approve amendments that would remove the new crimes of "aiding, abetting, or inciting" and limit the directive to combat only trademark counterfeiting and true commercial-scale copyright piracy.

SIGN HERE.

I Oppose IPRED2

Today I was surprised to receive a personal email from Erik at the newly opened European office of the Electronic Frontier Foundation. The contents of the mail were not so pleasing.

The IPRED2, the second "Intellectual Property" Rights Enforcement Directive, passed its first reading in the European Parliament on the 25th May ( Implementations and Amendments are here). IPRED 1 was adopted in 2004. The Free Software Association of Europe prefers to term IPRED something else:

This directive is often called "IPRED2", however we recommend not using terms that talk about "Intellectual Property" as this leads to confusions that make our work more difficult. Instead, it can be called "The Criminalisation Directive".

While many Europeans this summer are either battling to survive extreme weather conditions or on holidays the EU Parliament is setting up to introduce laws that will make many of us criminals, and not just a slap on the wrist and cop a fine type criminal, this is serious. To quote from the Directive:

"Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences."
(Article 3. Page 6 of the dossier: com(2005)276)

So any attempt to circumvent intellectual properly (NOTE: IP is not defined in the directive but in prior legislation IP in Europe includes copyright, patents, topographies of semiconductor products, plant breeders' rights, plant variety rights, industrial design rights, supplementary protection certificates for pharmaceutical products, database rights, authorship, trademarks, design and trade secrets) is punishable by "permanent bans on doing business, seizure of assets, criminal records, and fines of up to €100,000." An example of such an infringement could be the manufacturing of CD-R music releases of your own music on CDs that are not licenced to the Phillips Corporation. It could include providing support for the work of NGOs in supplying generic medicines to those living with HIV/AIDS in sub Saharan Africa. It seems like it could include operating a website that allows users to exchange favorite URLs.

To criminalise incitement to infringement (aiding and abetting) is to impose restrictions on the freedom of speech. Those that will be criminalised by IPRED2 include open source coders, media-sharing sites like YouTube, social network sites, podcasters and bloggers, intranets attached to universities, and ISPs that refuse to block P2P services. In order to avoid possible infringement ISP and networks will restrict content and access fo everyone, not just minors. As well it seems to me that sites such as del.icio.us would be liable if they share links to sites that infringe IPRED2. Businesses who unwittingly supply any type of service to someone during the act of infringement may be liable themselves to legal prosecution.

Anyone who is working in education, particularly higher education, is aware of the difficulties imposed upon teaching by the laws of intellectual property. It is not possible to show films in the classroom, to provide students with reproductions of texts, to play copyrighted audio material in a classroom or distribute study material electronically. Much of this situation is a result of IPRED1 from 2004. As a result of IPRED2 it will be a criminal offence to suggest sources for study materials that are not protected by current copyright. What this means in reality is that only sources that cost money can be legally used in the classroom. I myself am in the process of writing a conference paper that analyses 6 digital texts, all of which incorporate older texts (films, audio, novels and images) into their own texts. Does my arguing that current copyright law fails to recognise the affordances of digital media and how people are actually using such media constitute "the aiding or abetting and inciting such infringements"?

Finally what about emerging forms of creative expression which will effectively be made illegal by IPRED2. I am particularly thinking of machinima film making. Machinima is a great way for young people who are interested in film to start out as all they need is a computer and some sound and screen capture software. Machinima is also a growing industry with a capital worth. Presumably sites that host machinima films, festivals that show them, people who make them and even the TV networks who send them into millions of people's homes would all be made criminals by IPRED2.

For these reasons and more I do not support the "Intellectual Property" Rights Enforcement Directive 2. Please join me in doing so.

More information about the 'Criminalisation Directive' can be found here:

Copy Crime

fsfe Criminalisation of trademark and copyright infringement

Proposed directive on criminal measures aimed at ensuring the enforcement of intellectual property rights

To lobby an EU politician:

Margot Wallström
Vice-President of the European Commission
B-1049 Brussels
Email from Here

Other EC Commissioners who blog

Pick one of your local MEPs from those listed for your country or region, and note his or her contact details:

http://www.europarl.europa.eu/members.do

Resisting Intellectual Property Law

If you only read one book on intellectual property (a huge area that includes copyright, patents, authorship, commons, trademarks, and trade secrets) it should be Debora J Halbert's Resisting Intellectual Property Law (Routledge; 2005) (links to the Introduction). Halbert's text is clearly written, extremely well researched and provides clear examples of the mess into which unbridled property rights has delivered us in the early 21st century.
Resisting Intellectual Property Law attempts to build a theoretical base for the commons. In doing this Halbert develops a strong critique of Habermasian public spheres. I have long been suspicious of Habermas' modernist and bourgeois obsessions and Halbert articulates these "anti-democratic tendencies" (24) far better than I can.
The text goes on to look at End User Licence Agreements versus Open Source. The realities of digital music distribution, and the morality of patents and medicine. Interestingly, the illegal distribution of media is so often portrayed in moral terms by those parties attempting to enforce copyright to texts. Finally the patenting of genetic materials (i.e. the human body) and the ownership of traditional or indigenous knowledge is discussed.
I am only a 1/4 of the way into the text, but not since my first encounter with the works of Lawrence Lessig have I read such an accessible and compellingly argued book on intellectual property. The contents are:

-- Theorizing the public domain: copyright and the development of a cultural Commons
-- Licensing and the politics of ownership: end user licensing agreements versus open source
-- I want my MP3’s: the changing face of music in an electronic age
-- Moralized discourses: South Africa’s fight for access to AIDS drugs
-- Ownership of the body: resisting the commodification of the human
-- Traditional knowledge and intellectual property: seeking alternatives.

Doctorow: Overclocked: Stories of the Future Present

Author Cory Doctorow discusses his book "Overclocked: Stories of the Future Present" as part of the Authors@Google series. This event took place Monday, May 21, 2007 at Google headquarters in Mountain View, CA
Cory Doctorow is the co-editor of the boingboing blog, and author of the books Someone Comes to Town, Someone Leaves Town, Eastern Standard Tribe, and Down and Out in the Magic Kingdom. A fellow at the Electronic Frontier Foundation, Doctorow writes for such publications as Wired, Popular Science, The New York Times and MAKE. In 2000, he won the John W. Campbell Award for Best New Science Fiction Writer. (more) (less)

How Far is Microsoft™ Prepared to Go?

This morning I am stunned by the gap between these two statements:

"i’m is a new initiative from Windows Live Messenger™. Every time you start a conversation using i’m, Microsoft shares a portion of the program's advertising revenue with some of the world's most effective organizations dedicated to social causes. We've set no cap on the amount we'll donate to each organization. The sky's the limit." Windows Live Messenger™

"Microsoft claims that the open-source movement, powered mostly by Linux, infringes on some 235 of its patents, and the company is taking action." How Far is Microsoft™ Prepared to Go?

Is not open source software a social cause???? I met recently with two artists from South Africa who said that access to resources was one of two of the greatest challenge to diversifying their artistic praxis, the other being conservative opinions. In the pending actions of Microsoft™ we see both restriction of access and enforcement of a particular set for solving the problems. Traditional charity organizations (including the World Health Organization, the Rockefeller Foundation, Unicef, pharmaceutical companies and the World Bank) are the benificiaries of the Microsoft™ billions. Sure there is good to be made from the work of such bodies but why cannot open source intiatives be part of such a solution?

Internet Cracker Extradited

The extradition of Hew Griffiths is a new chapter in global copyright enforcement. The 43 year old Australian (who has never been to the US...before now) has just been forcible removed from Australia and is now in a gaol in Virginia USA awaiting sentencing on June 22, 2007 for one count of conspiracy to commit criminal copyright infringement and one count of criminal copyright infringement. He is facing 10 years prison and a US$500,000 fine.
Hew was supposedly one of the leaders of the cracker network DrinkOrDie, whose most famous action was the Internet release of Windows 95 two weeks before Microsoft released the official version.
Of the many international members of DrinkOrDie arrested and charged as part of Operation Buccaneer in 2001 only Hew has been extradited to the States. It seems to be a result of the Australia-United States Free Trade Agreement (FTA) signed in 2004. As part of the FTA agreement Intellectual Property Rights were 'harmonised' between the two counties.

All and a Little More

This new extension of the library at Umeå University was opened today.

Many people may follow the email advice sent out by the Amazon.com bots on what they should be reading. Myself, I read based on the 'Please Return this Book Immediately' notices I get from the university library. We have a great system here at Umeå University Library; no fines, unlimited re loaning (all done over the net), a huge collection and (unbelievable) they buy books if I make good suggestions (so far I have not been refused a purchase...maybe 100 made over the last few years). But if someone else has ordered a book then I cannot re loan it and must return it. If I fail to return it they send out one reminder and if that is ignored then I can be shut off for 6 weeks. Which brings me to last night; I was up until 1am reading Yochai Benkler The Wealth of Networks: How Social Production Transforms Markets and Freedom, as it must be returned by last Monday. I finished all 473 pages and I am so happy I did. I plan on using section III chapter 11 of the online version in the HUMlab short course Copyright, Commons and Creativity that I will be teaching on 12th April (book now...will be great).

This, in a very round about sort of way (welcome to my mind) brings me back to the seed from which this blog post grew; Steve Jobs crying foul on DRM which I mentioned in a previous post. It seems Steve may not be being completely honest on DRM as it is standard in all iTunes and does not look like changing. He blames the music industry:

the “big four” music companies: Universal, Sony BMG, Warner and EMI.
These four companies control the distribution of over 70% of the world’s
music. When Apple approached these companies to license their music to
distribute legally over the Internet, they were extremely cautious and required
Apple to protect their music from being illegally copied. The solution was to
create a DRM system, which envelopes each song purchased from the iTunes store
in special and secret software so that it cannot be played on unauthorized
devices.

according to this excellent article ( via apophenia) :

Apple doesn't sell music because of DRM -- it sells music in spite of DRM. The
iTunes Store proves that you can compete with free. People have bought billions
of dollars worth of music from Apple because it offered a better user
experience. But no one bought for the DRM. Some people bought in spite of it,
some bought in ignorance of it, but there's no customer for whom DRM is a
selling point. No one woke up this morning wishing for a way to do less with her
music.

And who does Jobs think should be doing something about DRM locking? The Europeans that's who:

Much of the concern over DRM systems has arisen in European
countries. Perhaps those unhappy with the current situation should redirect
their energies towards persuading the music companies to sell their music
DRM-free. For Europeans, two and a half of the big four music companies are
located right in their backyard.

This is a bizarre attempt at "International Harmonization", except in a reverse way. Rather than saying that exclusivity of rights needs to be brought into line over national boundaries, it is saying that "if they stop we could stop". But no one is really going to stop unless the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) changes. A new treaty on IP is not likely. So, my final words are; aren't libraries great. Imagine a world without them. Where everything had to be paid for in order to be experienced. I am going to return my overdue library book right now.....