Between artworks and networks: Navigating through the crisis of copyright
12 december 2006
This text is an edited conglomleration of two lectures held by Rasmus Fleischer in the autumn of 2006: Wizards of OS in Berlin (September 13) and Art|Net|Work at Aarhus university (October 25). Partly based on different earlier performances; concepts collaboratively developed around Piratbyrån.
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.
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.
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.
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 compensations 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.