“Indexing the Grey Zone”: a talk at Transmediale08

“The Greying Of The Commons: IP, The Law And The Street was the title for a session at this year’s Transmediale in Berlin, with short presentations by five invited guests, and real-time input via IRC.
Here follows the script for Rasmus Fleischer’s short talk at the panel.

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 naïve 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.