Peer-to-peer-based file-sharing in Sweden: Clashing proposals from the interventionist state on what to do with a wildly file-sharing population. Pacify them with broadband-tax subsidised, “free” file-sharing or instil a general fear of uploading by penalising those who do?
In the current, once again harshening legal climate surrounding p2p-based file-sharing in Sweden, where the infamous EU-wide IPRED directive is now making inroads and might be implemented early next year (effectively granting powers to private bodies to monitor and police what they consider illegal copyright infringements), it is noteable that there are two strands of the debate which both assume state intervention, but in different ways. These two forms of intervention – in effect, corporatist solutions where existing industries are subsidised by the state – are, however, seemingly incompatible with one another!
If the former one, IPRED and its “private IP militias,” is one that grants legal powers (normally held by the state) to private organisations, the second one is the seemingly much more democratic, pro-file-sharing idea of subsidising alleged “losses” in the entertainment industry by levying a tax or a fee on broadband connections, enclosing also the mainstream p2p networks by a supervisory body which would measure degrees of circulation of items and report to a collecting society, thereby economically subsidising the same industry by widespread surveillance of the file-sharing habits of ordinary citizens.
In the Swedish public debate on p2p-based file-sharing, there have been repeated proposals made for this kind of “blanket levy” on personal Internet connections in order to extend the current system of collecting societies to also be monitoring and reimbursing p2p-type circulation of copyrighted material. (Amongst many others, Roger Wallis made a strong argument for this earlier this year.) Similar proposals have been made in Canada and the UK. The remuneration is thought to “make up” for sales otherwise lost; a standpoint which is congruent with the entertainment industry argument of downloads (partially) substituting sales (the argument of Stan Liebowitz and others): an argument which is however not wholly proven. In fact, some researchers argue for a corellation between high file-sharing and high consumption of CDs, DVDs, games in general: If this is true, why subsidising any alleged “losses” among those artists/producers who are in fact already widely shared on the p2p networks?
In other words, there are various problems with these kinds of “broadband tax”/corporatist remuneration proposals (some of the more practical ones best left out here due to brevity). It is noteable that these proposals arise in countries with historically strong histories of state subsidies and corporatism, i.e. Scandinavia, Canada and Britain.
The main issue, however, would be whether it would be legally feasible at all, in an international perspective, to implement a carte blanche for unrestricted file-sharing in one country. Reforming copyright law in such a fashion would violate WTO agreements (Berne convention), UN conventions (the WIPO copyright treaty), and EU directives. Due to the deterritorialised nature of the Internet, this would pave the way not perhaps for centralised indexes and services (such as The Pirate Bay and other torrent link archives) to remain in operation – EU-sanctioned directives like IPRED are intended to target these more orchestrated (‘infringement committed on a commercial scale,’ EC 2004: L 195/20) ventures. However, what these proposals overlook is the co-distributive role of individual peers on a p2p network: allowing unrestricted file-sharing for individual users has the likely side-effect of, in effect, allowing decentralised pooling and sharing of metadata of a semi-anonymous kind, where no single actor can be held liable for infringement. The argument among many proponents of file-sharing is that a more repressive legal regime would only lead to more decentralised, hidden forms of sharing – utilising proxies, encrypted networks, ‘darknets’/‘sneakernets’, and fragmented storage and transfer of files – an argument which ties into the overall teleological/determinist notion of p2p-based file-sharing being practically ‘unstoppable’.
Allowing totally free file-sharing on the one hand – and implementing a repressive policing system against uploaders on the other, simply does not make sense. The former, “file-sharer friendly” proposal either misses the point that file-sharing always inevitably involves also the practice of uploading/seeding/spreading – the very practice that IPRED is intended to strike down on – or it simply overlooks all the negative, potentially anti-democratic externalities of the required Internet surveillance system that this proposal would comprise. The latter, repressive IPRED system, is incompatible with any notion of “allowed sharing” since it leaves the field open for arbitrary demands on legal repression by those who can claim their copyright being abused. As pointed out by for example Rasmus Fleischer, the IPRED system aims at instilling a general fear in the file-sharing population of uploading, seeding and thereby contributing to the file-sharing infrastructures. Once the IPRED directive is implemented, any notion of “allowed sharing” seems very far-fetched, and paradoxical indeed.
However, this intended fear will most probably backlash into an even more militant, underground-based file-sharing. A practical assessment of the legal apparatus makes apparent that it can only operate if its subjects are visible and numerically viable to be legally regulated. The p2p infrastructures have the possibility to react to harsher measures by decreasing visibility and diverting responsibility among impossibly large groups of individuals.
Targeting seeders (uploaders), which seems a likely outcome of the EU-wide IPRED directive, would in this view see the likely response of these seeders cloaking themselves by various technical means, and by massively distributing their agency, thereby diverting responsibility through sharing/decentralising also it.
Targeting network facilitators would see similar responses; either the upshot of semi-public networks, open by invite only – or the encryption, decentralisation, onion routing, or further abstraction/meta levels of infrastructures (i.e. only providing pointers, hashes, links; that is, no actual content).
An Agamben-like, permanented ‘state of exception’ would continue; a latent conflict. There is, in a country like Sweden with its historically strong cultural inclination towards compromise and consensus, a latent wish that the entire “file-sharing debate” would simply come to an end if only the parts involved could reach some form of agreement. Nothing would be further from the likely development of the overseeable future. Even though individual instances of downloading might be practically allowed (as they are already), those attempts at uploading and sharing metadata that are trackable will be seized upon by the judiciary. Given a harshening legal climate in regards to uploading/seeding and indexing/publishing metadata, the probable result from this is that new technologies for non-trackable sharing will become implemented by the Internet users, alongside technologies for massive diversion/decentralisation of the assignable legal responsibility involved, practically making the law unenforceable.
BitTorrent already does this, in its circulatory mode, where users can potentially only be held liable for making available fragments of files. However, in terms of its metadata, BitTorrent currently relies on link indexes that are, in effect, centralised – and thus vulnerable to regulation. Still, what the site provides is merely a user-generated index of links – ontologically similar to what for example Google provide (with the proviso that The Pirate Bay’s is a dedicated index, not a general/“scattershot” one to the same extent as Google). This level of abstraction from the actual content shared might be what gives the site legal leeway to continue their operation. The results of this will be most likely to show later this winter, as the court proceedings against the site will re-commence here in Sweden.