The one-sided assumptions in the Pirate Bay ruling

This is a translation of an article that I wrote in Swedish newspaper Svenska Dagbladet on Nov 27th, following the verdict from the Swedish Court of Appeal in the famous Pirate Bay copyright infringement case.

According to the current ruling in the Pirate Bay trial, the Court of Appeal makes a very interesting comparison between The Pirate Bay and services like Google and YouTube, which also distribute copyrighted material:

“If the nature of a search service is such that it primarily is a valuable tool in lawful activities, and of general benefit to society, if this legitimate use predominates, but the distribution or transmission of illegal material in spite of precautions cannot be ruled out, the operation of such a service should be considered as legitimate.” [emphasis added]

In fact, the ruling depends on whether one sees file-sharing as a fundamentally good thing for society, or as a public hazard. Once again, the saga of The Pirate Bay shows that the law is eminently political.

Orchestral manoeuvres in the dark

If you are a fantastic cultural producer, what good is it if no-one hears, sees or gets to know about your work? The problem of structural support to the cultural industries is as much to do with supporting new forms of distribution and recommendation systems as it is to do with direct economic support to producers, or leveraging employment rules and state subsidies in useful ways, or due appreciation also to distinctly amateur forms of production.

That last note, about the importance of appreciating amateur forms of production, is essentially there as an inital reservation: Of course I’m in favour of an amateur-led wave of cultural production, better enabled by digital technology. Who isn’t? And of course it is great that tools and knowledge are more horizontally distributed now, favouring bazaar-like modes of organization over cathedral-like ones.

The Pirate Bay: The verdict marks the beginning of the “post-piratical”

We saw a guilty verdict against all four prosecuted in the Pirate Bay trial, but this will be appealed and most likely go all the way to Sweden’s equivalent of the Supreme Court. The ruling symbolises how we are in the middle of a conflict between law and the new realities of the Internet, says media researcher Jonas Andersson.

This is a translation of my editorial published last Friday on Swedish debate site Newsmill.se.

We are entering a “post-piratical” decade. Unregulated file-sharing is a condition, no exception.

We have seen regular attacks against the “pirates”. Serious accusations, severe measures. Even convictions, such as this one. But the effect is fleeting. Some now point to the implementation of laws like IPRED and swear that “downloading is going down”. If only it were that simple. Also this effect is most likely transient.

The people who wouldn’t allow endlessly molecular slippage

In Sweden, we seem to prefer even the most nebulous, awesomely vast and non-overseeable phenomenon to be formulated in terms that carry at least a modicum of solidarity and national-corporatist coherence.

The state battles file-sharing using corporatist measures, but ironically the file-sharing world itself – as a product of the same society, the same morality and concept of liberty – is also construed in corporatist terms (albeit of a slightly different flavour than the strong-arm authoritarian state corporatism that the EU currently favours towards all things digital). But this is perhaps also what gives the Swedish file-sharing phenomenon its potency; pirates, warts and all.

Here follows some more excerpts/cut-outs from my thesis…

To speak for one’s own network

The first Pirate Bay trial is over (the verdict is due to be announced on April the 17th, and I write “first” as it will probably be followed by appeals upon appeals).
A new decade is upon us. This comes to mark what I, and many people with me, would argue is the “post-piratical” era.

The files have already been uploaded. A jurisdictional bulwark (IPRED; ACTA; FRA; data retention) has been raised throughout Europe, to allegedly deal with the nastier sides of unrestricted file-sharing – while the everday, small-scale sharing of perfectly normal individuals continues and seems to do so for the unforeseeable future, and while even bigger, more institutionalised actors like The Pirate Bay seem slippery to blame and to admonish. This, since the entire phenomenon appears to be distinguished by an agency that is so fractured and distributed, that no one actor can be said to bear the only responsibility.

The carrot and the schtick?

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!

Afterthoughts on the Pirate Bay controversy, part 2

As I have described earlier, an indexing of torrent links constitutes one among many other forms of making-public; that is, publication.

2) Different degrees of making-public
Publication is not an absolute term; there are degrees of making public. A document passing in or out of a Swedish public institution is by default defined as legally public. However, parts of it can be censored under certain conditions. Further, due to more recent data protection laws (PUL), an administrative document like this can actually be public yet simultaneously not intended for further circulation, or mass-reproduction.
In the now-infamous case, as so often when Internet technologies are involved, the agency which acts to make public does not reside in but one actor. It is rather to be seen as an upshot of the sad configuration which arises between actors in a media ecology we are still grasping to fully understand:

Afterthoughts on the Pirate Bay controversy, part 1

…and hopefully the beginning of a debate on what “making public” really means in an era of rapidly increasing digital accessibility and complex media ecologies.

1) The interests and range of action of The Pirate Bay
On Thursday 11 September, Swedish public service television SVT hosted a debate on the affair which The Pirate Bay has recently been the focus of. This whole affair flared up due to the Swedish commercial broadcaster TV4 making the “scoop” that public documents containing forensic evidence from a recent, very well-known Swedish murder case were floating around as BitTorrent files, and that the initial link to these files was posted on the site in question. A veritable torrent of interest was then generated by this TV4 news story, and the number of downloads of said torrent increased near-exponentially.

The Pirate Bay: the fine line between publishing and “merely providing” data

A recent controversy illustrates the dual role of The Pirate Bay. When this infamous web site published links to files containing forensic evidence in a well-known Swedish murder case, and the victims asked to have the links removed, the website administrators staunchly refused.
Is this example of making-public controversial data to be seen as the operation of an allegedly “neutral” service provider? Or should we rather see any such operation as a form of publishing (making-public) in and by itself? Especially since The Pirate Bay is a website which does all this within a commercial remit. And more importantly: the site itself actually serves to change public opinion on what material should be publicised or best left untouched…

“Net neutrality” no simple matter

The idea of a tiered Internet, with “diamond lanes” for heavy commercial services like web TV and IP telephony, is a key contemporary issue – not only technically, but democratically. The issue is not, however, entirely without irony…

New Internet services like Joost and YouTube are about to exceed the capacity of the underlying Internet backbone of cables and switches. Only the other week, Google themselves warned us that the Internet as it stands today isn’t suited for TV. Therefore they want to cooperate with the cable operators, who have earlier been frightened that companies like Google would take over the lucrative market for Internet TV. The term “net neutrality” was one of last year’s buzzwords in the US, in the debate about whether network operators would be allowed to appropriate parts of the Internet infrastructure and create “diamond lanes” dedicated to heavier traffic like, particularly, web TV. Many, including Microsoft, Google and Yahoo, were strongly critical towards the idea, and instead advocate a form of net-neutrality where telcos and cable operators would not not be able to decide whose data should flow faster or slower. They want to legislate for all Internet traffic being equally treated; this is most of all in the interest of Internet companies like the abovementioned, since these otherwise would risk to pay extra for being allowed to utilize these “diamond lanes”.