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Printer Friendly Version Theory Beyond the Codes: tbc011
Date Published: 11/25/2010
www.ctheory.net/articles.aspx?id=672
Arthur and Marilouise Kroker, Editors

THEORY BEYOND THE CODES



The Pirate Bay

Countervailing power and the problem of state organized crime


Leon Tan




Introduction

In the short space of a decade, the Internet based circulation of information in the form of media files has become highly controversial, giving rise to allegations of piracy and theft by a host of artists and media firms. This article constructs a case for online file-sharing or so-called 'media piracy' as a form of political-economic claims-making involving consumer populations, professional artists, media firms and governments in ongoing contention. File-sharing activities and the online social networks that sustain them are treated as 'repertoires of contention' to use a concept from Charles Tilly and Sidney Tarrow. When taken up by users on a massive social scale, online repertoires of contention enable the production of what the late economist John Kenneth Galbraith called countervailing power. They make possible the emergence of 'autonomous zones' or 'strategic sovereigns' that resist lines of prevailing power in the absence of competition, and in the particular example in question -- Sweden -- in the presence of state collusion with anti-market forces. The collusion of governments with oligopolies raises serious problems for citizen-constituencies, and is discussed as a kind of 'organized crime' related to a wave of de-democratization. What makes such alliances more troubling is the fact that file-sharing has not demonstrably 'damaged' the creative industries as a whole, but appears to have contributed to world-economic transformations including an increase in creative production and an expansion and globalization of media markets. To be clear about the scope of this article, the objective is not to predict the future or to solve all the problems posed by copyright and file-sharing, but rather to problematize the concept of piracy using the example of The Pirate Bay, and to portray the affordances of virtual repertoires of contention and countervailing power for a community of small-scale economic actors. In pursuit of this objective, what is offered is a theoretical framework with which to think about the political-economy of networked media, and a snapshot of part of the unfolding history of networked media cultures, including within it the voices of file-sharers.


File-sharing and Media Piracy

Online file-sharing is a form of social relation involving the exchange of digital files, especially but not exclusively media such as music, movies, games and software. In this article, we are concerned primarily with 'free' file-sharing of the kind made popular by peer-to-peer (p2p) networks. Free in this context means that users are not making direct payments for the uploading and downloading of files, even if payments are made between advertisers and software vendors on the basis of user traffic. As a social habit, file-sharing depends on the Internet's capacity to circulate digital information cheaply and rapidly without regard for physical distances. Napster was perhaps one of its first famous incarnations, providing technology that allowed individuals to easily copy and distribute music (mp3) files amongst each other, thereby circumventing pre-existing market pricing and distribution structures entirely. According to the Pew Internet Project's research, file-sharing is common to a sizeable and active population of so-called 'freeloaders' or 'free-riders.' In 2000 for instance, Rainie, Fox and Lenhart observe, "some 14% of Internet users, about 13 million Americans, have downloaded free music files on the Internet that they do not own in other forms." [1] By 2003, the file-sharing community in the US nearly tripled to 35 million. [2] In 2009, Madden cites BigChampagne's research in estimating the size of the p2p universe "at more than 200 million computers with at least one peer-to-peer application installed." [3] In Sweden, Findahl of the World Internet Institute observes a steady increase in file-sharing between 1992-2006, and in 2007, finds 14% of the population or roughly 1 million Swedes engaged in file-sharing, noting the presence of "a group who have quit sharing files, but may resume at some time in the future." [4] In 2009, Svenska Dagbladet (a Swedish daily newspaper) reports findings by the International Federation of the Phonographic Industry (IFPI) that 40% of Swedes between the ages of 15 and 74, or 2.8 million, engage in file-sharing, [5] a figure more or less in keeping with the growth trajectory observed by Findahl. Rather than calculating file sharer percentages in various populations, Oberholzer-Gee and Strumpf provide a different measure of the popularity of file-sharing, observing how "more than 60% of Internet traffic consists of consumers sharing music, movies, books and games." [6] Such a figure supports the estimation of a sizeable population of file-sharers in the hundreds of millions across the entire online world economy today.

File-sharing may be considered a form of economic claims-making insofar as it composes exchange relations associated with sets of means (music, movies, games and software). While the economic claims made in file-sharing of copyright-expired material, home videos, unsigned music and other forms of 'user-generated' content may pass without much conflict, the situation is altogether different where copyright protected media are concerned. In the sociological framework of Charles Tilly and Sidney Tarrow, such claims-making becomes contentious at the point when it impinges on others: "Contention involves making claims that bear on someone else's interests." [7] When Napster first emerged between 1999 and 2001 it rapidly attracted the attention of music firms, who perceived their prevailing economic claims (revenue streams) as being undermined through the free circulation of copyrighted music. Music firms were quick to file charges of mass copyright violations against Napster in a US court using the organizational vehicle of the Recording Industry Association of America (RIAA). Napster was shut down in 2001 under judicial order. This meant little, however, to millions of file-sharers or 'peers,' who simply migrated to the many decentralized file-sharing communities that subsequently emerged. [8]

Other test cases followed on the heels of the Napster landmark ruling, with the RIAA losing in 2003 against two p2p file-sharing assemblages [9] Morpheus and Grokster when a judge determined that the software, or in other words, the means, for p2p file-sharing was itself legal. The RIAA promptly shifted their attention from suing software firms to suing individual file-sharers. Meanwhile, innovations emerged allowing file-sharers to encrypt Internet traffic or making it difficult to track in other ways, offering a degree of protection from exposure to a nascent community. Almost a decade later, despite the strident economic claims and contention of media firms, file-sharing has become more rather than less popular. Protective tools have also become more sophisticated, with the Swedish IPredator, [10] for example, providing users with encrypted tunnels and switching their IP addresses for anonymous ones for a fee. During this time, lobby organizations representing the interests of media oligopolies [11] including the IFPI and the Motion Picture Association of America (MPAA) joined the RIAA in expanding copyright related claims-making into a transnational initiative, successfully motivating the Swedish government to take action recently against one of today's most well known file-sharing assemblages, The Pirate Bay (TPB). [12]

The concept 'media piracy' owes its origins at least partly to the ongoing contention between media firms and file-sharing populations. 'Piracy' is a term that is actively used by organizations including the RIAA, MPAA and IFPI to characterize file-sharing involving copyrighted media as theft. Such a characterization is highly problematic for numerous reasons. First, as William Patry observes, "In Dowling v. United States, the United States Supreme Court held that copyright infringement was not 'stealing' within the meaning of the National Stolen Property Act." [13] Secondly, as James Boyle argues, intellectual 'property' claims should not be treated in the same way as material property claims, given differences such as the generally non-rival characteristics of software and digital media. [14] Thirdly, no differentiation tends to be made between personal and commercial file-sharing, and yet, personal use has in the main been "lawful by long tradition" according to Jessica Litman. [15] Indeed Litman correctly observes that while US copyright law fails to explicitly specify personal use rights, readers, listeners and viewers have historically enjoyed a host of copyright liberties involving the personal use of content, provided for by the very architecture of the system. Personal uses, Litman argues, "occupy the heart of copyright's historic liberties to enjoy copyrighted works." [16] Fourthly, the claims of financial loss and 'damage' to the creative (music and motion picture) industries are not only difficult to quantify but also problematized by an increase in creative production across multiple formats, and an expansion of markets for complementary goods and services such as concerts and merchandise. [17] Lastly, the disproportionate power of media oligopolies in relation to individual consumers vis-à-vis state (legislative) bodies has meant the prevailing of their interests in expanding the scope of intellectual property rights, over those of the public in personal or so-called 'fair use,' [18] not to mention free speech and privacy. Far from being universally accepted, claims and accusations of media piracy and theft instead form the basis for continuing cycles of contention.

While the claims for and against file-sharing are clearly economic in nature, concerning dynamics of resource distribution and exchange relations, they are also political insofar as they concern the pursuit of desired lifestyles, different and new modes of life and patterns of social expression that problematize existing legislative regimes and economic distributions. For our purposes, economic claims become political whenever appeals to government authority are made, whether direct or indirect. As Charles Tilly explains,

Claim making becomes political when governments -- or more generally, individuals or organizations that control concentrated means of coercion -- become parties to the claims, as claimants, objects of claims, or stake holders... Contention occurs everywhere, but contentious politics involves governments, at least as third parties. [19]

As we will see shortly in the case of TPB, claims-making is both political and economic, involving the action of the Swedish courts in what Tilly and Tarrow call the 'certification' [20] or validation of claims. The certification function typically rests with governments on account of the control such organizations exert over coercive means and legislative and judicial privileges (the right to create and interpret laws).


The Pirate Bay as Virtual Repertoire of Contention

In their analysis of conversation rituals and dynamics of contention between citizen populations and governments, Tilly and Tarrow observe that different political regimes and authority structures afford different opportunities and risks for the organized expression of claims and contention. [21] Using the examples of the US and Swedish world-economies, periodic elections, referendums, boycotts, public marches and industrial strikes constitute formal and informal components in what they would call a repertoire of contention. A repertoire of contention provides the means by which groups of individuals express claims, frequently in terms of agreement and disagreement with the authority structures to which they are subject. Tilly and Tarrow provide extensive accounts of the dynamics of social organizing and contention in existing world-economies, [22] making it unnecessary to dwell on these actual repertoires of contention. Instead the focus here is on a virtual repertoire of contention made possible by Internetworked tools and social practices. Virtual repertoires of contention emerge from the combination of expressive technologies with global accessibility and massive social uptake, forming online social networks, virtual publics and markets, enabling individuals and groups to express collective identities, claims and contention easily, both within and beyond the authority structures governing their immediate geopolitical locales.

TPB is one of today's most in/famous file-sharing assemblages, at one point reaching traffic peaks of "close to 25 million unique visitors per month." [23] It was established in 2003 by Swedish anti-copyright organization Piratbyrån (Piracy Bureau), [24] a loosely-knit collective founded in 2001, motivated by disagreement with prevailing understandings and regimes of copyright, and opposition to the industry funded anti-piracy lobby group Svenska Antipiratbyrån (Swedish Anti-Piracy Bureau). [25] As a file-sharing mechanism, TPB provides a centralized repository of .torrent files used by the BitTorrent protocol and, until recently, also functioned as a tracker. It will be useful to explain a little about Bit-torrent at the outset for those unfamiliar with the technology. BitTorrent is a p2p (many-to-many) file-sharing protocol optimized for distributing large files rapidly, whose use depends on a number of components -- torrents, trackers and clients. Sharing a file or group of files using BitTorrent requires the creation of a small file called a torrent containing metadata about the file/s to be shared including the urls of tracker sites and names and hash values of the file/s described. A tracker is any server that coordinates p2p file-sharing by identifying the network locations of clients uploading and downloading files associated with torrents. Trackers may be open like TPB, where anyone may search for and download torrent files, or closed, in which case subscription fees and/or recommendations by peers are required for access. A BitTorrent client -- such as the software program Vuze [26] -- enables file-sharers to search for and download torrents and the files they point to from networked peers. In 2009, TPB implemented magnet links across the site, which unlike .torrent files, rely on hash values (and not names or locations) to identify desired content. The advantage of magnet links is that BitTorrent indexers may save on bandwidth by allowing only the hash values of .torrent files to be downloaded, with clients subsequently using these values to locate first the desired torrent, and then the file it points to, from peers. TPB also began promoting the use of the DHT (Distributed Hash Table) and PEX (Peer Exchange) systems as increasingly viable alternatives to centralized trackers. Their main advantage is to make it unnecessary for file-sharers "to rely on a single server that stores and distributes torrent files." [27] At the time of writing TPB still provides .torrent files alongside magnet links, but has allowed its tracking function to fall into disuse.

Consisting of the means for peers to establish connections regardless of physical distances, communicate with each other, and share files hosted ultimately by a globally distributed network, TPB constitutes a virtual repertoire of contention enabling the expression of political-economic claims. Whereas actual repertoires of contention are invariably land-locked, virtual repertoires of contention on the other hand tend to be globalizing in their effect on actual world-economies, contributing to an "increase in the volume and speed of flows of capital, goods, information, ideas, people, and forces connecting actors across countries." [28] In globalizing claims and contention, virtual repertoires enable redistributions of market power, offering to populations of small-scale economic actors the potential to gain a more even footing in relation to 'capitalist' or 'anti-market' organizations exercising concentrated economic power in actual markets. Whereas isolated individuals rarely possess the market power to influence terms of exchange relations with large firms and oligopolies, the cumulative action of swarms [29] of individuals expressing claims collectively online may be sufficient to produce what the economist John Kenneth Galbraith calls countervailing power. [30] Countervailing power is a market mechanism distinct from competition, yet both mechanisms involve the restraint of concentrated economic power. The sections to follow deal first with the difference between competition and countervailing power, next, with contentious relations between file-sharers, TPB, media firms and the Swedish state, and finally with the problem of state organized crime and an associated de-democratization.


Competition and Countervailing Power

Although popularly characterized as 'capitalist' after the end of the Cold War, the world economy and its component world-economies in fact consist of a multiplicity of actors, relations and dynamics. The economic historian Fernand Braudel distinguishes between at least two kinds of exchange relations, one he calls 'capitalism' and the other 'market economy.' He characterizes the two sets of relations thus:

There are two types of exchange: one is down-to-earth, is based on competition, and is almost transparent; the other, a higher form, is sophisticated and domineering. Neither the same mechanisms nor the same agents govern these two types of activity, and the capitalist sphere is located in the higher form. [31]

According to Braudel, the market economy exemplified by town markets is founded on competition. In a market economy, goods and services are provided and prices set by processes of more or less free bargaining. In such collectively owned markets, conventions, rituals, and rules tend to be known in advance, such that "the always moderate profits can be roughly calculated beforehand," [32] and buyers and sellers tend to interact on an "eye to eye and hand to hand" [33] basis. Market economies are competitive in that the capacity or power to express economic claims and contention consequentially is distributed more or less equally across component assemblages; there are neither significant barriers to entry nor high concentrations of economic power in any actor.

Capitalism on the other hand, is characterized by the exercise of concentrated economic power, and exemplified by monopolies and oligopolies. For Braudel, capitalism is fundamentally anti-competitive, for which reason he calls such assemblages 'anti-markets' to emphasize their radical difference from collective and competitive market economy dynamics. Braudel considers this form of exchange relation unequal, pinpointing two mechanisms exploited by anti-markets:

It is obvious that here we are dealing with unequal exchanges in which competition -- the basic law of the so-called market economy -- had little place and in which the dealer had two trump cards: he had broken off relations between the producer and the person who eventually received the merchandise (only the dealer knew the market conditions at both ends of the chain and hence the profit to be expected); and he had ready cash, which served as his chief ally. [34]

The two trump cards facilitate the concentration of economic power, privileging a handful of capitalist assemblages over others in the capacity to express consequential economic claims and contention. [35] Where anti-markets are concerned, in place of competition, goods and services are provided and prices set or 'managed' by command. [36]

As a market mechanism, competition solves the problem of concentrated economic power through restraint on the same side of the market. In Galbraith's words, competition involves "the restraint of sellers by other sellers and of buyers by other buyers." [37] Yet as Galbraith argues, restraint on concentrated economic power may also emerge from the opposite side of the market. He calls this concept countervailing power, which is explained as follows:

The fact that a seller enjoys a measure of power, and is reaping a measure of monopoly return as a result, means that there is an inducement to those firms from whom he buys or those to whom he sells to develop the power with which they can defend themselves against exploitation. It means also that there is a reward to them, in the form of a share of the gains of their opponents' market power, if they are able to do so. In this way, the existence of market power creates an incentive to the organization of another position of power that neutralizes it. [38]

Using Galbraith's concept, trade unions, consumer activist groups and even online file-sharing may all be considered forms of countervailing power, involving the self-organizing [39] of other positions of power to neutralize concentrated power in existing world-economies, from the opposite side of the market.

As a form of countervailing power, trade unions (at least in the US) arose on the side of workers/employees to counteract harsh and exploitative labor conditions [40] imposed by owners and managers of anti-markets. Consumer activist movements such as Wake Up Walmart, [41] or the older Consumer Federation of California, [42] emerged from the efforts of disgruntled buyers organizing to neutralize the anti-social exercise of concentrated power by capitalist sellers. In the example of TPB, online file-sharing produces a globalized countervailing power on the side of millions of consumers, whose claims-making directly challenges existing media pricing and distribution structures. In each case, the successful exercise of countervailing power in a world-economy effectively redistributes market power, producing real transformations in economic actors and relations. As we will see, file-sharing as countervailing power even resists the power of the Swedish courts, spawning more overtly political organizations such as Piratpartiet (The Pirate Party, Sweden) [43] as well as innovations in media pricing and distribution such as Spotify and Voddler (discussed later). While the existence and prevalence of countervailing power means that markets do not necessarily require direct intervention from governments (to remedy 'failures' due to the absence of competition), serious problems arise when courts and states become involved in certifying the claims of media firms, creative producers and consumer populations. The specific problem in this case concerns a 'democratic' government's allegiances to a handful of large firms on one hand, and its own citizen-constituencies on the other. Jessica Litman's account of the recent history of 'digital copyright' legislation in the US portrays a massive expansion of rights of a small group of copyright holders aided by Congress and the law courts, and a consequent erosion of copyright liberties, that is, the entitlements of the public to noncommercial enjoyment (reading, listening and viewing) of the works in question. [44] In these circumstances, one is forced to ask how the privileging of claims of copyright holders over those of literally millions of file-sharers squares with the democratic principle of the rule-of-many?


The Contentious Politics of File-sharing in Sweden

The Swedish file-sharing site TPB has been involved in legal disputes for the better part of its existence, largely on account of its popularity and torrent hosting and tracking activities. While TPB undoubtedly facilitates the sharing of copyrighted materials, it has thus far escaped the fate of being shut down by law courts because it merely hosts and saves torrents and not the files to which they point. As TPB explain on their website, "[o]nly torrent files are saved at the server. That means no copyrighted and/or illegal material are stored by us." [45] This and other declarations by TPB have, however, failed to deter a largely American copyright-owning oligopoly from lobbying the Swedish state for support in their economic claims-making and contention, resulting in a police raid on TPB in 2006.

In 2006 it transpired that the perseverance of The Pirate Bay and the fact that Swedish authorities could do little by way of forcibly closing it down had prompted Americans to lobby the Swedish government on the ministerial level. According to the Swedish public service broadcaster SVT (2006), this was the initial cause for the May 2006 police raid on the site. [46]

While the May raid temporarily disrupted TPB's website, no charges were filed and the site was back in operation within days. In 2008, at the instigation of firms including Sony BMG Music, EMI Music, Columbia Pictures, 20th Century Fox, Universal Music and Warner Bros., Stockholm District Court Prosecutor Håkan Roswall began formal legal proceedings against TPB organizers and a backer -- Hans Fredrik Lennart Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmisoppi and Carl Ulf Sture Lundström -- charging them with conspiracy to break copyright law in Sweden. [47]

In the ensuing trial in 2009, the Stockholm District Court found the defendants guilty of "assisting in making copyright content available," issuing a fine and one-year jail sentences. [48] TPB organizers and Carl Lundström have since submitted appeals, and as of September 2010, are awaiting a verdict, while in the meantime TPB continues hosting torrents undeterred. With its decentralized distribution of components, the BitTorrent protocol enables relatively powerless individual consumers to self-organize as a larger scale economic actor with a distinctive (if controversial) identity and existence. TPB's ability to distribute its own servers globally further ensures its survival regardless of the rulings of Swedish courts. As TPB co-founder Peter Sunde explains in an interview with David Kravets,

It's a distributed system. We don't know where the servers are. We gave them to people we trust and they don't know it's The Pirate Bay... They then rent locations and space for them somewhere else. It could be three countries. It could be six countries. We don't want to know because then you'll have a problem shutting them down. [49]

In globalizing itself, TPB constitutes a countervailing power of sufficient force and coherence to resist, neutralize and transform (to an extent) prevailing concentrations of power in anti-markets including all the plaintiffs in the trial, and to challenge states that have come out in support of anti-market forces, notably the US and Swedish governments.

The specific claims on both sides of prevailing and countervailing power may be discerned most readily in conversations in which their component assemblages participate. On the side of media firms, file-sharing quite simply constitutes copyright infringement and theft. The over-riding claims are therefore that consumers should stay within the terms of existing pricing and distribution regimes dictated largely by the content industries, and that TPB are willfully causing financial damage.

'The Pirate Bay operation has caused massive financial damage to rights holders,' said Ludvig Werner, chairman of the Swedish arm of the International Federation of the Phonographic Industry. 'The profiteers behind The Pirate Bay have no interest in free speech, and they are not running The Pirate Bay because they love music and films. They are totally mercenary.' [50]

It is not surprising then that the claims of media firms logically extend to demands for financial compensation for lost revenues. The guilty verdict delivered by the Swedish court in 2009 certifies these claims of financial damage to an extent, particularly in the imposition of a fine on the defendants. If the claims are not clear enough, the letter sent in 2007 to Swedish Justice Minister Åsa Torstensson by heads of trade groups including IFPI CEO John Kennedy is instructive. It urges "that swift and decisive action is taken in Sweden against one of the world's biggest engines of Internet copyright infringement -- The Pirate Bay," describing TPB activities as "massive piracy of music." [51]

On the side of file-sharers, claims-making and contention is also very clear and may be found in TPB user forums [52] as well as in TPB blog posts and their comments. [53] In its 2009 New Year Greetings on both the homepage and blog, for example, TPB criticizes the collusion of states and anti-markets, particularly where these have resulted in incursions against human rights and civil liberties.

Happy new year! The past year has been good to all of us. Next year won't be as good, is our sad prediction. File-sharing will not be very affected but our rights as human beings are being infringed on all the time. New laws are passed all over the world and especially here in Sweden. We're very sad by this so we hope that we are proven wrong. Anyhow, happy 1984^H^H^H^H20009! Let's continue to break some new records this year as well! [54]

While organizations such as the MPAA, RIAA and IFPI may be within their legal rights [55] to express claims on the side of prevailing power, it must be recognized that existing legal frameworks regulating copyright derive from pre-Internet economies, and were for that matter shaped largely by the content industries. New media practices and social realities, however, demand a renewal of concepts and even new legal frameworks, a point taken up by Lawrence Lessig (among others). [56] For Lessig as for TPB, a clear distinction should be made between commercial and personal use. Attempting to apply blanket copyright laws across commercial and personal domains inevitably raises problems of human rights violations.

The Universal Declaration of Human Rights, or UDHR, adopted by the United Nations General Assembly since 1948, emerges from a long-running conversation between individuals and groups populating the world economy at large, which stretches "from the Hammurabi Codes of ancient Babylon to the mandates of the League of Nations." [57] As such, it may be considered part and parcel of long-term bargains struck between governments and populations in the world economy. Of its articles, four may be singled out for their relevance to our discussion, Articles 12, 19, 20 and 27:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks (Article 12);

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (Article 19);

Everyone has the right to freedom of peaceful assembly and association (Article 20);

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits (Article 27).

Together, the four articles specify rights to privacy and freedom of opinion and expression as well as the right to take part in a community's cultural life. In practical terms, they may be interpreted to mean that individuals have the right to circulate information and opinions regardless of media formats and borders, to gather together to form larger scale assemblages (such as TPB), to carry out such activities in private (i.e. free from surveillance), and to share in the benefits of technological developments (such as the BitTorrent protocol and Internet based repertoires of contention). It is concerning that to date little critical attention has been given to the relation of intellectual property legislation to international and national frameworks for human rights protection. [58]

It is worth remembering that many consumers even before the Internet already enjoyed copyright liberties including personal use. Listening to music with friends and family has for instance gone on for as long as records, cassettes and CDs have been around. Until recently in the US, Litman observes, "Congress has consistently viewed copyright as securing copyright owners' opportunities to exploit works without invading individuals' liberties to enjoy works." [59] Similarly, Boyle notes that legal rights granted to copyright holders have always been limited. As he writes, "[o]ne cannot start from the presumption that the rights holder has absolute rights over all possible uses and therefore that any time a citizen makes use of the work in any way, the rights holder is entitled to get paid or to claim 'piracy' if he does not get paid." [60] It is perhaps with such thoughts in mind that Peter Sunde makes the following remarks in an interview with Thomas Mennecke (2008):

They are abusing the fact that most people do not know their own rights. They do not respect the people in general so we have no respect for them. We think that the copyright needs to be changed to fit the current climate of usage and taken the distribution platform into respect. The opposite side thinks that they need to close the Internet down so they won't lose control. I won't say I have the best answer for how the copyright should work -- but a creative commons license is better than what we usually have today. But my personal opinion (that is not always the opinion of all of us behind the bay) is that copyright is not needed when it comes to personal use. [61]

Sunde contends that media firms are abusing consumer populations by violating existing rights (for example, to privacy and participation in cultural life) and personal use liberties. He supports an initiative like Creative Commons licensing [62] because it allows for a clear distinction to be made between free personal use and restricted commercial use. The 821 comments TPB's New Year blog post attracted demonstrate the extent to which its claims resonate within the file-sharing community, with many of the individual comments functioning as ratifications of TPB's agenda. [63]

In fact, many of the claims expressed in TPB's forums and blogs articulate a 'politics' of file-sharing that is highly critical of the anti-market strategies of media firms and the influence they bring to bear on governments. Consider for instance, the following two responses to TPB's New Year post:

Even my primary school teacher did some file-sharing in the 1950's. He was reading loud to us from books in the Saturday classes, without asking the authors. They called it 'enhancing culture.' I did not lock my ears and I did not feel like stealing anybody's work... They said that the movie industry would die when the TV came to our houses. It did not die. They said the same thing when the video came. The movie industry did not die. But people's general interest in music, movies and other cultural stuff has increased a lot with the Internet, and with file-sharing. The film and music industries gain a lot by this, they don't lose in the end. It is also more democratic... Write to your parliament members! I wrote to them all, and I got around ten answers so far... (Mashingo, Comment 568, TPB Blog)
Best wishes for the New Year for the Pirate Bay and all file-sharers! As long as we have the desire to, the corporations and their pocket governments will never prevail. Our will outweighs theirs a thousandfold. (johnfade, Comment 278, TPB Blog) [64]

In comment 568, Mashingo makes a similar point to Sunde's regarding non-commercial sharing, that even in the 1950s, such sharing was already going on in an educational (non-commercial) context. Mashingo also counters claims of 'damage' to the creative industries, observing that the growth of interest in music, movies and culture has if anything profited the media industries as a whole. Comment 278 presents a succinct portrayal of the prevailing power of media firms in the expression "corporations and their pocket governments." Both comment-makers recognize the role of governments in the economic contention with which they are involved. While Mashingo exhorts other members to write to parliament, johnfade expresses confidence in the force of countervailing power actualized in TPB -- "our will outweighs theirs a thousandfold."

The encounter between file-sharers and anti-market assemblages in the Swedish court brings into sharp relief the political dimensions of economic claims-making and contention. While clearly economic, the claims expressed by both sides are also political because they involve direct appeals to a government for certification. As Tilly and Tarrow explain, certification is a mechanism in contentious politics involving "an external authority's signal of its readiness to recognize and support the existence and claims of a political actor." [65] The TPB trial verdict effectively signaled the readiness of the Swedish government to recognize and ratify at least some of the claims of media firms and international trade groups. At the same time, the trial also mobilized Swedish citizens to take part in coordinated action, with a fledgling Pirate Party -- Piratpartiet -- growing its membership base by 20% within hours of the verdict's announcement. [66] The verdict produced a groundswell of political activity largely among young Swedes, giving Piratpartiet enough members to win a seat in the European Union Parliament elections in June 2009. TPB and Piratpartiet share many of the same supporters, and express similar political and economic objectives. The election of a Piratpartiet MEP (Member of the European Parliament) certifies to some degree the claims and contention on the side of countervailing power. What is significant is that such certification is accomplished by 'short circuiting' the Swedish national legislative framework in a transnational (EU) forum. Piratpartiet's status as an official political party has allowed it to afford TPB a degree of protection in recent times by hosting TPB on its own servers when a German court temporarily shut down TPB's (German) Internet service provider. [67] Piratpartiet has also extended the same protection to Wikileaks, and now hosts its servers as part of a stated commitment to increasing global transparency and accountability. [68]


Transformations in the Online World Economy

While the court verdict and the election of a Piratpartiet MEP are clearly consequential victories for anti-market and file-sharing assemblages respectively, the changes provoked by file-sharing extend also into more creative approaches to media pricing and distribution in the online world economy. Consider for example, the success of Apple's iTunes business, whose sales (together with Apple's other music related products) totaled US$832 million for the September 2008 financial quarter. [69] If a key countervailing claim on the part of consumers concerns the high prices of media and the inflexibility of distribution methods, Apple's response of dedicating iTunes completely to digital distribution, enabling sales of single tracks as well as entire albums and lowering prices appears to have gained a measure of approval among consumer populations. In Sweden, market transformations include new models of pricing and distribution for music and films in the form of Spotify [70] and Voddler. [71] Spotify is an online music streaming service that provides two tiers of streaming and sharing access to a growing catalogue of digital music. The free tier is advertising financed while the premium tier comes at the cost of a flat-rate subscription fee. Voddler is an online movie streaming service that offers free (advertising financed) and rental (pay-per-view) films. Both services are entirely legal as a result of financial agreements with copyright holders and creative producers. Both are dedicated to digital distribution, offering media content at lower prices than traditional retailers, along with free access subsidized by advertising revenues to a limited membership.

Market transformations are not restricted to the relations between media firms and consumer populations, but also include artists and musicians, who have begun re-evaluating their relations to both media firms (as middle agents) and consumers or fans, with an increasing number of creative producers striking out independently to sell direct to audiences. Thus Trent Reznor's Nine Inch Nails (NIN) released part one of a four-part album 'Ghosts I-IV' to BitTorrent sites for free. The text file distributed with the release states:

Now that we're no longer constrained by a record label, we've decided to personally upload Ghosts I, the first of the four volumes, to various torrent sites, because we believe BitTorrent is a revolutionary digital distribution method, and we believe in finding ways to utilize new technologies instead of fighting them. [72]

For Ghost I, the band experimented with Creative Commons, designating the content as free for non-commercial use. NIN's economic claims diverge from those of prevailing anti-market actors, strategically aligning itself with p2p file-sharing as a wave of countervailing power. Reznor is not alone in his commercial experimentation. US band OK Go left major label EMI in 2010 to form their own enterprise, and now sell and promote music direct to consumers from their website. [73] OK Go's departure followed on the heels of a decision by EMI and Youtube earlier in the year to disable the embedding function for OK Go music videos in Youtube as a means of copyright control. The decision proved disastrous, leading instantly to a drop of 90% in views of OK Go's 'viral' hit video 'Here It Goes Again.' As band member Damian Kulash Jr. remarks, "Curbing the viral spread of videos isn't benefiting the company's bottom line, or the music it's there to support." [74]

If media firms have been vociferous in denouncing file-sharing, artists and musicians themselves appear far less concerned about the circulation of their works online. According to Madden's report for the Pew Internet Project,

Artists and musicians on all points of the spectrum from superstars to starving singers have embraced the Internet as a tool to improve how they make, market, and sell their creative works. They use the Internet to gain inspiration, build community with fans and fellow artists, and pursue new commercial activity.

Artists and musicians believe that unauthorized peer-to-peer file-sharing of copyrighted works should be illegal. However, the vast majority do not see online file-sharing as a big threat to creative industries. Across the board, artists and musicians are more likely to say that the Internet has made it possible for them to make more money from their art than they are to say it has made it harder to protect their work from piracy or unlawful use. [75]

While many creative producers consider the sharing of their works illegal, it is evident that most see this as a minor price to pay for the benefits of the Internet and its new artistic and commercial opportunities. The fact that a growing number of bands today are choosing to release Creative Commons licensed music specifically permitting noncommercial use, for example through the global music licensing firm Beatpick, [76] suggests that at least some creative producers are developing more nuanced understandings of copyright distinguishing between commercial and noncommercial use. Here their claims coincide with those expressed by file-sharers regarding copyright liberties. What is more important is that the exercise of countervailing power appears to have stimulated economic change and growth that creative producers are "pursuing new commercial activity" alongside attentive firms such as Apple, Spotify and Voddler, and innovations in licensing such as Creative Commons. In other words, the political-economic claims-making of populations of small-scale consumers turns out to be highly consequential.

Regarding the claims of media oligopolies that file-sharing is financially damaging to the creative industries, research from Tanaka, [77] Oberholzer-Gee and Strumpf, [78] Andersen and Frenz [79] and Smith and Telang [80] fails to find any relation between file-sharing and changes in sales. On the contrary, it appears that creative production has actually increased, and that the markets for music and film have expanded to include complementary products and services. According to Oberholzer-Gee and Strumpf, "[s]ince 2000, the annual release of new music albums has more than doubled, and worldwide feature film production is up by more than 30% since 2003." [81] In the same study, they also find that "income from the sale of complements can more than compensate artists for any harm that file-sharing might do to their primary activity," [82] making it imperative to consider media markets in the full complexity of products and services, and not in terms of a single product market such as CD or DVD sales. The example of TPB and file-sharing demonstrates the effectiveness of countervailing power as a mechanism counterbalancing concentrations of market power and stimulating economic change. What is remarkable about the countervailing power actualized in TPB is its evolution into a viable political party; that the pirate assemblage swept into the European Parliament with significant political support. Pirate political parties have also emerged in numerous other world-economies including Australia, Canada, Argentina, UK, France, Spain, Austria, Finland, Denmark, Belgium, and the Netherlands, suggesting that the desire for change in prevailing political and economic structures and relations involving media and copyright is widespread.


State Organized Crime and the Copyright Racket

"If protection rackets represent organized crime at its smoothest, then war risking and state making -- quintessential protection rackets with the advantage of legitimacy -- qualify as our largest examples of organized crime." -- Charles Tilly [83]

Escalating attempts by national governments to regulate and constrain the 'free' sharing of files online raise numerous problems. Firstly, such tendencies run into conflicts with international frameworks such as the UDHR and the International Covenant on Economic Social and Cultural Rights (ICESCR) as well as related constitutional protections, at least in the US and Sweden, contravening rights to privacy, free circulation of opinions and expressions, and participation in cultural life. Secondly, the question emerges as to the proper role of a democratic government in certifying the prevailing claims of a handful of corporate actors against the claims of millions of file-sharing citizens. Since file-sharing has not demonstrably discouraged the creation of new works, nor led to significant damage to the creative industries, but on the contrary stimulated increased creative production and an expansion of markets, it would seem that the claims of loss and damage from oligopolies represented by the likes of the RIAA, MPAA and IFPI are largely without foundation. Patry, in fact, dismisses such claims outright, arguing that "[t]he Copyright Wars must be understood as archetypal responses of businesses that are inherently non-innovative and that rely on the innovation of others to succeed." [84] Besides, as Oberholzer-Gee and Strumpf point out, the institution of copyright protection "was conceived not as a welfare program for authors but to encourage the creation of new works" and thus to "raise social welfare." [85] In other words, copyright protection does not exist as a mechanism for the unchecked profit-making or profiteering of creative producers or their oligopolistic representatives, but rather as a stimulus for the overall welfare or benefit of a society. [86]

In a way, the Swedish government siding with the claims of a largely American oligopoly is not surprising. Sweden is, after all, a 'client state' of the US in terms of the global protection or 'security' services offered by the American government. [87] In the case of online file-sharing, it appears that both Swedish and American governments have recently taken on media firms as 'clients,' the former at the behest of the latter. By certifying the claims and contention of media firms in the Stockholm District Court, and earlier instigating a police raid on TPB at the request of "American authorities," [88] the Swedish state clearly functions to protect its clients by eliminating/neutralizing enemies, who in this case, happen to be its own citizens and constituencies. For its citizens, the price for the protection of the Swedish government is conformism with the copyright status quo. Such protection is withdrawn in the case of TPB organizers, and potentially all file-sharers, and replaced with violence and the threat of violence, including physical violence in the form of police raids, confiscations of servers and incarceration, as well as 'immaterial' violence in the violation of interests and desires. Protection rackets such as this have a long history, and may quite reasonably be considered a kind of 'organized crime.' At least, this is Charles Tilly's contention in a 1985 article entitled "War Making and State Making as Organized Crime." [89]

Tilly's analysis of Europe's extended political history shows state making itself to be analogous to organized crime, particularly in its reliance on the use or threat of force. As he writes, "coercive exploitation played a large part in the creation of the European states." [90] The copyright racket in this case exists "to the extent that the threats against which a given government protects its citizens are imaginary or are consequences of its own activities," [91] and benefits an already powerful media oligopoly's profitability. Even though this protection racket is considerably more complex than Tilly's historical cases (because of its globalized nature), its reliance on coercive exploitation remains central to its success. Given the common legal status of corporations as individuals, often with similar rights and responsibilities as individual citizens, it is disquieting that corporate individuals are capable of exerting a disproportionate force in their appeals to governments for certification of claims and contention. While the rights of corporate individuals are rigorously upheld, their responsibilities appear to have been entirely overlooked or forgotten. If individual citizens may be prosecuted for human rights violations, should not a state also hold corporate individuals responsible for such violations when they, for example, infringe on privacy rights by tracking file-sharers, or when the RIAA erodes the integrity of personal and public spaces by suing file sharers for what amounts to their exercising of personal use liberties and freedoms of expression and assembly? Should it not be a duty of any democratic state to uphold the rights of its publics, the copyright liberties of citizens, as well as their rights to privacy, freedom of opinion and expression and participation in a community's cultural life?

Tilly also points out, however, that popular resistance in the long run (in Europe) has been effective in securing formal constraints on the exercise of state power: "When ordinary people resisted vigorously, authorities made concessions: guarantees of rights, representative institutions, courts of appeal." [92] This suggests an important role for the vigorous resistance produced by TPB and allied assemblages such as Piratpartiet; such forms of popular resistance are a means by which concessions are extracted and new relational terms are negotiated in relation to anti-market actors and states. As we have seen, a key advantage offered by Internetworked repertoires of contention to file-sharers (and to other contentious groups) consists in their globalization of political-economic claims-making. Such repertoires of contention make possible the emergence of 'autonomous zones,' [93] 'strategic sovereigns' [94] whose distributions exceed geopolitical borders, and whose desires refuse the collusion of governments with capitalist actors in the world economy. If the example of contentious politics in Sweden is anything to go by, the rise of strategic sovereigns suggests that online world economies are likely to experience increasing institutional crises and transnational tensions. While autonomous or sovereign assemblages are clearly deterritorializing for states, in many cases eroding their official identities, they also make room for the voices and faces of other political and economic actors, including networks of small-scale entities organizing to make consequential claims in relation to governments and anti-markets.

Using Tilly's democracy theory, [95] the collusion of states with corporations against the interests of citizens and constituencies may in fact be characterized in terms of de-democratization. For Tilly, democratic political organization depends on four intermeshing components: breadth, equality, protection and mutually binding consultation. Thus a world-economy is democratic "to the degree that political relations between the state and its citizens feature broad, equal, protected and mutually binding consultation." [96] In this framework, breadth refers to the extent to which the multiple constituencies of a world-economy are included or excluded from political life. Equality refers to the extent to which a broad range of individuals and constituencies are afforded the rights and responsibilities of a world-economy. Protection refers to the existence of concrete measures safeguarding the integrity of personal and collective territories in both private and public spaces. Finally, mutually binding consultation refers to the consequentiality of the expressions of political claims and contention by a world-economy's citizens and constituencies. Together the four components combine to produce world-economies with different 'degrees of democracy,' with a high degree corresponding to the presence of all four components and a low degree corresponding to the absence or erosion of one or more of the four components. Democratization involves social processes that increase a regime's degree of democracy, whereas de-democratization involves social processes that decrease a regime's degree of democracy.

In the contentious politics of file-sharing portrayed so far, the collusion of the Swedish and US governments with an American media oligopoly is de-democratizing because it decreases equality and erodes protection. Apartheid South Africa and the pre-civil rights US were unequal (and therefore undemocratic) because their respective governments accorded the claims-making of one constituency greater importance than that of another on the basis of race. Similarly in the case of file-sharing, governments have consistently given far greater weight to the interests and claims of a small group of media firms (which for all intents and purposes are to be considered as 'individuals') than to the interests and claims of millions of citizens, thus significantly decreasing equality in the American and Swedish world-economies. As for protection, both the Swedish and US governments are parties to the UDHR, and for that matter have a host of civil protections built into their constitutions (e.g. the Bill of Rights in the US). Sweden additionally is party to the European Convention on Human Rights. In ignoring such protections won by populations through multiple cycles of contention over the long duration, both governments place into jeopardy the integrity of personal and public territories. They also contribute to the de-democratization of Sweden and the US. What is ultimately at stake in any wave of de-democratization is a reduction in the capacity or power of citizens and constituencies to express collective claims and contention consequentially, most notably in actual social spaces or publics. Frequently, de-democratization also damages public perception of a state's legitimacy. It is in such circumstances that virtual repertoires of contention have proven useful in enabling individuals to over-ride de-democratizing trends in their pursuit of desired ends.

In all likelihood, copyright battles will persist as issues of political-economic contention in the foreseeable future. It is probable too that the current Anti-Counterfeiting Trade Agreement (ACTA) negotiations, more or less confined to a select group of governments and their agencies, will intensify copyright contention across the online world economy. ACTA negotiations began in 2007, initially involving the US, the EU, Switzerland and Japan, and subsequently expanding to include Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada, in developing an international intellectual property enforcement system. [97] Ostensibly concerned with the counterfeiting of physical goods, ACTA "will have a far broader scope, and... will deal with new tools targeting 'Internet distribution and information technology,'" [98] meaning that it will also cover digital goods. As it is, ACTA negotiations have already come under fire from privacy and civil liberties organizations for excluding the public (and for that matter, the governments and publics of developing countries). A number of countries (South Korea, France and Taiwan) have already introduced legislation requiring Internet service providers (ISPs) to trace, monitor, report and disconnect users for file-sharing. [99] Whatever the outcomes, the objective of this article is not to predict the future or to solve all the problems involved in the file-sharing of copyrighted media, but rather to problematize the concept of piracy, and to portray the affordances of virtual repertoires of contention and countervailing power for a specific community of small-scale economic actors. The theoretical framework provided in the preceding pages offers a way to think about the political-economy of networked media in terms of the specific claims and contention of different assemblages as they relate to the concentration and diffusion of power in online world-economies.

If world-economies are genuinely interested in raising social welfare while stimulating the creation of new works, [100] it would seem useful to deal with the problem of state organized crime and its associated de-democratization, and to take up the creative task of jurisprudence [101] by inventing explicit specifications for personal and fair use rights and interpreting the provisions of international frameworks to clearly establish the scope of human rights in relation to national and international intellectual property laws. In the case of file-sharing, this would entail creating jurisprudences where it will no longer be possible for copyright holders to invade the privacy of individuals or constrain their capacities to participate fully in cultural life. Concerning the last point, Lea Shaver and Caterina Sganga observe that while some scholars have recently started advocating for the protection of individual freedoms to the creation and sharing of cultural works, few have actually located the arguments in terms of international human rights. [102] Interpreting and inventing the rights granted by international frameworks such as the UDHR and ICESCR is critical as such interpretations "will have a strong impact on the future development of legal norms," including those concerning the scope and limitation of intellectual property rights. [103] It would also be useful for world-economies to consider case by case, the judicious support of (or at least non-intervention in) the mechanism of countervailing power. Countervailing power may well turn out to be more effective than the favored route of anti-trust legislation in neutralizing anti-competitive and anti-social concentrations of market power. In the rapidly unfolding history of file-sharing, it has thus far proven both equal to the task, and productive of market changes and expansions.


Notes
-------------------

[1] Lee Rainie, Susannah Fox, and Amanda Lenhart, "13 million Americans 'freeload' music on the Internet; 1 billion free music files now sit on Napster users' computers," Pew Internet & American Life Project (2000).

[2] Mary Madden and Amanda Lenhart, "Music Downloading, File-Sharing and Copyright," Pew Internet & American Life Project (2003): 1.

[3] Mary Madden, "The state of music online: Ten years after Napster," Pew Internet & American Life Project (2009): 9.

[4] Olle Findahl, "The Internet in Sweden," World Internet Institute (2008).

[5] "Tre miljoner i Sverige fildelar illegalt," Svenska Dagbladet, October 12, 2009, http://www.svd.se/naringsliv/it/tre-miljoner-i-sverige-fildelar-illegalt_3637965.svd

[6] Felix Oberholzer-Gee and Koleman Strumpf, "File-Sharing and Copyright" (paper presented at the Vienna Music Business Research Days Conference, Vienna, Austria, June 9-10, 2010).

[7] Charles Tilly and Sidney Tarrow, Contentious Politics (Boulder, Colorado: Paradigm Publishers, 2007), 4.

[8] Madden and Lenhart, 2.

[9] This article uses Manuel DeLanda's concept of assemblages as open social wholes existing in nested sets spanning various levels of spatio-temporal scale. Manuel DeLanda, A New Philosophy of Society: Assemblage theory and social complexity (London: Continuum, 2006).

[10] https://www.ipredator.se/

[11] Oligopolies are an organizational form in which a market or industry is dominated by a small number of sellers. They are characterized by the tendency to use "managed prices, routinized labor, hierarchical structure, (and) vertical integration." Manuel DeLanda, "1000 Years of War: Interview with Manuel DeLanda," Ctheory (2003), http://www.ctheory.net/articles.aspx?id=383.

[12] Jonas Andersson, "For the Good of the Net: The Pirate Bay as a strategic sovereign," Culture Machine 10 (2009): 74-5.

[13] William Patry, Moral Panics and the Copyright Wars (Oxford: Oxford University Press, 2009), 92-3.

[14] "When someone takes your car, they have the car and you do not. When, because of some new technology, someone is able to get access to the MP3 file of your new song, they have the file and so do you." James Boyle, The Public Domain: Enclosing the commons of the mind (New Haven and London: Yale University Press, 2008), 63.

[15] Jessica Litman, "Lawful personal use," Texas Law Review, 85 (2007): 1911.

[16] Ibid, 1908.

[17] Oberholzer-Gee and Strumpf.

[18] Jessica Litman, "Real copyright reform," Iowa Law Review, 96 (2010).

[19] Charles Tilly, Stories, Identities, and Political Change (Lanham, MD: Rowman and Littlefield, 2002), 12.

[20] Tilly and Tarrow.

[21] Ibid.

[22] Ibid.

[23] "The Pirate Bay enters list of 100 most popular websites," Torrentfreak Blog, posted May 18, 2008, http://torrentfreak.com/the-pirate-bay-100-popular-080518/.

[24] http://www.piratbyran.org/

[25] http://www.antipiratbyran.se/

[26] http://www.vuze.com/

[27] The Pirate Bay, "World's most resilient tracker," The Pirate Bay Blog, posted November 17, 2009, http://thepiratebay.org/blog/175

[28] Tilly and Tarrow, 216.

[29] The concept of swarms derives from biology and entomology, and has been usefully discussed by Galloway and Thacker in relation to contemporary networks. For them, swarming is a social logic by means of which local interactions produce complex collective organizations that are simultaneously "amorphous and coordinated." Alexander R. Galloway and Eugene Thacker, The Exploit: A theory of networks (Minneapolis, MN: University of Minnesota Press, 2007), 67-8.

See also Eugene Thacker "Networks, Swarms, and Multitudes," Part One and Two, CTheory. http://www.ctheory.net/articles.aspx?id=422

[30] John Kenneth Galbraith, American Capitalism: The concept of countervailing power (White Plains, New York: M.E. Sharpe Incorporated, 1980).

[31] Fernand Braudel, Afterthoughts on Material Civilization and Capitalism (Baltimore: Johns Hopkins University Press, 1977), 62.

[32] Ibid, 50.

[33] Ibid, 51.

[34] Ibid, 53.

[35] The two trump cards enabled capitalist actors to move beyond national boundaries and to globalize themselves well in advance of the Internetworked globalization of world-economies. As Braudel explains, "[a]t an early date, from the very beginning, they went beyond 'national' boundaries and were in touch with merchants in foreign commercial centers. These men knew a thousand ways of rigging the odds in their favor: the manipulation of credit and the profitable game of good money for bad... Who could doubt that these capitalists had monopolies at their disposal or that they simply had the power needed to eliminate competition nine times out of ten?" Ibid, 57.

[36] Manuel DeLanda, "1000 Years of War."

[37] Galbraith, 110.

[38] Ibid, 111-2.

[39] Galbraith himself uses the expression "self-generating force." Ibid, 13.

[40] Of these extreme conditions, Galbraith observes, "not often has the power of one man over another been used more callously than in the American labor market after the rise of the large corporation." Ibid, 114.

[41] http://wakeupwalmart.com/

[42] http://www.consumercal.org/

[43] http://www.piratpartiet.se/

[44] Litman, "Lawful personal use."

[45] "About," The Pirate Bay, http://thepiratebay.org/about

[46] Andersson, 74-5.

[47] Kammaråklagare Håkan Roswall, "Ansökan om stämning, Ärende 109-155-06," Åklagarmyndigheten (2008).

[48] Caroline Hindmarsch, "Mål nr T7540-09 och T11712-09," Stockholms Tingsrätt Avdelning 5 (2009).

[49] David Kravets, "Pirate Bay says it can't be sunk, servers scattered worldwide," Wired Blog, posted February 1, 2008, http://blog.wired.com/27bstroke6/2008/02/the-pirate-bay.html.

[50] Eric Pfanner, "Swedes charge 4 in case involving copyright infringement of music and films," International Herald Tribune, January 31, 2008, http://www.iht.com/articles/2008/01/31/business/pirate.php.

[51] John Kennedy, Alison Wenham, Jonas Modig, Ana Maria Cabanellas, Kjell-Ake Hamren, Helen Smith and Kim Magnusson, "Pirate Bay should have no place in Sweden or the European Union," letter to the Swedish Minister for Communications, November 7, 2007, http://www3.piratpartiet.se/PirateBay-1.pdf.

[52] Supr Bay, http://forum.suprbay.org/

[53] The Pirate Bay Blog, http://thepiratebay.org/blog

[54] "Happy New Year!" The Pirate Bay Blog, posted December 31, 2008, http://thepiratebay.org/blog/142/.

[55] Patry takes the view that the copyright piracy campaign has little legitimacy, especially given long-standing provisions for non-commercial use. He goes so far as to argue that the problems of digital copyright should be attributed not to new technologies or users but rather to the failure of the content industries to focus on meeting the desires of consumers. Patry, 198-9.

[56] Lawrence Lessig, Remix: Making art and commerce thrive in the hybrid economy (London: Bloomsbury Academic, 2008).

[57] "History," Universal Declaration of Human Rights, http://www.udhr.org/history/default.htm.

[58] An exception to this is the work of Boyle, which argues for example, that the Digital Millennium Copyright Act (DMCA) violates First Amendment rights (part of the US Bill of Rights): "when, with respect to any work, it gives me an intellectual property right to prohibit copying and distribution of an expressive work sold in the marketplace and an additional legal power to opt out of the limitations contained in Section 107 over that work." Boyle, 106. Boyle's emphasis however, is restricted to a national rights framework. Another notable exception with an international emphasis is a recent article by Lea Shaver and Caterina Sganga, which argues that the right to participate in cultural life granted by the International Covenant on Economic Social and Cultural Rights (to which 160 countries are party) "should be understood in terms of the ability to access, enjoy, engage, and extend upon a common cultural inheritance" and furthermore, "that realizing this right will require significant reforms in international property law." Lea Shaver and Caterina Sganga, "The right to take part in cultural life: On copyright and human rights," Wisconsin International Law Journal, 27 (2009): 637.

[59] Litman, "Lawful personal use," (2007): 1907.

[60] Boyle, 66.

[61] Thomas Mennecke and Peter Sunde, "The Pirate Bay interview," Slyck News, January 16, 2008, http://www.slyck.com/story1638_The_Pirate_Bay_Interview

[62] Creative Commons is a project initiated by Lawrence Lessig, providing free licenses that allow content creators to grant various permissions and specify conditions to others to use their works. The advantage of Creative Commons is that it allows content creators to be very precise about the kind of use (commercial or noncommercial) allowed and attribution required. It is nevertheless still an intervention within the copyright framework, whereas it may be the case that the framework itself requires a serious overhaul, as Litman suggests. Litman, "Real copyright reform."

[63] Admittedly, 821 comments is a relatively small number given that TPB users number in the millions. It is, however, a large number if one considers that many other blog posts attracted comments in the tens and not hundreds. Additionally, ratifications of TPB's agenda are of course not limited to comments, but are also evidenced by the continuation of p2p file sharing by users.

[64] "Happy New Year!" The Pirate Bay Blog.

[65] Tilly and Tarrow, 215.

[66] "Pirate Party membership surges following Pirate Bay verdict," Torrentfreak Blog, posted April 17, 2009, http://torrentfreak.com/pirate-party-membership-surges-following-pirate-bay-verdict-090417/.

[67] Nate Anderson, "Pirate Party hosting Pirate Bay in pro-P2P political gesture," ArsTechnica, posted May, 2010, http://arstechnica.com/tech-policy/news/2010/05/pirate-party-hosting-pirate-bay-in-pro-p2p-political-gesture.ars.

[68] "Pirate Party strikes hosting deal with Wikileaks," Torrentfreak, posted August 17, 2010, http://torrentfreak.com/pirate-party-strikes-hosting-deal-with-wikileaks-100817/.

[69] Danny King, "Apple iTunes sales drive Q4 profit," Video Business 28, no. 43 (2008): 6.

[70] http://www.spotify.com/se/

[71] http://www.voddler.com/

[72] Josh Catone, "Nine Inch Nails releases album via bit-torrent," ReadWriteWeb, posted March 3, 2008, http://www.readwriteweb.com/archives/nine_inch_nails_releases_album_on_bittorrent.php.

[73] "Onwards and Upwards," OKGo.net, posted March 10, 2010, http://www.okgo.net/2010/03/10/onwards-and-upwards/.

[74] Damian Kulash, "Whosetube?" New York Times Op-Ed, February 19, 2010, http://www.nytimes.com/2010/02/20/opinion/20kulash.html.

[75] Mary Madden, "Artists, Musicians and the Internet," Pew Internet & American Life Project (2004): ii.

[76] http://www.beatpick.com/

[77] Tatsuo Tanaka, "Does File-sharing Reduce CD sales?: A Case of Japan," (paper presented at the Conference on IT Innovation, Tokyo, Japan, December 13-14, 2004).

[78] Felix Oberholzer-Gee and Koleman Strumpf, "The Effect of File-sharing on Record Sales: An Empirical Analysis," Journal of Political Economy 115, no. 1 (2007): 1-42.

[79] Birgitte Andersen and Marion Frenz, "The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study for Industry Canada," Industry Canada (2007).

[80] Michael D. Smith and Rahul Telang, "Competing With Free: The Impact of Movie Broadcasts on DVD Sales and Internet Piracy," MIS Quarterly 33, no. 2 (2009): 321-338.

[81] Oberholzer-Gee and Strumpf, "File-Sharing and Copyright."

[82] Ibid.

[83] Charles Tilly, "War making and state making as organized crime," in Bringing the State Back In, ed. Peter B. Evans, Dietrich Rueschemeyer and Theda Skocpol (Cambridge: Cambridge University Press, 1985), 169.

[84] Patry, 198.

[85] Oberholzer-Gee and Strumpf, "File-Sharing and Copyright."

[86] Patry points out that in the US, the constitutional basis of copyright is "rooted in the objective of promoting learning." Patry, 61. Boyle puts it very clearly when he writes, "Copyright is not an end in itself. It has a goal: to promote the progress of cultural and scientific creativity." Boyle, 137-8.

[87] According to Immanuel Wallerstein, the Yalta Accord was "an agreement on the status quo in which the Soviet Union controlled about one third of the world and the United States the rest," formed in 1945 at a meeting between Roosevelt, Churchill and Stalin. Immanuel Wallerstein, "The Eagle has Crash Landed," Foreign Policy 131 (2002): 62. The dissolution of the Soviet Union resulted in American hegemonic succession, meaning that many of the terms of international relations, including the ongoing wars against 'terrorism,' drugs and copyright infringement, have largely been set or heavily influenced by US interests in recent decades. States such as Sweden are 'clients' of military superpowers such as the US insofar as they depend to some extent on the US for the supposed maintenance of global 'security.'

[88] "USA's regering bakom sajtstängning," Sveriges Television, June 1, 2006, http://svt.se/svt/jsp/Crosslink.jsp?d=22620&a=602079&lid=puff_401860&lpos=rubrik.

[89] Tilly, "War making and state making as organized crime."

[90] Ibid, 169.

[91] Ibid, 171.

[92] Ibid, 183.

[93] Hakim Bey, T.A.Z. The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism (New York: Autonomedia, 1985).

[94] Andersson.

[95] Charles Tilly, Democracy, (New York: Cambridge University Press, 2007).

[96] Ibid, 13-14.

[97] "Anti-Counterfeiting Trade Agreement," Electronic Frontier Foundation, http://www.eff.org/issues/acta.

[98] Ibid.

[99] Gwen Hinze, "Preliminary analysis of the officially released ACTA text," Electronic Frontier Foundation Deeplinks Blog, posted April 22, 2010, http://www.eff.org/deeplinks/2010/04/eff-analysis-officially-released-acta-text.

[100] While the existing copyright system certainly did and does produce new work, it still remains that, historically, copyright was never as expansive in scope or duration as in the present time. The problem today is that copyright 'expansions' come at significant costs for the public, and may well hinder rather than foster innovation and stifle thriving Internet based participatory cultures. This at least is the basis for James Boyle's arguments against the enclosure of the digital public domain. Boyle.

[101] For the philosopher Gilles Deleuze, jurisprudence involves the 'creation' of rights, and is associated with the commitments of 'being on the left.' Gilles Deleuze and Claire Parnet, "L'Abécédaire de Gilles Deleuze," directed by Pierre-André Boutang (Paris: Vidéo Editions Montparnasse, 1996), video.

[102] Shaver and Sganga, 638.

[103] Ibid, 639.

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Dr. Leon Tan is an art historian specializing in social theory, aesthetics and the political economy of networked art and media, as well as a psychotherapist with an online private practice. He lectured in art history and psychotherapy in New Zealand before relocating to Sweden in 2009.

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