Disrecognized Space

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Contesting the corporations: Online piracy, theft, and control

Online piracy is frequently portrayed as a form of theft in the popular media and by industry groups, yet it is really a form of intellectual property (copyright) violation. Portraying piracy as theft, however, creates a narrative that skews piracy as a moral and social violation. This essay discusses the differing legal and popular narratives of theft and how these apply to online piracy. While corporations have taken a defensive legal reaction to piracy, the social and cultural aspects of piracy provide more relevant understanding of piracy and why individuals engage in it. As the theft narrative continues to be promulgated, it is argued that pirates can actually be considered ideal neoliberal practitioners while those corporations which embrace new technology and the distributive means of the internet actually gain rather than lose income.

Piracy of intellectual property has long been an issue but especially since the ready availability of home copying technology, such as cassettes, rising to prominence following the advent of digital technologies. Napster (Jones, 2011, p. 441), particularly, set an ongoing pattern of industry bodies being caught unawares, and responding with a race to shut down sites and prosecute offenders.

Lawrence Lessig is one of the most prominent voices arguing against the increasing restrictions imposed on intellectual property, pointing out that the internet is a technology that lacks “respect” for copyright: any material is equally faithfully copied and forwarded, regardless of what it is (Lessig, 2004, p. 18). Where analogue technologies produced degraded copies at each recopying, digital technologies promise a perfect copy each time. Major copyright holders and corporations (usually one and the same) see this as a threat to their income. This conflict has dramatically been described as a “war” and offenders as “terrorists” (Lessig, 2008) as cultural, political and economic norms are redefined and restabilised between the new “remix” culture and old centralized models.

Music piracy illustrates this point of conflict in determining the new norms of copyright and sharing online, as Condry (2004, p. 344) comments: it is a cultural problem that is being attacked as an economic issue by reactionary reinforcements of old business models. Yar (2005, p. 681) suggests that, at the same time that demand for consumer goods is increasing dramatically across many new global markets, copyright owners are pricing their products beyond the financial reach of many in these new markets. Indeed, pirates, in Condry’s discussions with his students (2004, p. 356) turn the language of “theft” back on to the music companies and their perceived lack of ethics. Condry concludes (2004, p. 358) that music piracy is not perceived as theft by his students, but is seen as part of encompassing fan subcultures. The people most likely to “steal” music are precisely those who are most engaged with the product. Condry points out (2004, p. 347) that the urge to make music (and, presumably, to listen and share it) dates back six millennia. Jones (2011, p. 446) addresses music piracy from different perspectives, including the audience, noting how the internet amplifies the socially connective and personally defining uses of music. Surveying the literature, Sassower (2013, p. 54) observes that copyright is a contested space, centring on the tension between global capitalism and resistance. Indeed, one of the defining characteristics of the postmodernist condition is destabilization (Sassower, 2013, p. 3). Unlike the portrayal of pirates by corporations, Condry confirms (2004, p. 348) that a function of music is cultural bonding through sharing it. Pirates, rather than rejecting capitalism by stealing, can actually be seen as strict adherents of capitalism, seeking the most amount of product for the least payment (Condry, 2004, p. 348) in a strict application of Thatcherite neoliberal market strategies (Yoder, 2012, p. 383).

Piracy is portrayed, especially by those with vested commercial interests, as “theft” yet it is only theft in a very loose sense. Lessig (2004, pp. 83-84) discusses how copyright is a kind of property that has commercial value and can be stolen, yet it is not like ordinary property since it can be appropriated without the original being lost by its owner. While the advertisements on DVDs shame us by claiming “You wouldn’t steal a car” (haxorcat, 2007), how many of us might do so if we could still leave the original car behind, safe and unchanged, with its owner? Ironically, the music accompanying that advertisement was used without permission (Whitehouse, 2012).

Theft as a legal crime is defined by laws which differ from jurisdiction to jurisdiction (Yar, 2005, p. 678). US law is only one of these, but much of the corporate pressure to stop piracy comes from there so it is worthwhile to consider the concept of theft under US law. Green (2002, p. 208) explains that theft actually includes three concepts that must be met: unlawful taking, movable property and an intention to deprive the rightful owner of this property. Property was initially a very limited concept, but this has been expanded over time to include increasingly less “real” objects (Green, 2002, p. 210). The current definition is unclear, and often decided by case law, but Green (2002, p. 211) suggests that “anything that is part of one person’s wealth and that another person can appropriate” is a working definition. He suggests that it is more important to consider, rather than “property”, what rights are protected: where intellectual property is concerned, these rights are “thin” or less strong, especially since they can be cancelled out by concepts such as fair use (Green, 2002, p. 215). Green concludes (in the context of plagiarism, but the principles are the same for piracy) that the three tests of “theft” can be met, though often only with difficulty in terms of the third condition (Green, 2002, p. 228). He finds that “theft” has a certain moral and expressive meaning that is not well-suited to intellectual property and the violations to which it is subject (Green, 2002, p. 241).

O’Sullivan (2008) notes Hegel’s description of property as just as much a metaphysical concept (“whether one’s will has possessed the external object”) as a physical description. She goes on to observe that concepts such as copyright, intellectual ownership and authors’ rights are, at a fundamental level, not about physical objects as much as investments, and it is this capitalist notion that drives and underpins much of the piracy debate. This is an important point, since the anti-piracy campaign is not so much about protecting works or creators’ rights (or even creators’ income) as about restricting access to product in order to maintain and preserve the profitableness of income streams.

Regardless of the emotive language used in anti-piracy campaigns, prosecutions against internet piracy are conducted under copyright law, not property theft laws, as Yar (2005, p. 678) and the list of cases given by Smith (1997, p. 3) evidence, and this is the clearest indication that corporations and prosecutors recognize that piracy, even though it may be a crime, is not, by definition “theft” but a particular breach of intellectual property rights. The Recording Industry Association of America (RIAA) demonstrates this dichotomy between language and law at its website, where it describes how piracy is a copyright crime yet the same page states unequivocally that, if you upload pirated copies of material “without the permission of the copyright holder, you’re stealing” (RIAA, 2013).

Framing copyright violations as “piracy” and “theft” automatically leads to legal sanctions being used as a tool to stem these breaches as industry bodies pursue legal action rather than innovation (Jones, 2011, p. 441). Whether such an approach is effective is contested: such a blunt instrument appears to have little discernible impact on the problem. A number of countries have imposed laws applying graduated penalties to illegal downloaders, such as France’s “Hadopi” legislation. When Koster (2012, p. 329) investigated the effectiveness of this law he found the situation was partially obscured by other changes in streaming and downloading, but concluded that the law achieved only modest gains, if any.

Yar (2005, p. 684) urges a nuanced approach to understanding piracy, including acknowledging that “piracy” represents a conjunction of many factors among which are social, economic and technological narratives. The discourse of “criminals” and “pirates” emanating from corporations is just one among many self-interested representations of this conjunction, portraying it as a symbolically amoral action (Yar, 2005, p. 687). Organisations such as the Motion Picture Association of America (MPAA) and RIAA continue to frame piracy as a property issue, as recently evidenced by curriculum materials for primary school children in California which explicitly describe copyright violations as “stealing” (Kravets, 2013) while ignoring legitimate uses of such material.

Such claims by industry groups are nothing new. Lessig notes that they go back at least as far as the popularization of piano rolls. Each new technology has been represented as a threat to existing market shares: cassette tapes and video recorders, in particular, have been met with the same claims of destroying industries as the internet is subject to today (Lessig, 2004, p. 60). Lessig does not condone piracy, but he notes the exaggerated nature of such industry claims and, especially, how new technologies do not usually result in obliterating creativity but, rather, realign it with the new technologies.

In 1996 Johnson and Post noted the conflict that exists between territorial laws and the lack of such territorial borders online. It is a place that transcends and violates such borders and, while cyberspace can no longer be considered a totally separate space from the offline world since it is now inextricably linked to so many activities, it still offers a widely disseminated, cross-border medium that subverts traditional legislative powers. The internet itself was created to enable free transmission of data, and the enclosures that copyright represent could not be imposed on it (Castells, 2001, p. 168). Nonetheless, corporations have, if anything, only grown more steadfast in their refusal to negotiate with new cultural norms online, and resorted to frequent legal actions to attempt to maintain their dominant power, as Bowrey and Rimmer (2002) describe. This conservative approach, they note, is usually portrayed as a binary opposition. Of the oppositions they enumerate, that between centralization (control by a few global corporations) and decentralization (the underlying nature of the internet) and, by extension, that between the Status Quo and New Economy, are particularly pertinent to the piracy debate.

Whether piracy is actually an economic harm (and hence a form of “theft” of income) is problematic (Yoder, 2012, p. 382). Studies (often from industry bodies) can indicate massive losses, usually based on the untenable assumption that every illegal download is a lost sale, while others clearly show that, at least for certain populations, such downloads increase sales (Cox, 2013) — most importantly when the economic constraints of downloaders are factored into corporate business models – or that piracy has no statistical significance on sales (Oberholzer-Gee & Strumpf, 2007, p. 38). There is also evidence that piracy is decreasing as companies utilize the internet to enable the profitability of their products, most notably through streaming services such as Netflix and Spotify, rather than a reactionary appeal to legislation and criminal prosecutions. Page (2013, p. 23) finds (in relation to torrented files in the Netherlands) that access through Spotify reduces piracy. While the accuracy of figures is disputable, similar trends have been found globally in other studies, such as those conducted by NPD Group (Graham, 2013), Ipsos (Andy, 2013) and the London School of Economics (Cammaerts, Mansell & Meng, 2013, pp. 7-10). Other approaches include the recent prominence of Kickstarter, as demonstrated by Aaron Dunn’s campaign to crowdfund a complete recording of Chopin’s music, allowing him to make the recordings freely available (Cotner, 2013). Piracy can also have a similar effect for films (Han, 2013) by creating a word-of-mouth campaign advertising them, though this does not extend to blockbuster films (which are already heavily advertised). Clearly, if providers can offer easy access at a small cost, many people who previously resorted to piracy will choose not to do so. Significantly, RIAA figures for 2012 show, despite claims of burgeoning piracy, a steady revenue stream (Friedlander, 2013, p. 3). In this cases piracy, rather than “theft” is actually “profit”.

Barthes (1972, pp. 111-113) has written of mythic speech as a “second-order semiological system” where the Saussurean signified and signifier have been subsumed into a signifier that itself becomes part of another sign. This forms a kind of speech that Barthes (1972, p. 108) states is a message. The framing of intellectual property breaches as “theft” and “piracy” by corporations is just such a mythologizing of speech: the signified (“piracy”) also now contains the sign “theft”. It is, presumably, intended to evoke a visceral and moral repugnance at such breaches, yet the entertainment industry simultaneously glorifies the swashbuckling (but highly illegal) activities of pirates in films such as the “Pirates of the Caribbean” franchise (Samuelson, 2012).

There are a number of more nuanced ways of understanding piracy than simply labeling it “theft”, as Lindgren and Linde (2012, p. 2) point out. One of these ways is as a collective political action enacted in cyberspace as a resistance to the dominant powers of capitalism (Lindgren & Linde, 2012, p. 3) allowing the public to participate in redefining copyright norms directly (Yoder, 2012, p. 386). Rather than traditional political action, such resistance online is diffuse, and forms what Lindgen and Linde (2012, p. 4) term a subpolitical practice – a form of developing political action enabled by online networks – that subverts traditional left/right dichotomies through the numerous communities of pirates and diverse reasons for piracy (Lindgren & Linde, 2012, p. 11). The internet, by its distributed nature, decentralises power and makes it easy for small groups or individuals to resist hegemonic powers (Lindgren & Linde, 2012, p. 16) by reducing the costs of engaging in such action, while making old models of copyright impractical and difficult to enforce (Yoder, 2012, p. 385).

Online piracy is not theft, either in the strictly legal sense of a deprivation of property, nor in the colloquial sense, though it is clear that corporations want to portray piracy as theft in order to construct a morally loaded narrative that presents pirates as unethical, criminal individuals. Piracy is, however, a punishable crime under intellectual property laws, though that approach is clearly less morally loaded, especially in the context of the contestation of copyright laws in an online environment. Financially, it is also arguable that piracy is not theft since, in many cases, piracy and business models that work with the new social norms being negotiated online actually leads to increased income to corporations, rather than a loss. Clearly, the situation regarding copyright, piracy, and applicable business models is a highly contested and shifting space where various groups are jostling for power and control. Most importantly, in a postmodernist, destabilized world, the individual consumer is provided with the tools to balance out the pre-existing power imbalance favouring corporations, and to engage equally in this debate.


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Twitter: A policy primer


pdf_iconTwitter: A policy primer (PDF 586 KB)




NET303 Assignment 2a

The Twitter Terms of Service, Privacy Policy and Rules are around 7,000 words in total, and link to further explanatory documents. This brief overview cannot and does not attempt to address all the issues raised by these documents.
It is not legal advice and should not be taken as such advice.

Your agreement with Twitter
• You agreed to the Terms of Service (TOS) when you signed up. Agreement is automatic (Meeder, Tam, Kelley & Cranor, 2010, p. 2).
• The TOS are only part of your agreement with Twitter. They also refer to separate documents (Twitter, 2012, section 12C) covering:
o Twitter’s privacy policy (Twitter, 2012, section 2)
o Usage rules (Twitter, 2012, section 5)
o As well as a number of other documents (such as rules for developers).
The TOS are fairly lenient towards users. The fact that what you post is immediately available and viewable worldwide by anyone is clearly signposted (Twitter, 2012, section 1). You also keep rights to the content you post (Twitter, 2012, section 5) but note the clarification below.

Problematic Areas
• You agree to the TOS simply by using Twitter, whether you read them or not (Twitter, 2012, para 1).
• You agreed to Twitter using your data (and metadata such as logins, IP addresses, links clicked and so on) in any way it wants to (Twitter, 2012, section 1).
• Anything you post, though, still remains solely your responsibility (Twitter, 2012, section 4).
• You keep the rights to your content but still grant Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)” (Twitter, 2012, section 5). You, however, remain liable for any such use by Twitter (and related third parties).
• While Twitter can do whatever they want with your content, you may not infringe on their copyright, trade marks, etc (Twitter, 2012, section 7).
• The agreement is subject to the laws of California, USA (Twitter, 2012, section 12B). Any legal action will be brought in that state only. How familiar are you with US and California law?

Why does this matter?
• Your data is there forever, and easily searchable (Lessig, 1998, p. 10).
• Linking separate pieces of information might identify you (Barbaro & Zeller, 2006) or reveal information you want kept private (Jernigan & Mistree, 2009).
• Each piece of information may be small, but the aggregate may be revealing (Humphreys, Gill & Krishamurthy, 2010, p. 11).
• Your details can be revealed through legal means:
o Requests for user information are increasing rapidly (Shih, 2013).
o Over half of data requests to Twitter are at least partially successful (Twitter, 2013a).

What about the privacy policy?
You consent to being tracked via cookies, including on related third party websites, as well as allowing Twitter to store copious ‘log data’ including metadata about how and when and what you access.

At a very basic (but often unstated) level, social media are constrained by
• The underlying code (what it allows, what it doesn’t).
• The terms and conditions imposed by companies, governments and other authorities (what is permitted, what isn’t) (Youmans & York, 2012, p. 316).
Twitter differs from other social media since the default is to make everything as public as possible (Powell, 2011, p. 166). Being on Twitter is like living your life in a glass house (Semitsu, 2011, p. 378).
Knowledge is power.
• Think before you tweet.
• Understand what Twitter is doing with your tweets and the information it collects (and distributes) about you.
• What might be the consequences of your tweet? To you? To others? In the future?
• Twitter retains much of the power in your agreement, while you retain most of the liability.

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Semitsu, J. (2011). From Facebook to mug shot: How the dearth of social networking privacy rights revolutionized online government surveillance. Pace Law Review, 31(1), 291–381.
Shih, G. (2013). Government requests for Twitter users’ data on the rise. Reuters. Retrieved from http://www.reuters.com/article/2013/08/01/us-twitter-data-idUSBRE97002M20130801
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Youmans, W., & York, J. (2012). Social media and the activist toolkit: User agreements, corporate interests, and the information infrastructure of modern social movements. Journal of Communication, 62, 315–329. doi:10.1111/j.1460-2466.2012.01636.x

Filtering the unfilterable: Why the internet should not be censored

Asking who should be allowed to filter the internet presupposes a number of assumptions: that the internet should be filtered, that the internet can be filtered, and that filtering is accurate and effective. This essay examines the flaws in these assumptions, noting that the internet was designed to circumvent blockages and therefore foils attempts at censorship (this essay equates ‘filtering’ with censorship, though the internet is, of course, technologically a filtering mechanism in the way it routes data packages). While many entities can apply filtering to the internet, dealing with undesirable information is better left to individuals. Problematic information is therefore better dealt with at source, rather than attempting to constrain the medium of the internet.

The internet, as it was originally designed and developed, had the fundamental goal of actively avoiding and correcting for disruptions to its connections. Indeed, one of its design imperatives was to primarily withstand disruptions. It has therefore been said that the internet views attempts at censorship as just one form of network disruption to be corrected for (Gilmore, 2011). Also of prime importance was the original decision to make the internet open and agnostic, such that anyone, if they so desired, could create applications and extensions to it. Since its initial deployment, the internet has not only grown exponentially, but has developed in numerous, often unexpected ways, such that the ‘internet’ is now a loosely applied term. Many would view the World Wide Web as the internet, though it is simply one of a number of protocols that have been created within the framework of the internet (and which, itself, is also subject to this ongoing development and transformation – witness, for example, the changing standards in HTML, the ‘language’ of the Web). Other protocols include older uses such as email, FTP and newsgroups, as well as newer ones such as Peer to Peer sharing.

Asking who should be allowed to filter this network of networks and its multiple applications ignores an underlying assumption as to whether filtering can actually take place on a network designed not to be so affected. While it is not true that the internet was intended to be able to withstand a nuclear war, it was intended to be a decentralized network resistant to interruptions and to reroute around blockages on the network (Leiner et al, 2007). The network as a whole therefore cannot be controlled by a single government or entity (Hogan, 1999, p. 432).

Certainly, there have been attempts to filter parts of the internet by various actors including governments, corporations, and institutions, though these often have adverse side affects such as over- or under-filtering. Brown (2008, p. 5) notes that filtering blacklists of sites via their Internet Protocol addresses are both easy to evade, and prone to blocking thousands of innocent sites for every blocked site. In Australia, ASIC recently blocked 250,000 sites unintentionally when banning a single site (Lawrence, 2013). Brown describes a number of other blocking technologies, but concludes (2008, p8) that these are expensive and imprecise. Villeneuve (2006) also notes the unintended consequences of filtering, both from the inaccuracies of the methods used but also from ‘mission creep’ whereby the initially filtered material is expanded over time for various reasons. Hogan (1999, p. 446) notes a number of issues with Singapore’s internet filtering, and concludes that it would be better to forego some control in return for the benefits of the internet for economic growth. It should also not be forgotten that filtering importantly represents the imposition of a power structure and its implicit assumptions onto the internet, as Bambauer (2008, p. 26) pertinently comments. These values, according to Hogan (1999, p. 432), differ greatly across the world. Filtering is thus not a benign concept, and is increasingly being used in a non-opaque manner: it can be invisible, unaccountable, and can involve ‘soft’ censorship when different users see different information (Burnett & Feamster, 2013, p. 85). . Bambauer (2013, p. 30) enumerates a progression of censorship which has now resulted in the process being undertaken by democratic nations in an increasingly outsourced mode that is opaque and thus less open to criticism.

Filtering is consequently a cat-and-mouse game between (often speedy) circumvention of filtering methods and imposition of new methods (Maitland, Thomas & Tchouakeu, 2012, p. 294). Armstrong and Forde (2003, p. 213) list numerous ways criminals can hide themselves online to avoid filtering, and the same principle applies to anyone else wishing to bypass these controls, from digital pirates to human rights activists. In a study of filtering by the Pakistan government, Nabi (2013, p. 6) found that using Virtual Private Networks or web proxies easily bypassed the censorship. Even in China, the country regularly claimed as the exemplar of filtering, bypassing the controls is a frequent and easy activity (August, 2007). Richet (2013, pp. 37-38) also finds that censorship not only makes the censored material better known and more desirable, but that filters can easily be circumvented by even simple methods such as indirect references and misspelling trigger words.

How an international network can be effectively filtered by national entities is also problematic. What information or subjects are considered offensive are subject to numerous national jurisdictions, many of which disagree as to what these may be. Klein (2002, p. 194) describes the conflict of international jurisdiction and governance as a mismatch where geographical laws founder in a ‘spaceless’ environment.

Filtering is also often confused with eliminating matter of concern, whereas it is really only addressing the issue of how that matter is accessed. Child pornography, terrorism information, or discussions about democracy have existed, and will continue to exist, regardless of whether sites are blocked on the internet. Certainly, the internet had extended the easy availability of these and many other subjects, but efforts to filter them out usually represent only closing one gate in an endless fence of open gates.

Perhaps the strongest argument against filtering at all is the way the internet rebalances power between authorities and suppressed or dissident voices (Dalegaard Hansen, Thompson, Dueholm Jensen, & Andersen, 2012, p. 9) by allowing equal access to information and a leveling of social groups in cyberspace which may not exist in the offline world. Dalegaard Hansen et al specifically discuss the situation in China, but such power imbalances exist in all societies, and the internet is most powerful when it is unfiltered for precisely this reason.

It is technically possible for a filter to be applied to a part of the internet, just as it is technically possible to attach impartially a device to the internet (whether it be a person, a computer, a sensor, a camera and so on) but that filter can only interact with that portion of the internet it is connected to. The rest of the internet will, as it was agnostically designed, simply ignore the filter. Mueller, Mathiason, and McKnight (2004, p. 8) comment that the internet potentially consists of anything that can communicate or transmit information. This sobering thought indicates the scale of what has to be tackled to effectively filter the entirety of this amorphous and malleable construct. Lessig (1998, p. 5) discusses how regulation occurs on the internet and observes that the codes that construct the internet impose a regulatory architecture. Yet this regulation also limits the very forces that would filter the internet by imposing controls and avoidances.

Who should be allowed to filter the internet? The underlying structure and damage-resilient origin of the internet means that anyone can filter the internet. The same openness, however, also allows anyone else to bypass those filters. While there are legitimate reasons to filter the internet (such as legal statutes) as well as less legitimate (broadly, any suppression of information that is considered ‘harmful’ for political or social reasons), the wider this filtering becomes the less effective and accurate it is. The answer to these conflicts is not a simple one of filtering, but rather of addressing each issue separately to determine the best method (if, indeed, one is actually needed) to deal with them. Filtering seeks to resolve this in a simplistic manner that is counterproductive.

Asking who should filter the internet requires a nuanced answer: numerous authorities, such as governments, organizations, websites, and individual users, claim a legitimate right to do so. While these claims are often valid, filtering itself is an imprecise control that is inaccurate and frequently opaque to democratic criticism. More importantly, filtering is easily subverted or bypassed since the structure of the internet itself allows both anyone to act as a filterer, or as an avoider of filtering. ‘Filtering the internet’ is therefore the wrong concept since it tries to apply a method to the internet that the internet itself avoids. The ‘code’ of the internet denies the enforcement of such a political solution. More effectively, filtering of inappropriate or illegal information should be undertaken both by targeting the producers of such information before it passes to the internet, and societal pressures for the individual to consider the implications of her own internet usage. Rather than the method of transmission, perhaps a closer look is warranted at the message.


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