The Grey Commons
- strategic considerations in the copyfight

Palle Torsson & Rasmus Fleischer
Speech transcript to 22C3. Berlin. December 2005

[Palle Torsson]

Introduction: We are the many shades of the Grey commons

DJ Danger Mouse took the vocals from Jay-Z's The Black Album and remixed it with the Beatles' White Album and in his creation; The Grey Album he was breaking the copyright law. His was climbing up on the shoulders of giants. I guess he just did it and so did his work. 

The success of the work would never have been possible without file sharing. Mash-up culture exists in the same bowl of production; obtaining, downloading - remixing and reinserting distribution and uploading. 

And sometime like in this case the work escapes the claws of the copyright owners. A claw that is stretching to bring us back in time before internet, computers and file sharing. 

But we will continue, and protest against restrictions on file sharing by making file sharing better. 

The remix has always been here, in the way we as beings become. Splitting, mapping and absorbing the world with our minds. 

When computers made a similar splitting possible by storing and processing information a breakdown of the mass medial dichotomies started, the computer that takes this property and as it starts it’s most basic functions copies and remixes.

It is vital to acknowledge that we are confronted with intellectual property considerations in our every day life from kids playing with poke-mon to yoga masters. This is something that has become part of our life in the most concrete way because the possibilities of the universal machine, the computer.

It is not a grey commons in terms of the law but as possibility, as technology and technique. It is not optional but inscribed in the technique we use every day. The grey is not here exactly by an effort but rather as the shortest way to make life work with technology. The shading, the tuning and twisting is omnipresent; it is not something you can wish away. 

What this really is about is our conditions of living, how information is used, transferred and owned in society. 

As humans, creators, amateurs or fans, in a desire for pleasure and in a chain of small habits we make the world appear.

On a personal level we all have stories that describe this experience. With the remix as the norm, steps to a democratization of creativity are taken and in the process we are liberating the myth of a special class of artists isolated from the rest of us fans, amateurs or consumers. 

Like in a contemporary epic: with the creation at our finger tips we are now pounding the old mass medial aura and we are in a state of transgressing the hierarchical consumer-producer society.

[Rasmus Fleischer] 

We all know it is grey and we intend to keep it that way.

On this Grey Tuesday we are here to talk about the The Pirate Bay, Piratbyrån, Piratgruppen and Artliberated.

In this we will touch upon some of this year’s major events, like the polar pirate prize, the first of May demonstration, the new IP-law in Sweden, the Bahnhof raid and the launch of the project vindsdelning and more that we hope you will enjoy.  

Short descriptions of The Pirate Bay, Piratbyrån and Piratgruppen 

The Pirate Bay is the file sharing Bit Torrent tracker website based in Sweden and has become the most popular Bit Torrent site in the world and now receives more daily hits than CNN. Piratbyrån (The Pirate Association or Bureau of Piracy) in Sweden and Piratgruppen (The Pirate Group) in Denmark are sister organizations that promote information piracy and supports the culture through discussions, event, media advocacy, advice and develop the questions about Intellectual Property and file sharing. 

Piratbyrån was born in late summer 2003, from an integrated internet radio broadcast community and IRC channel populated by the Swedish hacker community and demo-sceners. Piratbyrån was initiated to support the free copying of culture and has today evolved into a think-thank, running a community and an information site in Swedish with news, forums, articles, guides and a shop and has to date over 50000 members.

Piratbyrån also in November 2003 launched the bittorrent tracker and website: The Pirate Bay. No one expected to see it growing to be the biggest tracker in the world, but as it grew very fast it was natural to branch it off and let PB and TPB exist as different but related entities.

The Pirate Bay have recently gone through a major internationalization and can now be browsed in languages from Mandarin to Icelandic and is now more then ever the leading bittorrent tracker in the world. Financially, it is relying on donations on the one hand, and advertising banners on the other. All money has gone into buying more hardware to the server hall, located in Gothenburg. Presently The Pirate Bay crew is planning to, in coordination with all the other major bittorrent trackers globally, to start evolving the next generation’s bittorrent protocol.

Copy Me 

This summer Piratbyrån also released “Copy Me”, a pocket book about file-sharing culture and the copyfight. In a couple of months it sold 2000 hard copies, while also being available for free download. It has been interesting to note the reception of the book in traditional mass media: Book reviewers have claimed that Piratbyrån’s argumentation initially was very immature and not worth taking seriously, but all that was changed in this good and though-provoking book. Anyway, the book was basically a paper version of the texts that had been available on the website all the time. If it was more serious when printed on paper, it only reflects these paper-journalists’ valuation of the internet.

A pro-piracy axis of the North…

When the Danish equivalent Piratgruppen.org was founded in 2004, one year after Piratbyrån, it caused even more interesting responses. The Association of Danish Music Journalists nominated Piratgruppen for their “Idea of the year” award. The copyright industry turned hysteric, and the big trade union confederation in Denmark withdrew their sponsorship for the prize award. Then the interesting thing happened, that the Roskilde Festival came in as a new sponsor, in explicit solidarity with the pirates. That showed that all parts of the music business does not sympathize with the record industry’s anti-piracy stance, and at the same time the whole controversy gave the new Danish Piratgruppen a great deal of attention.

As the prosecution of individual file-sharers had started earlier in Denmark than in Sweden, one of their first actions was to set up a fund for juridical support. The aim is said to protect and expand this grey zone. A similar fund is now about to be established in Sweden too, as the anti-piracy persecutions has started.

Another project of the Danish Piratgruppen is the project Vidensdeling.nu, where students are encouraged to digitalize and share the expensive books on their reading lists, creating a digital library. So far the campaign has resulted in books being shared on The Pirate Bay, while the publishing companies have joined the entertainment industry in their desperate hunt of file sharers. 

After Denmark, this year it was Norway’s turn to follow by starting an own initiative. And Finland are now on their way, further consolidating the northern pro-piracy-axis… We are of course always interested in establishing contact with allies in other countries.

[Palle Torsson]

A tale of an artist living under the current copyright regime

I would like to say something about where my involvement with Piratbyrån comes from. I would like to do this because it describes a personal experience of living under the current copyright regime that I was referring to in the beginning. 

I have been involved with Piratbyrån since more than one year now. We met at a party for the best Swedish web sites and since we had many aspirations in common we decided to make some kind of collaboration. 

I wanted to engage in Piratbyrån because it is the best way for me to oppose the current copyright regime and basically make a link to the redistribution of culture which I find to be a key element in bringing about a funnier place to live in.

In 1995 I started the project Museum Meltdown in collaboration with another artist Tobias Bernstrup. With this project we got international recognition as the first group of visual artists to use computer games in the art practice.

Museum Meltdown consisted in a series of site specific computer game installations in European art museums.
 
Using the graphic engine of existing video games such as Doom, Duke Nukem 3D, Quake and Half-Life we transformed the museum architecture into violent first person shooter games where the museum visitor could wander around inside a virtual version of the museum killing and blowing up master pieces.

Since then I have continued to work with computer game based projects. The latest project Evil Interiors are computer game reconstructions from movies like Psycho, Reservoir Dogs and Scarface. 

I have experienced and love the power and potential of the open file and information structure of the computer game community – where files are shared among kids for the benefit of the evolution of playing, which basically is the same mentality of sharing that game culture was originated from. This experience is essential for me in the way I look at the possibilities of the digital culture today.

Another key experience that led to the involvement with PB was born in 2000 when I made a video that was censored and stopped on copyright grounds. The video 'Pippi Examples' consisted of short sequences in slow motion from the Pippi Longstocking films made around 1970. The video was made to question the sexualized common gaze. The copyright holders SF (Swedish Film Industry) disapproved of the video and after a national debate, a settlement was made and all the copies of 'Pippi Examples' were destroyed. 

I came to understand that I had to fight for my freedom of speech and that I could no longer only rely on my identity as an artist to be able to do what I do. 

My work with Piratbyrån is one way form me to map out and understand the relation and powers involved with production of art in society, and finding a power that oppose the current copyright regime. 

In my work I always appropriate, borrow or steal other people’s work to make something new. I live in, I distribute with, and take from the circulation of information. The configurations of the medial structures are my workspace. The motivation for my work is to try to intervene in this structure to expand the grey zone.

Now I am running the project artliberated.org about art, censorship and intellectual property, with Piratbyrån.

Artliberated.org

The idea of this site is to understand, map out, and help artistic appropriation, to collect cases of censorship and alike in one site, contextualize the works that otherwise would be fading away as anomalies. I believe, contrary to the common opinion that we should have a basic right to take from what ever passes us in the stream of media, and that this is essential for the cultural existence of the information age because we are the function that makes this circulation possible. This is not a right that can be restricted. Instead this is the way one survives inside this pit.

The Pirate Year of 2005  

The project artliberated was launched in January at another of Piratbyrån’s events, The Polar Pirate Prize. PPP is an annual award show, a party including seminars awarding the best and worst of the pirate world. That event marked a start of a very, very hectic and interesting year.

[Rasmus Fleischer]

The Bahnhof raid 

Things escalated in March, when Sweden's anti-piracy lobby organization - Antipiratbyrån – managed to arrange a raid at a Swedish ISP claimed to host unlicensed material. The raid was conducted in an unlawful manner and it was discovered that the anti-piracy lobby had in fact paid an infiltrator for several months to upload copyright-protected material and place hardware at the ISP. This got public when a group called Angry Young Hackers hacked their webpage and mail, exposing their mail conversations about the infiltration, held with their American bosses. All this spawned a public outcry and the lawyer and spokesperson for APB Henrik Pontén received thousands of hate-SMS, including death threats, from a lot of angry kids. 

Many other people started to realize that the war against file-sharing also has wide-ranging consequences for the internet freedom and business freedom in general, and the opposition against the copyright industry has broadened a lot. One important consequence is that a lot of right-wing libertarians in Sweden have turned into defenders of file-sharing, and the libertarian critique of intellectual property has experienced an upswing. There are people on both sides of the traditional political spectrum sympathizing with Piratbyrån, but all the political parties in general officially are of course anti-piracy, with the ruling social democrats representing the most extreme policies in this regard.

Yellow brigades 

A very bizarre and funny thing with this raid against the ISP Bahnhof, is that the Motion Pictures Association of America obviously was about to intentionally spread a lie about terrorist connections. They sent out an international press release about the raid, and if you choose ”Trace changes” in Microsoft Word, there were statements claiming that Swedish authorities had found a link between the suspected release group and a terrorist group known as the ”Yellow brigades”. Well, that was in fact the name of a group of German elite soldiers fighting for Sweden in the Thirty Year’s War, most of them killed in the battle of Lützen year 1632. No one has heard of them since then, until the movie industry started to hunt them in a Swedish server hall in 2005. If they could channel that kind of phantasm into making better movies, I’m pretty sure they would not have to worry about piracy any more…  :)

[Palle Torsson]

The first of May demonstration

After this hot spring, at the first of May it was time for all internet lovers, file-sharers and pirates to gather in Stockholm. Piratbyråns celebration in a central park featured music and three speakers talking about creativity and the transgression of copyright law.  A hand to hand copy-swap was expanded to a coffin where you could place and share CDs. The counter-filing of the anti pirate organization APB regarding the raid at Bahnhof was at the same time handed over to the police. A big crowd came, of something like 800 people with very different background with banners, like 'No Software Patents', 'Sharing is caring' and 'All Your Base [stations] Belong to Us'. The paroles of the demonstration where: “Copy me – we will continue to copy everything”, “Don’t touch our Internet” and “Welfare begins at 100 Mbit”.

The attitude

It is important to know that this aggressively humorous attitude is something that characterizes this pro-piracy movement we are presenting.
One internationally famous example are the letters written by The Pirate Bay in response to legal threats from the big companies like Microsoft, DreamWorks and Warner Bros,

For details see: http://thepiratebay.org/legal.php

[Rasmus Fleischer]

The Västerås case & The Evidence Machine 

In Sweden, the first sentence against an individual file-sharer came a couple of months ago. Two relevant things with that has been emphasized in Piratbyrån’s argumentation.

The guy who had shared one movie was convicted to pay a fine. That basically means that the same process cannot be repeated. In Sweden there is a secrecy on IP addresses, meaning that the police may only inquire ISP:s after the identity on someone on the net if it is about a more serious offence than so.

Antipiratbyrån of course says that no one should feel safe, that they will catch people anyway just by reporting a greater number of shared movies to the police. That may work on P2P-networks like Direct Connect; however, on BitTorrent you cannot se how many files a individual is sharing, only what IP-addresses that are sharing one particular torrent at the moment. 

By pointing such things out and show that the networking protocols are always one step ahead of the juridical protocols, Piratbyrån tries to show how hollow the anti-pirate’s claims of their own success are.

The second thing to point out regarding these judgments against file-sharers, is that the courts have chosen to rely on screen dumps as evidence. Screen dumps submitted to the police by Antipiratbyrån themselves. It is of course very controversial to let private lobby groups representing the movie industry get that kind of control over jurisdiction.

Here, Piratbyrån demonstrated the madness by producing a piece of software, The Evidence Machine, letting anyone go to a site and produce fake evidence of file sharing against anyone. The juridical dilemma is still not settled, so hopefully this kind of pedagogical tools can demonstrate what kind of way you are stepping into if you accept screen dumps as evidence.

Another issue in Sweden this year has been Antipiratbyrån’s registering of IP addresses of suspected file-sharers. This habit was banned, as they had not applied for the special license you’ve got to have under Swedish law. However, that was later turned around as they got dispense from the authorities. But it has in many ways been obvious to the public that the anti-piracy lobby is also operating in their own, very doubtful, legal grey zone.

But of course they are dependent on the existence of police officials willing to give priority to the hunting of file-sharers over real criminality. That raises very controversial ethical questions that of course should remain open. Most policemen really don’t have the will to hunt down kids, and when it is possible to identify the ones who does follow the anti-piracy lobby’s wishes; it is easy to point at the totally unreasonable costs for tax-payers for every victim of the anti-piracy-hunt.

The new Swedish copyright law, summer 2005

For a long time it was legal to download music for personal use in Sweden, while the uploading of copyrighted material was criminal. But since the 1st of July, the EU copyright directive has been implemented in Swedish law, meaning that also downloading was turned illegal. However, while the anti-piracy lobby of course wants us to believe that it suddenly has become very dangerous to be a file-sharer, and many voices have spoken up against the supposed “mass-criminalization of teenagers”, Piratbyrån has tried to present a more realistic picture.

Most file-sharers use bittorrent, where every downloader is also an uploader, and thus they were formally criminals also before this law, that didn’t really seem to have changed anything.

Generally, it is important not to accept this talking about “downloading”, as if it was some kind of activity completely separate from the uploading. We insist on talking about file-sharing as an horizontal activity.

The free sharing of culture has so many sides, so many grey zones and safe havens, that the anti-piracy-lobby can only attack a very small part at the time. Or, of course, they can attack free internet communications in general, as they more and more try to do right now. Rendering this dilemma visible is done when we give up talking about things in the copyright industry’s universal terms, and instead shifts the focus to the diverse reality of cultural circulation: The Grey Commons.
 
[Palle Torsson]

The Grey Zoning 

The "grey zone" also becomes visible if we put attention to how arbitrary the very definition of "copying" is. How it is based upon outdated technical categories. 

There is a tactical point in clarifying how it is getting harder to distinguish between local transfers of data, for example in wireless environments, and “file sharing” between different systems. Clarifying that digital technology is built on copying, and that internet is built on file-sharing. 

Copying is always already there. The only thing copyright can do is to impose a pseudo moral differentiation between so-called normal workings and immoral.

For the copyright industry, it is of extreme importance to keep people uninformed of the real workings of networked computers. They want to make an artificial distinction between "downloading" and "streaming", as equivalents to record distribution and radio broadcasting.

Our role here is to keep insisting on that the only difference lies in the software configuration on the receiving end. But copyright law will never be able to acknowledge that. It has to rely on fictions, on a kind of cognitive mapping, where notions valid for traditional one-way mass media are forcefully applied to the internet. We call it Mental Rights Management.

[Rasmus Fleischer]

It is essential for the copyright industry to keep the majority of computer users trapped in believing that the ”window” of their web browser is exactly a window through which they  can look at information located elsewhere, under someone else’s control. Our job here is about making clear that everything you see on your screen or hear through your speakers, is already under your control.

Zeros and ones have no taste, smell or color – be they parts of pirated material or not – and therefore it is impossible to construct a computer that cannot reproduce and manipulate these zeros and ones – as such a machine would no longer be a computer, but something as grotesque as a digital simulation of the machines of the last century.

The historical background

But of course the aim of copyright is to do exactly that. Copyright was born in 18th century England in order to regulate the use of one specific machine, a machine that was expensive, few in numbers and that could write but not read, namely the printing press. Ever since, copyright laws have tried with varying success to make other machines imitate the characteristics of that one-way medium.

The concept was pretty easily adapted to the first technologies of sound and image recording, as gramophone and film entered around the turn of the last century.

But – in the seventies machines that could both read and write was spread to a wide population, like the Xerox paper copying machine, the audiocassette and video recorders. This transformed the production of culture, as well as the distribution. Remix, cut-up and mash-up cultures flourished, with early adopters like William S. Burroughs.

[Palle Torsson]

The industry started to claim that home taping was killing music. From the beginning they wanted to stop the technology altogether. However, the common compromise solution in Western Europe gave the introduction of a special tax on magnetic tapes, in order to compensate the copyright holders for a calculated loss of sales.

Since that time, the sampler, the CD-burner and portable memory devices has continued to make the possibilities greater. Now we’ve got the combination of home computers, broadband, network protocols and compression algorithms that together define what we know as P2P file sharing.

As we stand here today a fair question must be if a principle that was implemented for controlling printing presses in 18th century England should be the whole which our present world should circulate through.

Some people argue that this like a great work of art copyright has been standing the test of time. For us it is only a conformation on how strong the basic function of information control is in a society and that as we depart from this control are reaching further into the future.

[Rasmus Fleischer]

Compensation systems?

Some voices now call for a so-called “alternative compensation system”, as a way to save both the copyright system and file sharing. The idea usually is that a special fee should be imposed on every internet connection, so that a bureaucracy could channel the money to publishers and other rights holders.

It has been presented as a progressive alternative to mass criminalization, and is advocated by, amongst others, Lawrence Lessig, the EFF and here in Germany by the campaign Kulturflatrate, supported by Attac and CCC.

Just a week ago, it was reported that French parliamentarians had voted for a flatrate solution where downloading would be legalized. Many copyright reformists celebrated that as a victory and talked about "legalized P2P filesharing", which was totally misleading as uploading would be even more criminalized than before.

However, a rather extraordinary development during year 2005, is that the anti-piracy organizations are starting to pick up the same kind of ideas. In Sweden, Antipiratbyrån has made numerous demands about the claimed “right” for so called content-producers to rob the ISP:s on a part of their income.

A British ISP has gone into a joint venture with SonyBMG, offering its costumers the legal right to share the SonyBMG-controlled music, as long as they pay a flat rate – and accept that their file transfers are monitored and stopped if the filters detect transfers to people who not use the same ISP.

Cory Doctorow from the EFF did applause this as a step in the right direction. We see this more as a clear example of internet sabotage and economical blackmail from an industry that can not accept to be pushed out by the future.

We have never been interested at all in so-called alternative compensation systems, as we generally find it as based on a thinking totally grounded in pre-digital media, based on the principle of loss, and denies the complexity of circulation in networks.

Beyond the irrelevant consumer/producer-dichotomy

The copyright industry today likes to present the problem as if internet were just a way for so-called “consumers” to get so-called ”content”, and that we now just got to have ”a reasonable distribution” of money between ISP:s and content industry. But we must never fall in that trap, and can avoid it by refusing to talk about “content” altogether. Instead, we talk about internet as communication. 

As clever entrepreneurs of course do understand, Internet business is not about selling information, it is about selling the possibility to interact. In addition to file-sharing, people use their broadband connections to so many kinds of production, circulation and communication.

Therefore, it is totally wrong to regard our role as to represent “consumer interests”. On the contrary, it’s all about leaving the artificial division of humanity into the two groups ”producers” and ”consumers” behind.

But this is a division that is constantly upheld by the copyright economy. One example is how independent music producers are robbed on money by collecting societies like GEMA [STIM]. Licenses have to be paid for concerts, for storage media and for internet radio – money that goes to the officially recognized “producers” according to record sale statistics.

Another example regards the movie industry’s bizarre lobbying to “plug the analog hole”, by introducing a law banning video equipment able to rip analogue media. The law proposal put forward by the MPAA mentions that so-called professional producers of course should have a license to use these video cards anyway. The effect would of course be an extreme consolidation of the split between producers and so-called users.

At the same time, it is important to understand the schizophrenic nature of industry. Companies like Microsoft and Sony are already totally dependent of what they call “user-generated content”, as people are willing to pay for the possibility to exchange their own sounds and pictures via different communication channels.

Overcoming the split between producers and consumers are not some utopia of a world to come. The future is already here. The split is a abstraction that reinforces itself through the copyright economy at the same time as it is undermined by the internet’s desiring-production.

[Palle Torsson]

A vital experiment of complexity

Maybe what is most important now, is to bypass the urge for solutions, for victory in battles or for compromise and stability.

For example, talking about how to "compensate" copyright holders is to obscure the truth about the social production of culture, replacing it with the myth about copyright as some kind of "wage" for artists. And while some of the Creative Commons licenses can of course be usable, it would also be a trap to believe in that a “some rights reserved”-approach would do anything to cool down the anomalies we are talking about.

On the contrary, trying to keep the "grey zone" as open and wide as possible will almost automatically produce better conditions for going beyond prevalent economic imperatives. Making general statements about “THE” alternative to copyright always brings the danger of strengthening copyright's universality claim.

We think that our projects have in general succeeded in escaping the most obvious re-territorializations, like explaining file-sharing just as a response to expensive records, and instead opened up new grey zones.

Make new links, make them alive and kicking. Let the body of file sharing strategies become more unpredictable, and more elastic to the constant pressure.

The Pirate Bay is one example today, but we could also mention wonderful tools of other kinds, like Audioscrobbler that helps people conceptualizing their own relation to the circulation of music, outside the abstractions of the boring copyright mythology.

While intellectual property will continue to be a battleground for some of the major clamp downs of our society, there will always be enumerable lots of open ways.

Our approach has not very much to do with overcoming lack of access. Not even with opposition to dominant forms of culture.

The drive of discovering, thinking and inventing alternative processes of production is the affirmative power of life as a vital experiment of complexity. Internet piracy is all about desiring-production, and its deepest effects in the long run are beyond our human capacity to compute.

Just as Walter Benjamin talked about art as production of desires that cannot yet be satisfied but that inevitably will reach far beyond the goals originally impossible to imagine.

Rasmus Fleischer
Palle Torsson