hydrarchist writes: "This text was originally published in Green Pepper's 'Information Issue', December 2003. You can find the other articles online at their web-site."

"Pirate Practice, Information Insurgency and Its Limits"

Alan Toner

Autonomous communications systems require three
functional elements: the means of production, transmission
facilities and informational raw materials. The
spread of the commodity PC has taken care of the
first. The second has been confronted through innovative
digital techniques — peer to peer [p2p] networks
to pool bandwidth and streaming technologies — and
through the illegal occupation of the airwaves by
pirate radios and more recently street televisions
[Telestreet], and in some countries through public
cable access and even independent satellite broadcasting
initiatives [DeepDish TV, NoWarTV, Global
Radio].

The last element has proven the most challenging
as access to the audio-visual lexicon that can
engage a wider public is constrained by a system of
property rights — copyrights and trademarks — that
denies the possibility of recycling the works of others
— whether to convey our argument or contest that of
another. Through repeated use the icons of commercial
culture – Teletubbies, Disney Characters, Brittany
– permeate our lived social environment and occupy
the space of social communication. Without interesting
materials people will not watch, listen or read
alternative channels.

Whilst appropriation of these symbols is simple
enough in the ‘underground’ environment, legal
restraints make it so precarious as to deny the possibility
of actually being able to derive substantial revenue
from them. Thus, autonomous media projects
remain stuck in a quagmire of chronic financial insustainability
— they can thrive for some years before the
lack of resources takes its toll. At this point one of
three things happen. Either they professionalise and
accept standard market practices [Liberation,
Tageszeitung, The Village Voice], become dependent on
institutional support [via arts councils or EU funded
programs] which have consequences for the political
content, or simply disappear.
That said, let’s examine some of the socially diffuse
forms of contestation of the monopoly over cultural
totems and the attacks against them.

Pirate Pride

Where are the advocates of freedom in the new digital society
who have not been decried as pirates, anarchists, communists?
Have we not seen that many of those hurling the epithets
were merely thieves in power, whose talk of ‘intellectual property’
was nothing more than an attempt to retain unjustifiable
privileges in a society irrevocably changing?

[Eben Moglen, the DotCommunist Manifesto]

Laws expanding the scope and duration of exclusive
private rights in information [copyright, patent and
trademarks and trade secrets] have been a constant
since at least the late 1970s. Growing awareness of the
consequences of these laws — combined with the
emerging potential for autonomous cultural production
— has produced a counter-movement in recent
years. Initially rallying around notions of fair use — ‘a
balance between public and private claims’ — the
demand is now made for information as a ‘commons’.
This has been accompanied by the unfortunate propagation
of terminology that only conveys a movement
of enclosure, commodification, information lockdown
and panoptical surveillance through a language of
dystopia, hopelessness and victimhood. Such despondency
would have some legitimacy if the promulgation
of formal law from above was enough to control human behaviour and creativity. However, such a
description is false in several key respects and risks
being a self-fulfilling prophecy by fostering changes in
social norms that flagrantly contradict the law.

Everyone Is An Enemy

An estimated 150 million people are now using a
diversity of p2p systems to share music, video, software,
games and text files on a regular basis. Competition
within hardware manufacturing and broadband
provider sectors is ensuring that access to the necessary
commodities — storage space for media, broadband
channels for transmission — is expanding. Copyright
industry interests anticipated these developments
through their experience of software piracy and
Bulletin Board based media distribution in the late 80s
and early 90s. In the United States one response was
the introduction of the No Electronic Theft Act [NET] in
1997. Prior to NET, copyright infringement was
merely a civil offence if performed for non-commercial
purposes. However, the NET law made non-profit
distribution of copyright goods a criminal offense — or
even a felony — once low thresholds of value and numbers
of copies were exceeded.

Jeffrey Gerard Levy, a college student in the US state
of Oregon, was the first to be tried under the new law.
Levy pleaded ‘guilty’ of sharing texts and music from a
site hosted on his university webserver. Subsequent
legislation extended criminal sanctions to the development
and distribution of tools devised to defeat ‘digital
rights management’ [DRM] technologies whilst technical
measures were integrated into media products to
restrict their use. These devices — that the info-tainment
complex continue to integrate into hardware —
constitute the other thrust of the industry’s war against
the wave of sharing between strangers.

Another comparable introduction of criminal sanctions
occurred in the area of payTV. Since its inception in
the early 80s there has been a battle between decryption-
card hackers and companies such as Sky,
DirectTV and Canal+. Tens of millions of people
worldwide use modified cards to avoid payment of
extortionate monthly subscription fees. Initially the
industry pursued the commercial distributors of the
cards, but as this tactic failed they shifted their attention
to users. As a result it is now a criminal offence
even to receive a decrypted programme — also known
as a ‘conditional access service’ — in your home without
the authorised card. Here, as in p2p, the focus of
repression has shifted from commercial counterfeiting
to individual end-users, their machines and their
behaviour in their homes. Once-docile consumers are
now to be approached as enemies. DirectTV, for
example, are currently threatening action against nearly
10,000 users in the US.

That is the story from above. Let us look instead, with
critical eyes open, from below.

Criminal Mass

Heedless of their redefinition as criminals by
the global media godfathers and their
crooked political friends, there are now an
estimated 6 million people swapping media
online at any given moment. The Recording
Industry Association of America [RIAA]
began their jihad with 261 legal actions
against individuals in September 2003, after having
encountered obstacles in their war against p2p software
developers earlier that year. Instead of turning off their
computers and returning to shopping as usual, however,
users’ reaction was one of rage. Boycotts began.
Vilification of media companies for their capitalist
rapaciousness became commonplace in innumerable
forums. One of the victims of the RIAA attack, a 12
year old girl living in social housing in Brooklyn,
received so many donations that she ended up making
a profit despite having agreed to a $US3,000 settlement
with the RIAA to persuade them to drop the
case. A legal fund to coordinate and finance collective
defence for p2p users was set up at the tellingly titled
www.downhillbattle.com. Lastly, and most saliently, the
sharing went on in defiance of the threat of individualised
punishment, with decreases in the numbers on
public networks balanced by an increase in those participating
in semi-private spaces for exchange and
distribution. Despite the existence of the criminal
provisions of the NET, they have yet to be employed.

Likewise PayTV hacking continues unabated in both
traditional and innovative forms. Sky Italia, launched
in July 2003 and monopolist of the Italian satellite
market, have sought to use their control over premiership
soccer to infiltrate every home with their annual
600 Euro ransom. In response, pirate television operators
in Rome connected a television equipped with an
authorized card to a transmitter and rebroadcast signals
in the clear to whole districts of the city on several
occasions throughout autumn 2003. This exemplary
action constituted a spectacular intervention into the
popular imagination — responding to a real need for a
sense of identity felt by Romans, whilst attacking the
commercialisation of popular culture by using acts
rather than words.

Phantasmagoria of Control:
No Need to Feed the Machine

In addition to severe commercial and social problems, the
schemes [hardware based copy-control mechanisms] suffer from
several technical deficiencies which, in the presence of an effective
darknet, lead to their complete collapse.We conclude that
such schemes are doomed to failure.

[Microsoft Engineers, The Darknet and the Future of
Content Distribution]

Technical schemes to foreclose redistribution have
fared no better. CSS — the
content scrambling system
conceived to prevent the
copying of DVDs — was
reverse engineered. The
resulting program DeCSS provided the key to unlock a large portion of the divx
files now available on the web. The Motion Picture
Studios vengefully accused and prosecuted a fifteen
year old Norwegian, Jan Johansen, with criminal
charges relating to the program’s development —
although he was later cleared of any wrongdoing.
Meanwhile the Secure Digital Music Initiative
[SDMI] wasted years of research and millions of dollars
in an attempt to develop a control mechanism for
digital music to no avail. A last prototype profferred to
researchers for testing was summarily cracked. In the
aftermath, the SDMI attempted to silence researchers
from discussing the techniques employed, with threats
of legal action under the DMCA, later retracted.
Microsoft’s DRM also yielded its secrets and flaws
shortly after release. Finally, a Russian programmer
Dimitri Sklyaraov was arrested by the FBI before
thousands of people at the hacker-meet DefCon in
Las Vegas 2001. He had just delivered a presentation
describing flaws in Adobe’s ebook encryption scheme
that had allowed his employers’ [Elcomsoft] to produce
a program capable of circumventing all controls.
Charged under the criminal provisions of the DMCA
and imprisoned for six weeks in California, charges
against Sklyarov were ultimately dropped, but not
before a widespread campaign for his release had
brought hacker IP activism onto the streets with selforganised
demonstrations in 14 cities.

That the pursuit of total hardwired control has so far
proved fruitless is not to say that this tendency will
disappear — as witnessed by the ongoing plans of
Microsoft, Palladium and the Trusted Computing
Alliance. However, as long as free software systems
have machines on which they can function, users will
always be able to reassert control over their behaviour
and defeat all panoptical devices.This is the fundamental
political battle that gives meaning to the free
in ‘free software’.

In All Tomorrow's Economies:
The Emergence of the 'Prod-User’ Class and
Decommodification

The phenomenal success and complexity
of the free software movement has
inspired both the study of its means for organising cooperation
and a search for other areas where this
mode of production finds form. Examples have not
been in short supply. At an infra-structural level they
range from the self-organised storage transmission
structures of file-sharing networks to the pooling of
hardware resources in projects such as SETI. At the
level of knowledge and information production, there
are projects such as Wikipedia [a volunteer built nonproprietary
encyclopedia] and a range of news and
discussion sites [Kuro5hin and Indymedia] built on
collaborative writing engines that have become the de
facto standard for the organization of opinion native
to the web. Science and research has also benefited
from the restless curiosity of the army of amateur collaborators.

Hopes that these examples augur a more equitable
world rest on the particularity of immaterial resources:
non-excludability and non-rivalry.The first means that
the cost of the provision of a good is the same if it’s
produced for a limited number of people as for all.
The second means that your ability to enjoy a given
good does not impede my use of it at the same time.
Each of these projects demonstrate the advanced state
of self-organised production in the networked
environment and its capacity to subtract goods and
services from a free market model built on the market
and the firm.As the range of its productive practices
grows, it substructs or removes tasks from the market
and the firm. Instead of ‘management’ or ‘planning’
these projects rely upon horizontal negotiation, modular
production and exploitation of the cheap and easy
nature of digital communications to overcome the
need for a centrally located decision-maker — the boss.
Widespread social co-operation is no longer constrained
to the firm — this is the fundamental change
created by peer to peer networks. A superior result is
possible through creating access to a near infinite
range of expertise and paralellisable workers throughout
the network.

Qualification: Our Invisible Labor for Capital and State

The fact that the fruits of this collaboration
— like the warez in circulation on
file-trading networks — are free does not mean that
they sketch future liberation. Such a conclusion could
only proceed from a naïve belief that capital accumulation
only operates where there is a fee for access.
Service and knowledge industries, however, are based
precisely on extracting value on the back of free or
cheap access to a basic product.

Some degree of pirate circulation of media commodities,
for example, is desirable from an accumulation
perspective as it ensures that the profile of the film,
song, software or game reaches a broader community.
In software this means that young designers train
themselves in using Photoshop and Quark Express —
programs which later in ‘professional life’ they will
continue to use and will pay licensing for, due to the
inconvenience of learning alternatives. Similarly the
Matrix may be downloaded and viewed for free but
the public excitement generated will help to sell tshirts,
posters and a hundred other spin-offs.
Counterband circulation in this sense can be the perfect
accompaniment for the efforts now commonly
made by companies to add allure to their products by
integrating ‘street-hip’ — enlisting marketing and coolhunting
agencies to keep them close to their desired
demographic. In a world where retail price has no
relationship to the cost of physical production, every
positive description of cultural objects participates in
the creation of a market for sales of the product
directly or some derivative thereof — the mobilisation
of our subjectivity in the profit-cycle.

Likewise the benefits of networked voluntary labour
do not only accrue to music-collectors, free software
users/producers and humanity in general. State and
commercial apparatus get their cut as well. Clear
examples include the common practice amongst gaming
companies of using enthusiastic players as ‘guides’
to help new enthusiasts find their way around the
game, overcome cul-de-sacs created by bugs in the
code and generally create a sense of community.
Effectively these guides provide free customer service
which the company itself would otherwise have to
finance — in fact, this aim and result is boldly stated by
games companies themselves.

Elsewhere NASA operate volunteer projects that harness
free labour for banal techno-scientific tasks
formerly requiring the attention of PhDs.What are
those people now working on? The next Manhattan
project?

Further Excavating
the Potential for Liberation:
Excarceration

An important meaning of liberation …. [is suggested]…
the growing propensity, skill and success of
…. working people in escaping from the newly created
institutions that were designed to discipline people by
closing them in.This tendency I have dubbed ‘excarceration’
because I wish to draw attention to the activity of freedom in
contrast to its ideological or theoretical expressions.

[Peter Linebaugh, The London Hanged]

The street finds its own use for things.

[William Gibson]

Notwithstanding their possible recuperation by models
of accumulation, these illegal practices constitute a positive
rupture with dominant culture in a way not dissimilar
to drug use or illegal movement across borders.
Consciousness of being outside or against the law
opens a space for questioning the rest of this world.
There is a more precise connection between this mass
‘criminality’ and the emerging productive power.The
desire to obtain media commodities for free drives selfeducation
and the acquisition of new skills and
knowledge by users: how to use cryptographic hashes,
compression techniques, wider knowledge of lesscharted
[and thus safer] network spaces,
port-management, network architecture, search algorithms,
familiarity with formats and the ability to
render digital forms as physical objects such as mastered
CDs and DVDs, familiarity with publishing
techniques, wikis etc. File-sharing forums function as
veritable apprentice-yards for the diffusion of techniques
that once acquired are portable to uses outside
of the reproduction of the commodity circuit. But
these practices do not address the economic problems
of challenging a media system which is based not only
on formal control of the broadcast infrastructure but
on a massive marketing and advertising apparatus that
creates celebrity.

Whilst much of current pirate sociality revolves around
consumption, the proliferation of the necessary skills
for digital production and distribution allow us to
anticipate the possibility of a more contestatory appropriation.
That is the choice: to take the master’s
characters and cultural icons embedded in everyday
sociality and repurpose them to tell new stories contesting
the present and offering the possibility of
organising the world in a different way.This is what
Harry Cleaver has elsewhere referred to as self-valorisation,
or:

those aspects of struggle which [go] beyond mere resistance or
negation… These practices of reappropriation that act in disregard
to the law and the social relations that law fixes,... the
search for the future in the present, the identification of already
existing activities which embody new, alternative forms of social
cooperation and ways of being.

Today’s pirates can be tomorrow’s agents of transformation
— authoring both their lives, and ours, anew.

References:

Anon, Telestreet Rome -Giving Sky the ‘Boot’, at
http://slash.autonomedia.org

Biddle, England, Peinado, Willman (Microsoft). The Darknet
and The Future of
Content Distribution, crypto.stanford.edu/DRM2002/darknet5.doc

Yochai Benkler, Coase’s Penguin,or Linux and the Nature of
the Firm, 112 Yale , Law Journal (2002-03)

Harry Cleaver, Kropotkin, Self-valorization and the Crisis of
Marxism,
Anarchist Studies 2(1994): 119-35

Peter Linebaugh, The London Hanged: Crime and Civil
Society in the Eighteenth Century, (Cambridge Univ.1992).

Websites:

[http://www.2600.org]

[http://www.v2v.cc]

[http://www.ngvision.org]