Set the fox to watch the geese

(C) enforcement had a double effect. It created:

- loose, ad-hoc bands of strangers, quickly mutating into anything from a new site to a political force

- closed communities with strict social control, lurking in the darknets

“You were kicked from #[W]-invites by ZeroBot (Banned: Your entire country [Hungary] is banned from the invites channel. This is because of the very high proportion of users from this area being bad for the site - either leechers, traders, sellers and/or cheaters.)"

Commons based peer production regimes:

• a community builds and maintains
• a common resource pool
• has sophisticated rules to avoid the tragedy of commons (underproduction & overconsumption)
• has self-governance mechanisms, including
• rules on rule setting
• conflict resolution
• enforcement

Directors

Coen Brothers (generally after 2001)

David Fincher

Marc Forster

Ridley Scott (most films post 1985), obtain approval first.

Ron Howard

Spike Jonze

Sam Mendes

Christopher Nolan (anything past Following, 1998)

Oliver Stone

Stephen Spielberg

Steven Soderbergh (new material)

Quentin Tarantino

James Bond films

Godfather films

The following films will be deleted if uploaded...2

Prereleases/Screeners

[Title - Director (Release Date)]

Ngor Fu - Marco Mak & Guangli Wang (None as yet)

Mainstream

3:10 to Yuma, 2007

Adaptation - Spike Jonze, 2002

Animal House - Ivan Reitman

Arthur et les Minimoys - Luc Besson, 2006

The Assassination of Jesse James by the Coward Robert Ford - Andrew Dominik, 2007

Atonement - Joe Wright, 2007

Babel - Alejandro Gonzalez Inarritu, 2006

The Bad Lieutenant: Port of Call New Orleans - Werner Herzog, 2009

Bad Santa - Terry Zwigoff, 2003

Banlieue 13 - Pierre Morel, 2004

Birth - Jonathan Glazer, 2004

Eternal Sunshine of the Spotless Mind - Michel Gondry, 2004

"The short answer to [the question whether works are banned upon the request of a rightsholder] is Yes. We have been asked on a number of occasions if we could remove a file by the producers of the work. Only earlier this week did I receive a request to remove something. Most often the producer will ask for it to be removed until a certain date or until they break even on the film. We have also "paid" (in ratio) producers to keep their work on the site."

The aim of the tracker is to share content that is nationalist or due to political reasons is banned elsewhere. Our aim is not to hurt the authors and producers of nationalist works, so certain restrictions are in place to prevent that.

All nationalist works are banned in the six months after their official release. If the six months passed, sharing these works is permissible. (This rule is in place to ensure that the livelihood of nationalistic authors is granted, and to make sure that the tracker does not hurt them financially. Six months should be enough for you to buy these works.). For works beyond the six months limit, please provide a link where the work can officially be bought, and add the following lines: ‘Support our nationalistic artists! If you like this CD/DVD/book/work, please buy it, and so support their work!’ (This rule is also to support the nationalistic artists.)

in which informal media ecologies emerge, such as:

• the local and global market failures
• the specificities of local and global legal frameworks, including their enforcement, flexibility, cost, etc.
• the role of other factors, such as level of development, social, cultural factors, etc.

How do we reconcile community negotiated norms (which reflect the current techno-social conditions) with the top-down enforced (c) laws (modeled after the trade norms of a previous techno-social era)?

The anatomy of the (C) war theater

without social support (legitimacy) no IP framework is viable.

Pirate parties and popular opposition

courts

Industry efforts

- decriminalization users

- net neutrality

- free culture (remixability)

- privacy

- Access to ...

• diverging interpretations
• controversial decisions
• inefficient enforcement

the political economy of IP

local and intl NGOs

- regain control over distribution

ethical arguments: 'rights' and 'wrongs'

'the mercyless weight of human flesh'

the customer is always right

'anonymous-ization' of the debate

- stronger protection

- tougher enforcement

- through ISP monitoring, filtering, 3-strikes

focusing on:

protection of public domain, A2K, electronic freedoms, etc.

Human Rights arguments

3rd world-ization of the debate

'disneyfication'

- net neutrality

- limited liability

- freedom to innovate

vs

'googleification'

Lawyers & legal academics

(C)

discourse anchored in the legal positivist, dogmatic tradition

the 'bis-ization' of debate

technology developers

file-sharing technologies' development was shaped by court decisions: successing generations of technology addressed issues that created liability earlier.

informal media economies

The Net interprets censorship as damage and routes around it.

The Net interprets copyright protection measures as an obstacle and codes around them.

non-legal research

- bottom-up norms

- social controls

- voluntary restrictions

- local

- based on loyalty / (mutual) respect

- fandom

- self governance

set the fox to watch the geese

voluntary IP regimes in informal media economies

Balazs Bodo

bodo@uva.nl, @bodobalazs

Institute for Information Law, University of Amsterdam

ZIF, 2015

Prelude: all i wanted was just a little song...

Motto:

Some characteristics of closed networks

People's anticipations of law (however reasonable, ill informed, mythical, or even paranoid) may actually shape law and the property rights it protects.

Closed (private) networks

Legal alternatives...

Coombe, R. J. (1998). The cultural life of intellectual properties : authorship, appropriation, and the law. Duke University Press.

• closed
• secretive
• membership only
• specialized, focused, curated collections
• small/medium sized,
• stable,
• self-governed communities

All norms are culture-relative and supported by intuitions that are grounded by community traditions; these norms are understood and inculcated in the members of a community over time.

the only aim is to maximize the value of the collection and protect it in a hostile legal and technological environment

how big closed networks are?

Lametti, D. (2011). The Virtuous P(eer): Reflections on the Ethics of File Sharing. In A. Lever (Ed.), New Frontiers in the Philosophy of Intellectual Property. Cambridge: Cambridge University Press.

Open p2p networks

This is not the Sherwood Forest

int. arthouse film buff community

great if you are a freedom fighter

or want something current and/or mainstream

(and willing to strip naked in public)

• open,
• anonymous,
• general,
• large-scale,
• fluctuating,
• uncoordinated
• anarchic networks

with

• ad-hoc supply
• confrontative attitude
• active political role

Evolution of norms in p2p file-sharing communities

#1

simple ratio rules

voluntary IP restrictions

netiquette

technical QA

complex ratio rules

székely pirates

introducing market mechanisms

to encourage to seeding of less

popular content

#2

3 examples of

self- regulation

[C] does not support the sharing of works, whose gifted authors are active in Transylvania and who created something worthy of remembering in music or in film.

Uploaders of such content have to have the proper authorization to share, unless the author authorized the sharing by him/herself. Such content will be immediately removed upon request of the author or rights-holder. If the content does not meet the aforementioned limitations, its sharing is supported without further limits.

Extreme right wing nationalist pirates

#3

Representative sample of the Dutch population

study to measure social support and willingness to pay for an Alternative Compensation System which legalizes currently infringing online practices for a small monthly fee.

+1

- 52% of the respondents are more willing to switch from the status quo than not (non-consumers of culture and elderly bookworms being the holdouts)

- cultural omnivores both with (16%) and without (6%) piratical consumption have higher than average (€9.25) willingness to pay: €9.87 and €11.5 respectively.

- having access to a full music and film catalog, but only after a certain brake-even grace period was more popular than having access to a full catalog instantly.

2 (obvious) QUESTIONS TO EXPLORE

www.warsystems.hu

in order to answer this question we need first to understand the

context

Where to place it on the legal/ethical map?

remix

fan fiction

ethical

appropriation art

downloading something

which is not sold

Does a voluntary and contextual support for (C) and for creators fit into the current ethical (if not legal framework?)

(c)

(cc)

GPL

György Pálfi:

Ladies and Gentleman

sharing with

friend and family (US)

The default ethical vision of copyright

sampling

(try & buy)

illegal

Audiences' participation in the (C) regulated market,

their support for (C) protection is severed from the act of consumption.

Audiences' support is voluntary and contextual, conditional upon:

legal

how do we assess

this particular norm?

1

using piracy based business models

(while bashing piracy)

image: (c) CNN

Today Gates openly concedes that tolerating piracy turned out to be Microsoft's best long-term strategy. That's why Windows is used on an estimated 90% of China's 120 million PCs. "It's easier for our software to compete with Linux when there's piracy than when there's not," Gates says. "Are you kidding? You can get the real thing, and you get the same price."

current scholarly publishing

models

The basic ethical expectation of copyright is that authors and audiences respect each other and meet in the marketplace. Authors behave well when they create and offer works that enrich the audience's intellectual and cultural lives. Audiences behave well when they offer authors the financial support needed to engage in creative work.

The exchange is commercial, voluntary on both sides,

reciprocal, and respectful.

Sony "mistakenly misprices" Whitney Houstons' album after her death

megaupload

for profit piracy

copyright trolling

- locality/proximity:

--in terms of geography, community, identity

- perceived reciprocity (beyond the ability to consume mass produced media)

- being connected to the individual's or community's particular aspect of cultural identity

spamigation

unethical

substituting buying for downloading

"suing your

customers" (EFF)

How are informal media ecologies organized, including

• their development,
• their forms of governance,
• the norms that they negotiate.

Grimmelmann, J. (2009). The Ethical Visions of Copyright Law. Fordham Law Review, 77(5), 2005-2037.

that has changed...

do we know...

now

in these contexts

social controls

how to conceptualize and address the piratical competition, which is not only economic, but also increasingly normative?

fill in the gaps left by the lack of permissive/flexible laws.

how do we reconcile copynorms with (c)?

2

- The legal subject is now constantly re-constituted in a large number of radically different contexts (jurisdictions, communities, practices).

- many of these contexts lack firm norms, and are in flux and constant and intense re-negotiation, but nevertheless are of high impact/potential

- The traditional legal institutions devised to ensure, or at least negotiate the legality of social practices that are compatible with the default ethical vision leave many of the new, proliferating contexts insufficiently accounted for.

how to incorporate institutions of social control into the current framework of (C) enforcement rather than destroying them?

These controls (as we have seen) go beyond

the first commandment of sharing...

Pre-internet (c) could be relatively uncontroversial, because

- the contexts in which it was invoked/applied were few and well-defined.

- the contexts in which ethical and legal alternatives could emerge were few (and relatively easy to ignore/co-opt/fight/incorporate).

- traditional (c) tools (such as fair use, limitations and exceptions) provided relatively flexible safe havens for experimentation and innovation

"[S]ubcultural demands may construct conditions under which other goals predominate over consumer desires at either a micro or a macro cultural level. In other words, status within a subculture may be dependent not on consuming goods through any means possible but instead on consuming them “legitimately.”" Downing, S. (2011).

'evidence' based discourse,

on market failures,

on technical failures,

on modernization

and the (re)production of global inequalities

how to incorporate the relevance of online social practices in the discussions on their legality?

The existing literature on the ethics of sharing within P2P communities reflect on an early stage in P2P community development:

Beekhuyzen, J., von Hellens, L., & Nielsen, S. (2011). Underground online music communities: exploring rules for membership. Online Information Review, 35(5), 699–715. Emerald Group Publishing Limited.

Cooper, J., & Harrison, D. M. (2001). The social organization of audio piracy on the Internet. Media Culture Society, 23(1), 71-89. doi:10.1177/016344301023001004

Cronin, A. (n.d.). Does file sharing really offend our collective conscience? Exploring the relationship between societal versus corporate interests in the criminalisation of file sharing. ul.ie.

Downing, S. (2010). Social Control in a Subculture of Piracy. Journal of Criminal Justice and Popular Culture, 14(1), 77–123.

Downing, S. (2011). Retro Gaming Subculture and the Social Construction of a Piracy Ethic. International Journal of Cyber Criminology, 5(1).

Ebare, S. (2004). Digital music and subculture: Sharing files, sharing styles (originally published in February 2004). First Monday, 9(0).

Gosseries, A., Marciano, A., & Strowel, A. (Eds.). (2008). Intellectual Property Rights and Theories of Justice,. Londres: Palgrave McMillan.

Halttunen, V., Makkonen, M., Frank, L., & Tyrväinen, P. (2010). Perspectives on Digital Content Markets: A Literature Review of Trends in Technologies, Business and Consumer Behaviour. Communications, 2010.

Higgins, G. E., Wolfe, S. E., & Ricketts, M. L. (2009). Digital Piracy - A Latent Class Analysis. Social Science Computer Review, 27(1).

Holt, T. J., & Copes, H. (2010). Transferring Subcultural Knowledge On-Line: Practices and Beliefs of Persistent Digital Pirates. Deviant Behavior, 31(7), 625–654. Taylor & Francis.

Jones, R. (2005). Entertaining code: File sharing, digital rights management regimes, and criminological theories of compliance. International Review of Law Computers & Technology, 19(3), 287–303. Taylor & Francis.

Lametti, D. (2011). The Virtuous P(eer): Reflections on the Ethics of File Sharing. In A. Lever (Ed.), New Frontiers in the Philosophy of Intellectual Property. Cambridge: Cambridge University Press.

Lee, H. K. (2009). Between fan culture and copyright infringement: manga scanlation. Media, Culture & Society, 31(6), 1011–1022. SAGE Publications.

Luedicke, M. (2004). Napster as a gift: How social protection systems help to ease download-egoists’ bad consciences.

Neri, G. (2004). Sticky Fingers or Sticky Norms-Unauthorized Music Downloading and Unsettled Social Norms. Geo. LJ, 93, 733. HeinOnline.

Piquero, N. L. (2006). Democracy and Intellectual Property: Examining Trajectories of Software Piracy. The ANNALS of the American Academy of Political and Social Science, 605(1), 104-127.

Rehn, A. (2004). The politics of contraband The honor economies of the warez scene. Journal of Socio-Economics, 33(3), 359-374.

Rutter, J., & Bryce, J. (2008). The Consumption of Counterfeit Goods. Sociology, 42(6), 1146–1164. SAGE Publications.

Sideri, K. (n.d.). The Regulation of Peer-to-Peer File Sharing Networks: Legal Convergence v. Perception Divergence. copyright.bbk.ac.uk.

Skågeby, J., & Pargman, D. (2005). File-Sharing Relationships—conflicts of interest in online gift-giving. Communities and Technologies 2005, 111–127. Springer.

Whittaker, J. (2007). Dark Webs: Goth Subcultures in Cyberspace. Gothic Studies, 9(1), 35–45. Manchester University Press.

...turned into...

• open,
• anonymous,
• general,
• large-scale,
• fluctuating,
• anarchic

networks

• closed,
• pseudonymous,
• specialized,
• small/medium sized,
• stable,
• self-governed

communities

With the multiplication of communities and contexts, the question is not whether 'copying' is right or wrong, or whether it is compatible with the (c) regime, or what people think of copying in general,

and a number of less obvious ones:

practice