The cat-and-mouse game between piracy supporters on the one hand and state authorities and major multinational companies on the other is heating up. Over the past few years there has been a marked increase in the persecution of websites and individuals involved in piracy. Democratic rights are being thrown overboard and the full force of the state applied in the media industry’s ruthless pursuit of profits.
Kim Dotcom – the IT millionaire that got raided by the anti-terror squad
One of the most curious episodes last year was the arrest of Kim Dotcom, a German multi-millionaire living in New Zealand. Dotcom was the owner of a website called Megaupload that was closed down for copyright infringement around the same time. The website allowed users to upload content and other users to then download it. The copyright holders complained that it was too slow to take down copyrighted content once it had been brought to Megaupload’s attention.
One early morning in January last year, at the behest of the American FBI, New Zealand anti-terrorist officers raided Kim Dotcom’s mansion. Armed with automatic weapons, dogs and helicopters they stormed the house and rounded up all its inhabitants, including children (video). The amount of force used was clearly out of all proportion.
Kim Dotcom was arrested in order to be extradited to the USA. Then the farce continued. First of all, it turns out the search warrant they used was illegal as it was formulated in a too general way. Then, it was revealed that the New Zealand secret police had been illegally spying on Kim Dotcom. During the hearing no one could explain why FBI agents were present during the raid of the mansion. Finally, the extradition hearing had to be postponed because the New Zealand court granted Dotcom the right to see the evidence that he is charged with resulting in that the US refused to present any evidence for the hearing.
Just before the raid on the mansion, all Megaupload’s servers in the US were seized. The data on the servers belonged to hundreds of thousands of individuals, many of whom were not committing any acts of piracy. Now the US authorities seem unable to determine what is to happen to the data or even it seems who is actually in possession of the servers.
The way that the affair has been plaid out shows how this is not a question of enforcing law but placating the media industry. Kim Dotcom himself points out how the raid was timed to coincide with the beginning of the fund raising season for the US presidential elections. The US government thus leaned on the judicial apparatus and the New Zealand government to do something. Undoubtedly there was political involvement at the highest level. The New Zealand state, being a loyal servant of US imperialism, did its duty. Only problem is that, when the whole thing is brought into the public domain, the shambolic way in which they had done it meant that they had to release Dotcom.
The Pirate Bay – a website that defied the industry
The harassment of The Pirate Bay website shows the involvement of the industry even clearer. The Pirate Bay is one of the most intransigent of all the BitTorrent (a peer-to-peer file sharing protocol) websites. BitTorrent is a peer-to-peer file sharing protocol. It makes it possible for thousands of users to share files between each other with remarkable ease using a little file called a torrent. Whilst quite a number of large sites that host torrents complied with court orders and threats, The Pirate Bay refused. They even listed their replies to various take down requests on their website, and they make for quite humorous reading (http://pirateproxy.net/legal or http://piratebay.org/legal). “Anakata”, whose real name is Gottfrid Swartholm-Warg, explained to the record companies that “Sweden is not a state in the United States of America” and that therefore “US law does not apply here”.
As it turns out, he was wrong. In 2006 Swedish police raided Pirate Bay servers, after the US had threatened trade sanctions against Sweden. This managed to close the site down for a few days. Two years later, four people involved with Pirate Bay were put on trial. All four were convicted with harsh sentences. Three of those were directly involved with PirateBay: Gottfrid Svartholm-Warg, Peter Sunde and Fredrik Neij. The prosecutor decided, however, in order to smear the website, to include a shady, well-known racist among the accused. The latter had, in the early days, contributed a free Internet connection and some equipment to the site. Without any shame, another well-known Swedish racist and record label owner, Bert Karlsson, used this to attack supporters of the site on his TV show.
Many of the people in the legal system who dealt with the case had links to the media industry. One of the police officers that worked on the case got a job at Warner Brothers. The judge who presided over the trial, it turns out, was linked to anti-piracy groups, even sitting on one of their boards, which he didn’t seem fit to disclose during the trial. Of course, on appeal, the judge was deemed unbiased. The trial was a bit of a farce with the prosecutor asking all sorts of irrelevant questions, for example to a professor who spoke in favour of the defendants, and miscalculating the revenues of advertising. The plaintiffs, all the major Swedish and international media companies, were also represented with some of Sweden’s top lawyers. It is entirely clear that this was an important test case for the media industry, attempting to close down one of the most successful piracy sites. All this is revealed in the newly released documentary TPB AFK.
It is worth mentioning in passing the anti-piracy agency Anti-piratbyrån. The agency represents major Swedish and international movie distributors and has been operating for some years now. It attracted controversy when it was revealed that it had illegally been registering ip addresses of people who were using BitTorrent. For these nice ladies and gentlemen of the movie industry legality is not the primary concern. Fortunately, for the companies concerned, the Swedish parliament a couple of years later gave agencies working on behalf of copy right holders an explicit exemption from data protection legislation.
in spite of not having any extradition treaty. There is every reason to think that the US government had a hand in this as well.During the appeals process, Svartholm-Warg, Sunde and Neij left the country. Sunde returned to serve his sentence, but the other two remained abroad. An arrest warrant was issued but not much happened. Then, in March last year, one of the largest ever data thefts was revealed. This time from a private company that managed Swedish tax records. The whole thing seems very peculiar. Around a thousand social security numbers for people with hidden identities were stolen. Suddenly things start to move rapidly. In August, Svartholm-Warg was arrested in Cambodia under accusation of data intrusion and serious fraud. Within days, Cambodia extradited him to Sweden,
Upon his return to Sweden Svartholm-Warg gets interned in prison with extremely stringent conditions. He is banned from having access to the Internet and even after the ban is lifted, the prosecutor is given control of his communications. To this date Svartholm-Warg communicates with the public through his mother.
The whole case stinks of manipulation and an absolute determination from the part of the media industry and various states to punish anyone involved with piracy. Legality for them is a secondary matter.
Aaron Swartz – driven to suicide by the FBI for copying academic journals
Demand Progress. He was a central figure in the movement for open access to literature and culture on the internet.Not only is the US pursuing foreign citizens in its war against piracy. The FBI drove one of the most famous internet personalities, Aaron Swartz, to suicide this January. Swartz really deserves a whole obituary on his own. He was only 26 years old but had already managed to be involved with the creation of the RSS specification (for RSS feeds), he co-founded Reddit, he helped set up archive.org, creativecommons.org, openlibrary.org and numerous other similar websites. Aside from that he also campaigned against SOPA and PIPA the Internet censorship bills, setting up the campaign
What does the US judicial system do? Does it welcome and reward this champion of democracy and education? Obviously not. Aaron Swartz first got in trouble in 2009 for publicly publishing a number of court documents. These documents are supposed to be publicly available but the PACER system that is used to supply them is prohibitively expensive for anyone who wants to access them. The FBI opened up an investigation but decided against pursuing charges. He had already at this point acquired and, with the help of archive.org, published the complete biographical data of books held by the Library of Congress.
Then, two years ago, in 2011, Aaron Scwhartz was arrested at the university campus of M.I.T. charged with downloading articles from Jstor, the online database for academic journals. Swartz had over a period of time apparently downloaded 4.8 million documents to a portable hard drive using a laptop hidden in a computer closet. In order to catch the perpetrator, M.I.T. had gotten the secret service involved in the case as well as the local police. They subsequently claimed this was because they thought it was Chinese espionage but that seems far-fetched to say the least. Why would the Chinese with their huge resources attempt to replicate Jstor by putting a laptop in a closet on the M.I.T. campus? In reality M.I.T. was getting pressure from Jstor who wanted to put a stop to the downloading. Jstor obviously feared that someone would make all the downloaded journal articles public, thus disrupting the business of their partners in commercial publishing. This was probably precisely what Swartz was planning.
Once M.I.T. and Jstor figured out who it was that was downloading, they felt they could no longer publicly support the prosecution. After all, Aaron Swartz had become very famous through his advocacy of the open internet and his contributions to internet technology. They washed their hands of it in public. What they said behind closed doors is of course another matter. The US authorities took up the case and pursued it aggressively. They arrested him and charged him with wire fraud, computer fraud and unlawfully obtaining information from a protected computer. He faced up to 35 years of prison and $1 million fines. As Ortiz the US attorney puts it, “stealing is stealing, whether you use a computer command or a crowbar”. They did this in spite of the fact that Jstor no longer backed the prosecution. M.I.T. apparently continued to back it.
The case never went to trial. Swartz committed suicide on January 11. He had apparently been offered a six month prison sentence deal by the prosecution two days earlier. What tipped Swartz over the edge? It seems quite likely that the aggressive action of the US authorities was the final blow. They probably never intended for this to happen and subsequently had to issue a number of semi-apologetic statements. Yet, they were clearly determined to set an example.
It is clear that what Swartz was trying to do was to give access to Jstor’s articles to the whole of humanity. He didn’t want access to be restricted to some well-to-do academic institutions that could pay the huge subscription charges. Why this aggressive prosecution, particularly of such a public and well-respected figure? How come the secret service got involved in a simple case of data intrusion to the point of having an agent on the scene? The story about Chinese hackers is complete nonsense. The only way to make sense of it is to see it in the context of the war against piracy. It was part of an orchestrated campaign to enforce copyright on the Internet by harsh police measures and sentencing. It is also an attempt to bring tighter control of the Internet by the state.
The collusion of the police, the courts and politicians in the media industry’s war against piracy is a corrosion of democratic rights. In many ways it mirrors the extra-judicial way in which they dealt with “the war on terror”. At the time the Marxists pointed out that the increased powers of the state will be used against the labour movement. Here you can see how these same measures are being used on behalf of Hollywood and the record industry. Not only that, but, as we will explain in the second part of this article, it shows how capitalism is a huge barrier to development of technology and how socialism would be different.
Copyright under Capitalism
This problem has always existed for Capitalism, which is why we have patents in the first place, but with modern technology and in particular the Internet, the problem has multiplied. Downloading a film and showing it on screen involves even less effort than going to the shop to rent it or buy it. Piracy is made possible because of the development of technology. The new technology has rendered the business model of some huge multinational companies unworkable.
Capitalism is at root a system of commodity production. Profits are made on the basis of producing a good which takes up a certain amount of labour time to reproduce. The exchange value, around which the price would tend to fluctuate, is based on how many hours of labour is required in society in general in order to produce such a good. Capitalists make their profit by appropriating a certain part of this labour for themselves.
A problem arises for the capitalists when the labour required to produce a particular material object is very low but the amount of labour required to produce the plan or schema of the object is very high. Take medicines for example. They are very expensive to research but not very expensive to then replicate. This is even more the case for music and movies. The original recording is very expensive to produce, but to replicate that nowadays is virtually free. All that is required is a computer and an internet connection, which today is present in most homes in the advanced capitalist countries. To store the files, you can, today, buy a hard drive that holds 160,000 songs or 840 movies for $60.
The multinational companies have in response attempted to block the development of new technologies. First, they attempted to ban mp3-players in order to prevent people from listening to mp3s on the move (RIAA v. Diamond Multimedia). They tried to promote MiniDisc as a CD alternative but it was a complete flop and only ever took off in Japan. Clearly the new technology with music files was far superior and allowed for the creation of very small devices that could hold very large amounts of music. Apple seized the opportunity in 2001 with the iPod. It proved to be a massive success, and reinvigorated the whole of the company, which had been struggling.
Originally the industry had been demanding that portable music file players should only be able to play files with copyright protection, i.e. not mp3 files. Their reasoning was: if one can get the music for free, why pay? The success of the iPod, however, forced them to cave in. Belatedly, one after another, the music companies signed agreements with Apple to allow them to sell their music online, even if it was possible to mix the purchased music with pirated music.
Instead, they started to use the state to persecute those involved in piracy. A problem quickly arose. Much of copyright legislation was designed for the purpose of protecting against other companies. It wasn’t really designed to target consumers or users of the product who share it on the internet with unknown individuals. The record companies needed to show that somehow the individuals or companies involved had been making a profit out of the piracy. In spite of the huge resources that have been ploughed into prosecuting piracy, very few cases against users have ended in conviction.
Faced with increasingly and the seeming inability of the state to prevent it, the industry has opted for lobbying for even heavier repression. First of all, they have attempted to change legislation to sharpen it up against end-users and those who facilitate piracy. They have also attempted to give the state as well as the industry itself increased powers of surveillance over the internet. Notably, the Swedish government a few years ago proposed that Internet Service Providers in the EU should store all traffic of their clients for 6 months. Other proposals have given industry associations the right to register IP addresses of suspected pirates, which would otherwise have been a breach of data protection legislation.
The problem is that you can’t really fight the economics of piracy with legislation. One of the most popular file sharing technologies, BitTorrent, has an estimated 250 million users worldwide and it is a constantly growing number. Last November, a report by Sandvine put file sharing at 12-30% (depending on the continent) of total internet traffic. Yet, that is only one of many ways of accessing pirated media. Many people get their music from YouTube or watch movies and TV shows on websites that make them available for free. Megaupload was one of the latter kind but has fallen foul of the law. It is quite clear that in spite of the best efforts of the industry and the state, piracy is not going away.
In a sense, online piracy shows the inability of capitalism to cope with modern technology. Instead of developing the Internet and fully utilising its vast potential, capitalist states across the world are currently engaged in a campaign of suppression of Internet innovation. File sharing makes it possible to distribute culture very easily and at minimal cost. It could make it possible to make all kinds of music, movies and TV shows available all over the world. It would enable a tremendous cultural exchange. However, rather than using this vast potential, governments and the industry are trying to prevent its further development.
The patent hypocrisy
The record industry makes big play of protecting poor artists. Of course, there are many artists who make a substantial part of their living out of the pennies they get from sold records or played songs. Not just the big names, but also session musicians get parts of their meagre incomes this way. Yet, it is rank hypocrisy when the big record companies complain about copyright.
It is well-known in the music industry that stealing other people’s materials is endemic. One famous case is that of Solomon Linda, who wrote the original on which Disney’s “The lion Sleeps Tonight” was based. He got 10 shillings ($2) for his song, in spite of it becoming a massive hit with The Weavers. The record company kept the band members in the dark about the copyright problems that arose. In the end Solomon Linda died penniless, although his family, backed by the South African government, has recently managed to extract some money out of the industry. Bob Dylan is another major star who has made a fortune out of having a – to his own benefit – liberal interpretation of copyright and out-of-court-settlements have followed his career. Michael Jackson also borrowed heavily for many songs, without accrediting others for their work (see for example Postscript: Michael Jackson). In reality, the industry lives and breathes copyright infringements, and when, as is often the case, those whose rights were infringed lacked the means to take it up in court, their rights stayed ignored.
The copyright system in reality allows the big corporations to trample all over the weak, either by breaching the copyright of poor, new artists or by enforcing their own rights.
What do the “pirates” want?
Aaron Swartz, who was mentioned in the first part of this article, produced a manifesto, entitled the Guerilla Open Access Manifesto, which in a very clear manner describes the strivings of the piracy movement. Although Swartz himself seems to be mainly concerned with scientific and cultural knowledge, his arguments apply equally well to music, movie and software piracy. He explains the position very well. Consider the following passages:
“Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations.”
This is very accurate. It is a complete scandal that academic institutions and corporations lock away the collected knowledge of humanity. Our scientific discoveries are only kept accessible to those who can afford to pay the increasingly outrageous tuition fees of universities. Jstor, who Swartz tried to copy, charges outrageous prices for access, although it is obviously a tremendous technological step forward.
Swartz explains how many people share access to this art through lending passwords, books etc.
“But all of this action goes on in the dark, hidden underground. It’s called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing isn’t immoral — it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.”
This is precisely what the pirates are doing as well. Most of people involved with piracy do it without particular personal benefit to themselves, but at great risk. Kim Dotcom is obviously an exception. The whole peer-to-peer community in general and BitTorrent in particular rely on the fact that the average user uploads at least as much as they download. This is working very well in spite of the fact that it is perfectly possible for the user to not share anything with others. There are teams of programmers who crack copyright protection on computer software and games, without any kind of monetary compensation. There are people who record video in cinemas, despite the high risk involved. There are people who copy DVDs and music CDs and put them online. It is a true testament to solidarity among human beings, far from the self-interested individuals that the bourgeois claim that we are.
Swartz also explained precisely the background to what happened to him:
“Large corporations, of course, are blinded by greed. The laws under which they operate require it — their shareholders would revolt at anything less. And the politicians they have bought off back them, passing laws giving them the exclusive power to decide who can make copies.”
Indeed, these laws over the past few years have been sharpened in order to provide a more efficient tool at the hands of the industry against the millions that are involved in some way or other with Internet piracy. One might add that it’s not just politicians but also police officers and judges who have been bought by the industry. The three cases mentioned above make that clear. One could also add the journalists who constantly take the side of copyright holders.
Let’s for a moment consider what kind of companies we’re dealing with. Vivendi, the French company that owns Universal Music made a neat €3.7 billion profit in 2011. Given that their total revenue was €28.8 billion that gives them a 13% profit. Sony Music Entertainment registered revenue of €3.5 billion, a €300 million profit, which is around 8%. Time Warner had revenue of $29 billion in 2011 and a profit of $5.8 billion, or roughly 20%. These companies have huge resources and most of them are very profitable.
As Marxists we have to completely agree with the problem that Swartz poses and we remain implacably opposed to all legal cases against online piracy. However, the solution that Swartz proposes is somewhat unsatisfactory:
“We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.”
We do not agree that the fight for access to culture can be fought on an individual basis. All those who are willing to put their neck on the line for the sake of spreading knowledge, culture and entertainment by breaking copyright, will not fundamentally change the present position. Piracy or Open Access will not be able to solve the problems that it sets itself.
Encryption is the latest stage in the cat-and-mouse game. In order to keep one step ahead of law enforcement, the activists now turn to encrypting traffic and masking their IP addresses. Note for example The Guerrilla Open Access Cookbook which attempts to help users implement Swartz’s manifesto. These methods involve layers of encrypted connections to obscure the trail. It is way too complicated for the average user. They require a high degree of technical knowledge, a lot of time and cannot realistically be used for peer-to-peer activity. They remain the methods of a relatively small circle.
There have been various attempts to solve this problem using peer-to-peer methods. The Tor Project, although not very good for file sharing, has achieved a high degree of anonymity for web browsing. It basically allows the user to redirect their communication through other users of Tor, thus obscuring who is actually accessing what. Kim Dotcom has also launched his new project Mega, which is supposed to provide file hosting with 1024 bit encryption. That kind of level of encryption is pretty much impossible to break without knowing the password.
There is a trade-off between encryption and security and usability. The more layers of security you add, the more difficult it will be to use and the slower the speed will be. The more difficult it is to use, the smaller the community will be, which makes peer-to-peer less useful.
In the end the “pirates” can’t win but neither can the copyright lobby. Piracy is far too widespread and easy on the internet. So, the cat-and-mouse game will continue. Governments will impose harsher penalties and put more resources into prosecution and the pirates will respond with increased anonymity.
How to fund the arts?
There is another question which the pirates struggle to answer. If everybody gets to download for free, who is to fund artists? The various answers to that question are unsatisfactory. Of course, some of the revenue can come through concerts, merchandise and the like, but that is not true for all art, nor is it true for academic journals.
Equally, one might ask, do makers of art have no rights over their creations whatsoever? A few years ago, for example, a number of musicians, including Billy Bragg, complained that the BNP was selling their music to fund the party. The Creative Commons community, which promotes the spreading of copyright-free material, has recognised this problem. They provide several license variations. Most popular are licenses that require attribution and that prohibit commercial use.
These problems with piracy have divided even left-leaning artists. Many sympathise with free access to art but are not so sympathetic to being asked to work for free. Unions representing artists and writers have therefore often found themselves in the same camp as the multinational companies on this question. Consider for example the British Musicians’ Union which has launched a campaign called Music Supported Here in response to “the rise in Internet piracy”. The reason why they take that position is not only to defend the interests of multi-millionaire artists but for the thousands of artists that are struggling on wages that are below the poverty line.
As Marxists we recognise that artists have rights to their art. They have the right to be paid for their work and also ought to have some measure of control over how their art is used. Yet, we also completely agree that art and music ought to be accessible by all.
The fact is that arts under capitalism are extremely underfunded, with the exception of a few big names. In general, artists and actors are paid very low wages and so are a whole range of supporting staff (technicians, administrators, etc.). The culture industry in general has some of the worst working conditions. The model of financing of art which is being defended against piracy is fundamentally flawed. It is not a model based on safeguarding the interests of the workers but the profits of the multinationals. Art production for profit provides us with neither high quality nor cheap art. It does not take care of the interests of the workers, or that of society as a whole.
The first step towards a new model must be to nationalise the media industry, under workers’ control. This would enable us to use the profits that are still made to invest in culture, both the quality and the conditions of the workers. The state should guarantee a decent wage and working conditions for all artists and other workers in the sector. This will remove the need to live off the measly and uncertain revenue that artists get from sales. The money to fund this must come from nationalising other sectors of industry. Many hardware manufacturers, like Apple, are for example making huge profits. Gradually, the whole industry must be geared towards providing arts and culture for free, funded instead by society as a whole.
As part of a socialist society we would thus free the industry from the shackles imposed on it by profit making. Yet we would also make culture and information accessible to everyone.