Academic literature on the topic 'Piracy (Copyright) Australia'

Copyright is under contest in Australia amid growing digital cultures of sharing. Using metaphor as a frame for analysis, this study applies internet search data (Google Trends) methods to visualise Australian online information-seeking patterns for metaphors related to copyright and sharing. An overview of legal metaphors of online copyright (‘piracy’, ‘war on copyright’) and metaphors of digital sharing (‘sharing is caring’, ‘sharing economy’) leads to a critical examination of the ‘metaphor struggles’ between the rhetoric of copyright infringement and sharing cultures promoted by social media. Key findings presented are of decreased information seeking for copyright metaphors and increased information seeking for sharing metaphors. Online information-seeking patterns, as visualised by internet search data, represent a form of public mobilisation. Visualisation of these patterns of public information seeking for metaphors of copyright and sharing demonstrates shifting conceptions of copyright in contemporary digital cultures. This article concludes by raising a potential relationship between rising ethics of online sharing norms and diminishing legitimacy of online copyright, as the legal metaphor of copyright appears to transition through the metaphor cycle.

This article takes the politicisation of copyright and file sharing as a starting point to discuss the concept of the commons and the construction of property. Empirically, the article draws on a series of interviews with Pirate Party members in Sweden, Australia, Germany, the UK and USA; placed in the theoretical framework of the commons. We argue that piracy, as an act and an ideology, interrogates common understandings of property as something self-evident, natural and uncontestable. Such constructions found liberal market ideology. The article has two broad aims: to outline the different phases of enclosure, from the physical commons, to the institutional and finally the cultural commons; and to discuss the way that piracy highlights the emergent crisis in private property rights, brought to the fore by the global financial crisis and ongoing privatization of public resources. We conclude by questioning what new modes of enclosure are emerging in a digital economy driven by excessive data mining and centralized streaming services.

This article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

Historically the impact of the printing press on Western culture is a truism. Print gave rise to the mass reproduction and circulation of information with wide reaching consequences in all fields: political, social, and economic. An aspect that this paper wishes to focus on is that this moment also saw the birth (and necessity) of copyright legislation, to administer and protect this new found ability to package and disseminate text. The term copyright itself, used freely in debates surrounding contemporary topics such as iTunes, DVD piracy, and file-sharing, is not only semantically anachronistic but, as will be shown, is an anachronistic problem. The history that it carries, through almost three hundred years, underscores the difficulties at the heart of copyright in the contemporary scene. Indeed the reliance on copyright in these debates creates an argument based on circular definitions relating to only the statutory conception of cultural rights. No avenue is really left to imagine a space outside its jurisdiction. This paper asserts that notions of the “culture industry” (as opposed to some other conception of culture) are also inherently connected to the some three hundred years of copyright legislation. Our conceptions of the author and of intellectual pursuits as property can also be traced within this relatively small period. As clarified by Lord Chief Baron Pollock in the English courts in 1854, “copyright is altogether an artificial right” that does not apply at common law and relies wholly on statute (Jeffreys v Boosey). Foucault (124-42) highlights, in his attack on Romantic notions of the author-genius-God, that the author-function is expressed primarily as a legal term, through the legal concepts of censorship and copyright. Copyright, then, pays little attention to non-economic interests of the author and is used primarily to further economic interests. The corporate nature of the culture industry at present amounts to the successful application of copyright legislation in the past. This paper suggests that we look at our conception of literary and artistic work as separate from copyright’s own definitions of intellectual property and the commercialisation of culture. From Hogarth to File-Sharing The case of ‘DVD Jon’ is instructive. In 1999, Jon Lech Johansen, a Norwegian programmer, drew the ire of Hollywood by breaking the encryption code for DVDs (in a program called DeCSS). More recently, he has devised a program to circumvent the anti-piracy system for Apple’s iTunes music download service. With this program, called PyMusique, users still have to pay for the songs, but once these are paid for, users can use the songs on all operating systems and with no limits on copying, transfers or burning. Johansen, who publishes his wares on his blog entitled So Sue Me, was in fact sued in 1999 by the Motion Picture Association of America (MPAA) for copyright infringement. He argued that he created DeCSS as part of developing a DVD player for his Linux operating system, and that copying DVD movies was an ancillary function of the program for which he could not be held responsible. He was acquitted by an Oslo district court in early 2003 and again by an appeals court later that year. During this time many people on the internet found novel ways to publish the DeCSS code so as to avoid prosecution, including many different code encryptions incorporated into jpeg images (including the trademarked DVD logo, owned by DVD LLC) and mpeg movies, as an online MUD game scenario, and even produced in the form of a haiku (“42 Ways to Distribute DeCSS”). The ability to publish the code in a format not readily prosecutable owes less to encryption and clandestine messages than it does to anachronistic laws regarding the wholly legal right to original formats. Prior to 1709, copyright or licensing related to the book publishing industry where the work as formatted, pressed and disseminated was more important to protect than the text itself or the concept of the author as the writer of the text. Even today different copyrights may be held over the different formatting of the same text. The ability for hackers to attack the copyright legislation through its inherent anachronism is more than smart lawyering or a neat joke. These attacks, based on file sharing and the morphing fluid forms of information (rather than contained text, printed, broadcast, or expressed through form in general), amount to a real breach in copyright’s capability to administer and protect information. That the corporations are so excited and scared of these new technologies of dissemination should come as no surprise. It should also not be seen, as some commentators wish to, as a completely new approach to the dissemination of culture. If copyright was originally intended to protect the rights of the publisher, the passing of the Act of Anne in 1709 introduced two new concepts – an author being the owner of copyright, and the principle of a fixed term of protection for published works. In 1734, William Hogarth, wanting to ensure profits would flow from his widely disseminated prints (which attracted many pirate copies), fought to have these protections extended to visual works. What is notable about all this is that in 1734 the concept of copyright both in literary and artistic works applied only to published or reproduced works. It would be over one hundred years later, in the Romantic period, that a broader protection to all artworks would be available (for example, paintings, sculpture, etc). Born primarily out of guild systems, the socio-political aspect of protection, although with a passing nod to the author, was primarily a commercial concern. These days the statute has muddied its primary purpose; commercial interest is conflated and confused with the moral rights of the author (which, it might be added, although first asserted in the International Berne Convention of 1886 were only ratified in Australia in December 2000). For instance, in a case such as Sony Entertainment (Australia) Ltd v Smith (2005), both parties in fact want the protection of copyright. On one day the DJ in question (Pee Wee Ferris) might be advertising himself through his DJ name as an appropriative, sampling artist-author, while at the same time, we might assume, wishing to protect his own rights as a recording artist. Alternatively, the authors of the various DeCSS code works want both the free flow of information which then results in a possible free flow of media content. Naturally, this does not sit well with the current lords of copyright: the corporations. The new open-source author works contrary to all copyright. Freed Slaves The model of the open source author is not without precedent. Historically, prior to copyright and the culture industry, this approach to authorship was the norm. The Roman poet Martial, known for his wit and gifts of poetry, wrote I commend to you, Quintianus, my little books – if I can call them mine when your poet recites them: if they complain of their harsh servitude, you should come forward as their champion and give your guarantees; and when he calls himself their master you should say they are mine and have been granted their freedom. If you shout this out three or four times, you will make their kidnapper (plagiario) feel ashamed of himself. Here of course the cultural producer is a landed aristocrat (a situation common to early Western poets such as Chaucer, Spencer and More). The poem, or work, exists in the economy of the gift. The author-function here is also not the same as in modern times but was based on the advantages of reputation and celebrity within the Roman court. Similarly other texts such as stories, songs and music were circulated, prior to print, in a primarily oral economy. Later, with the rise of the professional guild system in late medieval times, the patronage system did indeed pay artists, sometimes royal sums. However, this bursary was not so much for the work than for upkeep as members of the household holding a particular skill. The commercial aspect of the author as owner only became fully realised with the rise of the middle classes in the eighteenth and nineteenth century and led to the global adoption of the copyright regime as the culture industry’s sanction. Added to this, the author is now overwhelmingly a corporation, not an individual, which has expanded the utilisation of these statutes for commercial advantage to, perhaps, an unforeseen degree. To understand the file-sharing period, which we are now entering at full speed, we cannot be confused by notions found in the copyright acts; definitions based on copyright cannot adequately express a culture without commercial concerns. Perhaps the discussion needs to return to concepts that predate copyright, before the author-function (as suggested by Foucault) and before the notion of intellectual property. That we have returned to a gift economy for cultural products is easily understood in the context of file-sharing. But what of the author? Here the figure of the hacker suggests a movement towards such an archaic model where the author’s remuneration comes in the form of celebrity, or a reputation as an exciting innovator. Another model, which is perhaps more likely, is an understanding that certain material disseminated will be sold and administered under copyright for profit and that the excess will be quickly and efficiently disseminated with no profit and with no overall duration of protection. Such an amalgamated approach is exemplified by Radiohead’s Kid A album, which, although available for free downloads, was still profitable because the (anachronistic) printed version, with its cover and artwork, still sold by the millions. Perhaps cultural works, the slaves of the author-corporation, should be granted their freedom: freedom from servitude to a commercial master, freedom to be re-told rather than re-sold, with due attribution to the author the only payment. This is a Utopian idea perhaps, but no less a fantasy than the idea that the laws of copyright, born of the printing press, can evolve to match the economy today that they purport to control. When thinking about ownership and authorship today, it must be recalled that copyright itself has a history of useful fictions. References Michel Foucault; “What Is an Author?” Twentieth-Century Literary Theory. Eds. Vassilis Lambropoulos and David Neal Miller. Albany: State UP of New York, 1987. 124-42. “42 Ways to Distribute DeCSS.” 5 Jun. 2005 http://decss.zoy.org/>. Jeffreys v Boosey, 1854. Johansen, Jon Lech. So Sue Me. 5 Jun. 2005 http://www.nanocrew.net/blog/>. Citation reference for this article MLA Style Phillips, Dougal, and Oliver Watts. "Copyright, Print and Authorship in the Culture Industry." M/C Journal 8.2 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0506/06-phillipswatts.php>. APA Style Phillips, D., and O. Watts. (Jun. 2005) "Copyright, Print and Authorship in the Culture Industry," M/C Journal, 8(2). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0506/06-phillipswatts.php>.

It is the same spectacle all over the Western world: whenever delegates gather to discuss the development and consequences of new media technologies, a handful of people among them will stand out from the crowd, and somehow seem not quite to fit in with the remaining assortment of techno-evangelists, Internet ethnographers, multimedia project leaders, and online culture critics. At some point in the proceedings, they'll get to the podium and hold a talk on their ideas for the future of copyright protection and intellectual property (IP) rights in the information age; when they are finished, the reactions of the audience typically range from mild "what was that all about?" amusement to sheer "they haven't got a clue" disbelief. Spare a thought for copyright lawyers; they're valiantly fighting a losing battle. Ever since the digitalisation and networking of our interpersonal and mass media made information transmission and duplication effortless and instantaneous, they've been trying to come up with ways to uphold and enforce concepts of copyright which are fundamentally linked to information as bound to physical objects (artifacts, books, CDs, etc.), as Barlow has demonstrated so clearly in "Selling Wine without Bottles". He writes that "copyright worked well because, Gutenberg notwithstanding, it was hard to make a book. ... Books had material surfaces to which one could attach copyright notices, publisher's marques, and price tags". If you could control the physical media which were used to transmit information (paper, books, audio and video tapes, as well as radio and TV sets, or access to cable systems), you could control who made copies when and where, and at what price. This only worked as long as the technology to make copies was similarly scarce, though: as soon as most people learnt to write, or as faxes and photocopiers became cheaper, the only real copyright protection books had was the effort that would have to be spent to copy them. With technology continuously advancing (perhaps even at accellerating pace), copyright is soon becoming a legal fiction that is losing its link to reality. Indeed, we are now at a point where we have the opportunity -- the necessity, even -- to shift the fictional paradigm, to replace the industrial-age fiction of protective individual copyright with an information-age fiction of widespread intellectual cooperation. As it becomes ever easier to bypass and ignore copyright rules, and as copyright thus becomes ever more illusionary, this new fiction will correspondingly come ever closer to being realised. To Protect and to ... Lose Today, the lawyers' (and their corporate employers') favourite weapon in their fight against electronic copyright piracy are increasingly elaborate protection mechanisms -- hidden electronic signatures to mark intellectual property, electronic keys to unlock copyrighted products only for legitimate users (and sometimes only for a fixed amount of time or after certain licence payments), encryption of sensitive information, or of entire products to prevent electronic duplication. While the encryption of information exchanges between individuals has been proven to be a useful deterrent against all but the most determined of hackers, it's interesting to note that practically no electronic copyright protection mechanism of mass market products has ever been seen to work. However good and elaborate the protection efforts, it seems that as long as there is a sufficient number of interested consumers unwilling to pay for legitimate access, copy protections will be cracked eventually: the rampant software piracy is the best example. On the other hand, where copy protections become too elaborate and cumbersome, they end up killing the product they are meant to protect: this is currently happening in the case of some of the pay-per-view or limited-plays protection schemes forced upon the U.S. market for Digital Versatile Discs (DVDs). The eventual failure of such mechanisms isn't a particularly recent observation, even. When broadcast radio was first introduced in Australia in 1923, it was proposed that programme content should be protected (and stations financed) by fixing radio receivers to a particular station's frequency -- by buying such a 'sealed set' receiver you would in effect subscribe to a station and acquire the right to receive the content it provided. Never known as uninventive, those Australians who this overprotectiveness didn't completely put off buying a receiver (radio was far from being a proven mass medium at the time, after all) did of course soon break the seal, and learnt to adjust the frequency to try out different stations -- or they built their own radios from scratch. The 'sealed set' scheme was abandoned after only nine months. Even with the development of copy protection schemes since the 1920s, a full (or at least sufficiently comprehensive) protection of intellectual property seems as unattainable a fiction as it was then. Protection and copying technology are never far apart in development anyway, but even more fundamentally, the protected products are eventually meant to be used, after all. No matter how elaborately protected a CD, a video, or a computer programme is, it will still have to be converted into sound waves, image information, or executable code, and at that level copying will still remain possible. In the absence of workable copy protection, however, copies will be made in large amounts -- even more so since information is now being spread and multiplied around the globe virtually at the speed of light. Against this tide of copies, any attempts to use legislation to at least force the payment of royalties from illegitimate users are also becoming increasingly futile. While there may be a few highly publicised court cases, the multitude of small transgressions will remain unanswered. This in turn undermines the equality before the law that is a basic human right: increasingly, the few that are punished will be able to argue that, if "everybody does it", to single them out is highly unfair. At the same time, corporate efforts to uphold the law may be counterproductive: as Barlow writes, "against the swift tide of custom, the Software Publishers' current practice of hanging a few visible scapegoats is so obviously capricious as to only further diminish respect for the law". Quite simply, their legal costs may not be justified by the results anymore. Abandoning Copyright Law If copyright has become a fiction, however -- one that is still, despite all evidence, posited as reality by the legal system --, and if the makeup of today's electronic media, particularly the Internet, allow that fiction to be widely ignored and circumvented in daily practice -- despite all corporate legal efforts --, how is this disparity between law and reality to be solved? Barlow offers a clear answer: "whenever there is such profound divergence between the law and social practice, it is not society that adapts". He goes on to state that it may well be that when the current system of intellectual property law has collapsed, as seems inevitable, that no new legal structure will arise in its place. But something will happen. After all, people do business. When a currency becomes meaningless, business is done in barter. When societies develop outside the law, they develop their own unwritten codes, practices, and ethical systems. While technology may undo law, technology offers methods for restoring creative rights. When William Gibson invented the term 'cyberspace', he described it as a "consensual hallucination" (67). As the removal of copyright to the realm of the fictional has been driven largely by the Internet and its 'freedom of information' ethics, perhaps it is apt to speak of a new approach to intellectual property (or, with Barlow, to 'creative rights') as one of consensual, collaborative use of such property. This approach is far from being fully realised yet, and must so for now remain fiction, too, but it is no mere utopian vision -- in various places, attempts are made to put into place consensual schemes of dealing with intellectual property. They also represent a move from IP hoarding to IP use. Raymond speaks of the schemes competing here as the 'cathedral' and the 'bazaar' system. In the cathedral system, knowledge is tightly controlled, and only the finished product, "carefully crafted by individual wizards or small bands of mages working in splendid isolation" (1), is ever released. This corresponds to traditional copyright approaches, where company secrets are hoarded and locked away (sometimes only in order to keep competitors from using them), and breaches punished severely. The bazaar system, on the other hand, includes the entire community of producers and users early on in the creative process, up to the point of removing the producer/user dichotomy altogether: "no quiet, reverent cathedral-building here -- rather, ... a great babbling bazaar of differing agendas and approaches ... out of which a coherent and stable system could seemingly emerge only by a succession of miracles", as Raymond admits (1). The Linux 'Miracle' Raymond writes about one such bazaar-system project which provides impressive proof that the approach can work, however: the highly acclaimed Unix-based operating system Linux. Instigated and organised by Finnish programmer Linus Torvalds, this enthusiast-driven, Internet-based development project has achieved more in less than a decade than what many corporate developers (Microsoft being the obvious example) can do in thrice that time, and with little financial incentive or institutional support at that. As Raymond describes, "the Linux world behaves in many respects like a free market or an ecology, a collection of selfish agents attempting to maximise utility which in the process produces a self-correcting spontaneous order more elaborate and efficient than any amount of central planning could achieve" (10). Thus, while there is no doubt that individual participants will eventually always also be driven by selfish reasons, there is collaboration towards the achievement of communal goals, and a consensus about what those goals are: "while coding remains an essentially solitary activity, the really great hacks come from harnessing the attention and brainpower of entire communities. The developer who uses only his or her own brain in a closed project is going to fall behind the developer who knows how to create an open, evolutionary context in which bug-spotting and improvements get done by hundreds of people" (Raymond 10). It is obvious that such collaborative projects need a structure that allows for the immediate participation of a large community, and so in the same way that the Internet has been instrumental in dismantling traditional copyright systems, it is also a driving factor in making these new approaches possible: "Linux was the first project to make a conscious and successful effort to use the entire world as its talent pool. I don't think it's a coincidence that the gestation period of Linux coincided with the birth of the World Wide Web, and that Linux left its infancy during the same period in 1993-1994 that saw the takeoff of the ISP industry and the explosion of mainstream interest in the Internet. Linus was the first person who learned how to play by the new rules that pervasive Internet made possible" (Raymond 10). While some previous collaborative efforts exist (such as shareware schemes, which have existed ever since the advent of programmable home computers), their comparatively limited successes underline the importance of a suitable communication medium. The success of Linux has now begun to affect corporate structures, too: informational material for the Mozilla project, in fact, makes direct reference to the Linux experience. On the Net, Mozilla is as big as it gets -- instituted to continue development of Netscape Communicator-based Web browsers following Netscape's publication of the Communicator source code, it poses a serious threat to Microsoft's push (the legality of which is currently under investigation in the U.S.) to increase marketshare for its Internet Explorer browser. Much like Linux, Mozilla will be a collaborative effort: "we intend to delegate authority over the various modules to the people most qualified to make decisions about them. We intend to operate as a meritocracy: the more good code you contribute, the more responsibility you will be given. We believe that to be the only way to continue to remain relevant, and to do the greatest good for the greatest number" ("Who Is Mozilla.org?"), with the Netscape corporation only one among that number, and a contributor amongst many. Netscape itself intends to release browsers based on the Mozilla source code, with some individual proprietary additions and the benefits corporate structures allow (printed manuals, helplines, and the like), but -- so it seems -- it is giving up its unlimited hold over the course of development of the browser. Such actions afford an almost prophetic quality to Barlow's observation that "familiarity is an important asset in the world of information. It may often be the case that the best thing you can do to raise the demand for your product is to give it away". The use of examples from the computer world should not be seen to mean that the consensual, collaborative use of intellectual property suggested here is limited only to software -- it is, however, no surprise that a computer-based medium would first be put to use to support computer-based development projects. Producers and artists from other fields can profit from networking with their peers and clients just as much: artists can stay in touch with their audience and one another, working on collaborative projects such as the brilliant Djam Karet CD Collaborator (see Taylor's review in Gibraltar), professional interest groups can exchange information about the latest developments in their field as well as link with the users of their products to find out about their needs or problems, and the use of the Net as a medium of communication for academic researchers was one of its first applications, of course. In many such cases, consensual collaboration would even speed up the development process and help iron out remaining glitches, beating the efforts of traditional institutions with their severely guarded intellectual property rights. As Raymond sees it, for example, "no commercial developer can match the pool of talent the Linux community can bring to bear on a problem", and so "perhaps in the end the free-software culture will triumph not because cooperation is morally right or software 'hoarding' is morally wrong ... , but simply because the commercial world cannot win an evolutionary arms race with free-software communities that can put orders of magnitude more skilled time into a problem" (10). Realising the Fiction There remains the problem that even the members of such development communities must make a living somehow -- a need to which their efforts in the community not only don't contribute, but the pursuit of which even limits the time available for the community efforts. The apparent impossibility of reconciling these two goals has made the consensual collaborative approach appear little more than a utopian fiction so far, individual successes like Linux or (potentially) Mozilla notwithstanding. However, there are ways of making money from the communal work even if due to the abolition of copyright laws mere royalty payments are impossible -- as the example of Netscape's relation to the Mozilla project shows, the added benefits that corporate support can bring will still seem worth paying for, for many users. Similarly, while music and artwork may be freely available on the Net, many music fans will still prefer to get the entire CD package from a store rather than having to burn the CD and print the booklet themselves. The changes to producer/user relations suggested here do have severe implications for corporate and legal structures, however, and that is the central reason why particularly the major corporate intellectual property holders (or, hoarders) and their armies of lawyers are engaged in such a fierce defensive battle. Needless to say, the changeover from the still-powerful fiction of enforcible intellectual property copyrights to the new vision of open, consensual collaboration that gives credit for individual contributions, but has no concept of an exclusive ownership of ideas, will not take place overnight. Intellectual property will continue to be guarded, trade secrets will keep being kept, for some time yet, but -- just as is the case with the established practice of patenting particular ideas just so competitors can't use them, but without ever putting them to use in one's own work -- eventually such efforts will prove to be self-defeating. Shutting one's creative talents off in a quiet cathedral will come to be seen as less productive than engaging in the creative cooperation occuring in the global bazaar, and solitary directives of central executives will be replaced by consensual decisions of the community of producers and users. As Raymond points out, "this is not to say that individual vision and brilliance will no longer matter; rather, ... the cutting edge ... will belong to people who start from individual vision and brilliance, then amplify it through the effective construction of voluntary communities of interest" (10). Such communal approaches may to some seem much like communism, but this, too, is a misconception. In fact, in this new system there is much more exchange, much more give and take going on than in the traditional process of an exchange of money for product between user and producer -- only the currency has changed. "This explains much of the collective 'volunteer' work which fills the archives, newsgroups, and databases of the Internet. Its denizens are not working for 'nothing,' as is widely believed. Rather they are getting paid in something besides money. It is an economy which consists almost entirely of information" (Barlow). And with the removal of the many barriers to the free flow of information and obstacles to scientific and artistic development that traditional copyright has created, the progress of human endeavour itself is likely to be sped up. In the end, then, it all comes down to what fictions we choose to believe or reject. In the light of recent developments, and considering the evidence that suggests the viability, even superiority of alternative approaches, it is becoming increasingly hard to believe that traditional copyright can, and much less, should be sustained. Other than the few major copyright holders, few stand to gain from upholding these rights. On the other hand, were we to lift copyright restrictions and use the ideas and information thus made available freely in a cooperative, consensual, and most of all productive way, we all might profit. As various projects have shown, that fiction is already in the process of being realised. References Barlow, John Perry. "Selling Wine without Bottles: The Economy of Mind on the Global Net." 1993. 26 Jan. 1999 <www.eff.org/pub/Publications/John_Perry_Barlow/HTML/idea_economy_article.php>. Gibson, William. Neuromancer. London: HarperCollins, 1984. Raymond, Eric S. "The Cathedral and the Bazaar." 1998. 26 Jan. 1999 <http://www.redhat.com/redhat/cathedral-bazaar/cathedral-bazaar.php>. Taylor, Mike. "Djam Karet, Jeff Greinke, Tim Song Jones, Nick Peck, Kit Watkins." Gibraltar 5.12 (22 Apr. 1995). 10 Feb. 1999 <http://www.progrock.net/gibraltar/issues/Vol5.Iss12.htm>. "Who Is Mozilla.org?" Mozilla.org Website. 1998. 26 Jan. 1999 <http://www.mozilla.org/about.php>. Citation reference for this article MLA style: Axel Bruns. "The Fiction of Copyright: Towards a Consensual Use of Intellectual Property." M/C: A Journal of Media and Culture 2.1 (1999). [your date of access] <http://www.uq.edu.au/mc/9902/copy.php>. Chicago style: Axel Bruns, "The Fiction of Copyright: Towards a Consensual Use of Intellectual Property," M/C: A Journal of Media and Culture 2, no. 1 (1999), <http://www.uq.edu.au/mc/9902/copy.php> ([your date of access]). APA style: Axel Bruns. (1999) The fiction of copyright: towards a consensual use of intellectual property. M/C: A Journal of Media and Culture 2(1). <http://www.uq.edu.au/mc/9902/copy.php> ([your date of access]).

Rip, mix, share, and sue. Has ‘copy’ become a dirty word? The invitation to artists, activists, consumers and critics to engage in the debate surrounding the creative processes of ‘copy’ has been insightful, if not inciting sampling/reproduction/reflection itself: It clearly questions whether ‘copy’ deserves the negative connotations that it currently summonses. It has confronted the divide between the original and its replica, and questioned notions of authenticity and the essence of identity. It has found that ‘open source’ is an opportunity to capitalise on creativity, and that reuse is resplendently productive. Cultural expression and social exchange are seen to rest upon the acts of copying which are brought to our attention in this edition. As this issue illustrates, the word ‘copy’ has numerous interpretations, applications, and angles, yet an overriding wealth of debate currently outweighs all others; and that surrounds the tumultuous issue of ‘protecting’ copyright in the digital age. Since its conception in the 17th century, copyright law has faced an increasing challenge in achieving its original aims; namely, to strike a balance between creators’ and consumers’ rights in allowing concurrent attribution and access to works. Recent dramatic technological advancements affecting reproduction and distribution of copies, particularly pertaining to the Internet, have fundamentally changed and challenged the content environment. When copyright laws were first conceived, copying and distributing creative works was difficult. Now these activities are virtually free, and practically pervasive; in the digital age, the difficulty lies in their control. Yet because the primarily Western copyright regime relies on providing rights holders with the ability to control their works, copyright industries are working on strategies to garner greater control. Heading this list of strategies are technological content protection mechanisms, consumer education, and lawsuits against individual copyright infringers. Peer-to-peer (P2P) networks are being exploited and sabotaged simultaneously by entities within the Creative Industries, in an attempt to learn from and eliminate the free ‘competition’. Perceiving the mismatch of legal sanction and access to enabling technologies, critics revile the increasing restriction on consumers and creativity. The music industry, in particular, is experimenting with new business models to confine consumers’ rights to enjoy a growing bank of online music. Technical protection mechanisms, within the ambit of Digital Rights Management (DRM), are increasingly applied to enforce these licensing restrictions, providing ‘speed bumps’ for access to content (Digital Connections Council of the Committee for Economic Development 50). Given that these mechanisms can only temporarily allow a limited level of control over access to and usage of content, however, both IP and contract law are essential to the prevention and deterrence of infringement. While production and distribution corporations agitate about online ‘piracy’, an increasing population of consumers are unsympathetic, knowing that very little of the music industry revenue ends up in the pockets of artists, and knowing very little of the complex law surrounding copyright. Over the past few hundred years the content distribution business has become particularly wealthy, and it is primarily this link of the content chain from creator to consumer that is tending towards redundancy in the digital networked world: those who once resided in the middle of the content chain will no longer be required. When individuals and collectives create something they are proud of, they want the world to experience and talk about it, if not ‘rip, mix, mash, and share’ it. The need to create and communicate has always been part of human makeup. Infants learn rapidly during their first few years primarily by observing and emulating the behaviour of adults. But as children progress, and begin creating what they perceive to be their unique contribution, they naturally want to claim and display it as their own; hence the importance of attribution and moral rights to this debate. Clearly, society benefits in many ways from this drive to create, innovate, communicate, learn and share contributions. One need only cite Sir Isaac Newton, who is attributed as having said, ‘If I have seen further, it is by standing on the shoulders of giants.’ Academics and scientists worldwide have long collaborated by sharing and building on one another’s work, a fact acknowledged by the Science Commons initiative (http://www.sciencecommons.org/) to provide open access to academic research and development. Such has been inspired by the vision of Lawrence Lessig, as espoused in The Future of Ideas: The Fate of the Commons in a Connected World. Appropriation of bits and pieces (‘samples’) of another’s work, along with appropriate attribution, has always been acceptable until recently. This legal tension is explored by authors Frederick Wasser, in his article ‘When Did They Copyright the World Without Us Noticing?’, and Francis Raven, in ‘Copyright and Public Goods: An Argument for Thin Copyright Protection’. Wasser explores the recent agitation against the legislated copyright extension in the United States to 95 years from publication (or 120 years from creation, whichever is shorter) from an original 14, accompanied by the changing logic of copyright, which has further upset the balance between protection and fair use, between consumer and creator, and ultimately invests power in the intermediary. Raven argues for ‘thin’ copyright protection, having the intention to protect the incentive for producers to create while also defending the public’s right to a rich intellectual realm in the public domain. Current conflict surrounding music sampling illustrates that our evolution towards a regime of restrictive licensing of digital works, largely driven by copyright owners and content distributors, has made the use of bits and pieces of existing music difficult, if not impossible. In this issue’s feature article ‘Good Copy/Bad Copy’, Steve Collins examines the value of ‘copy’ where musical creativity and copyright law intersect. The recontextualisation and reshaping of music with regard to cover versions and sampling brings into relief the disparity in current legal and licensing provisions. When creativity is stifled by copyright, the original intention of the law is lost. Collins argues that creators are now subject to the control of an oppressive monopoly, which clearly should be addressed if innovative cultural expression is to thrive. The issue’s second article, ‘The Affect of Selection in Digital Sound Art’ by author and sound artist Owen Chapman, aka ‘Opositive’, explores the interplay and influence between the ‘raw and the remixed’, where subjective control over sound production is questioned. Transformation of sound hovers between an organic and intentional process, and creates affective influence: we are ultimately entreated to listen and learn, as sampling selection goes gestalt. Moving from the aural domain to the written, the significance of textual reuse and self-referentiality is introduced by Kirsten Seale in her academic exploration of reuse in the works of Iain Sinclair. Sinclair, in Dining on Stones (or, the Middle Ground), is seen to have subverted the postmodernist obscuration/denial of authorial control through the reintroduction of an assured self-sampling technique. Also in contemplating the written creative process, after significant exposure to the ever-more-evident proclivities of students to cut and paste from Websites, Dr. Gauti Sigthorsson asserts that plagiarism is merely symptomatic of the dominant sampling culture. Rather than looming as a crisis, Sigthorsson sees this increasing appropriation as a ‘teachable moment’, illustrating the delights of the open source process. Issues of identity and authenticity are explored in ‘Digital Doppelgängers’ by Lisa Bode, and ‘Slipping and Sliding: blind optimism, greed and the effect of fakes on our cultural understanding’ by art fraud and forensic expert Robyn Sloggett. In introducing the doppelgänger of Indo-European folklore and literature as the protagonist’s sinister double, Bode goes on to explore the digital manifestation: the image which challenges the integrity of the actor and his/her reflection, where original identity may be beyond the actor’s control. In copy’s final article ‘Slipping and Sliding’ by Sloggett, the determination of artistic authenticity is explored. Identity is seen to be predicated on authenticity: but does this necessarily hold? In reflecting on the notions of ‘copy’ explored in this issue, it is clear that civilisation has progressed by building on past successes and failures. A better, richer future can be possible if we continue to do exactly this. Instead, rights holders are striving to maintain control, using clumsy methods that effectively alter traditional user rights (or perceived rights) and practices. Imagine instead if all creative content were virtually free and easily accessible to all; where it would not longer be an infringement to make and share copies for non-commercial reasons. Is it possible to engineer an alternative incentive (to copyright) for creativity to flourish? This is, after all, the underlying goal behind copyright law. Copyright law provides a creator with a temporary monopoly over the sale and distribution of their work. Infringing copyright law is consequently depriving creators of this mechanism to make money, obtain notoriety and thus their very motivation to create. This goal to provide creative incentive is fundamentally important for society, intellectually and culturally, but alternative means to achieve it are worthy of exploration. A familiar alternative option to help generate creativity is to apply a special tax (levy) on all goods and services that enable viewing, listening, reading, publishing, copying, and downloading of digital content. The revenue pool this generates is then available for distribution amongst content creators, thereby creating a financial incentive. In over 40 countries, primarily European, partial variations of such a levy system are currently used to compensate copyright owners whilst allowing consumers a certain degree of free private copying. Professor William Fisher, Hale and Dorr Professor of Intellectual Property Law at Harvard University, and Director of the Berkman Centre for Internet and Society, proposes as much in his book outlining a government-administered compensation scheme, encompassing free online access to music and movies: Promises to Keep: Technology, Law and the Future of Entertainment. As we are left to contemplate copyrights and ‘copywrongs’ (Vaidhyanathan), we may reflect that the ‘promotion of the progress of science and the useful arts’, as per Harper v. Row (471 U.S.), rests with the (some say draconian) directions determined by legislation. Measures contained in instruments such as the Digital Millennium Copyright Act (DMCA), continue to diminish, if not desecrate, the public domain. Moreover, as the full impact of the Free Trade Agreement (FTA) with the United States looms for the Australian audience, in the adoption of the extension of the copyright term to the criminalisation of IP infringement, we realise that the establishment of economically viable and legal alternatives to the adopted regime is paramount. (Moore) We are also left to lament the recent decision in MGM vs. Grokster, where the US Supreme Court has ruled unanimously against the file-sharing service providers Grokster and Streamcast Networks (developers of Morpheus), serving as an illustration of ongoing uncertainty surrounding P2P networks and technologies, and lack of certainty of any court decisions regarding such matters. In the future, as we log into Longhorn (http://msdn.microsoft.com/longhorn/), we will wonder where our right to enjoy began to disappear. Electronic Frontier Foundation’s (http://www.eff.org/) cry to ‘Defend Freedom in the Digital World’ gains increasing resonance. In presenting ‘copy’ to you, we invite you cut, paste, innovate, create, and be entertained, to share, and share alike, while you still can. References Digital Connections Council of the Committee for Economic Development (CED). Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property, 2004. http://www.ced.org/docs/report/report_dcc.pdf>. Fisher, William. Promises to Keep: Technology, Law, and the Future of Entertainment. Palo Alto CA: Stanford UP, 2004. Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001. Moore, Christopher. “Creative Choices: Changes to Australian Copyright Law and the Future of the Public Domain.” Media International Australia 114 (2005): 71-82. Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Leisten, Susanna, and Rachel Cobcroft. "Copy." M/C Journal 8.3 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0507/01-editorial.php>. APA Style Leisten, S., and R. Cobcroft. (Jul. 2005) "Copy," M/C Journal, 8(3). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0507/01-editorial.php>.

Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences. There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994].). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke, every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8) Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834]), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes. The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly. Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection: Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11) The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution. In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote: Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118) Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A&M Records the court stated “there can be no more brazen stealing of music than digital sampling”. This move towards a propertarian approach is misguided. It runs contrary to the utilitarian principles underpinning copyright ideology and marginalises freedoms protected by the fair use doctrine, hence Justice Blackman’s warning that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States 473 US 207, 216 [1985]). The framing of copyright in terms of real property privileges private monopoly over, and to the detriment of, the public interest in free and diverse creativity as well as freedoms of personal use. It is paramount that when dealing with copyright cases, the courts remain aware that their decisions involve not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression – in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture. (Eldred v. Ashcroft 537 US 186 [2003] [J. Breyer dissenting]). Copyright is the prize in a contest of property vs. policy. As Justice Blackman observed, an infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. (Dowling v. United States 473 US 207, 217-218 [1985]). Copyright policy places a great deal of control and cultural determinism in the hands of the creative industries. Without balance, oppressive monopolies form on the back of rights granted for the welfare of society in general. If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm. The question of whether culture should be determined by control or freedom in the interests of a free society is one that rapidly requires close attention – “it’s no longer a philosophical question but a practical one”. References Bayat, Asef. “Un-Civil Society: The Politics of the ‘Informal People.’” Third World Quarterly 18.1 (1997): 53-72. Bell, T. W. “Author’s Welfare: Copyright as a Statutory Mechanism for Redistributing Rights.” Brooklyn Law Review 69 (2003): 229. Blackstone, W. Commentaries on the Laws of England: Volume II. New York: Garland Publishing, 1978. (Reprint of 1783 edition.) Boyle, J. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard UP, 1996. Boyle, J. “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87. Bowrey, K. “Who’s Writing Copyright’s History?” European Intellectual Property Review 18.6 (1996): 322. Cohen, J. “Overcoming Property: Does Copyright Trump Privacy?” University of Illinois Journal of Law, Technology & Policy 375 (2002). Collins, S. “Good Copy, Bad Copy.” (2005) M/C Journal 8.3 (2006). http://journal.media-culture.org.au/0507/02-collins.php>. Coombe, R. The Cultural Life of Intellectual Properties. Durham: Duke University Press, 1998. Demers, J. Steal This Music. Athens, Georgia: U of Georgia P, 2006. Easterbrook, F. H. “Intellectual Property Is Still Property.” (1990) Harvard Journal of Law & Public Policy 13 (1990): 108. Feather, J. Publishing, Piracy and Politics: An Historical Study of Copyright in Britain. London: Mansell, 1994. Lemley, M. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031. Lessig, L. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. Lessing, L. The Future of Ideas. New York: Random House, 2001. Lessig, L. Free Culture. New York: The Penguin Press, 2004. Locke, J. Two Treatises of Government. Ed. Peter Laslett. Cambridge, New York, Melbourne: Cambridge University Press, 1988. McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free (2002). 14 June 2006 http://www.stayfreemagazine.org/archives/20/public_enemy.html>. McLeod, K. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28 (2005): 79. McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Miller, M.W. “Creativity Furor: High-Tech Alteration of Sights and Sounds Divides the Art World.” Wall Street Journal (1987): 1. Ou, T. “From Wheaton v. Peters to Eldred v. Reno: An Originalist Interpretation of the Copyright Clause.” Berkman Center for Internet & Society (2000). 14 June 2006 http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cyber/OuEldred.pdf>. Samuelson, P. “Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?” Catholic University Law Review 38 (1989): 365. Travis, H. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal 15 (2000): 777. Vaidhyanathan, S. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Collins, Steve. "‘Property Talk’ and the Revival of Blackstonian Copyright." M/C Journal 9.4 (2006). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0609/5-collins.php>. APA Style Collins, S. (Sep. 2006) "‘Property Talk’ and the Revival of Blackstonian Copyright," M/C Journal, 9(4). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0609/5-collins.php>.

There is no diagram that does not also include, besides the points it connects up, certain relatively free or unbounded points, points of creativity, change and resistance, and it is perhaps with these that we ought to begin in order to understand the whole picture. (Deleuze, “Foucault” 37) Monty Cantsin: Why do we use a pervert software robot to exploit our collective consensual mind? Letitia: Because we want the thief to be a digital entity. Monty Cantsin: But isn’t this really blasphemic? Letitia: Yes, but god – in our case a meta-cocktail of authorship and copyright – can not be trusted anymore. (Amazon Noir, “Dialogue”) In 2006, some 3,000 digital copies of books were silently “stolen” from online retailer Amazon.com by targeting vulnerabilities in the “Search inside the Book” feature from the company’s website. Over several weeks, between July and October, a specially designed software program bombarded the Search Inside!™ interface with multiple requests, assembling full versions of texts and distributing them across peer-to-peer networks (P2P). Rather than a purely malicious and anonymous hack, however, the “heist” was publicised as a tactical media performance, Amazon Noir, produced by self-proclaimed super-villains Paolo Cirio, Alessandro Ludovico, and Ubermorgen.com. While controversially directed at highlighting the infrastructures that materially enforce property rights and access to knowledge online, the exploit additionally interrogated its own interventionist status as theoretically and politically ambiguous. That the “thief” was represented as a digital entity or machinic process (operating on the very terrain where exchange is differentiated) and the emergent act of “piracy” was fictionalised through the genre of noir conveys something of the indeterminacy or immensurability of the event. In this short article, I discuss some political aspects of intellectual property in relation to the complexities of Amazon Noir, particularly in the context of control, technological action, and discourses of freedom. Software, Piracy As a force of distribution, the Internet is continually subject to controversies concerning flows and permutations of agency. While often directed by discourses cast in terms of either radical autonomy or control, the technical constitution of these digital systems is more regularly a case of establishing structures of operation, codified rules, or conditions of possibility; that is, of guiding social processes and relations (McKenzie, “Cutting Code” 1-19). Software, as a medium through which such communication unfolds and becomes organised, is difficult to conceptualise as a result of being so event-orientated. There lies a complicated logic of contingency and calculation at its centre, a dimension exacerbated by the global scale of informational networks, where the inability to comprehend an environment that exceeds the limits of individual experience is frequently expressed through desires, anxieties, paranoia. Unsurprisingly, cautionary accounts and moral panics on identity theft, email fraud, pornography, surveillance, hackers, and computer viruses are as commonplace as those narratives advocating user interactivity. When analysing digital systems, cultural theory often struggles to describe forces that dictate movement and relations between disparate entities composed by code, an aspect heightened by the intensive movement of informational networks where differences are worked out through the constant exposure to unpredictability and chance (Terranova, “Communication beyond Meaning”). Such volatility partially explains the recent turn to distribution in media theory, as once durable networks for constructing economic difference – organising information in space and time (“at a distance”), accelerating or delaying its delivery – appear contingent, unstable, or consistently irregular (Cubitt 194). Attributing actions to users, programmers, or the software itself is a difficult task when faced with these states of co-emergence, especially in the context of sharing knowledge and distributing media content. Exchanges between corporate entities, mainstream media, popular cultural producers, and legal institutions over P2P networks represent an ongoing controversy in this respect, with numerous stakeholders competing between investments in property, innovation, piracy, and publics. Beginning to understand this problematic landscape is an urgent task, especially in relation to the technological dynamics that organised and propel such antagonisms. In the influential fragment, “Postscript on the Societies of Control,” Gilles Deleuze describes the historical passage from modern forms of organised enclosure (the prison, clinic, factory) to the contemporary arrangement of relational apparatuses and open systems as being materially provoked by – but not limited to – the mass deployment of networked digital technologies. In his analysis, the disciplinary mode most famously described by Foucault is spatially extended to informational systems based on code and flexibility. According to Deleuze, these cybernetic machines are connected into apparatuses that aim for intrusive monitoring: “in a control-based system nothing’s left alone for long” (“Control and Becoming” 175). Such a constant networking of behaviour is described as a shift from “molds” to “modulation,” where controls become “a self-transmuting molding changing from one moment to the next, or like a sieve whose mesh varies from one point to another” (“Postscript” 179). Accordingly, the crisis underpinning civil institutions is consistent with the generalisation of disciplinary logics across social space, forming an intensive modulation of everyday life, but one ambiguously associated with socio-technical ensembles. The precise dynamics of this epistemic shift are significant in terms of political agency: while control implies an arrangement capable of absorbing massive contingency, a series of complex instabilities actually mark its operation. Noise, viral contamination, and piracy are identified as key points of discontinuity; they appear as divisions or “errors” that force change by promoting indeterminacies in a system that would otherwise appear infinitely calculable, programmable, and predictable. The rendering of piracy as a tactic of resistance, a technique capable of levelling out the uneven economic field of global capitalism, has become a predictable catch-cry for political activists. In their analysis of multitude, for instance, Antonio Negri and Michael Hardt describe the contradictions of post-Fordist production as conjuring forth a tendency for labour to “become common.” That is, as productivity depends on flexibility, communication, and cognitive skills, directed by the cultivation of an ideal entrepreneurial or flexible subject, the greater the possibilities for self-organised forms of living that significantly challenge its operation. In this case, intellectual property exemplifies such a spiralling paradoxical logic, since “the infinite reproducibility central to these immaterial forms of property directly undermines any such construction of scarcity” (Hardt and Negri 180). The implications of the filesharing program Napster, accordingly, are read as not merely directed toward theft, but in relation to the private character of the property itself; a kind of social piracy is perpetuated that is viewed as radically recomposing social resources and relations. Ravi Sundaram, a co-founder of the Sarai new media initiative in Delhi, has meanwhile drawn attention to the existence of “pirate modernities” capable of being actualised when individuals or local groups gain illegitimate access to distributive media technologies; these are worlds of “innovation and non-legality,” of electronic survival strategies that partake in cultures of dispersal and escape simple classification (94). Meanwhile, pirate entrepreneurs Magnus Eriksson and Rasmus Fleische – associated with the notorious Piratbyrn – have promoted the bleeding away of Hollywood profits through fully deployed P2P networks, with the intention of pushing filesharing dynamics to an extreme in order to radicalise the potential for social change (“Copies and Context”). From an aesthetic perspective, such activist theories are complemented by the affective register of appropriation art, a movement broadly conceived in terms of antagonistically liberating knowledge from the confines of intellectual property: “those who pirate and hijack owned material, attempting to free information, art, film, and music – the rhetoric of our cultural life – from what they see as the prison of private ownership” (Harold 114). These “unruly” escape attempts are pursued through various modes of engagement, from experimental performances with legislative infrastructures (i.e. Kembrew McLeod’s patenting of the phrase “freedom of expression”) to musical remix projects, such as the work of Negativland, John Oswald, RTMark, Detritus, Illegal Art, and the Evolution Control Committee. Amazon Noir, while similarly engaging with questions of ownership, is distinguished by specifically targeting information communication systems and finding “niches” or gaps between overlapping networks of control and economic governance. Hans Bernhard and Lizvlx from Ubermorgen.com (meaning ‘Day after Tomorrow,’ or ‘Super-Tomorrow’) actually describe their work as “research-based”: “we not are opportunistic, money-driven or success-driven, our central motivation is to gain as much information as possible as fast as possible as chaotic as possible and to redistribute this information via digital channels” (“Interview with Ubermorgen”). This has led to experiments like Google Will Eat Itself (2005) and the construction of the automated software thief against Amazon.com, as process-based explorations of technological action. Agency, Distribution Deleuze’s “postscript” on control has proven massively influential for new media art by introducing a series of key questions on power (or desire) and digital networks. As a social diagram, however, control should be understood as a partial rather than totalising map of relations, referring to the augmentation of disciplinary power in specific technological settings. While control is a conceptual regime that refers to open-ended terrains beyond the architectural locales of enclosure, implying a move toward informational networks, data solicitation, and cybernetic feedback, there remains a peculiar contingent dimension to its limits. For example, software code is typically designed to remain cycling until user input is provided. There is a specifically immanent and localised quality to its actions that might be taken as exemplary of control as a continuously modulating affective materialism. The outcome is a heightened sense of bounded emergencies that are either flattened out or absorbed through reconstitution; however, these are never linear gestures of containment. As Tiziana Terranova observes, control operates through multilayered mechanisms of order and organisation: “messy local assemblages and compositions, subjective and machinic, characterised by different types of psychic investments, that cannot be the subject of normative, pre-made political judgments, but which need to be thought anew again and again, each time, in specific dynamic compositions” (“Of Sense and Sensibility” 34). This event-orientated vitality accounts for the political ambitions of tactical media as opening out communication channels through selective “transversal” targeting. Amazon Noir, for that reason, is pitched specifically against the material processes of communication. The system used to harvest the content from “Search inside the Book” is described as “robot-perversion-technology,” based on a network of four servers around the globe, each with a specific function: one located in the United States that retrieved (or “sucked”) the books from the site, one in Russia that injected the assembled documents onto P2P networks and two in Europe that coordinated the action via intelligent automated programs (see “The Diagram”). According to the “villains,” the main goal was to steal all 150,000 books from Search Inside!™ then use the same technology to steal books from the “Google Print Service” (the exploit was limited only by the amount of technological resources financially available, but there are apparent plans to improve the technique by reinvesting the money received through the settlement with Amazon.com not to publicise the hack). In terms of informational culture, this system resembles a machinic process directed at redistributing copyright content; “The Diagram” visualises key processes that define digital piracy as an emergent phenomenon within an open-ended and responsive milieu. That is, the static image foregrounds something of the activity of copying being a technological action that complicates any analysis focusing purely on copyright as content. In this respect, intellectual property rights are revealed as being entangled within information architectures as communication management and cultural recombination – dissipated and enforced by a measured interplay between openness and obstruction, resonance and emergence (Terranova, “Communication beyond Meaning” 52). To understand data distribution requires an acknowledgement of these underlying nonhuman relations that allow for such informational exchanges. It requires an understanding of the permutations of agency carried along by digital entities. According to Lawrence Lessig’s influential argument, code is not merely an object of governance, but has an overt legislative function itself. Within the informational environments of software, “a law is defined, not through a statue, but through the code that governs the space” (20). These points of symmetry are understood as concretised social values: they are material standards that regulate flow. Similarly, Alexander Galloway describes computer protocols as non-institutional “etiquette for autonomous agents,” or “conventional rules that govern the set of possible behavior patterns within a heterogeneous system” (7). In his analysis, these agreed-upon standardised actions operate as a style of management fostered by contradiction: progressive though reactionary, encouraging diversity by striving for the universal, synonymous with possibility but completely predetermined, and so on (243-244). Needless to say, political uncertainties arise from a paradigm that generates internal material obscurities through a constant twinning of freedom and control. For Wendy Hui Kyong Chun, these Cold War systems subvert the possibilities for any actual experience of autonomy by generalising paranoia through constant intrusion and reducing social problems to questions of technological optimisation (1-30). In confrontation with these seemingly ubiquitous regulatory structures, cultural theory requires a critical vocabulary differentiated from computer engineering to account for the sociality that permeates through and concatenates technological realities. In his recent work on “mundane” devices, software and code, Adrian McKenzie introduces a relevant analytic approach in the concept of technological action as something that both abstracts and concretises relations in a diffusion of collective-individual forces. Drawing on the thought of French philosopher Gilbert Simondon, he uses the term “transduction” to identify a key characteristic of technology in the relational process of becoming, or ontogenesis. This is described as bringing together disparate things into composites of relations that evolve and propagate a structure throughout a domain, or “overflow existing modalities of perception and movement on many scales” (“Impersonal and Personal Forces in Technological Action” 201). Most importantly, these innovative diffusions or contagions occur by bridging states of difference or incompatibilities. Technological action, therefore, arises from a particular type of disjunctive relation between an entity and something external to itself: “in making this relation, technical action changes not only the ensemble, but also the form of life of its agent. Abstraction comes into being and begins to subsume or reconfigure existing relations between the inside and outside” (203). Here, reciprocal interactions between two states or dimensions actualise disparate potentials through metastability: an equilibrium that proliferates, unfolds, and drives individuation. While drawing on cybernetics and dealing with specific technological platforms, McKenzie’s work can be extended to describe the significance of informational devices throughout control societies as a whole, particularly as a predictive and future-orientated force that thrives on staged conflicts. Moreover, being a non-deterministic technical theory, it additionally speaks to new tendencies in regimes of production that harness cognition and cooperation through specially designed infrastructures to enact persistent innovation without any end-point, final goal or natural target (Thrift 283-295). Here, the interface between intellectual property and reproduction can be seen as a site of variation that weaves together disparate objects and entities by imbrication in social life itself. These are specific acts of interference that propel relations toward unforeseen conclusions by drawing on memories, attention spans, material-technical traits, and so on. The focus lies on performance, context, and design “as a continual process of tuning arrived at by distributed aspiration” (Thrift 295). This later point is demonstrated in recent scholarly treatments of filesharing networks as media ecologies. Kate Crawford, for instance, describes the movement of P2P as processual or adaptive, comparable to technological action, marked by key transitions from partially decentralised architectures such as Napster, to the fully distributed systems of Gnutella and seeded swarm-based networks like BitTorrent (30-39). Each of these technologies can be understood as a response to various legal incursions, producing radically dissimilar socio-technological dynamics and emergent trends for how agency is modulated by informational exchanges. Indeed, even these aberrant formations are characterised by modes of commodification that continually spillover and feedback on themselves, repositioning markets and commodities in doing so, from MP3s to iPods, P2P to broadband subscription rates. However, one key limitation of this ontological approach is apparent when dealing with the sheer scale of activity involved, where mass participation elicits certain degrees of obscurity and relative safety in numbers. This represents an obvious problem for analysis, as dynamics can easily be identified in the broadest conceptual sense, without any understanding of the specific contexts of usage, political impacts, and economic effects for participants in their everyday consumptive habits. Large-scale distributed ensembles are “problematic” in their technological constitution, as a result. They are sites of expansive overflow that provoke an equivalent individuation of thought, as the Recording Industry Association of America observes on their educational website: “because of the nature of the theft, the damage is not always easy to calculate but not hard to envision” (“Piracy”). The politics of the filesharing debate, in this sense, depends on the command of imaginaries; that is, being able to conceptualise an overarching structural consistency to a persistent and adaptive ecology. As a mode of tactical intervention, Amazon Noir dramatises these ambiguities by framing technological action through the fictional sensibilities of narrative genre. Ambiguity, Control The extensive use of imagery and iconography from “noir” can be understood as an explicit reference to the increasing criminalisation of copyright violation through digital technologies. However, the term also refers to the indistinct or uncertain effects produced by this tactical intervention: who are the “bad guys” or the “good guys”? Are positions like ‘good’ and ‘evil’ (something like freedom or tyranny) so easily identified and distinguished? As Paolo Cirio explains, this political disposition is deliberately kept obscure in the project: “it’s a representation of the actual ambiguity about copyright issues, where every case seems to lack a moral or ethical basis” (“Amazon Noir Interview”). While user communications made available on the site clearly identify culprits (describing the project as jeopardising arts funding, as both irresponsible and arrogant), the self-description of the artists as political “failures” highlights the uncertainty regarding the project’s qualities as a force of long-term social renewal: Lizvlx from Ubermorgen.com had daily shootouts with the global mass-media, Cirio continuously pushed the boundaries of copyright (books are just pixels on a screen or just ink on paper), Ludovico and Bernhard resisted kickback-bribes from powerful Amazon.com until they finally gave in and sold the technology for an undisclosed sum to Amazon. Betrayal, blasphemy and pessimism finally split the gang of bad guys. (“Press Release”) Here, the adaptive and flexible qualities of informatic commodities and computational systems of distribution are knowingly posited as critical limits; in a certain sense, the project fails technologically in order to succeed conceptually. From a cynical perspective, this might be interpreted as guaranteeing authenticity by insisting on the useless or non-instrumental quality of art. However, through this process, Amazon Noir illustrates how forces confined as exterior to control (virality, piracy, noncommunication) regularly operate as points of distinction to generate change and innovation. Just as hackers are legitimately employed to challenge the durability of network exchanges, malfunctions are relied upon as potential sources of future information. Indeed, the notion of demonstrating ‘autonomy’ by illustrating the shortcomings of software is entirely consistent with the logic of control as a modulating organisational diagram. These so-called “circuit breakers” are positioned as points of bifurcation that open up new systems and encompass a more general “abstract machine” or tendency governing contemporary capitalism (Parikka 300). As a consequence, the ambiguities of Amazon Noir emerge not just from the contrary articulation of intellectual property and digital technology, but additionally through the concept of thinking “resistance” simultaneously with regimes of control. This tension is apparent in Galloway’s analysis of the cybernetic machines that are synonymous with the operation of Deleuzian control societies – i.e. “computerised information management” – where tactical media are posited as potential modes of contestation against the tyranny of code, “able to exploit flaws in protocological and proprietary command and control, not to destroy technology, but to sculpt protocol and make it better suited to people’s real desires” (176). While pushing a system into a state of hypertrophy to reform digital architectures might represent a possible technique that produces a space through which to imagine something like “our” freedom, it still leaves unexamined the desire for reformation itself as nurtured by and produced through the coupling of cybernetics, information theory, and distributed networking. This draws into focus the significance of McKenzie’s Simondon-inspired cybernetic perspective on socio-technological ensembles as being always-already predetermined by and driven through asymmetries or difference. As Chun observes, consequently, there is no paradox between resistance and capture since “control and freedom are not opposites, but different sides of the same coin: just as discipline served as a grid on which liberty was established, control is the matrix that enables freedom as openness” (71). Why “openness” should be so readily equated with a state of being free represents a major unexamined presumption of digital culture, and leads to the associated predicament of attempting to think of how this freedom has become something one cannot not desire. If Amazon Noir has political currency in this context, however, it emerges from a capacity to recognise how informational networks channel desire, memories, and imaginative visions rather than just cultivated antagonisms and counterintuitive economics. As a final point, it is worth observing that the project was initiated without publicity until the settlement with Amazon.com. There is, as a consequence, nothing to suggest that this subversive “event” might have actually occurred, a feeling heightened by the abstractions of software entities. To the extent that we believe in “the big book heist,” that such an act is even possible, is a gauge through which the paranoia of control societies is illuminated as a longing or desire for autonomy. As Hakim Bey observes in his conceptualisation of “pirate utopias,” such fleeting encounters with the imaginaries of freedom flow back into the experience of the everyday as political instantiations of utopian hope. Amazon Noir, with all its underlying ethical ambiguities, presents us with a challenge to rethink these affective investments by considering our profound weaknesses to master the complexities and constant intrusions of control. It provides an opportunity to conceive of a future that begins with limits and limitations as immanently central, even foundational, to our deep interconnection with socio-technological ensembles. References “Amazon Noir – The Big Book Crime.” http://www.amazon-noir.com/>. Bey, Hakim. T.A.Z.: The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism. New York: Autonomedia, 1991. Chun, Wendy Hui Kyong. Control and Freedom: Power and Paranoia in the Age of Fibre Optics. Cambridge, MA: MIT Press, 2006. Crawford, Kate. “Adaptation: Tracking the Ecologies of Music and Peer-to-Peer Networks.” Media International Australia 114 (2005): 30-39. Cubitt, Sean. “Distribution and Media Flows.” Cultural Politics 1.2 (2005): 193-214. Deleuze, Gilles. Foucault. Trans. Seán Hand. Minneapolis: U of Minnesota P, 1986. ———. “Control and Becoming.” Negotiations 1972-1990. Trans. Martin Joughin. New York: Columbia UP, 1995. 169-176. ———. “Postscript on the Societies of Control.” Negotiations 1972-1990. Trans. Martin Joughin. New York: Columbia UP, 1995. 177-182. Eriksson, Magnus, and Rasmus Fleische. “Copies and Context in the Age of Cultural Abundance.” Online posting. 5 June 2007. Nettime 25 Aug 2007. Galloway, Alexander. Protocol: How Control Exists after Decentralization. Cambridge, MA: MIT Press, 2004. Hardt, Michael, and Antonio Negri. Multitude: War and Democracy in the Age of Empire. New York: Penguin Press, 2004. Harold, Christine. OurSpace: Resisting the Corporate Control of Culture. Minneapolis: U of Minnesota P, 2007. Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. McKenzie, Adrian. Cutting Code: Software and Sociality. New York: Peter Lang, 2006. ———. “The Strange Meshing of Impersonal and Personal Forces in Technological Action.” Culture, Theory and Critique 47.2 (2006): 197-212. Parikka, Jussi. “Contagion and Repetition: On the Viral Logic of Network Culture.” Ephemera: Theory & Politics in Organization 7.2 (2007): 287-308. “Piracy Online.” Recording Industry Association of America. 28 Aug 2007. http://www.riaa.com/physicalpiracy.php>. Sundaram, Ravi. “Recycling Modernity: Pirate Electronic Cultures in India.” Sarai Reader 2001: The Public Domain. Delhi, Sarai Media Lab, 2001. 93-99. http://www.sarai.net>. Terranova, Tiziana. “Communication beyond Meaning: On the Cultural Politics of Information.” Social Text 22.3 (2004): 51-73. ———. “Of Sense and Sensibility: Immaterial Labour in Open Systems.” DATA Browser 03 – Curating Immateriality: The Work of the Curator in the Age of Network Systems. Ed. Joasia Krysa. New York: Autonomedia, 2006. 27-38. Thrift, Nigel. “Re-inventing Invention: New Tendencies in Capitalist Commodification.” Economy and Society 35.2 (2006): 279-306. Citation reference for this article MLA Style Dieter, Michael. "Amazon Noir: Piracy, Distribution, Control." M/C Journal 10.5 (2007). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0710/07-dieter.php>. APA Style Dieter, M. (Oct. 2007) "Amazon Noir: Piracy, Distribution, Control," M/C Journal, 10(5). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0710/07-dieter.php>.

This paper is included in the First Monday Special Issue: Music and the Internet, published in July 2005. Special Issue editor David Beer asked authors to submit additional comments regarding their articles. Since this paper was first published in 2002 there has been a constant stream of litigation surrounding P2P in the US and in other jurisdictions. In the United States, the District Court and the Court of Appeals controversially held that Grokster was not liable for contributory and vicarious copyright infringement. Justice Thomas of the Federal Circuit observed: "We live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation." The United States Supreme Court is due to hear an appeal by copyright owners against the Grokster decision in 2005. In Australia, litigation was initiated against Sharman License Holdings, LEF Interactive and Brilliant Digital Entertainment, as the controllers of the peer to peer network Kazaa. Again, media owners have emphasized that the network is a pirate bazaar. Global legal forum shopping is one of the intriguing aspects of P2P. We see the arguments of both sides, originally developed specifically for US deliberation manifest across the globe. The Media naively ask whether there is any point in the Australian court considering these issues, given the litigation ongoing in the US. Here the US is seen as the world leader for legal ideas surrounding P2P, with the currency in ideas about technology, innovation and growing the global information economy clouding appreciation of national sovereignty and the distinctiveness of local jurisprudence. This context makes an appreciation of the cultural uniqueness of the US views all the more important. Rip, Mix, Burn: The Politics of Peer to Peer and Copyright Law by Kathy Bowrey and Matthew Rimmer Whereas Lessig's recent work engages with questions of culture and creativity in society, this paper looks at the role of culture and creativity in the law. The paper evaluates the Napster, DeCSS, Felten and Sklyarov litigation in terms of the new social, legal, economic and cultural relations being produced. This involves a deep discussion of law's economic relations, and the implications of this for litigation strategy. The paper concludes with a critique of recent attempts to define copyright law in terms of first amendment rights and communicative freedom.

Available via the Australian National University Library Electronic Pre and Post Print Repository. Title from title screen (viewed Mar. 28, 2003) Includes bibliographical references. Mode of access: World Wide Web.

The Australian music industry is growing and developing yet specific information about the ways in which distribution systems develop is limited. In this study I examined the growth and change of the Australian music value chain. This includes the development of digital distribution systems and the effect that peer-to-peer technology has on system development, specifically the disintermediation between consumers and artists to the detriment of the multinational value chains. The drivers of this change are broken into social and technical elements in order to describe the growth and change occurring. The method used included a comprehensive literature review and use of secondary data from key music industry associations. The Australian music industry is a subset of the global industry and is led by foreign markets and their methods in which music content moves from the creators to the consumers. The consumption patterns of Australian music consumers are changing. The overall value of the music industry is dropping as the new digital downloads market emerges and the overall volume of sales increases; this reflects similar trends in foreign markets. CD single sales have dropped and digital single sales (in MP3 format) have increased. However, there needs to be a balance in the future development of Australian music distribution systems between the needs of music consumers and the sustainability of music companies, where there is both connectivity and steady revenue flow. There are technical elements that have caused a movement away from the traditional forms of music distribution as new technologies facilitate the change, such as Apple's iPod and broadband Internet connections. Advancement of distribution systems has increased piracy levels and the response has been the implementation of digital rights management (DRM), which prevents connectivity. There are also social elements that affect growth and change such as connectivity, or the consumers freedom to choose when, where and how to listen to their music. When music product has a restriction placed upon it its value to the consumer drops. Multinational music companies have failed to recognise the value users place on the freedom to pick and choose and have tried to control rather than to co-develop systems that meets both parties needs.

The music scene in cyberspace is an example of how a legal framework has been developed to curb online copyright infringement. The emergence, in the mid-1990’s, of online music websites and software programs such as MP3 technology to compress and download music, have delivered considerable copyright threat to the music industry. This threat has been further exacerbated by the remarkable development of technological innovations, such as high-speed broadband Internet connection and affordable CD burners, which are capable of delivering fast download and reasonably good audio and visual quality. This emerging information technology has made reproducing and sharing the work of others extremely easy, and has caused great concern for the music industry. This paper traces the evolution of the digital music scene in cyberspace and describes the attempts of the US and Australian music trade groups in putting an end to music piracy in cyberspace.