Articles de revues sur le sujet « 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.

‘Every space has become ad space’. Steve Hayden, Wired Magazine, May 2003. Marshall McLuhan’s (1964) dictum that media technologies constitute a sensory extension of the body shares a conceptual affinity with Ernst Jünger’s notion of ‘“organic construction” [which] indicates [a] synergy between man and machine’ and Walter Benjamin’s exploration of the mimetic correspondence between the organic and the inorganic, between human and non-human forms (Bolz, 2002: 19). The logo or brand is co-extensive with various media of communication – billboards, TV advertisements, fashion labels, book spines, mobile phones, etc. Often the logo is interchangeable with the product itself or a way or life. Since all social relations are mediated, whether by communications technologies or architectonic forms ranging from corporate buildings to sporting grounds to family living rooms, it follows that there can be no outside for sociality. The social is and always has been in a mutually determining relationship with mediating forms. It is in this sense that there is no outside. Such an idea has become a refrain amongst various contemporary media theorists. Here’s a sample: There is no outside position anymore, nor is this perceived as something desirable. (Lovink, 2002a: 4) Both “us” and “them” (whoever we are, whoever they are) are all always situated in this same virtual geography. There’s no outside …. There is nothing outside the vector. (Wark, 2002: 316) There is no more outside. The critique of information is in the information itself. (Lash, 2002: 220) In declaring a universality for media culture and information flows, all of the above statements acknowledge the political and conceptual failure of assuming a critical position outside socio-technically constituted relations. Similarly, they recognise the problems inherent in the “ideology critique” of the Frankfurt School who, in their distinction between “truth” and “false-consciousness”, claimed a sort of absolute knowledge for the critic that transcended the field of ideology as it is produced by the culture industry. Althusser’s more complex conception of ideology, material practices and subject formation nevertheless also fell prey to the pretence of historical materialism as an autonomous “science” that is able to determine the totality, albeit fragmented, of lived social relations. One of the key failings of ideology critique, then, is its incapacity to account for the ways in which the critic, theorist or intellectual is implicated in the operations of ideology. That is, such approaches displace the reflexivity and power relationships between epistemology, ontology and their constitution as material practices within socio-political institutions and historical constellations, which in turn are the settings for the formation of ideology. Scott Lash abandons the term ideology altogether due to its conceptual legacies within German dialectics and French post-structuralist aporetics, both of which ‘are based in a fundamental dualism, a fundamental binary, of the two types of reason. One speaks of grounding and reconciliation, the other of unbridgeability …. Both presume a sphere of transcendence’ (Lash, 2002: 8). Such assertions can be made at a general level concerning these diverse and often conflicting approaches when they are reduced to categories for the purpose of a polemic. However, the work of “post-structuralists” such as Foucault, Deleuze and Guattari and the work of German systems theorist Niklas Luhmann is clearly amenable to the task of critique within information societies (see Rossiter, 2003). Indeed, Lash draws on such theorists in assembling his critical dispositif for the information age. More concretely, Lash (2002: 9) advances his case for a new mode of critique by noting the socio-technical and historical shift from ‘constitutive dualisms of the era of the national manufacturing society’ to global information cultures, whose constitutive form is immanent to informational networks and flows. Such a shift, according to Lash, needs to be met with a corresponding mode of critique: Ideologycritique [ideologiekritik] had to be somehow outside of ideology. With the disappearance of a constitutive outside, informationcritique must be inside of information. There is no outside any more. (2002: 10) Lash goes on to note, quite rightly, that ‘Informationcritique itself is branded, another object of intellectual property, machinically mediated’ (2002: 10). It is the political and conceptual tensions between information critique and its regulation via intellectual property regimes which condition critique as yet another brand or logo that I wish to explore in the rest of this essay. Further, I will question the supposed erasure of a “constitutive outside” to the field of socio-technical relations within network societies and informational economies. Lash is far too totalising in supposing a break between industrial modes of production and informational flows. Moreover, the assertion that there is no more outside to information too readily and simplistically assumes informational relations as universal and horizontally organised, and hence overlooks the significant structural, cultural and economic obstacles to participation within media vectors. That is, there certainly is an outside to information! Indeed, there are a plurality of outsides. These outsides are intertwined with the flows of capital and the imperial biopower of Empire, as Hardt and Negri (2000) have argued. As difficult as it may be to ascertain the boundaries of life in all its complexity, borders, however defined, nonetheless exist. Just ask the so-called “illegal immigrant”! This essay identifies three key modalities comprising a constitutive outside: material (uneven geographies of labour-power and the digital divide), symbolic (cultural capital), and strategic (figures of critique). My point of reference in developing this inquiry will pivot around an analysis of the importation in Australia of the British “Creative Industries” project and the problematic foundation such a project presents to the branding and commercialisation of intellectual labour. The creative industries movement – or Queensland Ideology, as I’ve discussed elsewhere with Danny Butt (2002) – holds further implications for the political and economic position of the university vis-à-vis the arts and humanities. Creative industries constructs itself as inside the culture of informationalism and its concomitant economies by the very fact that it is an exercise in branding. Such branding is evidenced in the discourses, rhetoric and policies of creative industries as adopted by university faculties, government departments and the cultural industries and service sectors seeking to reposition themselves in an institutional environment that is adjusting to ongoing structural reforms attributed to the demands by the “New Economy” for increased labour flexibility and specialisation, institutional and economic deregulation, product customisation and capital accumulation. Within the creative industries the content produced by labour-power is branded as copyrights and trademarks within the system of Intellectual Property Regimes (IPRs). However, as I will go on to show, a constitutive outside figures in material, symbolic and strategic ways that condition the possibility of creative industries. The creative industries project, as envisioned by the Blair government’s Department of Culture, Media and Sport (DCMS) responsible for the Creative Industry Task Force Mapping Documents of 1998 and 2001, is interested in enhancing the “creative” potential of cultural labour in order to extract a commercial value from cultural objects and services. Just as there is no outside for informationcritique, for proponents of the creative industries there is no culture that is worth its name if it is outside a market economy. That is, the commercialisation of “creativity” – or indeed commerce as a creative undertaking – acts as a legitimising function and hence plays a delimiting role for “culture” and, by association, sociality. And let us not forget, the institutional life of career academics is also at stake in this legitimating process. The DCMS cast its net wide when defining creative sectors and deploys a lexicon that is as vague and unquantifiable as the next mission statement by government and corporate bodies enmeshed within a neo-liberal paradigm. At least one of the key proponents of the creative industries in Australia is ready to acknowledge this (see Cunningham, 2003). The list of sectors identified as holding creative capacities in the CITF Mapping Document include: film, music, television and radio, publishing, software, interactive leisure software, design, designer fashion, architecture, performing arts, crafts, arts and antique markets, architecture and advertising. The Mapping Document seeks to demonstrate how these sectors consist of ‘... activities which have their origin in individual creativity, skill and talent and which have the potential for wealth and job creation through generation and exploitation of intellectual property’ (CITF: 1998/2001). The CITF’s identification of intellectual property as central to the creation of jobs and wealth firmly places the creative industries within informational and knowledge economies. Unlike material property, intellectual property such as artistic creations (films, music, books) and innovative technical processes (software, biotechnologies) are forms of knowledge that do not diminish when they are distributed. This is especially the case when information has been encoded in a digital form and distributed through technologies such as the internet. In such instances, information is often attributed an “immaterial” and nonrivalrous quality, although this can be highly misleading for both the conceptualisation of information and the politics of knowledge production. Intellectual property, as distinct from material property, operates as a scaling device in which the unit cost of labour is offset by the potential for substantial profit margins realised by distribution techniques availed by new information and communication technologies (ICTs) and their capacity to infinitely reproduce the digital commodity object as a property relation. Within the logic of intellectual property regimes, the use of content is based on the capacity of individuals and institutions to pay. The syndication of media content ensures that market saturation is optimal and competition is kept to a minimum. However, such a legal architecture and hegemonic media industry has run into conflict with other net cultures such as open source movements and peer-to-peer networks (Lovink, 2002b; Meikle, 2002), which is to say nothing of the digital piracy of software and digitally encoded cinematic forms. To this end, IPRs are an unstable architecture for extracting profit. The operation of Intellectual Property Regimes constitutes an outside within creative industries by alienating labour from its mode of information or form of expression. Lash is apposite on this point: ‘Intellectual property carries with it the right to exclude’ (Lash, 2002: 24). This principle of exclusion applies not only to those outside the informational economy and culture of networks as result of geographic, economic, infrastructural, and cultural constraints. The very practitioners within the creative industries are excluded from control over their creations. It is in this sense that a legal and material outside is established within an informational society. At the same time, this internal outside – to put it rather clumsily – operates in a constitutive manner in as much as the creative industries, by definition, depend upon the capacity to exploit the IP produced by its primary source of labour. For all the emphasis the Mapping Document places on exploiting intellectual property, it’s really quite remarkable how absent any elaboration or considered development of IP is from creative industries rhetoric. It’s even more astonishing that media and cultural studies academics have given at best passing attention to the issues of IPRs. Terry Flew (2002: 154-159) is one of the rare exceptions, though even here there is no attempt to identify the implications IPRs hold for those working in the creative industries sectors. Perhaps such oversights by academics associated with the creative industries can be accounted for by the fact that their own jobs rest within the modern, industrial institution of the university which continues to offer the security of a salary award system and continuing if not tenured employment despite the onslaught of neo-liberal reforms since the 1980s. Such an industrial system of traditional and organised labour, however, does not define the labour conditions for those working in the so-called creative industries. Within those sectors engaged more intensively in commercialising culture, labour practices closely resemble work characterised by the dotcom boom, which saw young people working excessively long hours without any of the sort of employment security and protection vis-à-vis salary, health benefits and pension schemes peculiar to traditional and organised labour (see McRobbie, 2002; Ross, 2003). During the dotcom mania of the mid to late 90s, stock options were frequently offered to people as an incentive for offsetting the often minimum or even deferred payment of wages (see Frank, 2000). It is understandable that the creative industries project holds an appeal for managerial intellectuals operating in arts and humanities disciplines in Australia, most particularly at Queensland University of Technology (QUT), which claims to have established the ‘world’s first’ Creative Industries faculty (http://www.creativeindustries.qut.com/). The creative industries provide a validating discourse for those suffering anxiety disorders over what Ruth Barcan (2003) has called the ‘usefulness’ of ‘idle’ intellectual pastimes. As a project that endeavours to articulate graduate skills with labour markets, the creative industries is a natural extension of the neo-liberal agenda within education as advocated by successive governments in Australia since the Dawkins reforms in the mid 1980s (see Marginson and Considine, 2000). Certainly there’s a constructive dimension to this: graduates, after all, need jobs and universities should display an awareness of market conditions; they also have a responsibility to do so. And on this count, I find it remarkable that so many university departments in my own field of communications and media studies are so bold and, let’s face it, stupid, as to make unwavering assertions about market demands and student needs on the basis of doing little more than sniffing the wind! Time for a bit of a reality check, I’d say. And this means becoming a little more serious about allocating funds and resources towards market research and analysis based on the combination of needs between students, staff, disciplinary values, university expectations, and the political economy of markets. However, the extent to which there should be a wholesale shift of the arts and humanities into a creative industries model is open to debate. The arts and humanities, after all, are a set of disciplinary practices and values that operate as a constitutive outside for creative industries. Indeed, in their creative industries manifesto, Stuart Cunningham and John Hartley (2002) loath the arts and humanities in such confused, paradoxical and hypocritical ways in order to establish the arts and humanities as a cultural and ideological outside. To this end, to subsume the arts and humanities into the creative industries, if not eradicate them altogether, is to spell the end of creative industries as it’s currently conceived at the institutional level within academe. Too much specialisation in one post-industrial sector, broad as it may be, ensures a situation of labour reserves that exceed market needs. One only needs to consider all those now unemployed web-designers that graduated from multi-media programs in the mid to late 90s. Further, it does not augur well for the inevitable shift from or collapse of a creative industries economy. Where is the standing reserve of labour shaped by university education and training in a post-creative industries economy? Diehard neo-liberals and true-believers in the capacity for perpetual institutional flexibility would say that this isn’t a problem. The university will just “organically” adapt to prevailing market conditions and shape their curriculum and staff composition accordingly. Perhaps. Arguably if the university is to maintain a modality of time that is distinct from the just-in-time mode of production characteristic of informational economies – and indeed, such a difference is a quality that defines the market value of the educational commodity – then limits have to be established between institutions of education and the corporate organisation or creative industry entity. The creative industries project is a reactionary model insofar as it reinforces the status quo of labour relations within a neo-liberal paradigm in which bids for industry contracts are based on a combination of rich technological infrastructures that have often been subsidised by the state (i.e. paid for by the public), high labour skills, a low currency exchange rate and the lowest possible labour costs. In this respect it is no wonder that literature on the creative industries omits discussion of the importance of unions within informational, networked economies. What is the place of unions in a labour force constituted as individualised units? The conditions of possibility for creative industries within Australia are at once its frailties. In many respects, the success of the creative industries sector depends upon the ongoing combination of cheap labour enabled by a low currency exchange rate and the capacity of students to access the skills and training offered by universities. Certainly in relation to matters such as these there is no outside for the creative industries. There’s a great need to explore alternative economic models to the content production one if wealth is to be successfully extracted and distributed from activities in the new media sectors. The suggestion that the creative industries project initiates a strategic response to the conditions of cultural production within network societies and informational economies is highly debateable. The now well documented history of digital piracy in the film and software industries and the difficulties associated with regulating violations to proprietors of IP in the form of copyright and trademarks is enough of a reason to look for alternative models of wealth extraction. And you can be sure this will occur irrespective of the endeavours of the creative industries. To conclude, I am suggesting that those working in the creative industries, be they content producers or educators, need to intervene in IPRs in such a way that: 1) ensures the alienation of their labour is minimised; 2) collectivising “creative” labour in the form of unions or what Wark (2001) has termed the “hacker class”, as distinct from the “vectoralist class”, may be one way of achieving this; and 3) the advocates of creative industries within the higher education sector in particular are made aware of the implications IPRs have for graduates entering the workforce and adjust their rhetoric, curriculum, and policy engagements accordingly. Works Cited Barcan, Ruth. ‘The Idleness of Academics: Reflections on the Usefulness of Cultural Studies’. Continuum: Journal of Media & Cultural Studies (forthcoming, 2003). Bolz, Norbert. ‘Rethinking Media Aesthetics’, in Geert Lovink, Uncanny Networks: Dialogues with the Virtual Intelligentsia. Cambridge, Mass.: MIT Press, 2002, 18-27. Butt, Danny and Rossiter, Ned. ‘Blowing Bubbles: Post-Crash Creative Industries and the Withering of Political Critique in Cultural Studies’. Paper presented at Ute Culture: The Utility of Culture and the Uses of Cultural Studies, Cultural Studies Association of Australia Conference, Melbourne, 5-7 December, 2002. Posted to fibreculture mailing list, 10 December, 2002, http://www.fibreculture.org/archives/index.html Creative Industry Task Force: Mapping Document, DCMS (Department of Culture, Media and Sport), London, 1998/2001. http://www.culture.gov.uk/creative/mapping.html Cunningham, Stuart. ‘The Evolving Creative Industries: From Original Assumptions to Contemporary Interpretations’. Seminar Paper, QUT, Brisbane, 9 May, 2003, http://www.creativeindustries.qut.com/research/cirac/documen... ...ts/THE_EVOLVING_CREATIVE_INDUSTRIES.pdf Cunningham, Stuart; Hearn, Gregory; Cox, Stephen; Ninan, Abraham and Keane, Michael. Brisbane’s Creative Industries 2003. Report delivered to Brisbane City Council, Community and Economic Development, Brisbane: CIRAC, 2003. http://www.creativeindustries.qut.com/research/cirac/documen... ...ts/bccreportonly.pdf Flew, Terry. New Media: An Introduction. Oxford: Oxford University Press, 2002. Frank, Thomas. One Market under God: Extreme Capitalism, Market Populism, and the End of Economic Democracy. New York: Anchor Books, 2000. Hartley, John and Cunningham, Stuart. ‘Creative Industries: from Blue Poles to fat pipes’, in Malcolm Gillies (ed.) The National Humanities and Social Sciences Summit: Position Papers. Canberra: DEST, 2002. Hayden, Steve. ‘Tastes Great, Less Filling: Ad Space – Will Advertisers Learn the Hard Lesson of Over-Development?’. Wired Magazine 11.06 (June, 2003), http://www.wired.com/wired/archive/11.06/ad_spc.html Hardt, Michael and Negri, Antonio. Empire. Cambridge, Mass.: Harvard University Press, 2000. Lash, Scott. Critique of Information. London: Sage, 2002. Lovink, Geert. Uncanny Networks: Dialogues with the Virtual Intelligentsia. Cambridge, Mass.: MIT Press, 2002a. Lovink, Geert. Dark Fiber: Tracking Critical Internet Culture. Cambridge, Mass.: MIT Press, 2002b. McLuhan, Marshall. Understanding Media: The Extensions of Man. London: Routledge and Kegan Paul, 1964. McRobbie, Angela. ‘Clubs to Companies: Notes on the Decline of Political Culture in Speeded up Creative Worlds’, Cultural Studies 16.4 (2002): 516-31. Marginson, Simon and Considine, Mark. The Enterprise University: Power, Governance and Reinvention in Australia. Cambridge: Cambridge University Press, 2000. Meikle, Graham. Future Active: Media Activism and the Internet. Sydney: Pluto Press, 2002. Ross, Andrew. No-Collar: The Humane Workplace and Its Hidden Costs. New York: Basic Books, 2003. Rossiter, Ned. ‘Processual Media Theory’, in Adrian Miles (ed.) Streaming Worlds: 5th International Digital Arts & Culture (DAC) Conference. 19-23 May. Melbourne: RMIT University, 2003, 173-184. http://hypertext.rmit.edu.au/dac/papers/Rossiter.pdf Sassen, Saskia. Losing Control? Sovereignty in an Age of Globalization. New York: Columbia University Press, 1996. Wark, McKenzie. ‘Abstraction’ and ‘Hack’, in Hugh Brown, Geert Lovink, Helen Merrick, Ned Rossiter, David Teh, Michele Willson (eds). Politics of a Digital Present: An Inventory of Australian Net Culture, Criticism and Theory. Melbourne: Fibreculture Publications, 2001, 3-7, 99-102. Wark, McKenzie. ‘The Power of Multiplicity and the Multiplicity of Power’, in Geert Lovink, Uncanny Networks: Dialogues with the Virtual Intelligentsia. Cambridge, Mass.: MIT Press, 2002, 314-325. Links http://hypertext.rmit.edu.au/dac/papers/Rossiter.pdf http://www.creativeindustries.qut.com/ http://www.creativeindustries.qut.com/research/cirac/documents/THE_EVOLVING_CREATIVE_INDUSTRIES.pdf http://www.creativeindustries.qut.com/research/cirac/documents/bccreportonly.pdf http://www.culture.gov.uk/creative/mapping.html http://www.fibreculture.org/archives/index.html http://www.wired.com/wired/archive/11.06/ad_spc.html Citation reference for this article Substitute your date of access for Dn Month Year etc... MLA Style Rossiter, Ned. "Creative Industries and the Limits of Critique from " M/C: A Journal of Media and Culture< http://www.media-culture.org.au/0306/11-creativeindustries.php>. APA Style Rossiter, N. (2003, Jun 19). Creative Industries and the Limits of Critique from . M/C: A Journal of Media and Culture, 6,< http://www.media-culture.org.au/0306/11-creativeindustries.php>

To sin by silence, when we should protest,Makes cowards out of men.— Ella Wheeler WilcoxProtest is culturally entwined in historical and juro-political realities and is a fundamental element of the exercise of individual and collective rights. As our title notes, while there are currently many ‘protests in progress’ around the world, there is also a great deal of ‘progress in protest’ in terms of what protests look like, their scale and number, how they are formed and conducted, their goals, how they can be studied, as well as the varying responses formed in relation to protest. The etymology of protest associates two important dynamics pertaining to the topic. Firstly, a protest is something that is put forward, forth, or toward the front (from the Latin pro); essentially, it is in one manner or another, made publically. Secondly, it suggests that a person or persons have beared witness (testis) and instead of remaining silent, have made a declaration or assertion (testari). In other words, someone has made public their disapproval or objection. The nine articles that comprise this issue of M/C Journal on ‘protest’ reminds us of these salient elements of protest. Each, in their own way, highlight the importance of not remaining silent when faced with an injustice or in order to promote social change. As Bill McKibben (7) outlines in his foreword to an excellent collection of protest documents, ‘voices of protest ... are often precisely what propels human civilisation forward and allows it to become unstuck’. However, not all forms of contemporary protest shares ideological or progressive aims. Here, we might consider the emergence of contentious formations such as the alt-right and antifa, what is considered ‘fake’ or ‘real’, and ongoing conflicts between notions of individual and collective rights and state sovereignty.This modest but insightful collection demonstrates the broad scope of this field of inquiry. This issue explores the intersections among social justice, identity and communications technology, as well as the convergences and divergences in the form, function and substance of protest. Through an analysis of protest’s relationship to media, the author’s highlight the possibilities of protest to effect social change. The issue begins with Lakota screenwriter and activist Floris White Bull’s (Floris Ptesáŋ Huŋká) discussion of the documentary AWAKE, a Dream from Standing Rock (2017) and the #NODAPL protest. The film, split into three parts, takes a poignant and quite personal look at the native-led peaceful resistance at the Standing Rock Sioux Reservation in North Dakota in 2016. This protest involved tens of thousands of activists from all over the world who opposed the construction of the Dakota Access Pipeline (DAPL) which was to transport fracked oil directly underneath the Missouri River and through sovereign Lakota land (see Image 1). However, the events at Standing Rock were not a single-issue protest and brought activists together over a range of interrelated issues including environmental protection, human rights, water security, community health and Native American sovereignty. The Water Protectors were also forced to contest racist and disparaging media representations. As such, Standing Rock remains a site of cultural exchange and learning. These protests are not historical, but instead, are an ongoing struggle. The film AWAKE is important as testimony to the injustices at Standing Rock. A short description of the film is first provided in order to provide some additional context to perspectives addressed in the film. From there, White Bull has been invited to respond to questions posed by the editors regarding the Standing Rock Protests and documentary films such as AWAKE. As an Indigenous person fighting for justice, White Bull reminds readers that ‘[t]he path forward is the same as it has always been – holding on to our goals, values and dignity with resilience’.Image 1: Dakota Access Pipeline Protesters, 2016. Photo credit: Indigenous Environmental Network.Cat Pausé and Sandra Grey use an example of fat shaming to investigate how media impacts body politics and determines who is enfranchised to voice public dissent. Media becomes a mechanism for policing and governing bodily norms and gendered identities. As well as outlining a brief history of feminist body activism, the authors draw on personal experience and interview material with activists to reflect on fat embodiment and politics. Also informed by intersectional approaches, their work alerts us to the diverse vectors by which injustice and oppression fall on some bodies differently as well as the diverse bodies assembled in any crowd.Greg Watson suggests that “[c]ontemporary societies are increasingly becoming sites in which it is more difficult for people to respectfully negotiate disagreements about human diversity”. Drawing on his experiences organising Human Libraries throughout Australia, Watson argues these spaces create opportunities for engaging with difference. In this sense Human Libraries can be considered sites which protest the micropublics’ “codes of civility” which produce everyday marginalisations of difference.Micropolitics and creative forms of protest are also central to Ella Cutler, Jacqueline Gothe, and Alexandra Crosby’s article. The author’s consider three design projects which seek to facilitate ethical communication with diverse communities. Drawing on Guy Julier’s tactics for activist design, each project demonstrates the value of slowing down in order to pay attention to experience. In this way, research through design offers a reflexive means for engaging social change.Research practices are also central to making visible community resistance. Anthony McCosker and Timothy Graham consider the role of social networking in urban protests through the campaign to save the iconic Melbourne music venue The Palace (see Image 2). Their article considers the value of social media data and analytics in relation to the court proceedings and trial processes. Given the centrality of social media to activist campaigns their reflections provide a timely evaluation of how data publics are constituted and their ongoing legacy.Image 2: Melbourne’s Palace Theatre before demolition. Photo Credit: Melbourne Heritage Action.For Marcelina Piotrowski pleasure is central to understanding data production and protest. She draws on a Deleuze and Guattarian framework in order to consider protests against oil pipelines in British Columbia. Importantly, through this theoretical framework of ‘data desires’, pleasure is not something owned by the individual subject but rather holds the potential to construct generative social collectivities. This is traced through three different practices: deliberation in online forums; citizen science and social media campaigns. This has important implications for understanding environmental issues and our own enfolding within them. Nadine Kozak takes a look at how Online Service Providers (OSPs) have historically used internet ‘blackouts’ in order to protest United States government regulations. Kozak points to protests against the Communications Decency Act (1996) which sought to regulate online pornographic material and the Stop Online Piracy Act (2011) which proposed increased federal government power to take action against online copyright infringement. Recently, the United States Congress recently passed the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), which hold OSPs liable for third-party content including advertising for prostitution. However, despite condemnation from the Department of Justice and trafficking victims, OSPs did not utilise blackouts as a means to protest these new measures. Kozak concludes that the decision to whether or not to utilise blackout protests is dependent on the interests of technology companies and large OSPs. It is evident that most especially since Donald Trump popularised the term, ‘fake news’ has taken a centre stage in discussions concerning media. In fact, the lines between what is fake and what is official have become blurred. Most recently, QAnon proponents have been attending Trump rallies and speeches giving further visibility to various conspiracy narratives stemming from online message boards (see Image 3). Marc Tuters, Emilija Jokubauskaitė, and Daniel Bach establishe a clear timeline of events in order to trace the origins of ‘#Pizzagate’; a 2016 conspiracy theory that falsely claimed that several U.S. restaurants and high-ranking officials of the Democratic Party were connected with human trafficking and an alleged child-sex ring. The authors investigate the affordances of 4chan to unpack how the site’s anonymity, rapid temporality and user collectivisation were instrumental in creating ‘bullshit’; a usage which the authors suggest is a “technical term for persuasive speech unconcerned with veracity”. This provides an understanding of how alt-right communities are assembled and motivated in a post-truth society. Image 3: QAnon proponents at Trump rally in Tampa, 31 July 2018. Photo credit: Kirby Wilson, Tampa Bay Times.Finally, Colin Salter analyses protests for animal rights as a lens to critique notions of national identity and belonging. Protests on whaling in the Southern Ocean (see Image 4) and live export trade from Australia continue to be highly contested political issues. Salter reflects on the ABC’s 2011 exposé into Australian live animal exports to Indonesia and the 2014 hearings at the International Court of Justice into Japanese whaling. Salter then traces the common elements between animal rights campaigns in order to demonstrate the manner in which the physical bodies of animals, their treatment, and the debate surrounding that treatment become sites for mapping cultural identity, nationhood, and sovereignty. Here, Salter suggests that such inquiry is useful for promoting broader consideration of efficacious approaches to animal advocacy and social change.Image 4: The ship Bob Barker, rammed by the Japanese whaling vessel Nishin Maru. Photo credit: Sea Shepherd Facebook Page. As indicated in the opening paragraphs, it is crucial for people committed to social justice to publically raise their voices in protest. As such, we would like to thank each of the authors for their important contributions to this issue on ‘protest’. In its own way, each contribution serves doubly as a form of protest and a means to understand the topic more clearly. There is solidarity evidenced in this issue. Taken as a whole, these articles attest to the importance of understanding protest and social change.ReferencesMcKibben, B. "Foreword." Voices of Protest: Documents of Courage and Dissent. Eds. Frank Lowenstein, Sheryl Lechner, and Erik Bruun. New York: Black Dog & Leventhal Publishers, 2007. 7-8.Wilcox, E.W. "Protest." Poems of Problems. Chicago: W.B. Conkey Company, 1914.

Writing in the American Annals of the Deaf in 1931, Emil S. Ladner Jr, a Deaf high school student, predicted the invention of words on screen to facilitate access to “talkies”. He anticipated:Perhaps, in time, an invention will be perfected that will enable the deaf to hear the “talkies”, or an invention which will throw the words spoken directly under the screen as well as being spoken at the same time. (Ladner, cited in Downey Closed Captioning)This invention would eventually come to pass and be known as captions. Captions as we know them today have become widely available because of a complex interaction between technological change, volunteer effort, legislative activism, as well as increasing consumer demand. This began in the late 1950s when the technology to develop captions began to emerge. Almost immediately, volunteers began captioning and distributing both film and television in the US via schools for the deaf (Downey, Constructing Closed-Captioning in the Public Interest). Then, between the 1970s and 1990s Deaf activists and their allies began to campaign aggressively for the mandated provision of captions on television, leading eventually to the passing of the Television Decoder Circuitry Act in the US in 1990 (Ellis). This act decreed that any television with a screen greater than 13 inches must be designed/manufactured to be capable of displaying captions. The Act was replicated internationally, with countries such as Australia adopting the same requirements with their Australian standards regarding television sets imported into the country. As other papers in this issue demonstrate, this market ultimately led to the introduction of broadcasting requirements.Captions are also vital to the accessibility of videos in today’s online and streaming environment—captioning is listed as the highest priority in the definitive World Wide Web Consortium (W3C) Web Content Accessibility Guideline’s (WCAG) 2.0 standard (W3C, “Web Content Accessibility Guidelines 2.0”). This recognition of the requirement for captions online is further reflected in legislation, from both the US 21st Century Communications and Video Accessibility Act (CVAA) (2010) and from the Australian Human Rights Commission (2014).Television today is therefore much more freely available to a range of different groups. In addition to broadcast channels, captions are also increasingly available through streaming platforms such as Netflix and other subscription video on demand providers, as well as through user-generated video sites like YouTube. However, a clear discrepancy exists between guidelines, legislation and the industry’s approach. Guidelines such as the W3C are often resisted by industry until compliance is legislated.Historically, captions have been both unavailable (Ellcessor; Ellis) and inadequate (Ellis and Kent), and in many instances, they still are. For example, while the provision of captions in online video is viewed as a priority across international and domestic policies and frameworks, there is a stark contrast between the policy requirements and the practical implementation of these captions. This has led to the active development of a solution as part of an ongoing tradition of user-led development; user-generated captions. However, within disability studies, research around the agency of this activity—and the media savvy users facilitating it—has gone significantly underexplored.Agency of ActivityInformation sharing has featured heavily throughout visions of the Web—from Vannevar Bush’s 1945 notion of the memex (Bush), to the hacker ethic, to Zuckerberg’s motivations for creating Facebook in his dorm room in 2004 (Vogelstein)—resulting in a wide agency of activity on the Web. Running through this development of first the Internet and then the Web as a place for a variety of agents to share information has been the hackers’ ethic that sharing information is a powerful, positive good (Raymond 234), that information should be free (Levey), and that to achieve these goals will often involve working around intended information access protocols, sometimes illegally and normally anonymously. From the hacker culture comes the digerati, the elite of the digital world, web users who stand out by their contributions, success, or status in the development of digital technology. In the context of access to information for people with disabilities, we describe those who find these workarounds—providing access to information through mainstream online platforms that are not immediately apparent—as the disability digerati.An acknowledged mainstream member of the digerati, Tim Berners-Lee, inventor of the World Wide Web, articulated a vision for the Web and its role in information sharing as inclusive of everyone:Worldwide, there are more than 750 million people with disabilities. As we move towards a highly connected world, it is critical that the Web be useable by anyone, regardless of individual capabilities and disabilities … The W3C [World Wide Web Consortium] is committed to removing accessibility barriers for all people with disabilities—including the deaf, blind, physically challenged, and cognitively or visually impaired. We plan to work aggressively with government, industry, and community leaders to establish and attain Web accessibility goals. (Berners-Lee)Berners-Lee’s utopian vision of a connected world where people freely shared information online has subsequently been embraced by many key individuals and groups. His emphasis on people with disabilities, however, is somewhat unique. While maintaining a focus on accessibility, in 2006 he shifted focus to who could actually contribute to this idea of accessibility when he suggested the idea of “community captioning” to video bloggers struggling with the notion of including captions on their videos:The video blogger posts his blog—and the web community provides the captions that help others. (Berners-Lee, cited in Outlaw)Here, Berners-Lee was addressing community captioning in the context of video blogging and user-generated content. However, the concept is equally significant for professionally created videos, and media savvy users can now also offer instructions to audiences about how to access captions and subtitles. This shift—from user-generated to user access—must be situated historically in the context of an evolving Web 2.0 and changing accessibility legislation and policy.In the initial accessibility requirements of the Web, there was little mention of captioning at all, primarily due to video being difficult to stream over a dial-up connection. This was reflected in the initial WCAG 1.0 standard (W3C, “Web Content Accessibility Guidelines 1.0”) in which there was no requirement for videos to be captioned. WCAG 2.0 went some way in addressing this, making captioning online video an essential Level A priority (W3C, “Web Content Accessibility Guidelines 2.0”). However, there were few tools that could actually be used to create captions, and little interest from emerging online video providers in making this a priority.As a result, the possibility of user-generated captions for video content began to be explored by both developers and users. One initial captioning tool that gained popularity was MAGpie, produced by the WGBH National Center for Accessible Media (NCAM) (WGBH). While cumbersome by today’s standards, the arrival of MAGpie 2.0 in 2002 provided an affordable and professional captioning tool that allowed people to create captions for their own videos. However, at that point there was little opportunity to caption videos online, so the focus was more on captioning personal video collections offline. This changed with the launch of YouTube in 2005 and its later purchase by Google (CNET), leading to an explosion of user-generated video content online. However, while the introduction of YouTube closed captioned video support in 2006 ensured that captioned video content could be created (YouTube), the ability for users to create captions, save the output into one of the appropriate captioning file formats, upload the captions, and synchronise the captions to the video remained a difficult task.Improvements to the production and availability of user-generated captions arrived firstly through the launch of YouTube’s automated captions feature in 2009 (Google). This service meant that videos could be uploaded to YouTube and, if the user requested it, Google would caption the video within approximately 24 hours using its speech recognition software. While the introduction of this service was highly beneficial in terms of making captioning videos easier and ensuring that the timing of captions was accurate, the quality of captions ranged significantly. In essence, if the captions were not reviewed and errors not addressed, the automated captions were sometimes inaccurate to the point of hilarity (New Media Rock Stars). These inaccurate YouTube captions are colloquially described as craptions. A #nomorecraptions campaign was launched to address inaccurate YouTube captioning and call on YouTube to make improvements.The ability to create professional user-generated captions across a variety of platforms, including YouTube, arrived in 2010 with the launch of Amara Universal Subtitles (Amara). The Amara subtitle portal provides users with the opportunity to caption online videos, even if they are hosted by another service such as YouTube. The captioned file can be saved after its creation and then uploaded to the relevant video source if the user has access to the location of the video content. The arrival of Amara continues to provide ongoing benefits—it contains a professional captioning editing suite specifically catering for online video, the tool is free, and it can caption videos located on other websites. Furthermore, Amara offers the additional benefit of being able to address the issues of YouTube automated captions—users can benefit from the machine-generated captions of YouTube in relation to its timing, then download the captions for editing in Amara to fix the issues, then return the captions to the original video, saving a significant amount of time when captioning large amounts of video content. In recent years Google have also endeavoured to simplify the captioning process for YouTube users by including its own captioning editors, but these tools are generally considered inferior to Amara (Media Access Australia).Similarly, several crowdsourced caption services such as Viki (https://www.viki.com/community) have emerged to facilitate the provision of captions. However, most of these crowdsourcing captioning services can’t tap into commercial products instead offering a service for people that have a video they’ve created, or one that already exists on YouTube. While Viki was highlighted as a useful platform in protests regarding Netflix’s lack of captions in 2009, commercial entertainment providers still have a responsibility to make improvements to their captioning. As we discuss in the next section, people have resorted extreme measures to hack Netflix to access the captions they need. While the ability for people to publish captions on user-generated content has improved significantly, there is still a notable lack of captions for professionally developed videos, movies, and television shows available online.User-Generated Netflix CaptionsIn recent years there has been a worldwide explosion of subscription video on demand service providers. Netflix epitomises the trend. As such, for people with disabilities, there has been significant focus on the availability of captions on these services (see Ellcessor, Ellis and Kent). Netflix, as the current leading provider of subscription video entertainment in both the US and with a large market shares in other countries, has been at the centre of these discussions. While Netflix offers a comprehensive range of captioned video on its service today, there are still videos that do not have captions, particularly in non-English regions. As a result, users have endeavoured to produce user-generated captions for personal use and to find workarounds to access these through the Netflix system. This has been achieved with some success.There are a number of ways in which captions or subtitles can be added to Netflix video content to improve its accessibility for individual users. An early guide in a 2011 blog post (Emil’s Celebrations) identified that when using the Netflix player using the Silverlight plug-in, it is possible to access a hidden menu which allows a subtitle file in the DFXP format to be uploaded to Netflix for playback. However, this does not appear to provide this file to all Netflix users, and is generally referred to as a “soft upload” just for the individual user. Another method to do this, generally credited as the “easiest” way, is to find a SRT file that already exists for the video title, edit the timing to line up with Netflix, use a third-party tool to convert it to the DFXP format, and then upload it using the hidden menu that requires a specific keyboard command to access. While this may be considered uncomplicated for some, there is still a certain amount of technical knowledge required to complete this action, and it is likely to be too complex for many users.However, constant developments in technology are assisting with making access to captions an easier process. Recently, Cosmin Vasile highlighted that the ability to add captions and subtitle tracks can still be uploaded providing that the older Silverlight plug-in is used for playback instead of the new HTML5 player. Others add that it is technically possible to access the hidden feature in an HTML5 player, but an additional Super Netflix browser plug-in is required (Sommergirl). Further, while the procedure for uploading the file remains similar to the approach discussed earlier, there are some additional tools available online such as Subflicks which can provide a simple online conversion of the more common SRT file format to the DFXP format (Subflicks). However, while the ability to use a personal caption or subtitle file remains, the most common way to watch Netflix videos with alternative caption or subtitle files is through the use of the Smartflix service (Smartflix). Unlike other ad-hoc solutions, this service provides a simplified mechanism to bring alternative caption files to Netflix. The Smartflix website states that the service “automatically downloads and displays subtitles in your language for all titles using the largest online subtitles database.”This automatic download and sharing of captions online—known as fansubbing—facilitates easy access for all. For example, blog posts suggest that technology such as this creates important access opportunities for people who are deaf and hard of hearing. Nevertheless, they can be met with suspicion by copyright holders. For example, a recent case in the Netherlands ruled fansubbers were engaging in illegal activities and were encouraging people to download pirated videos. While the fansubbers, like the hackers discussed earlier, argued they were acting in the greater good, the Dutch antipiracy association (BREIN) maintained that subtitles are mainly used by people downloading pirated media and sought to outlaw the manufacture and distribution of third party captions (Anthony). The fansubbers took the issue to court in order to seek clarity about whether copyright holders can reserve exclusive rights to create and distribute subtitles. However, in a ruling against the fansubbers, the court agreed with BREIN that fansubbing violated copyright and incited piracy. What impact this ruling will have on the practice of user-generated captioning online, particularly around popular sites such as Netflix, is hard to predict; however, for people with disabilities who were relying on fansubbing to access content, it is of significant concern that the contention that the main users of user-generated subtitles (or captions) are engaging in illegal activities was so readily accepted.ConclusionThis article has focused on user-generated captions and the types of platforms available to create these. It has shown that this desire to provide access, to set the information free, has resulted in the disability digerati finding workarounds to allow users to upload their own captions and make content accessible. Indeed, the Internet and then the Web as a place for information sharing is evident throughout this history of user-generated captioning online, from Berner-Lee’s conception of community captioning, to Emil and Vasile’s instructions to a Netflix community of captioners, to finally a group of fansubbers who took BRIEN to court and lost. Therefore, while we have conceived of the disability digerati as a conflation of the hacker and the acknowledged digital influencer, these two positions may again part ways, and the disability digerati may—like the hackers before them—be driven underground.Captioned entertainment content offers a powerful, even vital, mode of inclusion for people who are deaf or hard of hearing. Yet, despite Berners-Lee’s urging that everything online be made accessible to people with all sorts of disabilities, captions were not addressed in the first iteration of the WCAG, perhaps reflecting the limitations of the speed of the medium itself. This continues to be the case today—although it is no longer difficult to stream video online, and Netflix have reached global dominance, audiences who require captions still find themselves fighting for access. Thus, in this sense, user-generated captions remain an important—yet seemingly technologically and legislatively complicated—avenue for inclusion.ReferencesAnthony, Sebastian. “Fan-Made Subtitles for TV Shows and Movies Are Illegal, Court Rules.” Arstechnica UK (2017). 21 May 2017 <https://arstechnica.com/tech-policy/2017/04/fan-made-subtitles-for-tv-shows-and-movies-are-illegal/>.Amara. “Amara Makes Video Globally Accessible.” Amara (2010). 25 Apr. 2017. <https://amara.org/en/ 2010>.Berners-Lee, Tim. “World Wide Web Consortium (W3C) Launches International Web Accessibility Initiative.” Web Accessibility Initiative (WAI) (1997). 19 June 2010. <http://www.w3.org/Press/WAI-Launch.html>.Bush, Vannevar. “As We May Think.” The Atlantic (1945). 26 June 2010 <http://www.theatlantic.com/magazine/print/1969/12/as-we-may-think/3881/>.CNET. “YouTube Turns 10: The Video Site That Went Viral.” CNET (2015). 24 Apr. 2017 <https://www.cnet.com/news/youtube-turns-10-the-video-site-that-went-viral/>.Downey, Greg. 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Baltimore: John Hopkins UP, 2008.———. “Constructing Closed-Captioning in the Public Interest: From Minority Media Accessibility to Mainstream Educational Technology.” Info: The Journal of Policy, Regulation and Strategy for Telecommunications, Information and Media 9.2/3 (2007): 69–82.Ellcessor, Elizabeth. “Captions On, Off on TV, Online: Accessibility and Search Engine Optimization in Online Closed Captioning.” Television & New Media 13.4 (2012): 329-352. <http://tvn.sagepub.com/content/early/2011/10/24/1527476411425251.abstract?patientinform-links=yes&legid=sptvns;51v1>.Ellis, Katie. “Television’s Transition to the Internet: Disability Accessibility and Broadband-Based TV in Australia.” Media International Australia 153 (2014): 53–63.Ellis, Katie, and Mike Kent. “Accessible Television: The New Frontier in Disability Media Studies Brings Together Industry Innovation, Government Legislation and Online Activism.” First Monday 20 (2015). <http://firstmonday.org/ojs/index.php/fm/article/view/6170>.Emil’s Celebrations. “How to Add Subtitles to Movies Streamed in Netflix.” 16 Oct. 2011. 9 Apr. 2017 <https://emladenov.wordpress.com/2011/10/16/how-to-add-subtitles-to-movies-streamed-in-netflix/>.Google. “Automatic Captions in Youtube.” 2009. 24 Apr. 2017 <https://googleblog.blogspot.com.au/2009/11/automatic-captions-in-youtube.html>.Jaeger, Paul. “Disability and the Internet: Confronting a Digital Divide.” Disability in Society. 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Western notions of authors’ Intellectual Property Rights (IPRs), as expressed within copyright law, maintain a potentially fraught relationship with a range of philosophical and theoretical positions on writing and authorship that have developed within contemporary Western thinking. For Roland Barthes, authorship is compromised, de-identified and multiplied by the very nature of writing: ‘Writing is that neutral, composite, oblique space where our subject slips away, the negative where all identity is lost, starting with the very identity of the body writing’ (142). Gilles Deleuze and Félix Guattari follow a related line of thought in A Thousand Plateaus: ‘Write, form a rhizome, increase your territory by deterritorialization, extend the line of flight to the point where it becomes an abstract machine covering the entire plane of consistency’ (11). Similarly, in Of Grammatology, Jacques Derrida suggests that ‘Writing is that forgetting of the self, that exteriorization, the contrary of the interiorizing memory’ (24). To the extent that these philosophical and theoretical positions emerge within the practices of creative writers as remixes of appropriation, homage and/or pastiche, prima facie they problematize the commercial rights of writers as outlined in law. The case of Kathy Acker often comes up in such discussions. Acker’s 1984 novel Blood and Guts in High School, for example, incorporates techniques that have attracted the charge of plagiarism as this term is commonly defined. (Peter Wollen notes this in his aptly named essay ‘Death [and Life] of the Author.’) For texts like Acker’s, the comeback against charges of plagiarism usually involves underscoring the quotient of creativity involved in the re-combination or ‘remixing’ of the parts of the original texts. (Pure repetition would, it would seem, be much harder to defend.) ‘Plagiarism’, so-called, was simply one element of Acker’s writing technique; Robert Lort nuances plagiarism as it applies to Acker as ‘pseudo-plagiarism’. According to Wollen, ‘as she always argued, it wasn’t really plagiarism because she was quite open about what she did.’ As we shall demonstrate in more detail later on, however, there is another and, we suggest, more convincing reason why Acker’s work ‘wasn’t really plagiarism.’ This relates to her conscious interest in calligraphy and to her (perhaps unconscious) appropriation of a certain strand of Chinese philosophy. All the same, within the Western context, the consistent enforcement of copyright law guarantees the rights of authors to control the distribution of their own work and thus its monetised value. The author may be ‘dead’ in writing—just the faintest trace of remixed textuality—but he/she is very much ‘alive’ as in recognised at law. The model of the author as free-standing citizen (as a defined legal entity) that copyright law employs is unlikely to be significantly eroded by the textual practices of authors who tarry artistically in the ‘de-authored territories’ mapped by figures like Barthes, Deleuze and Guattari, and Derrida. Crucially, disputes concerning copyright law and the ethics of remix are resolved, within the Western context, at the intersection of relatively autonomous creative and legal domains. In the West, it is seen that these two domains are related within the one social fabric; each nuances the other (as Acker’s example shows in the simultaneity of her legal/commercial status as an author and her artistic practice as a ‘remixer’ of the original works of other authors). Legal and writing issues co-exist even as they fray each other’s boundaries. And in Western countries there is force to the law’s operations. However, the same cannot be said of the situation with respect to copyright law in China. Chinese artists are traditionally regarded as being aloof from mundane legal and commercial matters, with the consequence that the creative and the legal domains tend to ‘miss each other’ within the fabric of Chinese society. To this extent, the efficacy of the law is muted in China when it comes into contact with circumstances of authorship, writing, originality and creativity. (In saying this though, we do not wish to fall into the trap of cultural essentialism: in this article, ‘China’ and ‘The West’ are placeholders for variant cultural tendencies—clustered, perhaps, around China and its disputed territories such as Taiwan on the one hand, and around America on the other—rather than homogeneous national/cultural blocs.) Since China opened its system to Western capitalist economic activity in the 1980s, an ongoing criticism, sourced mainly out of the West, has been that the country lacks proper respect for notions of authorship and, more directly, for authorship’s derivative: copyright law. Tellingly, it took almost ten years of fierce negotiations between elements of the capitalist lobby in China and the Legislative Bureau to make the Seventh National People’s Congress pass the first Copyright Law of the People’s Republic of China on 7 September 1990. A law is one thing though, and adherence to the law is another. Jayanthi Iyengar of Asia Times Online reports that ‘the US government estimates that piracy within China [of all types of products] costs American companies $20-24 billion a year in damages…. If one includes European and Japanese firms, the losses on account of Chinese piracy is in excess of $50 billion annually.’ In 2008, the International Federation of the Phonographic Industry (IFPI) reported that more than 99% of all music files in China are pirated. In the same year, Cara Anna wrote in The Seattle Times that, in desperation at the extent of Chinese infringement of its Intellectual Property Rights (IPRs), Microsoft has deployed an anti-piracy tactic that blacks out the screens of computers detected running a fake copy of Windows. The World Trade Organisation (WTO) has filed complaints from many countries against China over IPRs. Iyengar also reports that, under such pressure, the State Intellectual Property Office in Beijing has vowed it will continue to reinforce awareness of IPRs in order to better ensure their protection. Still, from the Western perspective at least, progress on this extremely contentious issue has been excruciatingly slow. Such a situation in respect of Chinese IPRs, however, should not lead to the conclusion that China simply needs to catch up with the more ‘morally advanced’ West. Rather, the problematic relations of the law and of creativity in China allow one to discern, and to trace through ancient Chinese history and philosophy, a different approach to remix that does not come into view so easily within Western countries. Different materialisms of writing and authorship come into play across global space, with different effects. The resistance to both the introduction and the policing of copyright law in China is, we think, the sign of a culture that retains something related to authorship and creativity that Western culture only loosely holds onto. It provides a different way of looking at remix, in the guise of what the West would tend to label plagiarism, as a practice, especially, of creativity. The ‘death’ of the author in China at law (the failure to legislate and/or police his/her rights) brings the author, as we will argue, ‘alive’ in the writing. Remix as anonymous composition (citing Barthes) becomes, in the Chinese example, remix as creative expression of singular feelings—albeit remix set adrift from the law. More concretely, our example of the Chinese writer/writing takes remix to its limit as a practice of repetition without variation—what the West would be likely to call plagiarism. Calligraphy is key to this. Of course, calligraphy is not the full extent of Chinese writing practice—not all writing is calligraphic strictly speaking. But all calligraphy is writing, and in this it influences the ethics of Chinese writing, whether character-based or otherwise, more generally. We will have more to say about the ‘pictorial’ material aspect of Chinese writing later on. In traditional Chinese culture, writing is regarded as a technical practice perfected through reproduction. Chinese calligraphy (visual writing) is learnt through exhaustively tracing and copying the style of the master calligrapher. We are tempted to say that what is at stake in Chinese remix/calligraphy is ‘the difference that cannot be helped:’ that is, the more one tries, as it were, to repeat, the more repetition becomes impossible. In part, this is explained by the interplay of Qing 情 (‘feelings’) and Yun 韵 (‘composed body movements’). Now, the order of the characters—Qing 情 (‘feelings’) before Yun 韵 (‘composed body movements’)—suggests that Qing creates and supports Yun. To this extent, what we have here is something akin to a Western understanding of creative writing (of the creativity of writing) in which individual and singular feelings are given expression in the very movement of the writing itself (through the bodily actions of the writer). In fact though, the Chinese case is more complicated than this, for the apprenticeship model of Chinese calligraphy cultivates a two-way interplay of Qing 情 (‘feelings’) and Yun 韵 (‘composed body movements’). More directly, the ‘composed body movements’ that one learns from the master calligrapher help compose one’s own ‘feelings’. The very repetition of the master’s work (its remixing, as it were…) enables the creativity of the apprentice. If this model of creativity is found somewhat distasteful from a Western perspective (that is, if it is seen to be too restrictive of originality) then that is because such a view, we think, depends upon a cultural misunderstanding that we will try to clear up here. To wit, the so-called Confucian model of rote learning that is more-or-less frowned upon in the West is not, at least not in the debased form that it adopts in Western stereotypes, the philosophy active in the case of Chinese calligraphy. That philosophy is Taoism. As Wing-Tsit Chan elucidates, ‘by opposing Confucian conformity with non-conformity and Confucian worldliness with a transcendental spirit, Taoism is a severe critic of Confucianism’ (136). As we will show in a moment, Chinese calligraphy exemplifies this special kind of Taoist non-conformity (in which, as Philip J. Ivanhoe limns it, ‘one must unweave the social fabric’). Chan again: ‘As the way of life, [Taoism] denotes simplicity, spontaneity, tranquility, weakness, and most important of all, non-action (wu-wei). By the latter is not meant literally “inactivity” but rather “taking no action that is contrary to Nature”—in other words, letting Nature take its own course’ (136). Thus, this is a philosophy of ‘weakness’ that is neither ‘negativism’ nor ‘absolute quietism’ (137). Taoism’s supposed weakness is rather a certain form of strength, of (in the fullest sense) creative possibilities, which comes about through deference to the way of Nature. ‘Hold fast to the great form (Tao), / And all the world will come’ illustrates this aspect of Taoism in its major philosophical tract, The Lao Tzu (Tao-Te Ching) or The Classic of the Way and its Virtue (section 35, Chan 157). The guiding principle is one of deference to the original (way, Nature or Tao) as a strategy of an expression (of self) that goes beyond the original. The Lao Tzu is full of cryptic, metaphoric expressions of this idea: ‘The pursuit of learning is to increase day after day. / The pursuit of Tao is to decrease day after day. / It is to decrease and further decrease until one reaches the point of taking no action. / No action is undertaken, and yet nothing is left undone’ (section 48, Chan 162). Similarly, The female always overcomes the male by tranquility, / And by tranquility she is underneath. / A big state can take over a small state if it places itself below the small state; / And the small state can take over a big state if it places itself below the big state. / Thus some, by placing themselves below, take over (others), / And some, by being (naturally) low, take over (other states) (section 61, Chan 168). In Taoism, it is only by (apparent) weakness and (apparent) in-action that ‘nothing is left undone’ and ‘states’ are taken over. The two-way interplay of Qing 情 (‘feelings’) and Yun 韵 (‘composed body movements’), whereby the apprentice copies the master, aligns with this key element of Taoism. Here is the linkage between calligraphy and Taoism. The master’s work is Tao, Nature or the way: ‘Hold fast to the great form (Tao), / And all the world will come’ (section 35, Chan 157). The apprentice’s calligraphy is ‘all the world’ (‘all the world’ being, ultimately in this context, Qing 情 [‘feelings’]). Indeed, Taoism itself is a subtle philosophy of learning (of apprenticeship to a master), unlike Confucianism, which Chan characterises as a doctrine of ‘social order’ (of servitude to a master) (136). ‘“Learn not learn”’ is how Wang Pi, as quoted by Chan (note 121, 170), understands what he himself (Chan) translates as ‘He learns to be unlearned’ (section 64, 170). In unlearning one learns what cannot be taught: this is, we suggest, a remarkable definition of creativity, which also avoids falling into the trap of asserting a one-to-one equivalence between (unlearnt) originality and creativity, for there is both learning and creativity in this Taoist paradox of pedagogy. On this, Michael Meehan points out that ‘originality is an over-rated and misguided concept in many ways.’ (There is even a sense in which, through its deliberate repetition, The Lao Tzu teaches itself, traces over itself in ‘self-plagiarising’ fashion, as if it were reflecting on the re-tracings of calligraphic pedagogy. Chan notes just how deliberate this is: ‘Since in ancient times books consisted of bamboo or wooden slabs containing some twenty characters each, it was not easy for these sentences… to be added by mistake…. Repetitions are found in more than one place’ [note 102, 166].) Thinking of Kathy Acker too as a learner, Peter Wollen’s observation that she ‘incorporated calligraphy… in her books’ and ‘was deeply committed to [the] avant-garde tradition, a tradition which was much stronger in the visual arts’ creates a highly suggestive connection between Acker’s work and Taoism. The Taoist model for learning calligraphy as, precisely, visual art—in which copying subtends creativity—serves to shift Acker away from a Barthesian or Derridean framework and into a Taoist context in which adherence to another’s form (as ‘un-learnt learning’) creatively unravels so-called plagiarism from the inside. Acker’s conscious interest in calligraphy is shown by its prevalence in Blood and Guts in High School. Edward S. Robinson identifies this text as part of her ‘middle phase’, which ‘saw the introduction of illustrations and diagrams to create multimedia texts with a collage-like feel’ (154). To our knowledge, Acker never critically reflected upon her own calligraphic practices; perhaps if she had, she would have troubled what we see as a blindspot in critics’ interpretations of her work. To wit, whenever calligraphy is mentioned in criticism on Acker, it tends to be deployed merely as an example of her cut-up technique and never analysed for its effects in its own cultural, philosophical and material specificity. (Interestingly, if the words of Chinese photographer Liu Zheng are any guide, the Taoism we’re identifying in calligraphy has also worked its way into other forms of Chinese visual art: she refers to ‘loving photographic details and cameras’ with the very Taoist term, ‘lowly’ 低级 [Three Shadows Photography Art Centre 187].) Being ‘lowly’, ‘feminine’ or ‘underneath’ has power as a radical way of learning. We mentioned above that Taoism is very metaphoric. As the co-writer of this paper Cher Coad recalls from her calligraphy classes, students in China grow up with a metaphoric proverb clearly inspired by Lao Tzu’s Taoist philosophy of learning: ‘Learning shall never stop. Black comes from blue, but is more than the blue.’ ‘Black comes from blue, but is more than the blue.’ What could this mean? Before answering this question with recourse to two Western notions that, we hope, will further effect (building on Acker’s example) a rapprochement between Chinese and Western ways of thinking (be they nationally based or not), we reiterate that the infringement of Intellectual Property Rights (IPRs) in China should not be viewed only as an egregious denial of universally accepted law. Rather, whatever else it may be, we see it as the shadow in the commercial realm—mixed through with all the complexities of Chinese tradition, history and cultural difference, and most particularly of the Taoist strand within Confucianism—of the never-quite-perfect copying of calligraphic writing/remixing. More generally, the re-examination of stereotypical assumptions about Chinese culture cues a re-examination of the meaning behind the copying of products and technology in contemporary, industrialised China. So, ‘Black comes from blue, but is more than the blue.’ What is this ‘more than the blue of black’? Or put differently, why is calligraphic writing, as learnt from the master, always infused with the singular feelings of the (apprentice) writer? The work of Deleuze, Guattari and Claire Parnet provides two possible responses. In On the Line, Deleuze and Guattari (and Deleuze in co-authorship with Parnet) author a number of comments that support the conception we are attempting to develop concerning the lines of Chinese calligraphy. A line, Deleuze and Guattari suggest, is always a line of lines (‘Line of chance, line of hips, line of flight’ [57]). In the section of On the Line entitled ‘Politics’, Deleuze and Parnet outline the impossibility of any line being just one line. If life is a line (as it is said, you throw someone a life line), then ‘We have as many entangled lines in our lives as there are in the palm of a hand’ (71). Of any (hypothetical) single line it can be said that other lines emerge: ‘Black comes from blue, but is more than the blue.’ The feelings of the apprentice calligrapher (his/her multiple lines) emerge through the repeated copying of the lines and composed body movements of the master. The Deleuzean notion of repetition takes this idea further. Repetitive Chinese calligraphy clearly indexes what Claire Colebrook refers to as ‘Deleuze’s concept of eternal return. The only thing that is repeated or returns is difference; no two moments of life can be the same. By virtue of the flow of time, any repeated event is necessarily different (even if different only to the extent that it has a predecessor)’ (121). Now, it might be objected that Chinese calligraphic practices, because of the substantially ideographic nature of Chinese writing (see Kristeva 72-81), allow for material mutations that can find no purchase in Western, alphabetical systems of writing. But the materiality of time that Colebrook refers to as part of her engagement with Deleuzean non-repetitious (untimely) repetition guarantees the materiality of all modes of writing. Furthermore, Julia Kristeva notes that, with any form of language, one cannot leave ‘the realm of materialism’ (6) and Adrian Miles, in his article ‘Virtual Actual: Hypertext as Material Writing,’ sees the apparently very ‘unmaterial’ writing of hypertext ‘as an embodied activity that has its own particular affordances and possibilities—its own constraints and local actualisations’ (1-2). Calligraphic repetition of the master’s model creates the apprentice’s feelings as (inevitable) difference. In this then, the learning by the Chinese apprentice of the lines of the master’s calligraphy challenges international (both Western and non-Western) artists of writing to ‘remix remix’ as a matter—as a materialisation—of the line. Not the line as a self-identical entity of writing that only goes to make up writing more generally; rather, lines as a materialisation of lines within lines within lines. More self-reflexively, even the collaborative enterprise of this article, co-authored as it is by a woman of Chinese ethnicity and a white Australian man, suggests a remixing of writing through, beneath and over each other’s lines. Yun 韵 (‘composed body movements’) expresses and maximises Qing 情 (‘feelings’). Taoist ‘un-learnt learning’ generates remix as the singular creativity of the writer. Writers get into a blue with the line—paint it, black. Of course, these ideas won’t and shouldn’t make copyright infringement (or associated legalities) redundant notions. But in exposing the cultural relativisms often buried within the deployment of this and related terms, the idea of lines of lines far exceeds a merely formalistic practice (one cut off from the materialities of culture) and rather suggests a mode of non-repetitious repetition in contact with all of the elements of culture (of history, of society, of politics, of bodies…) wherever these may be found, and whatever their state of becoming. In this way, remix re-creates the depths of culture even as it stirs up its surfaces of writing. References Acker, Kathy. Blood and Guts in High School: A Novel. New York: Grove Press, 1978. Anna, Cara. ‘Microsoft Anti-Piracy Technology Upsets Users in China.’ The Seattle Times. 28 Oct. 2008 ‹http://seattletimes.com/html/businesstechnology/2008321919_webmsftchina28.html›. Barthes, Roland. ‘The Death of the Author.’ Barthes, Roland. Image-Music-Text. London: Fontana Press, 1977. 142-148. Chan, Wing-Tsit. A Source Book in Chinese Philosophy. Princeton, New Jersey: Princeton University Press, 1969. Colebrook, Claire. Gilles Deleuze. London: Routledge, 2002. Deleuze, Gilles, and Félix Guattari. On the Line. New York: Semiotext(e), 1983. Deleuze, Gilles, and Félix Guattari. A Thousand Plateaus: Capitalism and Schizophrenia. Minneapolis: University of Minnesota Press, 1987. Derrida, Jacques. Of Grammatology. Baltimore: Johns Hopkins University Press, 1976. International Federation of the Phonographic Industry. ‘Recording Industry Steps Up Campaign against Internet Piracy in China.’ ifpi. 4 Feb. 2008 ‹http://www.ifpi.org/content/section_news/20080204.html›. Ivanhoe, Philip J. ‘Taoism’. The Cambridge Dictionary of Philosophy. Ed. Robert Audi. Cambridge: Cambridge University Press, 1995. 787. Iyengar, Jayanthi. ‘Intellectual Property Piracy Rocks China Boat.’ Asia Times Online. 16 Sept. 2004 ‹http://www.atimes.com/atimes/China/FI16Ad07.html›. Kristeva, Julia. Language: The Unknown: An Initiation into Linguistics. New York: Columbia University Press, 1989. Lort, Robert. ‘Kathy Acker (1944-1997).’ Jahsonic: A Vocabulary of Culture. 2003 ‹http://www.jahsonic.com/KathyAcker.html›. Meehan, Michael. ‘Week 5a: Playing with Genres.’ Lecture notes. Unit ALL705. Short Stories: Writers and Readers. Trimester 2. Melbourne: Deakin University, 2013. Miles, Adrian. ‘Virtual Actual: Hypertext as Material Writing.’ Studies in Material Thinking 1.2 (April 2008) ‹http://www.materialthinking.org/papers/29›. Robinson, Edward S. Shift Linguals: Cut-up Narratives from William S. Burroughs to the Present. New York: Editions Rodopi, 2011. Three Shadows Photography Art Centre. ‘Photography and Intimate Space Symposium.’ Conversations: Three Shadows Photography Art Centre’s 2007 Symposium Series. Ed. RongRong, inri, et al. Beijing: Three Shadows Press Limited, 2008. 179-191. Wollen, Peter. ‘Death (and Life) of the Author.’ London Review of Books 20.3 (5 Feb. 1998). ‹http://www.lrb.co.uk/v20/n03/peter-wollen/death-and-life-of-the-author›.

This issue of M/C Journal is devoted to all things cute – Internet animals and stuffed toys, cartoon characters and branded bears. In what follows our nine contributors scrutinise a diverse range of media objects, discussing everything from the economics of Grumpy Cat and the aesthetics of Furbys to Reddit’s intellectual property dramas and the ethics of kitten memes. The articles range across diverse sites, from China to Canada, and equally diverse disciplines, including cultural studies, evolutionary economics, media anthropology, film studies and socio-legal studies. But they share a common aim of tracing out the connections between degraded media forms and wider questions of culture, identity, economy and power. Our contributors tell riveting stories about these connections, inviting us to see the most familiar visual culture in a new way. We are not the first to take cute media seriously as a site of cultural politics, and as an industry in its own right. Cultural theory has a long, antagonistic relationship with the kitsch and the disposable. From the Frankfurt School’s withering critique of cultural commodification to revisionist feminist accounts that emphasise the importance of the everyday, critics have been conducting sporadic incursions into this space for the better part of a century. The rise of cultural studies, a discipline committed to analysing “the scrap of ordinary or banal existence” (Morris and Frow xviii), has naturally provided a convincing intellectual rationale for such research, and has inspired an impressive array of studies on such things as Victorian-era postcards (Milne), Disney films (Forgacs), Hallmark cards (West, Jaffe) and stock photography (Frosh). A parallel strand of literary theory considers the diverse registers of aesthetic experience that characterize cute content (Brown, Harris). Sianne Ngai has written elegantly on this topic, noting that “while the avant-garde is conventionally imagined as sharp and pointy, as hard- or cutting-edge, cute objects have no edge to speak of, usually being soft, round, and deeply associated with the infantile and the feminine” (814). Other scholars trace the historical evolution of cute aesthetics and commodities. Cultural historians have documented the emergence of consumer markets for children and how these have shaped what we think of as cute (Cross). Others have considered the history of domestic animal imagery and its symptomatic relationship with social anxieties around Darwinism, animal rights, and pet keeping (Morse and Danahay, Ritvo). And of course, Japanese popular culture – with its distinctive mobilization of cute aesthetics – has attracted its own rich literature in anthropology and area studies (Allison, Kinsella). The current issue of M/C Journal extends these lines of research while also pushing the conversation in some new directions. Specifically, we are interested in the collision between cute aesthetics, understood as a persistent strand of mass culture, and contemporary digital media. What might the existing tradition of “cute theory” mean in an Internet economy where user-generated content sites and social media have massively expanded the semiotic space of “cute” – and the commercial possibilities this entails? As the heir to a specific mode of degraded populism, the Internet cat video may be to the present what the sitcom, the paperback novel, or the Madonna video was to an earlier moment of cultural analysis. Millions of people worldwide start their days with kittens on Roombas. Global animal brands, such as Maru and Grumpy Cat, are appearing, along with new talent agencies for celebrity pets. Online portal I Can Haz Cheezburger has received millions of dollars in venture capital funding, becoming a diversified media business (and then a dotcom bubble). YouTube channels, Twitter hashtags and blog rolls form an infrastructure across which a vast amount of cute-themed user-generated content, as well as an increasing amount of commercially produced and branded material, now circulates. All this reminds us of the oft-quoted truism that the Internet is “made of kittens”, and that it’s “kittens all the way down”. Digitization of cute culture leads to some unusual tweaks in the taste hierarchies explored in the aforementioned scholarship. Cute content now functions variously as an affective transaction, a form of fandom, and as a subcultural discourse. In some corners of the Internet it is also being re-imagined as something contemporary, self-reflexive and flecked with irony. The example of 4Chan and LOLcats, a jocular, masculinist remix of the feminized genre of pet photography, is particularly striking here. How might the topic of cute look if we moving away from the old dialectics of mass culture critique vs. defense and instead foreground some of these more counter-intuitive aspects, taking seriously the enormous scale and vibrancy of the various “cute” content production systems – from children’s television to greeting cards to CuteOverload.com – and their structural integration into current media, marketing and lifestyle industries? Several articles in this issue adopt this approach, investigating the undergirding economic and regulatory structures of cute culture. Jason Potts provides a novel economic explanation for why there are so many animals on the Internet, using a little-known economic theory (the Alchian-Allen theorem) to explain the abundance of cat videos on YouTube. James Meese explores the complex copyright politics of pet images on Reddit, showing how this online community – which is the original source of much of the Internet’s animal gifs, jpegs and videos – has developed its own procedures for regulating animal image “piracy”. These articles imaginatively connect the soft stuff of cute content with the hard stuff of intellectual property and supply-and-demand dynamics. Another line of questioning investigates the political and bio-political work involved in everyday investments in cute culture. Seen from this perspective, cute is an affect that connects ground-level consumer subjectivity with various economic and political projects. Carolyn Stevens’ essay offers an absorbing analysis of the Japanese cute character Rilakkuma (“Relaxed Bear”), a wildly popular cartoon bear that is typically depicted lying on the couch and eating sweets. She explores what this representation means in the context of a stagnant Japanese economy, when the idea of idleness is taking on a new shade of meaning due to rising under-employment and precarity. Sharalyn Sanders considers a fascinating recent case of cute-powered activism in Canada, when animal rights activists used a multimedia stunt – a cat, Tuxedo Stan, running for mayor of Halifax, Canada – to highlight the unfortunate situation of stray and feral felines in the municipality. Sanders offers a rich analysis of this unusual political campaign and the moral questions it provokes. Elaine Laforteza considers another fascinating collision of the cute and the political: the case of Lil’ Bub, an American cat with a rare genetic condition that results in a perpetually kitten-like facial expression. During 2011 Lil’ Bub became an online phenomenon of the first order. Laforteza uses this event, and the controversies that brewed around it, as an entry point for a fascinating discussion of the “cute-ification” of disability. These case studies remind us once more of the political stakes of representation and viral communication, topics taken up by other contributors in their articles. Radha O’Meara’s “Do Cats Know They Rule YouTube? How Cat Videos Disguise Surveillance as Unselfconscious Play” provides a wide-ranging textual analysis of pet videos, focusing on the subtle narrative structures and viewer positioning that are so central to the pleasures of this genre. O’Meara explains how the “cute” experience is linked to the frisson of surveillance, and escape from surveillance. She also explains the aesthetic differences that distinguish online dog videos from cat videos, showing how particular ideas about animals are hardwired into the apparently spontaneous form of amateur content production. Gabriele de Seta investigates the linguistics of cute in his nuanced examination of how a new word – meng – entered popular discourse amongst Mandarin Chinese Internet users. de Seta draws our attention to the specificities of cute as a concept, and how the very notion of cuteness undergoes a series of translations and reconfigurations as it travels across cultures and contexts. As the term meng supplants existing Mandarin terms for cute such as ke’ai, debates around how the new word should be used are common. De Seta shows us how deploying these specific linguistic terms for cuteness involve a range of linguistic and aesthetic judgments. In short, what exactly is cute and in what context? Other contributors offer much-needed cultural analyses of the relationship between cute aesthetics, celebrity and user-generated culture. Catherine Caudwell looks at the once-popular Furby toy brand its treatment in online fan fiction. She notes that these forms of online creative practice offer a range of “imaginative and speculative” critiques of cuteness. Caudwell – like de Seta – reminds us that “cuteness is an unstable aesthetic that is culturally contingent and very much tied to behaviour”, an affect that can encompass friendliness, helplessness, monstrosity and strangeness. Jonathon Hutchinson’s article explores “petworking”, the phenomenon of social media-enabled celebrity pets (and pet owners). Using the famous example of Boo, a “highly networked” celebrity Pomeranian, Hutchinson offers a careful account of how cute is constructed, with intermediaries (owners and, in some cases, agents) negotiating a series of careful interactions between pet fans and the pet itself. Hutchinson argues if we wish to understand the popularity of cute content, the “strategic efforts” of these intermediaries must be taken into account. Each of our contributors has a unique story to tell about the aesthetics of commodity culture. The objects they analyse may be cute and furry, but the critical arguments offered here have very sharp teeth. We hope you enjoy the issue.Acknowledgments Thanks to Axel Bruns at M/C Journal for his support, to our hard-working peer reviewers for their insightful and valuable comments, and to the Swinburne Institute for Social Research for the small grant that made this issue possible. ReferencesAllison, Anne. “Cuteness as Japan’s Millenial Product.” Pikachu’s Global Adventure: The Rise and Fall of Pokemon. Ed. Joseph Tobin. Durham: Duke University Press, 2004. 34-48. Brown, Laura. Homeless Dogs and Melancholy Apes: Humans and Other Animals in the Modern Literary Imagination. Ithaca: Cornell University Press, 2010. Cross, Gary. The Cute and the Cool: Wondrous Innocence and Modern American Children's Culture. Oxford: Oxford University Press, 2004. Forgacs, David. 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