Norm formation amongst illegal file-sharers Projects

In the last few years there has been a growing academic interest in illegal, peer-to-peer file-sharing. This interest is due to the intensity of the copyright wars (Patry, 2009), the accelerating transformation of cultural markets, and the sheer ubiquity of the phenomenon. The bulk of this research is anchored in economic and business literature (see a comprehensive bibliography at: (Dejean, 2008; Oberholzer-Gee & Strumpf, 2009; Peitz & Waelbroeck, 2006)) and tries to understand the impact of illegal peer-to-peer file-sharing on various markets and industries. The other discipline that has extensively discussed file-sharing is legal studies. In the era of the Napster and Grokster cases,  especially, when the legal status of file-sharing technologies was in question, file-sharing became closely linked to  discussions of IP policy and copyright reform. Only a few studies, – predominantly from developing countries – tried to read copyright piracy as a social practice (Alford, 1995; Coombe, 1998; Grassmuck, 2008; Larkin, 2004; Liang, 2003, 2005; Sundaram, 2001; Wang, 2003) and explore the unauthorized uses of intellectual properties in a wider socio-cultural context. In these accounts the unauthorized reproduction and dissemination of copyright protected cultural goods is situated within the everyday practices of various social groups and the questions it raises are related to the issues of development, mobility, modernization, participation, social cohesion, cooperation, etc. Similar studies that examine the non-legal, non-economic aspects of participating in file-sharing networks are yet to emerge in a Western context.

This gap in literature was the primary factor in choosing the topic for my doctoral research. In my dissertation (Eötvös Lóránd University, Doctoral Program in Film-, Media and Cultural Theory, expected date of defense Spring, 2010) my aim was to look beyond the legal and economic readings of contemporary western copyright piracy and understand it as a unique social practice that merits attention not only because of its dubious legality, ubiquity, or the havoc it has played with copyright-based business models, but first and foremost because it shapes the ideas and attitudes of millions of netizens about what intellectual property is and could be; what sharing and online cooperation means in a p2p setting; what privacy is and how it can be protected; how to form and negotiate online identities in an anonymous environment, just to name a few issues. Piracy is not just a drain on the cultural economy, but a powerful productive force whose legacy in social relations will stay with us long after the economic conditions that called it into being –and the power vacuum that enabled it – have passed.

The notion that piracy is more than just a legally contested shadow economy is further supported by the body of research that documents historical examples of copyright piracy either from a social/media history, literary studies perspective (Bender & Sampliner, 1996-1997; Darnton, 2003; Feather, 1987; Heylin, 1995; Judge, 1934; Kaser, 1969; Pollard, 1916, 1920; Rose, 1993; Wittmann, 2004, Johns 2010) or from a legal history standpoint (Khan, 2002; Khan & Sokoloff, 2001; May & Sell, 2006; Redmond, 1990; Scott, 1998). These historical accounts of copyright piracy describe the internal norms of information markets both before and after the establishment of national and international layers of regulation. The faces, motivations, and fates of the copyright pirates are many, but there is  one thing that is common to all of them: they all exist in the extra-legal domain at the edges of state authority. In this semi-autonomous space,  “Honor Amongst Thieves,”  “synthetic copyright”,  entries in the Registry of the Stationer’s Company,  server-enforced share ratios, and other non-legal structures organize pirate activity. In each and every case we find norms that — while competing with the legal —  act to encourage the production of a common pool resource, offer methods to settle disputes and limit free-riding. In other words these bottom up norms sometimes substitute, sometimes replicate  state sanctioned layers of regulation that are missing or being denied.

Why is the study of these emerging norms especially interesting today? For several reasons. First, even though on paper we have seen a steady strengthening of the protection of Intellectual Property, the inability to enforce them resulted in a significantly weaker copyright protection than any time during the last hundred years. That vacuum is partly caused, partly filled by the competing, bottom up norms of  file-sharing communities. The weakened property rights, along with the emergence of file­sharing networks created a de facto common pool of resources from the musical, audiovisual, textual works circulating in the digital underground. This commons has proved to be quite resilient to attacks from the outside as well as to those internal issues that can lead to a tragedy of commons. Many file-sharing communities seem to have successfully solved the problems of managing a common pool resource as well as protecting it from – in this case (re) – enclosure. There is, however, little to no research on the actual mechanisms of how these commons are maintained, protected and replenished. Only a few unconfirmed accounts describe the internal workings of online cultural black markets (b-bstf, Summer 2004; Howe, January 2005).

Second, even from these shallow accounts it is evident that non-monetary incentives and complex social motivations play a crucial role in the existence and successful survival of file-sharing communities and of those resource pools around which these communities gather. To illustrate this point it is worth examining the ways community norms manifest themselves in the technological restraints and defaults (Strahilevitz, 2003). Employed at the level of both software clients (like the design principle of bittorrent) and servers (minimum shared library size or upload/download ratio) technology is fine-tuned to reflect the characteristics of content flows, the relative popularity of different titles, the aesthetic judgments, and the thematic preferences of file-sharers. Global, open, mainstream bittorrent trackers for example set no minimum level of contribution – they rely on the sheer number of users and the loyalty of some to provide the necessary level of resources for all. On the other hand, while many national level trackers prohibit the exchange of current local goods, they highly reward the making available of local back catalogs and out of print works. Some allow only a trusted circle of releasers to provide them with digital copies of new titles. Others allow, even encourage each and every user to upload and seed whatever they see fit. From this latter group some set and enforce highly detailed technical specifications regarding video encoding, sound quality, etc. Others provide the community collaborative filtering tools to assess the quality of contributions. Beyond the technologically enforced compulsory rules, informal community norms encourage voluntary cooperation. The exclusivity, notoriety of some communities guarantees a loyal and enthusiastic user base. Their fame inspires others into competition, trying to replicate their success. Many fail, a few prefer to stay small and secluded, but some develop into big, extraordinarily powerful underground marketplaces.

Third, none of these subtle differences between different pirate communities is described with the current economic and legal language used to discuss copyright piracy, despite the fact that they have profound economic and legal consequences on legal markets and on general copynorms (Schultz, 2006) alike. Current discourse on copyright piracy tends to homogenize a wide variety of fundamentally different practices with reductionist legal /economic arguments.

Following the footsteps of Lessig (2004) I hope that the time is now ripe to step beyond the monolithic understanding of  p2p file-sharing by enriching the currently fragmented research landscape with a social-sciences based piracy research thread that

describes the governance structures of different file-sharing communities,

studies the different cooperation methods required to maintain an illegal information commons,

– situates these findings in a comparative framework, that includes historical practices of extra-legal self-regulation of information markets.

Current research on digital natives explicitly addresses piracy (Palfrey & Gasser, 2008), however, current inquiries are focused primarily around downloading and downloaders, the law, international trade organizations and statistics. “We ignore the social norms of Digital Natives at our peril.“ – John Palfrey and Urs Gasser warn us.  I believe that the research on the social norms of p2p file-sharers would be able to add important layer of understanding of the forces that shape the habits and perceptions of youth socialized in the online environment. If Digital Natives by now know that file-sharing is illegal, why do they still participate actively in the illegal exchange of cultural goods, and how they justify their deviant actions? How do they protect themselves from legal consequences? What is their risk-tolerance? What drives them? How politically conscious are they? How important are the monetary incentives? How strong is the intra-group cohesion? What kind of norms do file-sharers learn from each other? Despite their importance, these questions are yet to be answered.

As technical solutions to limit piracy – including filtering and  deep-packet-inspection – are endorsed by ISPs, the issue of communication freedoms comes into play. The domain of regulation of intermediaries will experience a new wave of issues arising from the collateral damage done by the copyright industries’ ISP supported anti-piracy efforts. A familiarity with the inner workings of and everyday discussions on darknets (Biddle, England, Peinado, & Willman, 2001), a knowledge on their responses to industry efforts might help assess the costs and the success of the increased control over online communications.

Piracy is a complex economic, legal, social, political, technological phenomena which should not be reduced to false dichotomies of right/wrong, harmful/beneficial, legal/illegal. A vast number of different P2P file-sharing communities experiment with different technologies, different modes of organization in order to maintain digital common pool resources of various size and nature, and to hide and protect themselves from law enforcement. Economic research on p2p piracy has proved that illegal file-sharing is a much more complex than a simple lost sale. As a form of deviance, it proved to be surprisingly resilient to legal threats, enforcement and education efforts. As a political movement it was the first among the many Internet-related single issue groups to gain representation in an EU political body. On the level of technology, there is no end in sight for the technological arms race.

At the moment there is no academic institution that is able to address piracy in its true complexity. Disciplinary divisions and inherited inhibitions limit the understanding of piracy to incomplete, therefore necessarily reductionist studies. Several important piracy-related research that try to address piracy from a social sciences perspective is in the works and due to appear in 2010, sparking, what I believe will be a new wave of academic interest in the p2p underground and in piracy in general. The question that remains is which academic institution is the best suited for hosting such a topic.

In the last few years there has been a growing academic interest in illegal, peer-to-peer file-sharing. This interest is due to the intensity of the copyright wars (Patry, 2009), the accelerating transformation of cultural markets, and the sheer ubiquity of the phenomenon. The bulk of this research is anchored in economic and business literature (see a comprehensive bibliography at: (Dejean, 2008; Oberholzer-Gee & Strumpf, 2009; Peitz & Waelbroeck, 2006)) and tries to understand the impact of illegal peer-to-peer file-sharing on various markets and industries. The other discipline that has extensively discussed file-sharing is legal studies. In the era of the Napster and Grokster cases, especially, when the legal status of file-sharing technologies was in question, file-sharing became closely linked to discussions of IP policy and copyright reform. Only a few studies, – predominantly from developing countries – tried to read copyright piracy as a social practice (Alford, 1995; Coombe, 1998; Grassmuck, 2008; Larkin, 2004; Liang, 2003, 2005; Sundaram, 2001; Wang, 2003) and explore the unauthorized uses of intellectual properties in a wider socio-cultural context. In these accounts the unauthorized reproduction and dissemination of copyright protected cultural goods is situated within the everyday practices of various social groups and the questions it raises are related to the issues of development, mobility, modernization, participation, social cohesion, cooperation, etc. Similar studies that examine the non-legal, non-economic aspects of participating in file-sharing networks are yet to emerge in a Western context.

This gap in literature was the primary factor in choosing the topic for my doctoral research. In my dissertation (Eötvös Lóránd University, Doctoral Program in Film-, Media and Cultural Theory, expected date of defense Spring, 2010) my aim was to look beyond the legal and economic readings of contemporary western copyright piracy and understand it as a unique social practice that merits attention not only because of its dubious legality, ubiquity, or the havoc it has played with copyright-based business models, but first and foremost because it shapes the ideas and attitudes of millions of netizens about what intellectual property is and could be; what sharing and online cooperation means in a p2p setting; what privacy is and how it can be protected; how to form and negotiate online identities in an anonymous environment, just to name a few issues. Piracy is not just a drain on the cultural economy, but a powerful productive force whose legacy in social relations will stay with us long after the economic conditions that called it into being –and the power vacuum that enabled it – have passed.

The notion that piracy is more than just a legally contested shadow economy is further supported by the body of research that documents historical examples of copyright piracy either from a social/media history, literary studies perspective (Bender & Sampliner, 1996-1997; Darnton, 2003; Feather, 1987; Heylin, 1995; Judge, 1934; Kaser, 1969; Pollard, 1916, 1920; Rose, 1993; Wittmann, 2004, Johns 2010) or from a legal history standpoint (Khan, 2002; Khan & Sokoloff, 2001; May & Sell, 2006; Redmond, 1990; Scott, 1998). These historical accounts of copyright piracy describe the internal norms of information markets both before and after the establishment of national and international layers of regulation. The faces, motivations, and fates of the copyright pirates are many, but there is one thing that is common to all of them: they all exist in the extra-legal domain at the edges of state authority. In this semi-autonomous space, “Honor Amongst Thieves,” “synthetic copyright”, entries in the Registry of the Stationer’s Company, server-enforced share ratios, and other non-legal structures organize pirate activity. In each and every case we find norms that — while competing with the legal — act to encourage the production of a common pool resource, offer methods to settle disputes and limit free-riding. In other words these bottom up norms sometimes substitute, sometimes replicate state sanctioned layers of regulation that are missing or being denied.

Why is the study of these emerging norms especially interesting today? For several reasons. First, even though on paper we have seen a steady strengthening of the protection of Intellectual Property, the inability to enforce them resulted in a significantly weaker copyright protection than any time during the last hundred years. That vacuum is partly caused, partly filled by the competing, bottom up norms of file-sharing communities. The weakened property rights, along with the emergence of file­sharing networks created a de facto common pool of resources from the musical, audiovisual, textual works circulating in the digital underground. This commons has proved to be quite resilient to attacks from the outside as well as to those internal issues that can lead to a tragedy of commons. Many file-sharing communities seem to have successfully solved the problems of managing a common pool resource as well as protecting it from – in this case (re) – enclosure. There is, however, little to no research on the actual mechanisms of how these commons are maintained, protected and replenished. Only a few unconfirmed accounts describe the internal workings of online cultural black markets (b-bstf, Summer 2004; Howe, January 2005).

Second, even from these shallow accounts it is evident that non-monetary incentives and complex social motivations play a crucial role in the existence and successful survival of file-sharing communities and of those resource pools around which these communities gather. To illustrate this point it is worth examining the ways community norms manifest themselves in the technological restraints and defaults (Strahilevitz, 2003). Employed at the level of both software clients (like the design principle of bittorrent) and servers (minimum shared library size or upload/download ratio) technology is fine-tuned to reflect the characteristics of content flows, the relative popularity of different titles, the aesthetic judgments, and the thematic preferences of file-sharers. Global, open, mainstream bittorrent trackers for example set no minimum level of contribution – they rely on the sheer number of users and the loyalty of some to provide the necessary level of resources for all. On the other hand, while many national level trackers prohibit the exchange of current local goods, they highly reward the making available of local back catalogs and out of print works. Some allow only a trusted circle of releasers to provide them with digital copies of new titles. Others allow, even encourage each and every user to upload and seed whatever they see fit. From this latter group some set and enforce highly detailed technical specifications regarding video encoding, sound quality, etc. Others provide the community collaborative filtering tools to assess the quality of contributions. Beyond the technologically enforced compulsory rules, informal community norms encourage voluntary cooperation. The exclusivity, notoriety of some communities guarantees a loyal and enthusiastic user base. Their fame inspires others into competition, trying to replicate their success. Many fail, a few prefer to stay small and secluded, but some develop into big, extraordinarily powerful underground marketplaces.

Third, none of these subtle differences between different pirate communities is described with the current economic and legal language used to discuss copyright piracy, despite the fact that they have profound economic and legal consequences on legal markets and on general copynorms (Schultz, 2006) alike. Current discourse on copyright piracy tends to homogenize a wide variety of fundamentally different practices with reductionist legal /economic arguments.

Following the footsteps of Lessig (2004) I hope that the time is now ripe to step beyond the monolithic understanding of p2p file-sharing by enriching the currently fragmented research landscape with a social-sciences based piracy research thread that

describes the governance structures of different file-sharing communities,

studies the different cooperation methods required to maintain an illegal information commons,

– situates these findings in a comparative framework, that includes historical practices of extra-legal self-regulation of information markets.

Current research on digital natives explicitly addresses piracy (Palfrey & Gasser, 2008), however, current inquiries are focused primarily around downloading and downloaders, the law, international trade organizations and statistics. “We ignore the social norms of Digital Natives at our peril.“ – John Palfrey and Urs Gasser warn us. I believe that the research on the social norms of p2p file-sharers would be able to add important layer of understanding of the forces that shape the habits and perceptions of youth socialized in the online environment. If Digital Natives by now know that file-sharing is illegal, why do they still participate actively in the illegal exchange of cultural goods, and how they justify their deviant actions? How do they protect themselves from legal consequences? What is their risk-tolerance? What drives them? How politically conscious are they? How important are the monetary incentives? How strong is the intra-group cohesion? What kind of norms do file-sharers learn from each other? Despite their importance, these questions are yet to be answered.

As technical solutions to limit piracy – including filtering and deep-packet-inspection – are endorsed by ISPs, the issue of communication freedoms comes into play. The domain of regulation of intermediaries will experience a new wave of issues arising from the collateral damage done by the copyright industries’ ISP supported anti-piracy efforts. A familiarity with the inner workings of and everyday discussions on darknets (Biddle, England, Peinado, & Willman, 2001), a knowledge on their responses to industry efforts might help assess the costs and the success of the increased control over online communications.

Piracy is a complex economic, legal, social, political, technological phenomena which should not be reduced to false dichotomies of right/wrong, harmful/beneficial, legal/illegal. A vast number of different P2P file-sharing communities experiment with different technologies, different modes of organization in order to maintain digital common pool resources of various size and nature, and to hide and protect themselves from law enforcement. Economic research on p2p piracy has proved that illegal file-sharing is a much more complex than a simple lost sale. As a form of deviance, it proved to be surprisingly resilient to legal threats, enforcement and education efforts. As a political movement it was the first among the many Internet-related single issue groups to gain representation in an EU political body. On the level of technology, there is no end in sight for the technological arms race.

At the moment there is no academic institution that is able to address piracy in its true complexity. Disciplinary divisions and inherited inhibitions limit the understanding of piracy to incomplete, therefore necessarily reductionist studies. Several important piracy-related research that try to address piracy from a social sciences perspective is in the works and due to appear in 2010, sparking, what I believe will be a new wave of academic interest in the p2p underground and in piracy in general. The question that remains is which academic institution is the best suited for hosting such a topic.

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