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Abstract

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

This paper aims to evaluate power relations between corporate elites and online music file-sharers on the Web. By documenting changes in discourse occurring between 1998 and 2004 over the labeling of music file-sharing as deviant, it seeks to unveil how power machinates in establishing the parameters between acceptable and unacceptable behaviors In doing so, Foucault's work on power is used as a starting point for investigating strategies employed by corporate elites and file-sharers in order to shift the balance of power. The contest between discourses seeking to restrict or enhance the capacities of free agents in online environments is evidenced in the mutability of a legal discourse seeking to normalize online life. Until now, how the online “music pirates” should be disciplined is in a state of flux where certain developments appear to be favoring corporate interests and others, the interests of music file-sharers. In this struggle, online discourses seeking to curtail freedoms and opportunities advanced by corporate elites and online discourses of freedom purported by music file-sharers, are reversible. This reversibility suggests that online, some offline discourses would be a hindrance and as such, their agents could resist the dominant online discourse by engaging in creative behaviors. Likewise, traversing offline producer-led discourses with innovative and creative actions online could lead to consumers' autonomy. This paper concludes that the significance of these online struggles is embedded not only in their outcomes but also in the processes leading to them. Thus, while attempts to curb these online practices and freedoms persist, changes to a discourse guiding trading conditions between the Recording Industry and end-users have been noted, constituting a victory for the latter.


Introduction

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

The history of technology is one of ‘misuses' and struggles for new freedoms. The telegraph was ‘misused’ as a vehicle to develop illicit affairs between cable operators (Joinson, 2003), the Betamax video recorder was ‘misused’ to breach copyright laws (see von Lohmann, 2003) and the Internet ‘misused’ in supporting fraudulent activities (see InterGov International, 2001). Alongside, nascent technologies are also seen as amplifiers of social change (Kiesler, 1997) and instrumental to the struggle over freedoms with regard to how emerging technologies should or should not be used (see Chalaby, 2000; Reed, 2002). The interplay between power and the regulation of new technologies is close-knit. Innis's (1991) oligopolies of knowledge tell of mechanisms of power intertwined in directives and restrictions as to how knowledge is to be organized, stored and distributed. New freedoms emerge from windows of opportunity brought about by new media capable of eroding the power of those that first dictated its use. For instance, Innis (1986) describes how the printing press was first utilized by the Church to perpetuate its control over knowledge, only to be then undermined by the use of pamphlets advocating reforms. However, emerging uses can be truncated through processes that define them as deviant, and through this, freedoms can be curbed.

The ongoing dispute between the Recording Industry Association of America (RIAA) and online “music pirates” constitutes not only a digital dilemma over copyright (see Shi Ray Ku, 2002), but also provides a unique opportunity to evaluate how power relations machinate through the subtleties of discourse imposition. In the RIAA's attempt to sink the online “music pirates,” a discourse labeling file-sharing as a deviant and unethical form of theft (RIAA's Websites, 2003) is confronted with the egalitarian undertones of a discourse sustained on the Web's being the most free of spaces (Jordan, 1999; Turkle, 1995; Barlow, 1996). Moreover, engaging in such behavior is noted by some analysts as being auxiliary to consumers' fight to change existing trading conditions being dictated by a greedy Music Industry (“The fall of the music industry,”Wired, 2003; “News analysis: Is online piracy unstoppable?”, The International Herald Review, 2003).

The strategies adopted by the RIAA and peer-to-peer file-sharers documented in the press and music-related Web sites are examples of how an emerging use is categorized as deviant, and are used here to explore the ways in which power feuds are held at a discursive level. In doing so, the work of Michel Foucault is of particular relevance, not only because he is one of the most influential post-war thinkers (Boyle, 1997; Clegg, 1989; Giddens, 2001; Hindess, 1996) but because his work on disciplinary power, unlike other conceptualizations of power focused on sovereignty, evaluates how power is created and promoted at a discursive level. That is, where sovereign power is coercive and repressive, disciplinary power constructs the subjectivity necessary for power to operate in. Through the production of discourses, disciplinary power generates distinctions between the norm and the deviant, and imposes “a law of truth on him which he must recognize and which others have to recognize in him” (Foucault, 1982: 212). When assessing nascent technologies and their accompanying cultural disturbances (Innis, 1991) the appeal of Foucault's work is centered on the productive nature of power as a producer of discourses that can be used to enhance disturbances or obfuscate them.

It is in this spirit that this paper aims to provide an overview of the RIAA's struggle to restrict the use of peer-to-peer file-sharing systems through its crusade to label such behavior as deviant. In order to achieve this aim Foucault's work is borrowed to analyze changes in discourse and practices surrounding the free exchange of music through peer-to-peer file-sharing systems since 1998 to March, 2004.

Background: The Internet as a Free-est of Spaces?

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

Digital libertarianism and the Californian Ideology have come to depict a very optimistic picture of the Internet as a source of unlimited freedom. The populist ‘everything goes’ appeal of the Net is grounded on its packet-switching architecture and its inherent resilience against any attempts to regulate it (Boyle, 1997; Jordan, 1999). Accordingly the Web has been described as a space of unlimited freedom (Jordan, 1999), a grid of free experimentation (Turkle, 1995) and an atmosphere of no barriers and restrictions (Lanier, 1990). These utopian visions, somewhat prevalent in cyber-cultural studies, are documented by Kevin Robins (in Featherstone and Burrows, 1995) in his discussion of cyberspace and the world we live in. His review covers a wide range of theoretical propositions studying cyberspace in terms of utopia: a place to escape the constraints of a physical reality and explore more satisfying ways of being.

The Californian Ideologues, enthused by their libertarian and free market economy principles in particular, have heralded the Internet as a source of a more egalitarian distribution of power. However, the initial hype over the Internet as a source of freedom has come under scrutiny. Californian Ideologues have been criticized for internal inconsistencies (Barbrook & Cameron, 1997; Millarch, 1998) in their discourse, as well as the environmental degradation, poverty and racism that accompanies the philosophy of the Bay area (Barbrook & Cameron, 1997). Likewise, cyber-culture observers proclaiming the Web as the space of ultimate freedom have been accused of preferring myths constructed around its potential rather than its place in the real world (Robins in Featherstone & Burrows, 1995). The view of the Internet as a virtual world that promises to cure all maladies by allowing “anyone, anywhere [to] express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity” (Barlow, 1996, p. 1) is sustaining a discourse that seeks independence from the regulatory apparatus of the offline world. In doing so, there is an assumption that the online world is autonomous from the real world and its architecture immune to any type of control; however, businesses providing the software and network through which end-users engage with Internet content provide a necessary middle-layer through which control can be exerted. For example, Internet Service Providers (ISPs) can be asked to block certain types of materials from being accessed and formats can be watermarked in order to restrict their usage.

Interestingly enough, the freedom that originally permeated online life, according to some (Jordan, 1999; Lessig, 2004), is not being curtailed by governments but by the actions of corporate interests seeking to defend their business models and profit margins. Here, Lessig's (2004) pessimism points towards the collusion of businesses against online freedoms. A successful co-optation of the Web therefore demands the legitimization of those behaviors that abide to corporate discourses. Consequently, entrenched old economy businesses lobby for the implementation of legislation that prevents the ‘mis-use’ of technology and consolidates their control of content and intellectual copyright. In extending its web of domination, Lessig (2004) argues that copyright, especially, has become a tool through which corporations indefinitely extend their control of the market. McCourt and Burkart (2003), in their assessment of the Napster (first generation peer-to-peer file-sharing system) ruling, illustrate the sudden corrosion of consumer and creator empowerment. They explain that the initial emancipation of end-users from existing structures of domination controlling the content and distribution of music facilitated by new communication technologies could ultimately benefit the status quo. McCourt and Burkart's (2003) acceptance of the RIAA's victory over Napster could be indicative of a demise of the free exchange ethos of the Internet and rise of a tightly monitored commercialization of music. They conclude that the pursuit of the Napster case was not a response to falling profitability due to piracy, but instead a successful counter-strategy to relieve anti-trust pressures while legally securing the Internet as an alternative distribution channel (McCourt and Burkart, 2003).

Foucault's ideas on disciplinary power and resistance are now reviewed in order to aid in the analysis of existing power struggles between corporate interests and online “music pirates”.

Foucault's Disciplinary Power, Deviance & Resistance

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

Power

Foucault's emphasis on the micro-politics of power represents a substantial contribution to social analysis. Unlike previous treatises on power based on sovereignty and legitimacy, Foucault's work obliterates coercive and repressive tactics of sovereign power over those who are subject to it, to unveil the nature of power as a force that constructs subjectivities through which a discursive regime can operate (Stewart, 2001). The appeal of Foucault's notion of disciplinary power is widespread. His work has been particularly well received by information systems and cyberculture researchers, who have taken his ideas on disciplinary power to understand new information technologies as either tools of empowerment or domination (Beresford, 2003; Boyle, 1997; Green, 1999; Jones, 2000; Jordan, 1999; Poster, 1990; Zuboff, 1988). In a recent paper, Beresford (2003) applied Foucault's theory of governance to develop strategies for fraud deterrence and suggests that a Foucauldian “model can enable (action) through relations and construct a network of knowledge” (Beresford, 2003, p. 101) through which fraudulent information can better be recognized. Likewise, Boyle's (1997) work on surveillance, sovereignty and hard-wired censors is loosely framed by Foucauldian theory, and concludes, despite the Net's catechism of freedom, that online life can be regulated and dominated. Poster (1990) writes of a superpanopticon and Zuboff (1988) of an information panopticon. According to Jones (2000, p. 680) these ideas “suggest that new technologies of power are not stable but are mutating and allowing new forms of social control.” Other applications conceive the Net as a space to resist domination through reflexive and creative practices. Jordan (1999) for instance, suggests that any attempts to impose conditions on the Web will be met with creative and imagined ways to power. These research veins illustrate one of Foucault's most interesting contributions to the understanding of online environments, his conceptualization of disciplinary power.

In this way, Foucault taps into the micro-politics of power where behavior is not moderated by internal standards, but by an internalization of an external discourse. Discourses are relatively well-bounded areas of social knowledge that McHoul and Grace (1993, p. 34) explain are “material conditions (or set of conditions)” enabling and constraining “the social productive imagination.” To explain how internalization of discourses takes place, Foucault borrowed Jeremy Bentham's Panopticon. The panopticon is a prison structure where a guard, strategically located at its centre could police inmates' behaviors, but who in turn could not be seen. The threat of the guard's gaze would eventually condition prisoners to auto-regulate their own behavior, leading to their successful disciplining. Disciplinary power therefore results in producing norms of behavior to which individuals adhere and become an accessory in their own control (Foucault, 1977). Disciplinary power machinates through the production of systems of knowledge which bound truth and through it, the potential field of action of a free agent.

In Subject and Power, Foucault (1982) explains that power equates to the modification of action by action. This being so, power is designated with a creative function in structuring the field of possible actions of free agents. Hindess (1996, p. 113) describes this type of power as a provider of skills and attributes that free agents need in order to exert control over their actions. Foucault highlights this when defining truth as a type of discourse that promotes a function as true and the means by which true and false statements are sanctioned. This productive quality makes power a creative force that produces discourses establishing a truth dictating acceptable norms of behavior. On power, Foucault writes:

“What makes power hold good, what makes it accepted, is simply the fact that is doesn't only weigh on us as a force that says no; it also traverses and produces things, it induces pleasure, forms knowledge, produces discourse” (Foucault in Favbian, 1994, p. 120)

Deviance

Power relations operate through discourses and cannot be separated from the actual exercise of power. Discourses cannot be neutral as they seek to make divisions between the normal and the deviant, the acceptable and unacceptable. For example, the medical discourse establishes clear boundaries between healthy, normal bodies and those who suffer anomalies and deviate from the norm. Constructing a discourse that promotes a truth therefore constitutes an act of power, and in keeping with contemporary approaches to deviance, reveals the idiosyncrasies of elites promoting their own interests. A common definition of deviance provided by Giddens (2001) illustrates the intimate relationship between power and the labeling of deviancy. Deviance is a non-conformance to a given set of norms that are accepted by a significant number of people in a community or a society. By this token there is an underlying question of who defines what deviance is, and with this, the potential that those in positions of authority and power will inevitably direct the labeling process.

Aggleton, in his historical study of deviance (1987, p. 9), suggests that “the process of being labeled deviant is one that involves the use of power.” In this way, labeling emerging behaviors as deviant is intimately interwoven with the agendas of those in whose best interest it is to define them as deviant, and whose expectations and norms are being taken into consideration. In this particular case a discourse that defines the free exchange of music file-sharing as non-deviant could ensure the longevity of consumer freedoms and powers online, whereas one that advocates offline norms would catalogue this behavior as deviant, and would restrict existing freedoms.

Resistance

Since power is not a thing to be possessed by an all powerful elite but rather flow across all agents, it has no central point of authority. Additionally, power, Foucault (in Favbian, 1994, p. 324) argues, is met by a “potential threat of a revolt”. The potential of revolt speaks of the inherent resistance that is necessary for power relations to take place. For Hindess (1996, p. 101), Foucault's conceptualization of power thrives on resistance, writing that “where there is no possibility of resistance there can be no relations of power.” Resistance as a by-product of power results from the normalizing effect of disciplinary power. In Discipline and Punish, Foucault (1977) explains that it is establishing the norm that bestows the deviant with more individuality than the normal and non-delinquent. We could suggest fractures in discursive action allow for diverging practices within the field. Resistance, therefore, is embedded in power relations and this allows for emerging, innovative practices within the field that aid the subject in its quest for autonomy (Foucault, 1982). Inherent resistance may provoke modifications to techniques of power used, and these in turn spark new forms of resistance (Hindess on Foucault, 2001). In our study of power relations between the RIAA and online “music pirates” the struggle will be held at a discursive level over the labeling of emerging behaviors. The scenario for the dispute is framed by a conflicting and unstable situation, where a number of discourses are in conflict over what an emerging behavior on the Web should be labeled.

The Web as an Emerging Social Domain and Fertile Ground for Power Struggles

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

When assessing self-presentation and social boundaries on the Web, Wynn and Katz (1997) argue that the Internet can very well be considered a new social domain, where prior conventions typical of an offline social domain have not been worked out. Their assessment is of importance because it suggests that a clear distinction between norm and deviance is absent. The lack of definition amplifies potential disturbances to existing structures of power as it hijacks this nebula-like state to consolidate new-found freedoms. This window of opportunity has been fostering, since the eighties, emerging practices in Internet enclaves (hacker communities; active online groups) and legions of Internet file-shares, a free-exchange discourse. An example of this was Americans' dismissive attitudes towards copyright material amid a torrent of media coverage and legal cases aimed at educating the public about the threat of file-sharing (Pew Report, 2003). Resilience to accept offline discourses promoting corporate points of view was captured in a Gallop Poll indicating that 83 percent of teens found that downloading free music from the Net was morally acceptable (“Majority of youth understand ‘copyright’, but many continue to download illegally,”PRNewswire.com, 2004, May 18). An apparent RIAA victory announcing the diminishing traffic to popular file-sharing services Kazaa, Grokster, BearShare and WinMx, was disputed by other findings which, rather than a decrease, noted an increase of 35% in illegal traffic from 2002-2003 (“Did big music really sink the pirates?”, BusinessWeek Online, 2004, January 16). Added to massive migrations from older programs to the newer eDonkey and Torrent, these victories give momentum to suggestions that “with music file sharing you have a cultural norm that is established by what is technically possible” (Weitzner cited in “Whatever will be, will be free on the Internet,”The New York Times, 2003, September 14).

A cultural norm within the confinements of the online is subject to the challenge of offline, established discourses, inasmuch as it believes its myth of autonomy from the real. The criticisms made to the optimistic advocates of digital libertarianism advances an uncertain future for file-sharers, since it suggests that the longevity of their newfound freedoms is subject to their offline acknowledgment. The struggle will be the transference of an online discourse promoting the existing practices as normal, acceptable behavior to offline, real scenarios. Through a Foucauldian lens, this discourse has gained the status of truth, but by its own equation is open to a contesting discourse. Foucault (1976, p. 101) posits that “we must make allowance for the complex and unstable powers whereby discourse can be both an instrument and an effect of power, but also a hindrance for an opposing strategy.” Given the perceived divide between the real and online worlds, a dichotomy-like power struggle emerges, where an online ‘truth’ is contested by offline systems of knowledge, and offline truths are challenged by online truths. Of significance, this difference would come to mean that online, some offline truths would be a hindrance, and as such their agents could resist the dominant online discourse by engaging in creative behaviors. Likewise, in a strictly Foucauldian (1988) sense, traversing offline producer-lead discourses with innovative and creative actions leads to consumers' autonomy.

The multiple online groups inhabiting the Web further fragment discursive action as they arguably introduce multiple dimensions in which truths can be produced. This is supported by the various norms and structures being developed at intra-group levels. Albeit there being questions over the normalization of all online life at a macro level, there is some support for the existence of small fields of action where norms are operating. Reid's (1999) introduction to her Hierarchy and Power: Social Control in Cyberspace notes that “the failure of the ideal of complete freedom in cyberspace was an early phenomenon.” In her study of four MUDs Reid (1999) found that there is redefinition of social inhibitions. Inhibitions in this environment presented the group with the challenge of establishing norms which according to the author have resulted in a different set of conventions than those we live offline. From here we could speculate that truths structuring a field of action, where the deviant and the norm are identified, acquire a multi-dimensional facet. The parameters of acceptable and unacceptable behaviors could resemble offline codes of conduct, but on the other hand, they could be enabling the establishment of different societal structures.

Despite this apparent level of fragmentation, and in-keeping with Foucault's ideas on power, it is presumed that in their strategies to define the playing field of action, both producers and consumers will draw on similar techniques to shift the balance of power. There follows an analysis of disciplinary power through discourse imposition and the creative strategies to resist and to traverse a field of possible action instituted by a given truth.

Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

How should society, and the law, best define their action? Were they just browsers, harmless intellectual explorers? Were they voyeurs…? Should they be sternly treated as potential agents of espionage, or perhaps as industrial spies? Or were they best defined as trespassers, a very common teenage misdemeanor? Was hacking theft or service? (Stearling, 1995, p. 58)

However contrived or unrealistic, discourses of ‘liberation’, so apparent in the utopian visions of cyberspace, could be considered the muscle behind Innis' cultural disturbances (1991). It is the presumed ethos of the Net as something that disturbs offline hierarchies that allows individuals to engage in innovative and creative practices that is at the forefront of the peer-to-peer file-sharing debate. The importance of protecting these ‘new-found freedoms’ is reflected in the Electronic Frontier Foundation (EFF) and 21 other consumer and privacy groups' pledge to defend consumers' privacy online. In their struggle they have sided with ISPs like Charter Communications and Verizon to ensure that the RIAA cannot enforce non-judicial subpoenas and follow due process. In addition to this there are approximately 120 Web sites denouncing the RIAA's legal actions against peer-to-peer file-sharers through the Stop the RIAA Coalition.

Consistent with Chalaby's (2002) assessment of new media, new threats and new freedoms, the conflict of interests between business conglomerates and consumers who engage in file-sharing is instrumental to defining what is normal and acceptable behavior on the Web, and what is not. Thus, as a ‘shield of freedom’ the Internet will witness, according to Jordan (1999), a series of battles between elites and grassroots. In this struggle, the rhetoric of digital libertarianism can embrace both the power of an elite increasingly interested in controlling online life and the individual's liberty to circumvent those attempts. Jordan's (1999) proposition appears to embrace common criticisms towards digital libertarianism as a smokescreen through which an elite can operate and its alleged blindness towards the consequences of private and state power on the Net. For Jordan (1999), elites will seek to establish ways to control online life, but will be met with users “who will find power to act in new and unimagined ways” (p. 217). Very much in a Foucauldian fashion, Jordan (1999) sees cyberpower as a metaphor for an actor's ability to engage in creative behaviors to rebel against structures of domination. However, and unlike the overly optimistic declaration of independence of cyberspace proclaimed by Barlow (1996), for Jordan cyberspace is a space of struggle. In this struggle the protection and normalization of emerging behavior has latched onto discourses promoting freedom of speech and privacy while those seeking to condemn these behaviors as deviant bolt onto copyright legislation and offline comparisons (e.g. the RIAA advocates that downloading is an unethical form of theft).

Why the Web has become such a fertile ground for power struggles is enhanced not only by its instrumental role in upholding conflicts of interests between elites of power and enclaves of resistance, but perhaps because its diffusion required a ‘regulation free’ environment in order to thrive, allowing for the ‘everything goes’ spirit to permeate online life. Indicative of this is the more than 60 organizations dedicated to the defense of privacy and freedom online (see Table 1). The content of these Web sites is varied. Some document legislative action affecting free speech (e.g. First Amendment Cyber-Tribune, Internet Free Expression Alliance) and privacy issues (e.g. Electronic Privacy Information), others are a combination of public discussions and impassionate speeches advocating for a free Internet (e.g. Global Internet Liberty Campaign, Computer Privacy Digest) while some encourage end-users to persevere in their practices by providing the know-how for ‘safe surfing’ (e.g. the anonymizer, Encryption Policy Resource Page, Freenet, Privacy.net).

Table 1.  Organizations devoted to the defense of freedom and privacy online.
American Civil Liberties Union Advocates for Self-Government Benton Foundation Communications Electronic Frontier Foundation Electronic Privacy Information Free market.net The Freedom Network Future of Freedom Foundation Global Internet Liberty Campaign Internet Free Expression Alliance Internet Democracy Voters Telecommunication Watch First Amendment-Cyber Tribune Spotlight on Privacy Online Computer Professionals for Social Responsibility Center for Democracy and Technology (CDT) Chilling Effects Clearinghouse Computers and Academic Freedom Cryptome. Org Freenet Crypto Rights. Org Cyber-Rights Computer Privacy Digest Banned Books On-Line PeaceFireCypherpunks Digital Future Coalition
Encryption Privacy Information Center Encryption Policy Resource Page Free Software GNU/Linux resource page OpenSource.org NetAction.org NetCaucus The Net censorship Dilemma The anonymizer CensorScan Logic: The Legal Group for Internet in Canada Declan McCullagh's Fight against Censorship mailing list archive Electronic Frontiers Canada Students Association for Freedom of Expression Canadian Civil Liberties Association Alcei Electronic Frontiers Italy Citizens Internet Empowerment Coalition Electronic Frontier Ireland Privacy.net Banned Books Week Families Against Internet Censorship Electronic Frontier Norway Electronic Frontiers Houston
Electronic Frontiers New Hampshire Electronic Frontier Foundation Gopher eTrust ARGE DATEN Austrian Society for Privacy and Data Protection Privacy International Twighlight Man Society Target Cyberspace Boston Coalition for Freedom of Expression Freedom Forum Canadian Association for Free Expression Californians Against Censorship Together Feminists for Free Expression National Coalition against Censorship Electronic Privacy Information Cyber-Rights & Cyber Freedom Cyber Rights Net Eurolinx.org GreenNet Privacy Rights Clearinghouse Censorship and Intellectual Freedom Page

Power struggles have a discursive form. Contesting efforts and strategies deployed between end-users and producers can be explained through a tug-of-war metaphor (see Figure 1). A presumably dominant online everything goes ethos driving existing behaviors is being disputed by an offline discourse seeking to protect incumbent business models and profit margins. The discourse would come to represent the rope and both end-users and producers would exert pressure in order to guarantee the prevalence of interests advocated over those advanced by an opposing force. Resources and strategies would be used in order to ensure that a discourse to be internalized would be one that promotes the agendas and interests of a given faction. The RIAA's saga to sink the online “music pirates” therefore very much depends on the degree to which they are able to establish successfully a discourse that recognizes and treats peer-to-peer file-sharers freely exchanging music online as deviant. Their saga also asks similar questions to those made by Stearling (1995) when he wonders how hackers should be labeled. Their struggle is one over definition.

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Figure 1. Contesting efforts and strategies deployed between end-users and producers.

Download figure to PowerPoint

Since 1998 much of the discursive elaboration has taken place in a legal arena. Like the metamorphosis suffered by hackers in the 1980s-1990s from heroic champions of freedom to information terrorists (Reed, 2002), it is legislation that supports the mechanisms of control and disciplinary measures needed to act upon actions. Reed (2002) explains that it was when corporate elites, seeking to protect their profits and business models, lobbied for legislative action to condemn hackers' activities that the necessary means were instituted to curtail such behaviors. With the normalization of a discourse that makes of the hacker a deviant to be disciplined, the legislative apparatus facilitated the necessary legitimacy to act upon those whose behaviors were deemed unacceptable by the discourse sustained. As a result, fees for network access were increased and the surveillance of computer use by employees institutionalized. On the other hand consumers' everything goes discourse promotes an unrestricted freedom to behave opportunistically and possibly in ways that would appear deviant if measured by offline norms. However, corporate elites are reluctant to accept that discourse, and have turned to judicial vehicles to curtail these emerging practices based on offline rules. In the real world, by analogy, file-sharing is a form of theft and copyright violation. It falls within the realms of a truth that, from a Foucauldian outlook, possesses the mechanisms to curb such actions.

Disciplining Online “Music Pirates”

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

The digital immateriality of the ‘object’ of theft, coupled with the fact that in most cases, exchange of copies takes place without direct financial gain, has stretched the potential field of action established by that regime of truth. In effect, the Digital Millennium Copyright Act (DMCA) enacted in 1998 invigorates that truth by conferring it with the flexibility required to protect copyright in the digital world (Heidmiller, 2002). Titles 1 and 2 of the DMCA promote a discourse that seeks to castigate emerging behaviors such as circumventing measures to protect copyright material and the banning of tools and technologies supporting such behavior. The DMCA is a landmark of significance since, like the metamorphosis suffered by hackers in the nineties, file-sharers, downloaders and online music fans traverse a field of action, becoming deviant of newly established parameters of normal, acceptable behavior. As such this discourse delineated a field of action where behaviors previously unlabeled were subject to disciplinary power. Sanctions to punish existing behaviors were created through the No Electronic Theft Law (NET Act) setting forth the criminal prosecution of such behavior by punishing infringers with 3 years in prison and/or $250,000 in fines.

A working document by the EFF (2003) discusses the unintended consequences of the DMCA. They cite free expression, scientific research, fair use, competition and innovation as public policy priorities that are in conflict with the DMCA. Other voices of discontent illuminate the power-discourse interchange discussed by Foucault. If power comprises a set of instruments, procedures and applications that guide the actions of a free subject (Foucault, 1994), then lobbying activities driven by big business defining the digital playing field come to expose the agendas of those driving the labeling process. The opposition, by exposing the agents behind labeling processes, denounce the structures of domination and in doing so take an active stance in opposing that discourse. Until now, a tug-of-war-like struggle can be discerned in directives and legislation regarding online behavior, some in favor of producers, and others in favor of consumers. For instance, a research publication by the Berkham Center for Internet & Society at Harvard Law School and Gartner G2 (2003) referred to the irregular application of the DMCA and its inherent lack of consistency over issues such as fair use. Together with breaches of right of privacy and anonymous expression and the fair use argument, this is usually cited as a flaw in this piece of legislation.

Napster, a search engine connecting file sharers to a huge library of music in MP3 format, was launched on the Internet in August, 1999. By January, 2001 Napster had been catalogued as a music piracy service. The case against Napster became a landmark in the development of a field of action seeking to constrain certain behaviors. In suing Napster for contributory copyright infringement and vicarious liability, the Record Industry sought to label the act of music sharing online as deviant. At a discursive level the mechanisms and techniques established through the pursuance of this case strengthened the DMCA. With a newly acquired legitimacy offline, the DMCA has been used to prosecute other online applications providing the means for end-users to engage in their activities (e.g. A&M Records v. Napster, 2001; In re Aimster Copyright Litigation, 2003; MGM v. Grokster (Kazaa, Morpehous and Grokster)). These legal cases as well as high profile campaigns to educate end-users about the evils of online music sharing can be catalogued as methods to discipline online “music pirates.” However, as disciplinary devices they failed at generating a truth acknowledged as such, weakening the exercise of power. Points of resistance inherent to power relations were manifested in creative ways of transgressing the constraints implanted by offline norms. For example, when Audiogalaxy, a popular file-sharing system, capitulated to the demands of the RIAA, community members migrated to other applications like WinMx and Kazaa. In 2003 files provided through Kazaa had been downloaded 229,363,307 times (“Kazaa set to break download record,”The Inquirer.net, 2003, May 23). In the U.S. alone, research conducted by The NPD Group found that about two-thirds (64 percent) of all households with Internet access had at least one digital music file on their hard drives (Greenspan, 2003).

The emergence of more de-centralized systems negated the field of action enunciated by the DMCA. By working outside the jurisdiction of US authority (e.g. Sharman Networks, owners of Kazaa, are set up in the South Pacific) and by being supported upon architectures where shutdown is only possible through the removal of each user connected to the network, these newer applications were more impervious to legal action. The inbuilt effects of resistance to power are evidenced in the DMCA; its diverse readings and the development of technologies that seek to escape the constraints of the field established have proven resilient points of resistance, under continual mutation. Online applications facilitating the exchange of MP3 files have been fairly successful in maintaining the subsistence of their practices. A US federal court established that software cannot be liable for copyright infringements facilitated by it. Likewise, the Motion Picture Association of America (MPAA) versus Grokster and Streamcast case held that pure file-sharing systems were not responsible for its users' activities. In an attempt to reverse this ruling, a new legislative assault on peer-to-peer file-sharing is seeking to label facilitators of such behavior guilty of deceptive trade. A draft letter to US state attorneys general argues that peer-to-peer software developers and distributors fail at warning consumers of the perils of such applications, such as the risk of contracting viruses, copyright infringement suits and access to pornography by underage users (“U.S. states weigh warning to file-trading networks,”Forbes, 2004, March 15). It is the struggle to redefine the fields constraining or allowing online activities that reveals the volatility of discourse formation. The interplay among dominant and resisting discourses results in the emergence of new ways to exercise power and, therefore, new ways to resist.

For example, the effects of labeling the exchange of free music through peer-to-peer software have surfaced online. This event is of importance as it reveals the working of a discourse seeking to normalize online life. Unlike previous applications like Napster and Audiogalaxy where no reference was made to the illegality of the activity, many peer-to-peer sites are making explicit allusions to copyright infringement. Power Web Music reminds users that they “can only download an MP3 if you own the artist's CD, we do not support illegal MP3 downloading;” eDonkey advises end users to use their software “for requesting copyright protected files”; a disclaimer on Webnap reads; “this Website is merely intended to be a demonstration of technology, NOT a means of downloading illegal MP3's. ABUSE IT AT YOUR OWN RISK! We are only responsible for our code, NOT for the traffic passing through these pages due to you, the user.” Although this could come to represent a victory over defining online practices as deviant, this act also allows for diverging practices in the field to develop by recognizing them as such.

Discipline was also directed towards end-users. On the 21st of January, 2003, a federal judge using a controversial subpoena provision introduced by the DMCA ordered Verizon Communications to disclose the identity of a Kazaa subscriber who had allegedly shared hundreds of music recordings. In July, 2003, the RIAA had won at least 871 federal subpoenas to force some of the largest ISPs like Verizon and ComCast Cable Communications to reveal the identities of alleged infringers. The contest over the definition of behaviors has been systematically challenged by ISPs and civil rights advocates who noted the inconsistencies between the DMCA and freedoms defended by other legislations such as the First and Fourth Amendment and the Privacy Act. For example, when forced to reveal the names of subscribers in April, 2003, Verizon claimed that the DMCA conflicted with First Amendment protections with regards to anonymous expression. However, a federal judge rejected this challenge on the basis that “the first Amendment does not protect copyright infringement… Nor is this an instance where the anonymity of an Internet user merits free speech and privacy protections” (District Court Opinion cited in the RIAA's Website, 2003). The contestation between discourses seeking to define the field of action is reminiscent of Foucault's analysis of a multiple murder. Like the case of Pierre Riviere (Foucault, 1978), where the nature of the crime is undefined (a multiple murder) and various discourses seeking to castigate the offender came into conflict, the means to constrain emerging behaviors online is also muddled.

The lack of definition and mutability in the discourse presents opportunities to constrain or widen the potential field of action of free agents. Evidence of this is when a Circuit Court of Appeals overruled a District Court rejection of Verizon's interpretation of the DMCA subpoena provision ordering the disclosure of a subscriber's identity. Losing the drive thru subpoena provision ‘granted’ by the DMCA constrains the punishing capacity of the RIAA, by making the process more cumbersome and expensive. Added to this is the limited success of the amnesty provided to online “music pirates” by the RIAA's Clean Slate program, with only 1,054 file-sharers confessing their illegal practices. As far as discourses exercised through legislative action go, it is difficult to assess, given the architecture of the Internet, how a discourse that is based on authority will be enforced. If discourses will be executed through judicial vehicles, there is the question of inconsistency among nations in their legislation. Difficulties in assessing what laws apply in a given country have been noted in a piece of research carried out by Zugelder, Flaherty and Johnson (2000) that compared and contrasted existing Internet regulations in various countries. These hindrances to the disciplining capacity of the RIAA have in turn provoked modifications to the techniques of power used. These techniques, under the auspices of a discourse that promotes producers' interests, seek to configure the field of action by physically impeding certain actions and harboring others. In turn, pockets of resistance have sprung up in order to safeguard existing freedoms online.

Hacking and Watermarking: Some Creative Practices to Resist

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

The dichotomy-like power struggle confers both producers and consumers with dual roles. To online discourses of freedom, producers come to represent pockets of resistance, deviants attempting to corrode the cultural and technological principles of freedom embedded in the Internet, where users and not corporate interests can decide what can and cannot be done. On the other hand, the free exchange of music online by “music pirates” contests offline discourses upholding the rights of the copyright holder. Both music sharers and producers are engaging in strategies to contest opposing discourses and shift the balance of power; the first find the adoption of encryption applications and methods to mask their identities useful tools to resist offline, disciplinary action. The latter too find in technological applications avenues to hinder existing practices. A reversibility of discourses presents a complex scenario when evaluating the transgression of fields of action. The reversibility in discursive action is evident in online communications opposing existing attempts to discipline their activities. A posting on the general board in Boycott-Riaa read:1

DontpayRIAASubject: Re: Re: “Downloading illegal?”“Yes and no” -RIAA Date: December 28, 2003 @ 12:21 AM im [sic] a downloader and im [sic] proud of it. People say were theives [sic].We're not thieves, the riaa is, their [sic] the ones with their hands in your pockets. We're revolutionaries, leaders, who want to purify the music thats [sic] been poisoned and corrupted by corporate america the last long while. I respect musicians not the riaa.

In addition to this is the fragmentation in discourses guiding deviant behavior within specific online groups. It could be argued that the varying methods used by various online groups to traverse the field of action set by an offline truth are embraced by a common macro discourse. That is, given the nature of online groups where specific norms of behavior are established within communities (Baym in Jones, 1995) it would seem feasible to purport that a dominant truth accepted by groups resisting offline discourse would encourage diverging representations of such within enclaves of resistance. When comparing online piracy subculture with Boycott-RIAA, an online community seeking to promote end-user rights over privacy, speech and fairer trading conditions, these differences are crystallized. For example, an ethnographic study by Cooper and Harrison (2001) provides a detailed account of the complexities in hierarchical structures and norms regulating online piracy groups. Respecting the rules and norms is pivotal for the longevity of their practices, pirating music. The truth imposed embraces any activity consonant with the pirating of music. Expectedly, any attempt to undermine this goal is punishable. For example the authors' reference to the obstruction of data as a moment of conflict is resolved through “striking back at the enemy and/or working things out peacefully to arrive at a truce” (Cooper & Harrison, 2001, p. 86).

As an enclave of resistance, Boycott-RIAA's hierarchical structures (Kozinets, 1999) and norms regulating group members' behavior operates within a discourse seeking to oppose offline discourses and are necessary for the exercise of power. Experienced and devoted members running the community are active in keeping community members aware of developments in the labeling process and the opposition's strategies to curtail their practices. To achieve this Boycott-RIAA offers an extensive archive of relevant news that is then used to brainstorm strategies to resist. For instance, an article on how Congress had quietly killed two cutting-edge computer projects designed to preserve the privacy of Americans is thoroughly discussed by many community members. In addition, by discussing legal action against file-sharers, sophisticated counterarguments and means to circumvent legal action are disclosed. Community resources are invested in empowering members to traverse the field of action established by an online truth by informing others of ways in which they can persevere with their existing practices. Activities to undermine the RIAA are orchestrated through forum discussions and news commentary. For example, community members disseminate relevant information as to which peer-to-peer file-sharing system is the safest:

DarkhorseXDon't use spam-ware infected p2p. ex. (Kazaa, Imesh, Piolet networks, morpheus, bearshare, limewire, XoloX, etc. Any amount adware spyware is too much, to even consider it. klite, ES5, WinMX, Freenet I give a clean bill of health on. Ps. There are some good things produced by Riaa labels, but they're still not getting a single red DAMN cent from me.
goldenpiSubject: Re: SAFEST P2P TO USE?? Date: December 31, 2003 @ 7:56 AM Of course there are no monitors on ES5. there are no users to monitor.
nycgothSubject: Re: SAFEST P2P TO USE?? Date: December 31, 2003 @ 2:07 PM Use a P2P that isn't very common. Like Ares. One you've never heard of before. And get PeerGuardian also. What not to use: edonkey emule Gnutella morpheus Kazaa

They consider technological solutions to continue with existing activities:

BSHrootSubject: Re: Fight the RIAA! Date: November 30, 2003 @ 9:12 PM I've got this simple idea and i am going to spread it…, i don't know enough about linux but i know one thing the networks they use to get these ip addresses (for sueing [sic] people) are susceptible to attack (flooding etc.) why not make a program that people can download that bombs the mpaa and riaa networks and a list is distributed to these machines perhaps the program could be shared via the filesharing networks… even if only a few thousend [sic] users used a program like this their plan would come to a grinding halt ….

Most importantly many of the postings discuss other more viable and just alternatives to acquire music online:

tleTubaJohnSubject: Re: Fight the RIAA! Date: November 30, 2003 @ 9:12 PM What about this solution…Have RIAA buy Kazaa and Kazaa Lite, and so the money that Kazaa collects in pop up advertisements, and the service fees associated with Kazaa Lite would go to the RIAA. This way the RIAA gets their money, we still get the music and nobody gets sued. Yes the artists still get screwed, but they should ban together and fight the RIAA anyway.
LarsIsMyBitchSubject: Re: I am a pirate. Date: November 30, 2003 @ 9:12 PM Wow. You brought even me out of hibernation. The problem with your concept is that the RIAA cannot do ANYTHING to please you; you don't belong to any collective bargaining table. They could offer good music at reasonable prices. That'd be good enough for me. They could offer truly talented indies that are truly struggling, and you'd copy off them. I'd love to see the day where I can buy an album by downloading it, pay for it with BillPay or PayPal, and save the cost that the record company would have spent making it “convenient” on a CD. That's the big difference between you and me. No matter what they do for you, you will always illegally copy, if only to brag that you copy illegally. Oooh… you're a real GANGSTA. A regular OG, dog!
Karen00Subject: Re: Fight the RIAA! Date: November 30, 2003 @ 9:12 PM Petition's a nice thought but I don't think I'm signing it because I don't agree with the arguments. I don't want p2p networks shut down because I like getting free music, and I think the RIAA is shit and that the record companies are greedy but I don't think all artists are greedy, and I don't think music should just be free, altogether… I think something has to be done, compromises need to be made and the RIAA certainly doesn't look like it wants to give up one inch and would rather cover up their own greed and robbery with cries of copyright infringement and piracy. But they are right, we are stealing, justly so or not, and the law is on their side. That petition makes the undersigned look like a bunch of ignorant fools, and it's useless anyway. I don't think we can say, “You guys are rich, so let us have music for free, you big greedy devils”… Sure they're fat cigar smoking millionaires [sic], but that is so not the point, even if it is, do they care? No!! I strongly agree with the arguments on this Website but the petition, honestly, is crap and doesn't at all reflect what I believe.

Community members are encouraged to engage in intelligent discussions over the music of peer-to-peer file-sharing and music but dissuaded to engage in flame wars. The following posting illustrates this:

RON-JEREMYSubject: Re: SAFEST P2P TO USE?? Date: November 30, 2003 @ 9:12 PM OldSchool, the reason this site is falling apart is because of narrow minded, clique-ish flamers like you. if you really DID care about the movement, YOU would care about my, or anybody else's leaving because frankly, we could use all the minds (and ideas) we can gather. and if you had bothered to READ what i have written above you would see that i am, in fact, NOT leaving boycott…just pursuing other venues. nor have i uttered a single derrogatory [sic] word about this site or any of it's [sic] Ýmembers. until now, of course. if the simple fact that i value code's input and wit makes you want to “put your dukes up” be warned, i am more than capable of handling someone who posts one sentance [sic] at a time. but i digress. in short, forgive me all for this minor flame but oldschool, you had it coming. get over yourself. Peace, love, and a second helping to all…(even you oldschool) ~RON-JEREMY
DaveyjonesSubject: Re: Fight the RIAA! Date: November 30, 2003 @ 9:12 PM I am a pirate, my name is davey jones, there are millions more pirates like me, i do not hate the RIAA nor any other entity or company that is trying to protect its self from the on coming destruction they now face, i will not hold it against these people that they are trying to protect their jobs and lively hood [sic] so that they may put food on their tables and feed their familes [sic], yet i am a pirate and i will never the less contiune my piracy. i am not a hypocrit, i can see just as clearly as the next man, if we pirates continue to pirate as we are (arrrrg!) there will be no more major labels…
kneo24Subject: Re: Fight the RIAA! Date: November 30, 2003 @ 9:12 PM You remind me of threetrollscore. I guess you'll change user names again once you get your ass kicked on this one as well. It really is just a waste of your time.

Their discourse is used to question existing trading conditions and advocates not necessarily the free exchange of music but rather a fairer means of distributing it. References to consumers' right for reasonable prices, accessible distribution channels and a system that rewards music talent are prevalent on online discussions, the press and academic research. For example, during the shutdown of Audiogalaxy a community member questioned the quality of music endorsed by the RIAA, arguing that “there are a lot of cds not worth buying. Worth downloading and burning perhaps, but can you see paying $20 for some of this garbage“? (cujoe76, 2002). A consumer manifesto posted on the Boycott-Riaa Website mirrors this sentiment when it states:

LarsIsMyBitchSubject: 10 reasons why consumers file-share (or DUH, RIAA!) Date: November 30, 2003 @ 9:12 The RIAA has overcharged us, denied it, and then admitted it only when cornered. Exactly WHO is ripping off WHOM? They claim to embrace technology, yet using technology to hamper and prevent the customer's enjoyment. The customer revolts, the RIAA brands them as theives and pirates, and tries to enact laws to punish such people. It's incredibly ingenious, but you didn't quite outsmart all of us. If the RIAA busts ONE person for wrondoing, I will never buy another CD again. I will find a way to listen to my music if I have to record it off the radio. Which, by the way, can be digital quality. I'm your CONSUMER. We can do great business together if you understand my needs. I'm your WORST ENEMY if you treat me wrong.

An article in The New York Times (“Whatever will be, will be free on the Internet,” 2003, September 14) warned the Record Industry that the times are changing for the music industry and that practices such as the release of bland products and excessive control over the flow of music will lead to the sinking of the industry. Business Week Online (“Did big music really sink the pirates?,” 2004, January 16) admonished companies to embrace new propositions to sell music online; USA Today (“Music industry doesn't know what else to do as it lashes out at file-sharing,” 2003, September 9) questioned the Recording Industry's vilification of its customers as thieves, and an article posted on the EFF Web site argues that “what the Recording Industry needs now are new business models, not outdated legal strategies (Shell, 2004, p. 3). To this, McCourt and Bukart (2003) respond that castigating piracy online was not a response to profitability but an attempt to relieve anti-trust pressures and accusations of price fixing. Furthermore, in her assessment of digital copying and file-sharing, Heidmiller (2002) concluded that judicial decisions cannot stop the spread of peer-to-peer applications and decryption technology, and hence corporate elites would be better off in adjusting their business propositions.

In all, these observations are articulating emerging practices as levies through which consumers come to challenge existing practices. As an act of resistance it is embedded in a marketplace discourse guiding the exchange and consumption of music; deviancy within this context is exercised to reconfigure the parameters guiding such exchanges. The EFF campaign to make peer-to-peer file-sharing programs legal suggests potential avenues (see Making P2P Legal) for transforming existing business practices into viable and gratifying solutions for both consumers and producers. Price reduction in CDs and the introduction of legitimate channels to purchase music, such as iTunes, Pressplay, Musicnet/realone and Rhapsody could be signaling a change in trading conditions. Itunes has been reported by News.com to have sold 50 million songs over the Internet, charging 99 cents a song (Apple's iTunes sales hit 50 million,” 2004, March 15).

Alternatively, the offline discourse seeking to discipline the “pirates” online accounts for the fractures in the discursive action where diverging practices are acknowledged. Such discourse has various manifestations, from manifestos to songs reminiscing “the days when music was free, you could tape from the radio, burn a CD” (see http://www.zug.com/pranks/riaa/). Within communities these diverging practices gain quality of truth and thus configure the potential field of action, granting otherwise ‘deviant’ behavior if measured by offline measures scope for maneuvering. For instance, Earth Station is claiming to be at war with the Recording Industry and working towards the creation of truly anonymous file-sharing. Similarly, a Norwegian programmer has devised a program that allows end-users to intercept Itunes' downloads and strip off the DRM (Digital Rights Management) (“Program points way to itunes DRM hack,”News.com, 2003, November 24). Such activities reflect an allegiance to the cultural and technological principles defended by cyberlibertarians. As self-determining practices, these activities seek to revert back to the ‘everything goes’ ethos of the Internet, where it is the end-user and not corporations that set the perameters of the field of action as to what can and cannot be done. As “pirates”, music sharers have defaced Madonna's Website offering free downloads of her new album (“Madonna,”The Smoking Gun, 2003, April 19) and hacked the RIAA's website, posting messages such as: “oooh RIAA want's [sic] to hack file-sharing users-servers?–better lern [sic] to secure your own server” (“RIAA defaced again!,”The Register, 2004, January 11).

These transgressions are evident not only in how the “music pirates” are constructing their subjectivities, not as deviant and unethical but as ‘champions of freedom.’‘revolutionaries,’‘code warriors” (from various posts made on Boycott-RIAA, 2003) but also in the practices that are harbored by these subjectivities. In contesting the disciplinary spell of an offline discourse, music file-sharers' most significant act of resistance is manifested in creative and innovative behaviors. We could question the effectiveness of legal action when the 871 or more persons who have been sued to date for illegal file-sharing are set against the growth of third generation peer-to-peer applications. BitTorrent, for example, is said to have been downloaded 10 million times (“File sharing's new face,”The New York Times, 2004, February 12) and eDonkey has seen a growth of 150% in 2003 (“Whatever will be, will be free on the Internet,”The New York Times, 2003, September 14). The continual innovation of file-sharing systems is a springboard to such behaviors, and they too operate within a discursive field online that condones such initiatives.

Producers seeking to resist an online discourse protecting the free exchange of information are using technological solutions as disciplinary methods to normalize online life. Technological innovations supporting these transgressions are pivotal to the overcoming of restrictions placed by discursive action. Technological innovations could be considered substantial obstacles to disciplinary action, not only because they seek to mask end-users' identities, hindering potential lawsuits, but also because they reconfigure the possible field of action. The International Herald Tribune (“News analysis: is only piracy unstoppable?”, 2003, September 15) reported that “hundreds of software developers are racing to create new systems, or modify existing ones to let people continue to swap music –hidden from the prying eyes of the Recording Industry Association of America, or from any other investigators.” In this race Streamcast networks has introduced proxy servers to obscure online activities and a group of veteran hackers are promising to mask consumers identities through a combination of an ‘open proxy’ method, peer-to-peer technologies and virtual private networking to ensure anonymity. To this, applications like AnonX that promise to create a virtual private network and Freenet, with its distributed design supporting unrestrictive navigation in complete anonymity, constitute important mechanisms to traverse the field of action. By guaranteeing anonymity, these technological solutions present a viable muscle to exercise file-sharer power. Anonymous file-sharing escapes the disciplinary gaze of an offline discourse and its accompanying mechanisms of control. Without a real identity legal action is not viable. Furthermore, the continual process of innovation driving the improvement of peer-to-peer applications demonstrates how technological solutions can be deployed in order to exercise more power by supporting creative and innovative actions.

goldenpiSubject: Re: Fight the RIAA! Date: November 30, 2003 @ 9:12 PM Kazaa is expendable, its network technology is outdated and there will be plenty of others. Whats important is to continue setting up new networks faster than the RIAA can sue them.
Karen00Subject: Re: Fight the RIAA! Date: November 30, 2003 @ 9:12 PM And goldenpi, I agree! Who cares if kazaa goes, there will be others, there already are decent networks other than kazaa. I think the networks get better and stronger everytime the RIAA busts the big one. Each new network just prolongs the battle, which is good. Something will change eventually, for both sides of the story. As is said in the “embrace file sharing or die” article, the music industry of the future would work if it were something like the bottled water industry. I thought that made a lot of sense. I'm sure there are many alternatives… what I think is important is that there are people standing up and fighting for change (like boycott-riaa)… not for kazaa or for free music. Free music, as we know and love it, will die eventually, either people will have a good reason to pay for music or there will be no choice but to pay the unfair price, just like in the pre-napster days

Corporate interests are also employing their own technological solutions to curb existing behaviors. In this drive to limit existing freedoms and opportunities the DRM based on watermarking technology, supports a Panoptic-like situation by allowing the publisher to exert greater control over how long content is used and how many copies can be made. Likewise, Intel plans to include in its next generation of microchips anti-piracy features that will give producers more control over what consumers do online. Advocacy groups have opposed the introduction of these types of new technologies that could help prevent running unlicensed programs, copy and forward documents and copy CDs, claiming that they will hinder anonymous surfing and consumers' control over their activities online. Similar resistance from civil rights groups led in 1999 to the disabling of an equivalent piece of technology, a digital identity identifier found in Pentium III, a year after being introduced. These examples help illustrate the instrumental quality of technological devices, as means not only to traverse the field of action determined by a discourse but also as vehicles that respond to discursive action. In this case the civil rights groups' claims curtailed the potential disciplinary power of corporate interests by challenging their operation as disciplinary tools.

Conclusions

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References

Volatile relations, fields of action in flux, new forms of deviance being labeled as such, legislation to stigmatize emerging behaviors, truncated calls of actions and the reinvention of new business models designed to suffice end-users' desire for affordable convenient music make for a rather tentative conclusion as to who will sink whom. If power is in flux and in this case is manifested in the elaboration of a discourse to discipline online life, then this will not inevitably lead to the sinking of online “music pirates” or corporate vessels. In effect these tensions embody the instability of discourse formation, and in the ongoing struggle to define a field of action, these clashes are more transformational than destructive. Reinvention of business models and trading conditions alongside innovative strategies to promote behaviors legitimized by a given discourse are contributing to the definition of a new field of action. The emergence of legal alternatives and the RIAA's change of tactics, from aiming to eliminate all piracy to “bring it down to a sufficient level where the legal services can flourish” (RIAA spokesman, cited in “Charter defends downloaders' privacy,”The Leaf Chronicle, 2004) is indicative of such alteration. However, they also disclose the subtleties of power working in the production of discourses and thereby unveiling how previously unlabeled emerging behaviors are subject to disciplinary action. The disciplined are so because their freedoms constitute threats to the interests of those guiding the labeling processes. While this has been addressed elsewhere, what is interesting about this particular power struggle is not only its outcome, but its processes. In seeking to define and discipline emerging behavior, confrontations between discourses, some in support of the copyright holder, others aiming to defend rights of privacy, free expression and fair use, have created a mutable discursive form. In flux, these attempts to discipline online behavior also highlight the reversibility in roles played by those upholding the 'everything goes' ethos of the Net and those seeking to impose offline norms. Corporate agents, in their strategies to limit existing behaviors, resist online discourses of freedom, likewise, consumers committed to changing trading conditions engage in creative and innovative actions to traverse the field of actions established by an offline discourse.

Revolutionaries, oppressors, pirates or victims, both producers and consumers depend on each other. While the sinking of online “music pirates” or the Recording Industry is unlikely, it is possible that attempts to achieve this are helping to redefine both what can be done offline and online. More than an act of destruction, this is an act of creation.

Footnotes
  • 1

    All postings included here have been collated from various message boards within the Boycott-Riaa Website (http://www.boycott-riaa.com).

References

  1. Top of page
  2. Abstract
  3. Introduction
  4. Background: The Internet as a Free-est of Spaces?
  5. Foucault's Disciplinary Power, Deviance & Resistance
  6. The Web as an Emerging Social Domain and Fertile Ground for Power Struggles
  7. Shifting the Balance of Power: The RIAA, Online “Music Pirates” and their Struggle over the Definition of Emerging Behaviors
  8. Disciplining Online “Music Pirates”
  9. Hacking and Watermarking: Some Creative Practices to Resist
  10. Conclusions
  11. References
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  • Apple's iTunes sales hit 50 million. (2004, March 15). News.com. Retrieved 16 June 2004 from http://news.com.com/2100-1027_3-5173115.html?part=rss&tag=feed&subj=news.
  • Barbrook, R., & Cameron, A. (1997). The Californian ideology. Science as Culture, 26, 4472.
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