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The Genie’s Revenge: a response to Siva Vaidhyanathan

Matthew Rimmer
18 December 2003

In his essay series on peer-to-peer (P2P) culture on openDemocracy, Siva Vaidhyanathan provides a picturesque account of intellectual property in the digital era. He considers the implications of peer-to-peer networks for law, politics, culture, and science, but is rather shy about analysing legal judgments dealing with peer-to-peer networks. This is a shame because this would challenge and complicate his simple dichotomy between information ‘anarchy’ and ‘oligarchy’.

Siva is a bold polemicist who is not afraid of making sweeping generalisations. Take for instance, the articulation of the thesis of his forthcoming book, The Anarchist in the Library:

“The actors who are promoting information anarchy include libertarians, librarians, hackers, terrorists, religious zealots, and anti-globalisation activists. The actors who push information oligarchy include major transnational corporations, the World Trade Organisation, and the governments of the United States and the Peoples’ Republic of China.” Some would call this a black and white vision of the world. Librarians tend to be orderly, law-abiding folk. They would not like to be lumped together with hackers, terrorists and religious zealots. Moreover, the United States tends to have a rather complex relationship with both multinational companies, the World Trade Organisation (WTO) and China. These various interests cannot all be aligned under the ugly phrase, “information oligarchy”. We are experiencing a much more contested and varied moment in law, politics, culture, and science.

In this article I will respond to the first three parts of Siva’s essay, ‘Cultures of anarchy and closure’, ‘Pro-gumbo: culture as anarchy’ and ‘The anarchy and oligarchy of science’.

Is peer-to-peer to blame?

In the United States, there are two conflicting lines of authority regarding peer-to-peer software that Siva does not address.

The dominant legal jurisprudence is hostile towards peer-to-peer networks. Take for instance, the Federal Court of Appeal decision against the file-sharing software Aimster (now known as Madster), which allows people to search and download the computer files of friends on their AOL instant messenger list. Aimster was held liable for “contributory infringement” because of its “willful blindness” to the activities of its users. They downloaded copyrighted music files from each other.

Justice Posner dismissed all defences raised by Aimster that dealt with fair use, safe harbours, and encryption. He was entirely unsympathetic to arguments made about freedom of speech and constitutional law: “Copyright law and the principles of equitable relief are quite complicated enough without the superimposition of First Amendment case law on them”. He also drew some bizarre analogies between peer-to-peer networks and criminal law – in the fields of drug trafficking and prostitution.

However, there is a countervailing reaction against such judicial creativity in adapting copyright law to new peer-to-peer networks. In the lawsuit MGM versus Grokster 28 of the world’s largest entertainment companies brought an action for copyright infringement against StreamCast, the creator of file-sharing programmes Grokster, Morpheus, and Kazaa.

In this case, in contrast to Justice Posner, Justice Wilson held that the peer-to-peer networks were not liable for contributory infringement because they had no material control over users’ activities, while acknowledging that the software was probably deliberately structured in a way to evade the threat of contributory infringement. Justice Wilson noted: “To justify a judicial remedy, however, Plaintiffs invite this Court to expand existing copyright law beyond its well-drawn boundaries”. He was unwilling to creatively interpret copyright law to satisfy the concerns of the content holders. The decision is currently being appealed by the Hollywood studios and record companies.

Since the StreamCast/Grokster decision, record companies have brought legal action against a number of internet service providers (ISPs) in order to force them to disclose the identity of users infringing copyright. This has raised important questions about the constitutional protection of privacy and anonymity. Bill Thompson is therefore right to argue that Siva’s claim that peer-to-peer networks are anonymous is misleading: “People who do not understand the technology think it is anonymous, but US ISP Verizon recently handed over the names and addresses of four of its customers to the Recording Industry Association of America, demonstrating clearly that the supposed anonymity is a sham.”

The record industry has brought legal action for direct infringement of copyright against hundreds of ordinary people who have uploaded music files onto peer-to-peer networks. This unprecedented move has created huge legal and political controversy, and is surely worth more analysis and debate and space than Siva grants it.

Liberty, equality, fraternity?

In the first part of his essay, “The new information ecology: cultures of anarchy and closure”, Siva is too easily seduced by the political rhetoric of peer-to-peer networks. He needs to show greater scepticism and a sober awareness about the revolutionary promises of new technologies.

Freenet was indeed originally devised as a means of circumventing tough new internet censorship laws passed by the Australian and British governments. But its Scottish programmer Ian Clarke also hoped that Freenet would help foster free communication in societies like China and Saudi Arabia.

Siva seizes on this hope, but renders it as fact: “P2P systems like Freenet – encrypted, completely anonymous, and unquenchable – are essential tools for democratic activists in places like Saudi Arabia, Cuba, Zimbabwe, Burma, and China.” Sandy Starr, in his response to Siva, suggests that he “is insufficiently critical of the ‘anarchists’ in the peer-to-peer debate, and paints a rather romantic picture of them.”

Indeed. It is questionable whether the lofty philosophical ambitions held for Freenet have been realised to date. While its hope may be to enhance and extend ‘liberty, equality and fraternity’ in totalitarian regimes, in practice the programme is primarily being used to disseminate, according to a study by Jon Orwant, that less noble triplet: “sex, drugs, and rock and roll”. In a detailed study of Freenet three years ago, Orwant, a programmer and author, concluded based on the content on the network that the average Freenet user, was likely to be “a crypto-anarchist Perl hacker with a taste for the classics of literature, political screeds, 1980s pop music, Adobe software, and lots of porn.”

Furthermore, in 2000, Ian Clarke converted the cultural capital that he gained from Freenet into economic capital in the business called Uprizer. He shifted from the open source community of volunteers to a commercial one of venture capitalists, lawyers, and professional business managers.

Peer-to-peer networks have not yet lived up to their revolutionary promise. They have been used for much more quotidian ends – such as circulating copyright media around the globe. And they have also been harnessed for commercial ends. Witness, for instance, the recent commercial capture of Napster. Songs now cost US$1 each to download.

It could be that peer-to-peer networks would be in a better position to defend themselves against claims of copyright infringement if they could demonstrate that their primary purpose was of a political nature. The defence of fair use would be available if one could show that the technology could be used for the substantial purposes of criticism and review. Furthermore, there would be wider scope for arguments about constitutional law and the First Amendment in the United States, if it could be shown that peer-to-peer networks were indeed actively involved in promoting the freedom of speech.

Bohemian rhapsody

In the second part of his essay, “Pro-gumbo: culture as anarchy”, Siva argues that peer-to-peer networks have precedents in the ‘anarchistic and hybrid processes by which culture is always formed’. He engages in a historical review of communication – citing the subversive musical practices of African slaves and the work of anthropologist Steven Feld, A sweet lullaby for world music.

Siva observes that new peer-driven forms of music distribution are about “decorporatisation and deregulation”, and explains: “Music corporations do not control the flow, prices, or terms of access anymore. Music distribution has lower barriers of entry than ever before, and offers the potential of direct, communal marketing and creolisation.”

His vision of cultural exchange might be captured by the notion of “antiphony” in Paul Gilroy’s book, The black Atlantic:

“Antiphony (call and response) is the principal formal feature of these musical traditions. It has come to be seen as a bridge from music into other modes of cultural expression, supplying, along with improvisation, montage, and dramaturgy, the hermeneutic keys to the full medley of black artistic practices.” Siva is right to focus upon the culture of copying in the musical community. In an article for Feed magazine (2000), Julian Dibble wonders what German philosopher Walter Benjamin would have made of collecting in the digital age (referring to Benjamin’s text ‘Unpacking My Library’). Dibble suggests that the internet has transformed and intensified the nature of collecting cultural works. He speculates that users have an almost sexual frisson at their connectedness and vulnerability to the wired population of the world: “The traditional eros of collecting has been perverted, connecting the collector not just to objects but, of all things, to other people.” Dibble also contends that the internet has democratised the culture of collecting. It is open to all who have access to a computer – not just upper-class connoisseurs.

Siva argues that peer-to-peer networks “link diasporic communities and remake nations” as well as “empower artists in new ways and connect communities of fans”. He lauds the riches of ephemera that can be found on peer-to-peer networks – from Malcolm X’s speeches to reggae remixes of Biggie Smalls’ hits. But peer-to-peer has much more to offer, says Siva:

“The most interesting and entertaining phenomena of the MP3 peer-to-peer is the availability of ‘mashes’ – new compositions created by combining the rhythm tracks of one song and the vocal track of another. (The best example of a popular ‘mash’, currently, is Genie’s Revenge, a combination of vocals by Christine Aguilera and a guitar riff by The Strokes).” Not everyone has as impeccably good musical taste as Siva. Peer-to-peer networks are still used predominantly to distribute popular, mass market musical works by artists like Madonna, Metallica and Kylie Minogue. It could be argued that such networks merely mirror and reflect the boring, homogenous state of music distributed in conventional channels. So far, peer-to-peer networks have not been well adapted to promote hybridity, cross-referencing, or creolisation.

In a case involving a sample of the Roy Orbison song “Pretty Woman”, the Supreme Court of the United States recognised that the defence of fair use includes “transformative use”. This factor focuses on whether the new work merely replaces the object of the original creation or instead adds a further purpose or different character. In other words, this factor asks “whether and to what extent the new work is ‘transformative’”. Peer-to-peer networks have, thus far, been unable to take advantage of such a defence.

In the Napster case, the US Court of Appeal held that downloading MP3 files does not transform the copyrighted work – in the same way that playing a radio broadcast over the phone doesn’t either. “Defendant’s copyright infringement was clear, and the mere fact that it was clothed in the exotic webbing of the Internet does not disguise its illegality,” went the verdict.

Peer-to-peer networks would fare much better in litigation if they were more than merely retransmitters of copyright work. Such software could be protected under the defence of fair use if it engaged in transformative uses of copyright works. As Siva suggests, there is much (unrealised, in my view) potential in the combination of digital sampling and peer-to-peer networks.

The Public Library of Science

In “The Anarchy and Oligopoly of Science”, part three of his essay, Siva argues: “Science is the most successful, open and distributed communicative system human beings have ever created and maintained. The cultural norms of science and by extension academia in general, are anarchistic in the best sense of the word.”

In riposte, Roger Tatoud from Imperial College in London takes issue with this “idealistic and utopian vision of science”. He puts forward a far more cynical view. Tatoud maintains instead “science is a secretive micro-society which jealously guards its knowledge.” He denies that it is an open, democratic and anarchic system.

Nevertheless, Siva makes a strong case that the norms of science have been transformed by the increasing use of intellectual property. He observes: “While the copyright system benefits the publishing oligarchs at the expense of scientific openness, it has not had nearly the restrictive effects that the patent system has had on science. Since 1980, when the United States Congress passed the Bayh-Dole Act, which encourages universities to patent work generated with public funds, and the US Patent Office approved the patenting of living things and the genes that operate in them, there has been a mad rush to control information that might be medically relevant.”

Siva is quite hopeful about efforts to reinvigorate science as an open system of communication – such as the Public Library of Science, a non-profit organisation of scientists and physicians who make scientific literature free to the public. The free software foundation and the open source movement have been a source of inspiration to public researchers involved in the human genome project. Many researchers have been keen to ensure that scientific information and biological software remains in the public domain through the use of creative contracts.

The application of open source software and peer-to-peer technology to the life sciences can be illustrated with a case study – Ensembl and the Distributed Sequence Annotation System.

The Ensembl project consists of computer programmes for genome analysis and the public database of human DNA sequences. At the CODE conference at Cambridge University in 2001, Tim Hubbard from the managing company Sanger said he believed that Ensembl was a means of making science democratic so that people can contribute information and share it effectively.

“Something like the human genome is too complicated for any person, any group, any company, to have a monopoly on knowledge. On the other hand, if every organisation puts up on a web-site what they think is on the human genome, you have a terrible mess in terms of people trying to understand, comparing one website to another website. So the approach of this open software project is to be as open as possible. Very standard things – open CDS repository; open database; open discussion; everyone can get the software; everyone can do similar bits of work with similar interfaces. That does not address the overlapping of the annotation.” The Ensembl Project is working on client server development. It hopes to ensure that users can participate in the annotation of the human genome, in a democratic and constructive fashion.

The Distributed Sequence Annotation System, is tightly integrated with Ensembl. It is designed to solve the problems of data integration and third-party annotation. One of the designers, Lincoln Stein from Cold Spring Laboratory, believed that peer-to-peer technology had the potential to allow scientists to share their discoveries of the genome. He considered the merits of Napster, Gnutella and Freenet:

“The Genome project is a vast distributed research project in which tens of thousands of individual research labs take part. Each lab generates biological assertions called “annotations” that provide clues to the structure and function of the 100,000 or so genes that make up the roughly 3,000,000,000 base pairs of human DNA. Unfortunately the annotations the labs generate feed into a handful of centralized databases, and these are feeling scalability strains. Much of the data is not published electronically because there is no outlet for it. It winds up in paper journals, and is, for all intents and purposes, lost to electronic search and retrieval. I am interested in Napster’s peer-to-peer architecture because it seems to offer a way of offloading some of the burden of this information transfer onto a distributed network…” Stein recognises that such peer-to-peer networks like Napster, Gnutella and Freenet would need to be adapted for use in the life sciences. He observes: “For scientific data ownership, accountability, and integrity are absolute requirements. In a distributed genome annotation project, each assertion would have to be signed and dated using a public key or similar mechanism.”

Such claims lend credence to the case that peer-to-peer networks could be protected by fair use if they could demonstrate substantial, non-infringing uses, such as the distribution of scientific information and knowledge.

The verdict

In his long essay (based on the forthcoming The Anarchist in the Library), Siva displays a darting, hummingbird-like intelligence – he moves from topic to topic, making intelligent linkages and drawing fine conceits. He covers an impressive range of material, cutting across a range of disciplines – law, politics, culture and science.

Sometimes Siva can be faulted for his ephemeral, fleeting discussion of issues. For instance, his three-paragraph treatment of the epic litigation over Myriad Genetics’ patents is much too short and superficial. Siva should linger on topics like this, and draw out their complexity and nuances. He should also resist the temptation to take such a holistic view of the world, in which everything is connected – a six-degrees-of-separation universe. His vision of The Anarchist in the Library is a little too tidy and neat for the chaotic maelstrom that the title of the piece suggests.

Siva provides a great sense of the undoubted promise of peer-to-peer networks in culture, politics and science. However, such potential remains latent and unrealised.

Thus far, peer-to-peer networks have primarily been venal creatures of e-commerce. They have been vulnerable to legal actions for copyright infringement because they have facilitated the dissemination of copyright media for profit and gain.

Peer-to-peer networks should therefore pay heed to Siva’s idealistic hopes, if they wish to survive in the future. The courts would be happy to foster such technology if it promoted the freedom of speech, the mixing of cultures, and the progress of science.

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