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Amodern 2: Network Archaeology

THE INFORMATION DEFENSE INDUSTRY AND THE CULTURE OF NETWORKS

Adrian Johns

The winter of 2011-12 saw a remarkable episode play out in the contemporary history of media and information. Two new bills were proposed in the United States Congress to strengthen the enforcement of intellectual property rights on the Internet, and they were widely expected, not least by the interested parties in Congress itself, to pass without undue fuss. After all, such bills always had in the past. But this time a huge campaign of opposition arose, encouraged by the active involvement, for the first time, of wealthy and influential corporations and institutions. The ostentatious support of Google and Wikipedia made the issue a very public one. Having failed to foresee this reaction, the backers of the bills proved slow and ineffective in countering it, and what had seemed a sure thing rapidly became anything but. In the end both bills failed. For the first time, public resistance had called a halt to a process in which intellectual property law had expanded inexorably for as long as anyone could remember. Exactly why it did so – why this time the opposition prevailed, when it had never done so in the past – is not entirely clear. But the significance of the moment itself is doubted by nobody.

As the dust settles on the SOPA/PIPA furor, however, it is time to take a longer and broader perspective on what just happened – one that may permit us to understand better how we got to that position and what was really at stake. We need to look not just at the particular episode, but at the series of legislative battles of which it was the latest phase. This series extends back continuously to the 1970s. But in a less evident sense it goes back much further – to the 1770s at least, and maybe even the 1670s. This extraordinarily long history is one reason why we need to look harder and deeper at the underlying causes of events like those of 2011-12. A second is that bills like these do not emerge spontaneously, as novel departures, from the structure of the law itself. On the contrary: they typically arise as derivative responses to specific problems. But the problems to which they are the proposed solutions tend to be virtually invisible to observers of the legislative process itself, because they exist in a different sphere. In short, such new bills exist to bolster practical enforcement measures that are already being taken “out there” in the world to enforce and uphold IP, but which have encountered some kind of legal or political impediment. This is not a rare event. Practical enforcement initiatives in the sphere of intellectual property have repeatedly tested legal and moral bounds since at least the mid-eighteenth century. The result has been a long series of efforts to incorporate those initiatives into formal law. The trend to criminalize copyright infringement in the period since about 1970 is the latest iteration in this series.

This matters. Campaigns like that against SOPA and PIPA (not to mention those against ACTA, and now the TPP) are important and consequential, to be sure. But they may flourish at the expense of distracting our analytical attention. In focusing entirely on attempts to pass new laws, we risk missing what propels those attempts forward. We require an explanation not only for individual legislative projects such as these but for their regular recurrence. Lacking this kind of perspective, criticism tends all too often to resort to crude interest theory (as in what may be called the Mickey Mouse explanation: that copyright law advances whenever Disney is about to lose protection on its rodent). If, in fact, it is the practical culture of policing that generates schemes for new laws, then it is in that practical culture that we should look for answers. And this is important because each new round of legislation sets the conditions of possibility that will generate the next term in the series. To understand even the formal letter of the law, therefore, let alone its realization in the information economy, we need to look at the far more complex, disaggregated, and intractable world of digital “everyday life.”

In one sense, this amounts to a recommendation that the study of IP law catch up with that of the law in general. Perhaps the most important development in legal historiography in the 1970s-80s was the recognition that practical policing had a history that was not reducible to precedents, statutes, and doctrines.1 The movement for a “social history of law” transformed the subject for good. Analyses of intellectual property law have generally not embraced this development, perhaps partly because overt moral politics have held center stage so consistently. Certainly, the implications of a social-history perspective have still not been made manifest in this field. But the need is more particular to the present moment than that alone can imply. The emergence of a large, international, and ostensibly coherent industry devoted to the task of upholding intellectual property makes it pressing. In this current form I have taken to calling this collective endeavor of information policing the intellectual property defense industry.2 But that is perhaps an overly restricted term: it can be hard to distinguish this enterprise categorically from fields like cybersecurity. Overall, they could well be described in the aggregate as an information defense industry. I shall call it that here, although its alignments and distinctions remain as yet unsettled, and the more directly IP-related elements will be my principal focus.

Today, the information defense industry is a global enterprise, and one that deals with all goods in the information economy – pharmaceuticals as well as movies, aircraft parts as well as software. If there is an information or IP crisis in the offing (and there may well be), then it will arise from these other domains, and not primarily from US-centric digital media. American commentary tends to dwell on music and movies, but the issues surrounding the patenting of genomic materials and creatures, differential access to medicines because of IP rules, and (a subject of particular controversy recently)3 the patenting of medical procedures themselves are of an entirely different and higher order of practical consequence and moral seriousness. It is all the more important, then, to keep things in perspective – which means looking at issues beyond digital media and locations beyond US borders.

It means, in fact, looking at networks. The development of the information defense industry has corresponded to the late-modern rise and entrenchment of techno-scientific networks in general,4 and identifying it as a subject of study serves the ancillary purpose of helping us track that process. But the industry is not simply a product of a growing network culture: in the eyes of its own practitioners, it is also, fundamentally, a network-building enterprise in its own right, and perhaps the essential prerequisite nowadays for network culture to survive. Network systems of diverse kinds (informational, medical, and others) have allegedly depended on the kinds of security, surveillance, detection, technology, politics, and culture that it has provided. In its turn, the information defense industry has expanded by capitalizing on the network properties that it has – in its own view, at least – made possible. The process has been reciprocal. Arguably, it has played a central role in the emergence of late-modern culture.

Piracy and Anti-Piracy as Network Enterprises

The character of the information society arises through engagements, large and small, local and global, between pirates and anti-pirates. But it seems that in the early twenty-first century the most egregiously criminal forms of piracy, at least, are changing. As digital networks have become the preferred means for accessing and transferring information, so the street-level practice of CD and DVD piracy seems to be declining in favor of network piracy. To be sure, disks can still be bought on the streets of Shanghai or New Delhi – or New York – but they are increasingly peripheral to the major economic impact of piracy itself.5 The practice changes with an all-network medium, and not simply because of the Internet’s obvious characteristics of near-instantaneity and minimal distribution costs. Since its origins in the early modern period, piracy has often been a cross-border activity. The Internet allows this activity to ramify in new ways because it changes the status of borders themselves. For example, a pirate group distributing access to television channels may have a corporate base in one country, an audience in several others, and a p2p (or equivalent) system distributed across even more, with the content residing stably in no one jurisdiction at all. The implications are profound because this kind of practice has no presence that is constant or substantial enough to be tackled by a conventional police effort. (That is a real example, by the way, confronted by Hong Kong authorities around 2010.) The traditional jurisdictional boundaries of police forces become entirely inappropriate. Policing becomes a matter of creating “on the ground” hybrid networks of agencies, corporations, technologies, and norms that provide for the practical monitoring and interdiction of these kinds of networks. As is so often the case, formal institutions, laws, and policies lag behind these practical alliances. We need better knowledge of all this – and we need a different kind of knowledge, too: one far more attentive to social, cultural, and historical distinctions, and far more sensitive to how local contexts can shape each side and its effects.

Public awareness of IP enforcement was for many years epitomized by journalists’ reports of raids and seizures of pirated CDs and DVDs.6 But it is clear that, at many levels from the very local to the global, participants in this industry no longer view such spectacular seizures as their key activity. Such raids do of course still take place, if anything at an accelerated rate. And the value of the goods involved can be impressive. But the information defense industry frankly insists that one-off interventions are ineffective, because the real target has the nature, not of a multitude of autonomous criminals, but of a network. The distinctive contributions of the IP defense industry are thus four: training, coordination, technology, and legislation.

Training

Both public agencies and private corporations declare that training local police to notice and act upon piracies is at least as important to them as actually hunting pirates down. And they act on this assumption. Content companies seek to liaise with local police and encourage them to notice when products are being counterfeited, for example. The acme of the approach is represented by the new phenomenon of “colleges” devoted to educating anti-pirate forces. Two in particular stand out. One originated in 2006 at the US Patent and Trademark Office: a “Global IP Academy,” it trains overseas officials in situ, often employing active US enforcement agents from the FBI or other agencies as teachers.7 The other is an “International IP Crime Investigators College” (IIPCIC) aligned with Interpol. By mid-2012 this “fully interactive online IP crime training facility” had “graduated” almost 800 officers from 14 countries.8 For the most part the “education” provided by such bodies is as yet fairly elementary and task-centered. It sometimes amounts to little more than pointing out the existence of laws and the possibility of their being infringed and enforced. At a slightly more sophisticated level it aspires to standardize “best practices” involving the gathering, handling, and deployment of evidence, the conduct of seizures, and the like, across national and institutional boundaries, with the aim of easing the path to success in what can be very complex cases. The most important aspect of all, however, is probably not anything represented in the formal offerings of an “academy” or “college” at all. Training, especially if done face-to-face, may serve to establish informal social links across agencies, nations, or the public-private divide that may be drawn upon later when action may be on the cards.

Coordination

The same is true of the regular international conferences bringing anti-pirate forces together. These conferences are perhaps the most striking visible sign of the emergence and growth of the IP defense sector. Beginning in the mid-2000s, they have expanded rapidly, and now attract hundreds of participants from across the world. Again, two series of these are especially prominent: the annual International Law Enforcement IP Crime Conference, the most recent of which occurred in Panama City in September 2012; and the Global Congress on Combating Counterfeiting and Piracy, last held in Paris in February 2011 and next convening in Istanbul in mid-2013.9 Both are organized as collaborations between public agencies and private corporations in the IP defense world. I attended the Panama City meeting, and the following observations are informed by my experiences there.

The consolidation of this industry through training and conferences helps to explain shifts in the rhetoric of antipiracy. Strictly speaking, such rhetoric is today often about counterfeiting rather than piracy. That is, it focuses on concerns about authenticity, trust, and credit, rather than on the economic costs of replicating software, music, or movies. And the point at issue is often explicitly that of public health: counterfeit pharmaceuticals have become the classic case of piratical products worldwide. “Piracy” is thus said to cause a breakdown of public trust in medicine, which matters because people die, whether directly from taking counterfeit drugs or indirectly from distrusting authentic ones. This rhetoric is not just for external consumption, moreover. Within the conferences of the IP defense industry itself, presentations focus on the risks posed by counterfeit medicines, along with foodstuffs and automobile and aerospace parts. The kind of counterfeiting tackled by the World Health Organization’s IMPACT group is elided with the kind of piracy tackled by, say, the RIAA.

At the same time, the industry’s rhetoric insistently identifies the networked character of “piracy” as its central, fundamental challenge. Piracy is here regarded as one aspect of international “organized crime networks.” As such, piracy and counterfeiting are declared to be major sources of funding for drug-smuggling, and even terrorism. Actual evidence for the consistency of these links is hard to come by, and does not seem to circulate very plentifully in the industry itself.10 But the representation is consistent and appears to be widely credited by insiders. It was invoked by many participants at the Panama conference, for example, from workaday detectives to the President of Interpol himself; I heard nobody question it.

In this context, it is worth noting that Interpol’s preferred stance is currently to refrain somewhat from highlighting the unique status of piracy/counterfeiting as a practice in its own right. It recommends instead viewing it as one example of a broader category known as Trafficking in Illicit Goods (TIG), where “goods” may include any kind of commercial entity up to and including human beings.11 This has two major implications. One is that it defines the offence in terms of trans-border movements. “Piracy” now becomes a practice the international character of which is of its very essence – as fundamental, indeed, as the violation of intellectual property. It is therefore something that has, vitually by definition, to be perpetrated by “international criminal networks.” It is then plausibly associated with crimes that are publicly identified with such networks, and which tend to be much more unambiguously matters of detestation, such as drug smuggling and sex trafficking – and terrorism. And policing too must consequently supervene the jurisdictional restrictions of national police forces. It must become a reflection of these networks, hybrid, cosmopolitan, and versatile. Correspondingly, Interpol now champions as the latest form of police training “Trafficking in Illicit Goods and Intellectual Property Crime Training Seminars,” nine of which took place in 2011 alone, with 500 officers participating from 30 countries.

It is easy to suggest self-interest as a reason for redefining piracy in these ways, as an international network phenomenon corrosive to public safety. Presumably, passing laws and creating policies against piracy will be easier if the public in a given region believes that the target is a shadowy international crime syndicate in league with Al-Qaeda rather than Kim DotCom, and that the immediate beneficiaries are local children rather than multinational corporations. And one of the more notable developments since 2009 is that, after the failures of SOPA and PIPA – and probably ACTA and HADOPI too – public opinion is now a genuinely consequential consideration. But although this kind of suggestion does circulate among some critics, it is hardly satisfactory. It fails to account for the prevalence of the representation within the industry itself, and it collapses what is in fact a complex, diverse set of communities into one homogeneous interest group. Indeed, it may even be that one effect of aligning piracy with counterfeiting in the context of public health is to facilitate standardization within the information defense industry.

Technology

This redefinition in terms of networks coincides with some of the grander aspirations for a technological solution to piracy. These aspirations are in themselves nothing new. They date back at least as far as Robert Boyle’s suggestion in the late seventeenth century that accurate balances could be used to detect counterfeit medicaments, foodstuffs, and gems.12 But the redefinition of piracy as a network phenomenon alters the shape of anti-pirate tech. In particular, if the target is really a branch of TIG then the same technologies can serve to combat it as are used to secure supply chains. A clear example is the aspiration for what may be called tag/register systems. These bring together identification technologies (notably RFID tags) with cloud-based registration databases, such that a local observer can scan a suspect object to see if its identity is legitimate. There are several such schemes, one notable example being the tobacco industry’s “Codentify” system, developed to combat counterfeit cigarettes. (Companies like BAT are particularly enthusiastic advocates of this system; the ironies of this industry standing for the defense of public health and trust do not need to be belabored.) Interpol’s own “Global Register” is perhaps the most ambitious of all: it would collect information from manufacturers for authenticating would-be counterfeits of all kinds.13 Unlike the same institution’s older “Database on International Intellectual Property Crime,” access to which is restricted, the Global Register would apparently “empower the public, rights holders and law enforcement officials by enabling anyone with a mobile phone or Internet-connected device to verify a product’s legitimacy.” It was unveiled at an event held under the aegis of none other than Google in mid-2012 on the theme of “Illicit Networks: Forces in Opposition” (or, with typical neatness, INFO) – a title that captures the current self-representation of the anti-pirate police.14

The best-known use of tag/register technologies to date has been in pharmaceuticals. A system of this kind was adopted for the controversial painkiller Oxycontin in the mid-2000s. However, as an anti-pirate device it has serious disadvantages. This is partly because the anti-piracy use is opportunistic. RFID tags were originally meant not so much to detect counterfeit medicine as to track legitimate batches which might have been stolen or misdirected. In principle, the point is a good one: anyone with a scanner and access to the register could trace the path of a given batch immediately, and therefore implicate thieves – or, as now claimed, counterfeiters. But RFID in itself does not prevent copying, of course. It may do so only within elaborate social and technological networks that are intricate and expensive to maintain. (Think of the problems of checking for errors in such an information ecology, and then, perhaps worse, of actually correcting them.) It requires additional local information of unpredictable kinds. For example, verifying a drug shipment may require supply-chain details capable of being confirmed only by legwork. In effect, RFID may work as an anti-counterfeiting technology only if an effective conventional anti-piracy policing culture already exists. And, banally but crucially, RFID tags attach not to medicines themselves but to their containers. So what the system really tracks is plastic packaging – packaging that is, in fact, routinely replaced by intermediary companies in legitimate supply chains. All of this is in addition to the fact that for years RFID tags themselves had high failure rates. The head of Novartis’s global corporate security operation summed all this up in testimony to the US Congress in 2005 and warned of the consequences.

Counterfeiters generally deal, not only with counterfeit product, but with diverted, expired, and stolen product as well. Envision the scenario where a counterfeiter steals product, removes genuine product from the ‘secure packages’, and then puts the counterfeit product in these packages, and then reinserts the counterfeit product back into the system. The counterfeit product would pass through all the readers successfully. What then happens to the genuine product? The irony is that the genuine product would most likely be repackaged in counterfeit packaging with unreadable tags and entered into the distribution system. If the RFID system works correctly, the genuine product would be kicked out of the system, but later determined to be genuine, undermining any confidence in the system.15

What we see articulated explicitly here is the problem of credit – of trust – that is central to issues of piracy and anti-piracy, and that has reappeared in different forms throughout a history extending back at least as far as Boyle’s attempts to validate medicaments. Plus ça change: as one industry watcher has remarked, “ultimately the consumer will still be relying on… trust in the local apothecary.”16 If anything, the exaggerated promises made for digital authentication systems like RFID or the Global Register cast those old problems into even sharper relief.

But that is not the end of the story. Such systems may eventually work as anti-counterfeiting technologies, albeit fallible ones. They may be the least-worst way of addressing a problem that is insoluble because it is fundamental to the very institutionalization of an enterprise like pharmaceuticals as, at root, a network phenomenon. The larger point is almost Aristotelian: it is a matter of matching approach to subject, and of the cultural consequences of doing so.17 To solve a problem that is, now, definitively a matter of information networks, one must adopt the appropriate techniques – which means forging one’s own information networks. As a tobacco company executive remarked at the Panama IP meeting, to combat counterfeit tobacco one must create “shadow networks.” But such technologies will work only if embedded in elaborate legal, social, and institutional infrastructures – which they then affect. Their success in fighting piracy can only come at the cost of constrictive implications in other domains, because they must involve surveillance, information gathering and management, checking protocols, and centralization. Trivially, there are concerns that a pharmacy’s RFID detector would ‘read’ the identity of any drug in a customer’s handbag; but the issues of concern scarcely end there.

Tag/register systems are one branch of an increasingly baroque armory of anti-pirate technologies.18 We have devices and codes such as the notoriously inconvenient “digital rights management” protocols, which are designed to prevent piratical copying (and, all too often, any copying). We have others that seek to detect when copying has taken place. Online, algorithms automatically identify apparent copyright infringements and send take-down demands, all without human intervention – resulting in absurdities like NASA having to remove footage of its own Mars landing.19 And a genetically engineered organism may be crippled, say, if its use cannot be guaranteed as legitimate, where “legitimate” is defined by the corporation owning the patent. Such anti-pirate tech embodies a promise to provide an automated solution to “piracy,” and is always insensitive to the complexities of everyday practice. The trouble is that the problem it addresses is not, itself, fundamentally technological; it is economic, political, cultural, and historical. Inflexible, automated enforcement risks setting off a riptide of political opposition that could more than outbalance its achievements. Anti-pirate technologies promise to make IP strong, and do, but at the expense of making it brittle.

Legislation

One of the IP defense industry’s greatest successes has been the stream of legislative measures and treaties that have appeared in the last generation, and that in recent years have become so controversial. Bills like the Stop Online Piracy Act and the Protect IP Act (SOPA and PIPA) in the United States, the ill-starred HADOPI measure in France, the Digital Economy Act in Britain, and similar measures elsewhere draw a great deal of media attention and increasingly excite opposition. So do international agreements like ACTA and, now, the Trans-Pacific Partnership (TPP). The 2011-12 campaign against SOPA/PIPA may well be a turning point. The apparent rejection of ACTA, not least by the European Parliament, shows that public anxiety about excessive IP enforcement is not a phenomenon restricted to the United States.

In light of the emergence of the IP defense industry, we can say that the public furor that focuses on each successive bill or proposed treaty is important but also to a certain extent misdirected. Such measures ought to be recognized as second-order events – as responses to problems. They typically come about because the IP police are already taking measures that such legislation would ratify. Specifically, they arise after initiatives to uphold and/or extend some anti-piracy strategy come to an impasse. Historically, anti-piracy practices have often tested legal bounds, and judges have occasionally stymied them. Early examples include courts’ refusal to embrace the London book trade’s anti-pirate campaign in the mid-eighteenth century and the skepticism that judges displayed toward the music industry’s “commandoes” in the early twentieth.20 In each case, as today, the frustrated anti-pirates attempted to achieve through legislation what they risked losing on the ground. It is the increasing coherence of the IP defense industry – its increasing conviction that it is a network competing with an anti-network – that makes the process so inexorable today. In that sense, the DMCA marked a new phase in the longer process, with its unprecedented criminalization of analyses of digital IP protection technology.21 And new laws, of course, set the conditions of possibility that will provoke the next campaign for new laws. In focusing so avidly on new legislation, therefore, the public tends to miss what propels it forward – the practical culture of enforcement. That means that an opportunity is missed too, because practical strategies are sometimes visible in a way that closed-door policy negotiations are not.

The enduring legacy of all these moments of public resistance may be represented by the proliferation of pirate parties. Such parties now exist in many countries, and since 2010 they have been united under a Pirate International. In several nations they have won representation in political assemblies: Germany, the Czech Republic, Spain, Austria, and Switzerland all now have public representatives from their respective Pirate Parties, and the Swedes – who invented the form in 2006 in the wake of controversy over the attempted suppression of the Pirate Bay – have sent Pirates to the European Parliament. In other countries, including France, Great Britain, and the United States, pirate parties exist but are thus far of little significance, probably because the electoral systems of those countries make third-party or single-issue campaigns almost always exercises in futility. It seems likely that the pirate party movement is not a flash in the pan: it has already experienced sufficient electoral success and shown sufficient political sturdiness to make that unlikely. Its more probable fate will be to follow the trajectory of Green parties in many of the same countries a generation ago. Like the Greens, the Pirates have a serious point to make, with consequences for all of us, and one that does not map readily onto traditional left-right political distinctions. They are therefore likely to see their arguments adopted opportunistically by the large mainstream parties. That may well be frustrating to the pirate partisans, but in historical terms it would be a real achievement – perhaps a greater achievement than would be the emergence of an otherwise ineffective hackerish “third” (or perhaps fourth) “way.”22

The IP Defence Industry in Combat

To see how these issues play out at the battlefront (as it were), one could do worse than look at India. The subcontinent has been the location of some notably enterprising approaches to digital media, piracy and anti-piracy alike being among them. In 2010, for example, Bollywood announced that it would begin “using pirate tactics to beat the pirates.” It would employ what it called “cyber hitmen” to attack websites distributing unauthorized movies, including the Pirate Bay. A company named Aiplex Software was hired to discover these sites, send cease-and-desist notices, and attack the 5% of bit-torrent sites that ignored the letters. So the company’s software began trawling the Internet looking for tell-tale links to new movie files. When it found them, it would send two formal notices. If this did not bring the sites to heel, Aiplex would launch Denial of Service (DoS) assaults to cripple them, and at the extreme even try remotely to destroy the files themselves.23

A DoS attack, however, is a problematic strategy for the defenders of propriety to adopt. It involves clogging a target site up by sending millions of requests for responses at high speed. It is not quite the same as a Distributed Denial of Service attack (DDoS) – the weapon of choice at the time for hacker groups like Anonymous – but the two are similar in approach, and both are illegal in some countries because they damage computer networks. The tactic is certainly controversial enough that copyright enforcement operations often disavow it. Worse still, it attracts retaliation. In response to Aiplex’s DoS attack on the Pirate Bay, the soi-disant hive-mind Anonymous launched its own DDoS attack against Aiplex, using a simple piece of software called a “Low Orbit Ion Cannon” that allowed any wannabe hacker to sign up. It was one of the actions that inaugurated the notorious collective’s “Operation Payback,” which went on to target many corporations and institutions deemed to harm digital freedom. Anonymous’s attack swiftly took down Aiplex’s site, before moving on to assault the Motion Picture Association of America (MPAA) and Record Industry Association of America (RIAA). Later it targeted corporations like Mastercard that had declared against Wikileaks. It was already evident by 2011 that things were not going all the IP defenders’ way, and the conflict would only ramify from there. The subsequent history of Anonymous is, of course, well known.

You can find similar stories to this in any branch of the global information economy today. They raise genuine questions about the role and implications of piracy and intellectual property policing. Far from the contest between clearly distinct moral absolutes that is portrayed by both sides, some newly-arrived alien anthropologist would find it very hard to tell good guys from bad. Even Anonymous’s one-time weapon of choice, the Low Orbit Ion Cannon, was in fact originally devised by the cybersecurity industry as a tool for testing network defenses. In appropriating it, Anonymous turned its own technology against it.24 The real question is where this reality came from – and why the public indifference to it?

Conclusion

To answer that question, we need to appreciate the history, not just of piracy itself, but of piracy and its antagonists. By now that history has shaped the mundane realities of information itself. It shapes how digital and other resources can be obtained, moved, and put to use – on an everyday basis, by all of us. That is why the challenge that stands at the basis of all western political history, “Who will guard the guards,” remains so essential. Furthermore, the reason to be concerned about it is not that the IP defenders are necessarily wrong in believing their controversial practices necessary. It is not so clear, pace many digital activists, that they are wrong in any simple sense. Nor are they fighting a war against progress – let alone one that they are doomed to lose. On the contrary, the reason to be concerned is that they may very well be right, and that progress, or at least progress of a morally approvable kind, may in some sense depend on them. Perhaps information can only be protected by making compromises elsewhere in the complex social contract of late modernity, and perhaps those compromises should indeed be made. The problem is deciding where to draw the line. We should be well advised to approach that problem with an appreciation of what is at stake and how things got to be this way. The prospects for reconciling intellectual property with the good society may depend on our doing so.


  1. Perhaps the most important text of this campaign was D. Hay, P. Linebaugh, J.G. Rule, E.P. Thompson, and C. Winslow, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (London: Pantheon, 1976). 

  2. A. Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (Chicago, IL: University of Chicago Press, 2009), 498-508. 

  3. Mayo Collaborative Services et al., vs. Prometheus Laboratories, Inc.: US Supreme Court, March 20, 2012: http://www.supremecourt.gov/opinions/11pdf/10-1150.pdf. 

  4. See especially B. Latour, Science in Action: How to Follow Scientists and Engineers Through Society (Milton Keynes: Open University Press, 1987), and Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (New York: Oxford University Press, 2007). 

  5. J. Karaganis, “Rethinking Piracy,” in Karaganis (ed.), Media Piracy in Emerging Economies (New York, NY: Social Science Research Council, 2011), 1-73, esp. 65. 

  6. See, for example, the cover of A.C. Mertha, The Politics of Piracy: Intellectual Property in Contemporary China (Ithaca, NY: Cornell University Press, 2005). 

  7. http://www.uspto.gov/ip/training/index.jsp. 

  8. http://www.iipcic.org/. 

  9. http://www.iipcic.org/InternationalHistorical.html; http://www.ccapcongress.net/. 

  10. Karaganis, “Rethinking Piracy,” 37-38. 

  11. http://www.interpol.int/Crime-areas/Trafficking-in-illicit-goods/Trafficking-in-illicit-goods. 

  12. Johns, Piracy, 102-103. 

  13. http://www.interpol.int/Crime-areas/Trafficking-in-illicit-goods/The-INTERPOL-Global-Register. 

  14. http://www.guardian.co.uk/technology/2012/jul/18/google-illicit-networks-summit. 

  15. J. Christian (Vice President and Head of Global Corporate Security, Novartis), Oral Statement before the Subcommittee on Commerce, Trade, and Consumer Protection, House Energy and Commerce Committee, June 15, 2005: http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg22982/html/CHRG-109hhrg22982.htm (my italics). 

  16. S.D. Scalet, “Radio-Frequency ID (RFID) as an Answer to Pharmaceutical Drug Counterfeiting,” CIO May 11, 2007: http://www.cio.com/article/108903/Radio_Frequency_ID_RFID_as_an_Answer_to_Pharmaceutical_Drug_Counterfeiting.
     

  17. I am thinking here of Aristotle’s insistence that investigations must adopt categories appropriate to their subjects of study. For example, in pre-modern Aristotelianism, it was widely accepted that mathematics was not an appropriate means for investigating the substantial and causal character of natural processes, because mathematical entities – numbers, geometrical shapes, and the like – were not substantial or causal. See P. Dear, “The Meanings of Experience,” in K. Park and L. Daston (eds.), The Cambridge History of Science, IV: Early Modern Science (Cambridge: Cambridge University Press, 2006), 106-31, esp. 120. 

  18. A. Johns, “The Property Police,” in M. Woodmansee, P. Jaszi, and M. Biagioli (eds.), Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective (Chicago: University of Chicago Press, 2011), 199-213, esp. 208-210. 

  19. http://motherboard.vice.com/blog/nasa-s-mars-rover-crashed-into-a-dmca-takedown. 

  20. Johns, Piracy, 121, 334. 

  21. The exemplary case remains that of Edward Felten, whose successful bid to demonstrate the shortcomings of a “secure digital music initiative” fell afoul of threats to invoke the DMCA. The resulting hearing is transcribed at https://www.eff.org/node/68101 

  22. The best account of the ambiguities of digerati is Gabriella Coleman, Coding Freedom: The Ethics and Aesthetics of Hacking (Princeton, NJ: Princeton University Press, 2012); see esp. 207-10. 

  23. The Aiplex incident was widely reported at the time: see, for example, B. Grubb, “Film industry hires cyber hitmen to take down internet pirates,” Sydney Morning Herald September 8, 2010: http://www.smh.com.au/technology/technology-news/film-industry-hires-cyber-hitmen-to-take-down-internet-pirates-20100907-14ypv.html. 

  24. S. Gallagher, “High Orbits and Slowlorises: Understanding the Anonymous Attack Tools,” Ars Technica February 16, 2012: http://arstechnica.com/business/2012/02/high-orbits-and-slowlorises-understanding-the-anonymous-attack-tools/. 


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Image: "10,000 B.C. paragraph 5”
From: "Drawings from A Thousand Plateaus"
Original Artist: Marc Ngui
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Copyright: Marc Ngui