File-sharing has continued to expand over the past decade regardless of some landmark legal wins against peer-to-peer companies, torrent aggregator websites, and individual file-sharers. Whenever popular torrent indexing sites like SuprNova and Mininova have been legally forced to remove copyright-infringing materials and/or monetise exchanges by charging users for access to copyrighted materials and passing on royalties, alternative sites have sprung up almost immediately.
In 2008, faced with escalating battles on multiple jurisdictional and industry sector front lines, Big Content shifted gear by proposing a three-pronged global strategy requiring tight cooperation between sovereign governments and Internet Service Providers (ISPs) (Yu 2010: 1374; Bridy 2011: 44). Firstly, transglobal corporations through their professional organisations insisted that ISPs around the world monitor their customers' downloading behaviours and discipline copyright infringements. Secondly, they lobbied national governments to enforce such ISP co-operation by introducing legislation which preferenced (often transnational or multinational) corporate interests over citizens. The new ‘graduated response’ or ‘three strikes’ protocols gathered steam, with governments within Britain, Europe, Canada, and across Asia drawing up relatively similar laws to present to their parliaments (Bridy 2011: 44). Finally and most significantly, they pushed for a plurilateral treaty—the Anti-Counterfeiting Trade Agreement (ACTA), which would ensure compliance with above demands by harmonising copyright laws including those related to file-sharing.
US industry groups have thus far refrained from pushing their own government to adopt a ‘statutorily mandated’ system, opting instead to pursue ‘voluntary agreements’ with ISPs (Bridy 2010: 45).
We propose to tell the new government that Spain will appear on the Watch List if it does not do three things by October 2008. First, issue a [Government of Spain] announcement stating that internet piracy is illegal, and that the copyright levy system does not compensate creators for copyrighted material acquired through peer-to-peer file sharing. Second, amend the 2006 “circular” that is widely interpreted in Spain as saying that peer-to-peer file sharing is legal. Third, announce that the GoS will adopt measures along the lines of the French and/or UK proposals aimed at curbing Internet piracy by the summer of 2009.
As Spain ignored these demands, the US put Spain on its watch list, where as of 2010 it is sandwiched between Romania and Tajikistan (Kirk 2010). See also the Electronic Frontier Foundation’s (EFF) chronology of events by Hinze (2010). Wikileaks was instrumental in bringing the US government’s role to public attention in Spain according to the EFF, triggering a (successful) public campaign against a proposed government act which would have acquiesced to US demands.
The Anti-Counterfeiting Trade Agreement (ACTA) has been described by legal scholar Margot Kaminski (2011: 2) as an ‘attempt to introduce maximalist intellectual property standards in the international sphere,’ and ‘primarily a copyright treaty, masquerading as a treaty that addresses dangerous medicines and defective imports.’ As such, it has had the realm of file-sharing clearly in its sights. ACTA represents the apex of coordinated international lobbying since plans for the treaty were officially announced in October 2007 (after some years of informal discussions suggests key ACTA researcher Michael Geist) (2009b, np). This treaty involving 38 countries has been negotiated through a ‘private network of, by and for invited corporate insiders’ operating outside of ‘conventional’ policy-making venues such as the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO), notes activist and author David Bollier (2009, np). The lengthy in-camera deliberations have avoided public scrutiny by denying Freedom of Information requests by special interest groups and interested scholars (Geist 2009a, np).
Ordering attempts inevitably produce disordering functions, which generate their own socially productive momentum, and so the cycle continues. Over time negotiations details and actual draft documents leaked out from the ACTA info-bunkers, following the cyber-libertarian principle that ‘information wants to be free.’ Leaks increased the pressure on governments to open up the process, and more recent leaks in February 2011 from the Wikileaks Cablegate tranche of documents have revealed how heavily the US government was pressuring certain signatories to unequivocally outlaw and punish file-sharing.
What little was known about ACTA came from a compilation of Discussion Memos entitled 'Japan – US Joint Proposal' and marked US Confidential (to be declassified in 2018) which had been posted on Wikileaks in April 2009 (Anderson (2009). The leaked material contained various drafts of the proposal in 2008 (dated May 8, 25 June, 7 July, 23 September, and 16 October).
In March 2010 the European Parliament voted 633 to 13 to force the disclosure of the negotiating text, forcing a ‘one time release’ of the ACTA negotiating text on 16 April 2010 (Love 2010, np; see also Yu 2010: 1377-8). Subsequently only the United States has blocked additional releases of the draft treaty. In contrast European representatives had recognised that secrecy had exposed the negotiations to attacks from numerous quarters, disorder within the info-realm generating its own transglobal constituency sharing information, ideas, strategies, and resources. In a November 2010 Resolution the European Parliament noted that the ‘public criticism of the secrecy of the negotiations’ clearly signalled the ‘political unsustainability’ of closed processes, and recommended that the ACTA Committee ‘operate in an open, inclusive and transparent manner’ (Rinaldi et al 2000, np).
When the final, legally-verified version of ACTA (dated 3 December 2010) was released publicly, governments expediently adopted a position of soliciting feedback, pledging for example that a ‘decision on signing any final new ACTA treaty will only be taken after full public and parliamentary scrutiny (Australian Department of Foreign Affairs and Trade 2011). Until all parties ratify ACTA, a global network of opponents continue to pool their resources to raise public awareness and lobby governments about striking a balance between individual rights and corporate interests in the digital domain. To date this network is composed primarily of legal and media scholars, and internet rights groups, with grass roots file-sharers on dedicated P2P fora such as TorrentFreak remaining relatively silent on the subject (although ACTA news posted on the geek news site Slashdot attracts numerous comments). Possibly this disconnect happens because such P2P fora tend to focus on events visibly related to P2P such as lawsuits against The Pirate Bay, other facilitating entities, and individuals. ACTA’s clandestine negotiations centre on establishing a meta-level of control. Perhaps because file-sharers already flaunt existing laws with impunity the threat of this invisible power is of little interest to them. Fora commentary demonstrates a commonly-shared conviction that P2P culture always will find a way to circumvent new restrictions, whether legal or technological.
The ‘most worrying provisions’ of ACTA’s final draft included now ‘subtler’ ‘legal and monetary pressure’ forcing ISPs to ‘police their networks and users themselves,’ noted La Quadrature du Net ('ACTA: Updated Analysis of the Final Version' 2010, np). This ‘weapon’ benefiting the entertainment industries was ‘incompatible with democratic imperatives and...fundamental freedoms’ (ibid.). For example, Article 23.46 set out criminal sanctions for ‘aiding and abetting’ which could be ‘used against Internet technical intermediaries and technology providers as a way to force them into accepting “cooperation” with rightsholders’ (ibid.). Furthermore, Article 27 covering Enforcement in the Digital Environment specifically identified ‘infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes,’ a provision that La Quadrature du Net envisaged could indirectly criminalise ‘blogging platforms, P2P networks, free software, and other technologies that contribute to dissemination of culture and knowledge on the Internet.’ Finally, a non-binding paragraph allowed ‘rights-holders to obtain private data regarding the users of Internet service providers, without a decision of a judge,’ raising further concerns about due process and electronic privacy issues.
[Article 27, Paragraph 4] A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.
Inevitably, the unabated resistance to ACTA from below has propelled Big Content to formulate new proposals for reigning in file-sharing and other unauthorised forms of circulation. The most recent project is the multilateral Trans-Pacific Partnership (TPP), the ‘son of ACTA’ which would export core features of the United States’ Digital Millennium Copyright Act to a diverse agglomeration of countries including Australia, Brunei, Chile, Malaysia, Singapore, and Vietnam (Anderson 2011). Described by Michael Geist (cited in ibid.) ‘everything [the US] wanted in ACTA but didn't get,’ it is being drafted in secret but as with ACTA the boat has holes.
Over time online nodes in the resistance circuits develop distinct cultures and expanded networks around them, expanding potential leaked document depositories from where revelations ripple outwards to countless technology news and mainstream media sites. For example, someone deliberately chose Knowledge Ecology International as the drop box for the first leak of TPP material, perhaps because this new treaty combines the interests of both Big Content and Big Pharma (see 'Trans-Pacific Partnership, Intellectual Property Rights Chapter, Draft – February 10, 2011' 2011). In particular Article 16: Special Measures Relating to Enforcement in the Digital Environment devotes 4 pages dedicated to the proposed obligations of ‘service providers’ in monitoring and punishing copyright infringers (ibid. 32-36). Within hours a synopsis posted on Slashdot had attracted around 300 comments (''Son of ACTA' Worse Than Original' 2011). And with Wikileaks becoming more unstable and problematic (for both technical and social reasons), alternative safe havens for hot data will come into being. GlobaLeaks (2010, emphasis added) is one such example, launched by a geographically-dispersed group of hacktivists working on an open source ‘worldwide, anonymous, censorship-resistant, distributed Leak Amplification Network supporting whistleblowers all around the world.’
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This is a section of a chapter (revised abstract attached) I am writing for a special issue of the Journal Global Networks entitled ‘Networks of Disorder.’ Editors: Jonathan Marshall and James Goodman. Forthcoming in 2012.