We Still Need The Pirate Party and More: Changing Perspectives on the Morality of Music Sharing (2013)

Michael Nycyk

The debate about the morality of file sharing – as ‘theft’, ‘piracy’, or a ‘gift economy’ continues. Adrian Cosstick (2009) suggested in Platform that the Pirate Party should have input into the legislation of viable solutions to manage this issue. Cosstick proposes flexibility and co-operation to create new channels of distributing music. Despite recent innovations to prevent lost revenue, such as paid streaming services, the core issue is that the record industry sees music as property, and sharing as theft. Along with recent ideas such as DJ Shadow’s album generating revenue from a BitTorrent, these reframe the moral aspects of file sharing, copyright and piracy. This essay argues that such ideas can, in addition to addressing economic concerns, change how society views intangible property. Drawing on elements of Émile Durkheim’s theory of morality, this essay proposes that new ideas and channels of distributing music are still needed to change perceptions of theft as a moral problem. Record companies need to revisit and implement ideas of alternative distribution of music instead of cultivating campaigns which portray sharing music as ‘immoral’.

Keywords: Morality, Theft, Durkheim, Music, File Sharing, Piracy, Internet

Recording companies and musicians continue to argue that downloading music is wrong and their music is their property providing an economic livelihood. On the other hand, practices of downloading, uploading and sharing music are engrained in everyday life. Organisations such as The Pirate Party and The Missionary Church of Kopimism in Sweden view the very concept of copyright itself as immoral, yet Cosstick (2009) and Stallman (2009) point to means of overcoming this moral divide. Drawing on the thought of Émile Durkheim, this paper discusses the morality of sharing, as new channels of distribution bring with them challenges to existing moral attitudes. First, some elements of Durkheim’s conception of morality are drawn on to understand the morality of file sharing. Then the essay examines the history of efforts to stop file sharing, and to modify business models in the face of new technologies. New ideas of distributing music potentially manage the problems of economic and artistic value, and change the moral perceptions of property and theft.

Durkheim’s conception of morality

Durkheim believed that morality was important for individuals and the society they lived in. He stated that morality must match the encountered situation, and that acknowledged morals are fluid and changeable (Durkheim, 1961). Disruptive events of any kind are barometers of morality; when they happen there is a need for a moral education to correct something within that society (Durkheim, 1973). Durkheim’s A Moral Education described three elements that must exist in order to reform any problematic act in society: a spirit of discipline, attachment to social groups, and autonomy. Discipline restrains the impulse to act selfishly, attachment places the group before the individual, and autonomy refers to the free adoption of social values (Durkheim, 1961). The last element is crucial in changing morals because as, Hagens (2006, p. 217) notes, “morality must contain an element causing both its imperatives and its prohibitions to present themselves as desirable”.

The rise of Napster was such a barometric event: musicians and recording companies saw music sharing as a case of theft, unfair and immoral. Lars Ulrich from Metallica complained: ‘it is therefore sickening to know that our art is being traded like a commodity rather than the art it is’ (Marshall, 2002, p. 1). In 2012 the lead singer of the band Cracker expressed a similar view: that listening to music without paying, even on digital music streaming services, is cheating musicians out of the value, not just the derived revenue, of their work (Timberg, 2012).

Therefore, the moral framework needs to justify both the benefits of a social norm (such as musicians being paid royalties on sales through a record company) and the punishments for transgression (such as the RIAA suing file sharers for lost sales revenue). We see this operating in public education campaigns for weight loss, quitting smoking or safer sex practices where such strategies appeal to the person changing to fit in with a desirable moral code. Record companies present file sharing as theft and hence morally wrong, in order to try to stop these practices.

Perceptions of theft and intangible property

Throughout history, the immateriality of music has problematised its status as intellectual property as this quote shows (Bruncken, 1916, p. 77):

“The man who steals my coat, or the defaulting bank official who filches my savings, does not deny that I am entitled to my property. Yet the unsophisticated mass of people need considerable explanation before they understand that it is wrong to perform a musical composition in public or even to copy the notes embodying it, without first getting the composer’s permission. Who is wrong, the author who insists on his right, or the man on the street who fails to see that such right exists?”

The MPEG-1 Audio Layer 3 (MP3) is a digital file type valued for its balancing of fidelity and portability (Hinduja, 2006; Sterne, 2006). But it is not often considered property in everyday life – and hence ‘sharing’ is not seen as ‘stealing’ – because it is intangible. Gorry (2003) provides an anecdotal example of the morality of stealing from his information technology ethics class: students viewed the taking of a physical book as theft, but not the transferring an MP3 file from one laptop to another. According to Manesh (2006) millions see theft of physical property, but not copyright infringement, as immoral. Internet users often view downloading as a far more moral act than counterfeiting compact discs (BOP Consulting, 2009). Nor do digital files drop in quality when they are copied, a criticism made of practices of cassette dubbing (Music Piracy: Flashez, 2008). Self-discipline as Durkheim frames the term is lacking because inhibitions to resist downloading are low (Lysonski & Durvasula, 2008).

It is my property: the morality of theft

Music industry stakeholders have launched morality-based education campaigns to change public perception of file sharing, and increase penalties for infringement. Rodman and Vanderdonckt (2006) describe an ideological and economic struggle over music downloading and piracy. It is a struggle over the ownership of culture, to transform intellectual property into something that resembles physical property: not for sharing. These messages apply Durkheim’s moral element that one must understand why paying for music is important and then embrace it.

The moral position of many involved in the music industry is that songwriters are victims of downloading and ownership of music must be guarded. Music Rights Australia (2012) states sharing is wrong because copying music undermines artists being paid fairly for their ‘hard work’. Sphere Analysis’s (2011) report to the Australian Government stated $900 million and 8300 jobs were lost due to downloading and piracy activities. The intention is to show that Internet users contribute to this problem by downloading, uploading and sharing music without paying the artist for that privilege. To illustrate the depth of feeling in the music industry, Rick Chazan in 2011 gave a speech about music piracy at a function held by the Music Industry Piracy Investigations organisation. He uses religious rhetoric in a plea for stopping music piracy behaviour with these two comments (Music Industry Piracy Investigations, 2011):

“As a music manager myself of 10 years I am all for adapting artists’ business to new ways and the current context in which we live. But that aside, whatever happened to “thou shalt not steal?” I come from a Jewish background. My family and myself are not particularly religious people but “not stealing” was clearly ingrained into my psyche from a very young age. I have a vivid memory of stealing a small plastic animal from kindergarten. I put it in my pocket and took it home. The guilt and fear I felt was so palpable that I had to turn myself in.”

“This issue is not just about music piracy. It is also about basic humanity. Do we want to live in a world where stealing is justified because technology allows it, because you can get away with it and everybody else is doing it?”

Chazan echoes Bruncken’s (1913) view on this issue, illustrating an example of an attempt to get, in Durkheim’s terms, people to see why paying for music is important and why paying for it should be ’embraced’ by all. His quotes also reflect the changing nature of the music commodity, and appeals to a sense of humanity to prevail over technological advances. In 2009 online store Apple Bazaar appealed to its customers’ ‘love’ of music to reduce piracy: ‘all this is just due to those who smile after downloading a music file for free…this is not the right thing to do, especially if you’re a music lover’ (Apple Bazaar, 2009). Frequently music industry bodies all on governments to promote consensus that sharing is morally wrong (Chiou, Huang & Lee, 2005). The question for record companies, in Durkheim’s terms, is how can Internet users receive a moral education to not only see file sharing as theft but embrace this idea?

While the record industry’s presentation of file sharing as theft – and hence morally wrong – has been fairly consistent, studies of online filing sharing practices illustrated the sharing culture’s disregard for morality. In a music-related chat room, one sharer advises another where to go to find a shared directory of music. The interactions observed in his study, as exemplified by the example below, did not show regard for others’ musical property. Whilst Whelan in this study does not judge those committing this, the participants in this interaction display a notable lack of what Durkheim calls self-restraint in thinking that this is actually the immoral act of stealing (Whelan, 2006, p. 69-70)

“Nine days later, kaffiend is looking for samples-

Extract 13: raga jungle room, 10/14/03

[kaffiend] any of you have any good bass sample?

[illacrew] add Breakmasteruk

[illacrew] and browes him

[illacrew] he haz everything a junglist could want…

[illacrew]well anyway he has wikkid samples

[illacrew] you should leave him a tahnk you note, if you get crazy

[kaffiend] where can i find these at?

[illacrew] downloading

[illacrew] Breakmasteruk

[illacrew] in his shared directory

[illacrew] dhe has 300 gigs of samples.”

This is an example of the frequent type of activity that concerns the music industry. In Durkheim’s framework it is actually an immoral act because it is stealing without giving due financial compensation to those who created the musical works. Yet the Pirate Party, some musicians and other activists may see these acts of taking others’ music as acceptable.

Musicians’ conflicting views on morality and file sharing

Musicians’ perspectives on the morality of filing sharing can differ significantly from those in music corporations. The responses of Tom Ellard, formally of Australian electronic band Severed Heads and Greg Gillis, known as Girl Talk a mash-up music artist who uses only others’ music, illustrate a sharp contrast of moral views on the sharing and re-use of their own music and that of others. Both have sampled other artists’ music works, yet they have differing views on how their own work is used.

Ellard has responded with anger and indignation when his music has been uploaded to YouTube, and edited into others’ videos. His personal blog admonishes both fans engaging in such practices, and those in academia who support potential mechanisms of theft (Ellard, 2011a):

“Like all good Fascists they pretend to speak ‘on my behalf’. Particularly distressing are those academics that promote their redistribution of other people’s work as ‘a gift economy’, the same that would condemn anyone that spoke on behalf of another person with less power; but then academia and hypocrisy are siblings.”

The use of ‘Fascists’ in this tone suggests something bad and sinful about another’s behaviour. In this case, redistribution of work as part of a gift economy is frowned upon as unacceptable. Ellard further expresses his disapproval of others’ behaviours of taking his music (Ellard, 2011b):

“A big …off also to all the MP3 blogs that uploaded my stuff. You talk like revolutionaries, but you are actually the traitors.”

Ellard indirectly names the sin of theft openly admonishing those doing such practices as ‘traitors’. This shows common differing views of theft; those who took Ellard’s music did not see it as theft, but Ellard does. Another example of Ellard’s view drawing a comparison between property and theft is his direct comment on a YouTube video upload of his 1991 song ‘Pilot in Hell’ (walkingupsidedown, 2009) being openly stolen by someone who does not own the song:

“This is my music. I didn’t want it uploaded by you. You didn’t ask me. Since when did you have the right to decide where my work was shown?”

However, in 2012 a comment is posted in response to Ellard’s protest (although Ellard’s comment has since been deleted):

“you are embarrassing yourself over the internets, if not for youtube we would’ve never knew you existed, thanks for the exquisite music you old whiner.”

Ellard’s comments mirror the opinion of many in the music industry; their music works are theirs. But the terse reply by another YouTube poster clearly disagrees suggesting they have a different moral view of the upload of Pilot in Hell. We become thieves if we use it in ways the artist did not want when it is for our own economic or cultural purposes without fair payment to the artist or acknowledgement of that artist’s work.

Yet others distinguish between theft and the re-use or appropriation of others’ creative works. Gregg Gillis, a mash up artist who uses the stage name Girl Talk, openly discloses using others’ music works as he combines music samples to mash up hip hop music with other artists’ music. According to Gillis, not only is his mash up practice not immoral, it is also not illegal (Levine, 2008):

“Mr. Gillis says his samples fall under fair use, which provides an exemption to copyright law under certain circumstances. Fair use allows book reviewers to quote from novels or online music reviewers to use short clips of songs. Because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect their sales, Mr. Gillis contends he should be covered under fair use.”

Whilst this view ignites further debates about fair use and copyright, Gillis has attracted many who disapprove of these actions. He does not see it as theft, but ironically nor does he see those downloading his music as thieves as he comments (Bilton, 2011):

“Interviewer: Did it bother you when people illegally downloaded your first CDs?

Gillis: Absolutely not. I loved it. It was really exciting. I actually used to go on Napster and Lime Wire and check to see how many people where stealing the albums. It was very flattering.”

Clearly, Ellard and Gillis view uploading, downloading, sharing and re-use of music differently. In Durkheim’s terms, Gillis does not constrain himself from taking other’s music, and does not adhere to the recording and other artists’ ideals that music is the property of individuals. Yet Gillis allows fans to pay what they want for his works, a facility that Ellard’s fans would also appreciate. But if this dichotomy exists then how do interested parties who own and distribute the music appeal to the consumer’s morality to change their behaviour and always pay for the music the consumer is downloading, uploading and sharing?

Reframing morality through new distribution methods

The conclusions drawn from the attitudes of musicians, recording companies and other stakeholders examined here is that the divergence of views is wide. Rationally, one would expect people to view MP3 files as property; not paying those who created them is a form of theft. However, Durkheim’s view of morality as subordinating individual gratification to social norms does not appear to be working. For example, Dangermouse combining Beatles songs with Jay Z’s raps to produce the Grey Album was a barometer of public morality: the Grey Tuesday protest was a large-scale response to copyright holders’ prosecution of Dangermouse. As Ayers (2006) describes, many seemed not to view this cyber activism against the potential copyright action from the Beatles’ recording company as being wrong even though it openly used the Beatles’ music without permission.

Record companies and their stakeholders need to accept that prohibitions on file sharing are not deterrents. To do this a co-operative approach needs to be taken. The ideas of the Pirate Party and others reframe the moral perceptions of sharing. As Condry (2004) and Stallman (2009) advocate, supporting artists through alternative modes of distribution is effective in encouraging purchasing rather than stealing of music. Campaigns grounded in research must be aware of their cultural and moral environment. Higgins, Wolfe and Ricketts’s (2009) study into practices of music piracy by college undergraduates found an that positive perceptions of piracy were influenced by students’ peer groups (Higgins, Wolfe & Ricketts, 2009). This suggests the pro-piracy attitude has far outstripped the anti-piracy attitudes the music industry has tried so hard to implement.

How do Cosstick’s suggestions reflect elements of Durkheim’s views on morality? Co-operating with the Pirate Party means recording companies and musicians need to reframe their view of theft and embrace a level of trust with consumers. For example, Cosstick (2009) states:

“In this circumstance, an album or a song downloaded from somewhere like Napster or The Pirate Bay would not be ‘piracy’ as long as ownership of the work is for private consumption or to share with others for the same purpose. In an instance where the work is to be included in an advertisement or an individual wants to cover a song for financial gain, it would then be up to the owner of the intellectual property as to what sort of recognition and compensation is due.”

This example is indicative of the move towards a stance that values sharing property, much like the contents of libraries. Cosstick also suggests the owner of the intellectual property should have the power to decide on the compensation due to them. Music streaming has, despite some protests from musicians, allowed one technological fix: users can listen to music for free, but must pay to own the files. The collaboration of DJ Shadow and BitTorrent offers ‘bundling’ as a solution (Torrent Freak, 2012):

“The idea is simple. BitTorrent Inc. helps artists to promote a bundle of free content to their 150 million users. This bundle includes a piece of sponsored software such as a media player or anti-virus package that can be installed as an option. When a user installs the free software, both the artist and BitTorrent get a cut of the proceeds. ‘We believe we can make digital distribution even more viable for creators and fans. So, beginning now, we’ll be testing new ways to drive profitability for creators while delivering even more meaningful media experiences for our users,’ BitTorrent CEO Eric Klinker comments on the announcement.”

This changes the moral perspective on music file sharing because this idea potentially offers a viable solution to the core moral problem of theft and artists being paid for their music. It also legitimises businesses previously portrayed as encouraging theft and taking a toll on the industry as a whole, as the MGM vs Grokster case in 2005 in the United States exemplifies (Lysonski & Durvasula, 2008).

To further solidify changing moral perspectives on music sharing involves those previously characterized as ‘thieves’ participating in legislative changes to copyright acts and the design of mass media campaigns to promote awareness of alternative distribution channels. The Pirate Party’s beliefs that file sharing must promote the dissemination of culture in public spheres and ensure the creator is compensated (Cosstick, 2009; The Pirate Party, 2009). Again, it is this balance that is being called for which alternatives, such as DJ Shadow’s collaboration with TorrentFreak, Radiohead’s pay-what-you-want pricing of In Rainbows, and free streaming services such as Spotify offer. The effectiveness of these strategies needs further evaluation as to whether, as my reading of Durkheim suggests, they encourage the recording industry, not just downloaders, to embrace the notion that property is being shared, not stolen. The radical social movement to retrain unlimited property rights of copyright holders and making them abandon proprietary rights, espoused by Lee (2005), was an unthinkable moral shift at that time. Recording companies and artists responded by reframing moral ‘sharing’ as immoral ‘theft’. In 2012 this argument to give up proprietary rights and share is a pressure brought on all stakeholders in the music business and encourages them to embrace this situation as sharing not theft, hence no longer immoral.

There is, however, scepticism towards the claim that every part of the music industry suffers because of theft. As Moses (2011) reported, the Australian Institute of Criminology has criticized the findings of organisations such as the Australian Federation Against Copyright Theft (AFACT) bring out. This reframes the idea that downloading is not actually immoral because somehow revenue is finding its way to the artists, recording companies and others (such as through increased ticket or merchandise sales). Stallman (2009) has long argued such solutions are just changes in business models not widespread theft, proposed taxes on Internet connections or blank recording media as suggested models of revenue generation for artists. Another strategy is to continue empirical and anecdotal research into downloading behaviours. Yar (2008) criticises the use of cartoon characters, such as Copyright Crusader, in moral public education campaigns. Kinnally, Lacayo, McClung and Sapolsky (2008), in their study of music downloading habits of college students, note that many of their respondents do not even consider sharing a moral problem, and call for more research as to why this might be.

Currently, research has questioned the effectiveness of punishment of those that steal or upload music, and states that promoted collaborative approaches will be more effective in influencing people to pay for music (Martin, Moore & Salter, 2010; Doloswala & Dadich, 2011). Such ideas from Cosstick (2009) and others point to, in Durkheim’s description of morality, the opportunity to reframe the idea of theft of property and influence people to view it as immoral. This is maintaining momentum, but the recording companies and other stakeholders still argue strongly the act is immoral and needs punitive measures to stop it. In essence, we need even more pressure brought on the recording companies to persuade that new methods of distribution are moral avenues to take, combined with even more research to understand motivations for downloading in the absence of users not considering it theft. Many artists have already embraced alternative models of music distribution, but recording companies have more work to do in reframing the moral debates, which is still, even with music streaming services gaining mass acceptance where artists ‘mostly’ get paid, difficult to do. Clearly this cooperation between music fans, artists and recording companies who differ in their views of what is immoral and moral is still not producing a viable working solution for all.


It is unfortunate that Cosstick’s call for cooperation between activists such as The Pirate Party and record companies is still mostly unheeded at this time. Durkheim’s conception of morality attempts to understand what is appropriate to the society at a point in time. “Moral education” is required for music consumers, artists and recording companies alike. Research must continue to explore new policies that might benefit all parties. Whilst practices of taking music without payment are unlikely to diminish in the years to come, the moral framing of this issue needs to change. Cosstick was correct to argue in 2009 that The Pirate Party had a role in actually creating avenues for music artists and stakeholders to gain revenue whilst still encouraging a free sharing culture downloading has created. That means taking a new moral position on music as property. Reconciling what is moral and immoral about music file sharing is still the core problem limiting this debate. Musicians themselves may be divided over this issue, but recording companies need to ‘freely embrace’ (in Durkheim’s sense) the notion that new models of distribution can work and adopt them. Events like the release of Radiohead’s In Rainbows act as barometers of changing social morality; if record companies wish to survive the storm they will need to acknowledge that the weather is changing.


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The Sight of Global Politics: Aesthetics after the Arab Spring (2011)

Dakin McDonald

Graduate Student in Cultural Studies and Critical Theory
Department of English and Cultural Studies
McMaster University
Hamilton, Ontario, Canada

This experimental paper is a deliberate provocation that seeks not to establish truth but to incite further thought regarding the mediated mutation whereby the Arab Spring uprisings were succeeded by a humanitarian war in Libya. The collective attempt to imagine new lives after decades of totalitarian emergency throughout many Arab and African countries represents an eruption of politics that has been met, ultimately, by a militarised humanitarian response. This political moment is grasped as an opportunity to glimpse the mechanics of global governance and, in particular, its peculiar aesthetic. While understanding the Arab Spring as an attempt to disrupt existing ‘communities of sense,’ the ensuing humanitarian intervention is itself an aesthetic practice that visualises suffering in a particular way but also makes visible, in part, the overarching aesthetic of contemporary global politics. Political action in a mediated age necessarily concerns aesthetics, especially if the eyes of observers are ever to be able to see differently.


Aesthetics; Arab Spring; Art; Humanitarian War; Ontology; Politics

N.B.: Please note that this essay was written and submitted in Summer 2011 prior to the fall of the Gaddafi regime. As such, the essay comments upon the situation at that time.


Political theory after Michel Foucault’s biopolitics and Gilles Deleuze and Felix Guattari’s complicated assemblages cannot remain unchallenged or unchanged.  In a context where power relations govern the most minute individual difference at the same time as populations are administered and managed—and where the machines of power are “at work everywhere” (Deleuze and Guattari, 1983, p. 1), always already interpenetrating one another through the constitution of abstract machines (Massumi, 1992, p. 17)—the continuing relevance and ability of critical political thought demands a reassessment of methods sufficient to the task at hand: an inventory of strategy.  Brian Massumi promises that “[t]he strands of the web can be unwound” (1992, p. 13), although one speculates how and to what extent.  The attraction of Roland Barthes’s, and now Kathleen Stewart’s (2007), fragmentary method of thinking and writing in detail, intended not to ignore the infinite panorama of the age but to catch an elusive and temporary glimpse all the more clearly, is powerful and perhaps convincing.  The practice should be particularly commended for its subtle and nuanced intensity, its ability to set alight the petty, banal, and mundane anti-events of the modern everyday, and thus deserving of more thorough attention as a strategy for the imaginative apprehension of power’s dynamic, extensive, and invasive functionality.

The danger of writing fragments is indulgence and theoretical slack but the simultaneous advantage is the adventure of new perspectives on global politics: glimpses amidst a ceaseless safari in search of the elusive beast that—horrors of horrors—always rides with us, in us, through us.  In this paper I do not attempt to follow Barthes and Stewart by replicating their writing style so much as I endeavour, naively and without the pretence of a false guarantee, to extrapolate the intensity of their fragmentation, to yank their potential implications so as to reconsider from new angles that impossible, perennially broken machine that has been termed ‘global governance.’1  Thinking with the contemporaneous political moment that is the Arab Spring, I consider how the application of aesthetic frames, particularly the idea of humanitarian intervention, serves to reveal the operations of a specific aesthetic of global politics.  The humanitarian intervention in Libya, which can be described colourfully as an ‘interception,’ demonstrates the extent to which the leading actors of global governance work to violently reproduce this aesthetic while delimiting artistic-political tactics and foreclosing the emergent and unexplored avenues of ontological freedom.  Yet questions persist, as always, like the memory, the residue, of excluded difference, provoking simultaneous critique and productive re-imagining—practices that can, arguably, enable multiple unfoldings and divergent transformations of the very aesthetic framework by which life and politics are understood and wherein truth remains stubbornly privileged as the absolute standard of knowledge.


The attempts by millions of people across the Middle East and the Maghreb to overthrow the illegitimate authorities that suffocate their collective dreams can be productively, if only ever partially, understood as a collective ontopolitical desire to experience a different way of being human together.  Not surprisingly, this desire for existential freedom has been met with the full force of the international security apparatus, namely the authorisation of a humanitarian war—a war that kills human beings in their defence—that is waged in Libya’s skies, upon Libyan bodies, across every screen, in all of our minds.  I am not suggesting that this relationship is intentional, only that it is somewhat causal: predictable, expected, almost scripted because political outburst perversely necessitates containment according to the fatal logic of this apparatus.  After all, the flowing spectacle of people demanding different lives was staunched, in the perception of those who have experienced the Arab Spring as a media event, by the redirection of cameras away from the coursing streets and towards the irresistible carnage accompanying the deployment of a humanitarian intervention that functions, ever ironically, via “strike sorties” and “humanitarian assistance movements.”2  The Arab Spring emerges, then, as a revelatory moment when the aesthetic mechanics of contemporary global governance are revealed.

Such a glimpse has been enabled by those bodies—to whom we owe not only debt but gratitude—which are actively transforming the possibilities of collective life by demanding to be seen and attempting to be heard.3  To begin to think with the Arab Spring invites one to repose Jacques Ranciere’s originally unrelated question, “what did the demonstration demonstrate, exactly?” (2009, p. 34) and ask, firstly, how did these demonstrations demonstrate?  From Mohamed Bouazizi’s burning flesh to the living streets of Tunis, Cairo, Manama, and Homs, millions of people abandoned the (in)security of everyday routine and their apolitical “private” lives to reassert “public” spaces and voice their unquenched desire for political change.  The willingness of those who had previously been unwilling to make their voices heard and to display their bodies publicly through acts of opposition impregnated the uprisings in the sense that Alexander Potts defines as the “unfolding of an event rather than its completion” (2009, p. 61).

This episode is not disdainful anarchy but, rather, the enabling of possible actualisations of previously unimaginable potential.  Ranciere’s work obviously allows us to emphasize the aesthetic implications of this politics, where perception and visuality are paramount.4  “A community of sense,” he writes, “is a certain cutting out of space and time that binds together practices, forms of visibility, and patterns of intelligibility” (2009, p. 31).  Of course, the essential outsides of such a community are the excluded margins, the realm of invisibility upon which any ‘distribution of the sensible’ seems to depend.  The Arab Spring signifies a radical attempt to repartition the sensible so as to disrupt a community based upon terror, repression, and exclusion.  Ranciere would enjoy the overt democratic pleas of the marching citizens because he theorizes an original link between politics and democracy (2007, p. 97) based on ‘dissensus.’  Indeed, politics, for Ranciere, is the rare but immanent disruption of an existing community of sense.  David Joselit explains it as an eruption “from outside normative distributions, launched by those who are (as of yet) unauthorised to speak, who have no standing or visibility” (2009, pp. 157-8).  In this reading, politics is that most uncommon cry for justice (or something far greater) that expresses a desire for freedom and demands that one’s existence be recognised.  The effect of such action is nothing less than the “redistribution of objects and subjects, places and identities, spaces and times, visibilities and meanings,” which allows Ranciere to term politics “an ‘aesthetic activity'” (2009, p. 32).

The Arab Spring uprisings were political, then, to the extent that they were surprising.  Suddenly, millions of human beings who have not been seen and have not been heard are making themselves seen and heard.  They have broken routine, stepped outside of selves constituted by habitual fear, and demanded the necessities of a new life.  Michael Taussig has a word for this kind of “total bodily activity” (2009, p. 6) which we can consider in the collective sense; he calls it ‘colour.’  Colour is nothing less than an eruption of existence (Taussig, 2009, p. 66) and the exciting confusion of a confrontation with the possibilities enabled by difference.  In effect, Taussig argues that the modern West is built on the colonisation of colour (2009, p. 159).  With an explosion of colour on the transnational scale of the Arab Spring, Taussig might even compliment the demonstrators by deeming their actions ‘obscene’; certainly the Mubaraks, Gaddafis, and Assads would agree, although on an altogether different plane of understanding.  Taussig’s obscenity is ontological, it is an “obscenity which radically changes the register of being” (2009, p. 157).  There can be no doubt that the potential of the uprisings has always been ontopolitical because political activity that redistributes the sensible fundamentally calls into question those naturalised ontological assumptions that become untenable when their foundation of fear has been destroyed by the sudden emergence of Others into the frame of the visible.


Obscenity, colour, politics.  These momentary practices are never tolerated for long, however.  In fact, it is the forced demise of the Arab Spring that serves as an illustrative site from which to probe contemporary global governance and its totalitarian complicities.  Through the mobilisation of a discourse of militarised humanitarianism, the aesthetics of the Arab Spring were transformed from one of emancipatory joy (expansive smiles could not be suppressed) to that of an intervention-turned-war that can more accurately be termed a humanitarian ‘interception’ in favour of the existing aesthetic of world politics.  We know this aesthetic well.  Roland Bleiker points out that it is the disciplinary paradigm taught and reproduced within international relations (2009, p. 27).  For Taussig, the aesthetic is one of darkness: “the darkness of war, the darkness of night, and the darkness of those dark overcoats, coats, trousers, socks, and shoes that men [wear]to the present day” (2009, p. 16).  Indeed, this particular aesthetic of global politics is precisely what the actions of Arab citizens managed to oppose, in its localised manifestation, when they became visible and, in so doing, exposed the very foundations of global governance.

To be clear, the problem is not with aesthetics in general.  In fact the constitution of sights, representations, illusions, dreams, and visions is always potentially political; Stewart makes her book political precisely through the articulation of “a series of little somethings dreamed up in the course of things” (2007, p. 9).  Indeed, ‘communities of sense’ are “no more than a fiction or a potentiality” (Hinderliter et al., 2009, p. 2) because, as Ranciere writes, “[t]he real as such simply does not exist.  What does exist is a framing or a fiction of reality.  Art does [politics]by inventing fictions that challenge the existing distribution of the real and the fictional” (2009, p. 49).  Politics is, hence, always the destruction, contestation, and construction of aesthetics—a refusal to see this way and a demand to be seen differently.  Thus, the aesthetic of world politics, as it is currently configured and practiced, is not problematic because it is a fiction; rather, it is a problematic fiction-made-real.  World politics constitutes a securitising aesthetic bent on limiting “the political imaginary as much asfacing threats” (Bleiker, 2009, p. 66) while attempting to gain mastery over the contingencies of life that have always eluded human control (Taussig, 2009, p. 16).  The danger of this aesthetic of world politics rests precisely in its definition and containment of what is possible, which includes both the possibilities of legitimate politics and legitimate life.

There is, however, nothing natural about world politics other than its second nature claim to the real.  It is this “blindness of habit,” according to Taussig, “that allows society to function” (2009, p. 243) and enables the perpetuation of the aesthetic of world politics.  At this point, and with regards to what I have called the humanitarian interception in Libya, it is possible to rephrase Ranciere’s question: what did the interception intercept, exactly?  According to United Nations Security Council Resolution 1973, the establishment of a no-fly zone, arms embargo, flight ban, and asset freeze targets the Libyan authorities so as to respond “to the legitimate demands of the Libyan people” (UN, 2011, p. 2).  Yet action is not directed at Colonel Gaddafi’s regime alone; such claims are rhetorical devices turned distractions.  Instead, this is an interception against what Taussig calls “the south” (2009, p. 15)—which, following his lead, we might redefine as ‘no definite place but where people walk to demonstrate their disagreement’—with the effect of militarising and, hence, extinguishing colour.  It is an interception against the uncertain freedom celebrated by millions of Arab citizens who have broken the habits of world politics—which are, after all, the habits of complicitousness with a totalitarianism so often disguised behind the ruse of emergency—while NATO (North Atlantic Treaty Organization) forces attempt to enforce a community of sense based upon a global hierarchy that continues to practice the darkness of colonial thought and ontological capture.  I am most certainly not advancing an argument in favour of the Gaddafi regime or in denial of Libyan suffering; I am attempting, rather, to visualise the very colour of the Arab Spring uprisings and to question the implications of a strange humanitarian interception that has cast a pall over emancipatory desire, transforming a Spring’s existential demonstrations into a summer’s bombing campaign.

In short, the UN authorised interception in Libya amounts to a global effort to secure the aesthetic of world politics by containing the very possibilities of art as a political tactic.  In this instance, I understand politics according to Ranciere’s definition; art, however, must be regarded as far broader than the confines of literature, music, and popular and visual cultures to which Bleiker attends (2009, p. 35).  The Arab Spring was, itself, something of “a stage” upon which unseen people began to appear (Hinderliter et al., 2009, p. 11) in wonderfully provocative transnational exclamations of political artistry—”the encounter,” that is, “and possibly the clash, of heterogeneous elements” (Ranciere, 2009, p. 41).  Most importantly, Taussig further accentuates our understanding of art-as-political by emphasising how genuine art must attempt “to undo the grip that habit exerts in constraining our view of ourselves and the world” (2009, p. 183).  As T.J. Demos explains, then, the potential of art is both a new world and a new life (2009, p. 140), which participants in the Arab Spring have demanded by breaking the routinised habits of quiescence upon which their old selves were based.  The crime in this instance is the defence of a certain complicity—not only complicity with totalitarians but also complicity within the more abstract totalitarianism of an aesthetic that sees live potential in only one way—when confronted by the joy of colour, the joy of the Arab Spring that is now trampled by the global humanitarian-military apparatus and its stampede of urgency.5  The shouts for ontopolitical freedom that rang forth from across the region are now muffled, and an eerie silence, punctuated by the whistling-then-exploding of bombs somewhere, is restored to the gallery of world politics.

Let’s not let our own selves get away with murder.  Of course the beast is us, trained everyday in this aesthetic, our lives always already implicated and complicit because our consciousness is based (although never entirely) upon the conditions of our existence: this life benefits from those (and these) violences to the detriment of those other lives and ways of living.  To begin to undermine the North’s sincerity, its own righteous conviction, demands another panoramic shot of ourselves.  The stage is not only there, on those streets with those hoards of joyous people-being-public; the North is not only an audience.  Barthes can help us here because humanitarian interception, like the wrestling matches about which he wrote, is a spectacle where “what matters is not what it thinks but what it sees” (1972, p. 15).  And like the audiences at wrestling matches, too, the audiences of global politics are equally delighted by ‘real’ performances “in which what is at stake isthe formal concern with truth” (Barthes, 1972, p. 19).  This truth is nowhere more evident, nowhere more resident, than in the supposedly closed body of the human as dictated by humanitarian moralism.  New attempts to understand and encourage political action must not operate according to a will to return to the image of truth, to deny the new routes of comprehension, the new sites and sights that attention to the aesthetics of governance makes possible; rather, the task might be to create fictions that can challenge the existing fictions-made-real, if only to apply a “hold” that temporarily—like all political action—allows us to think about new connections that were previously unseen, unthought, and unimagined (Barthes, 1972, p. 20).


The aesthetic of world politics itself functions to prescribe an authorised range of possible engagements between people and between worlds while defining what constitutes both.  It is ironic, in the context of this paper, that Taussig describes “no-fly zones” (2009, p. 244) as precisely those spaces that are resistant to the possibilities of thought—that is, resistant to different ways of “sense-making” and distributing the sensible.  The Arab Spring began as a new, multi-nodal departure, a flight, millions of flights but it has been crashed by the imposition of precisely such a “no-fly zone” that precludes certain lines of thought through the mobilisation of militarised humanitarianism.  I have argued that the aesthetic of world politics, as enforced through this humanitarian interception, seeks to prevent the very possibility, nay imaginary, of ontopolitical freedom.  The Arab Spring was an inspirational opportunity to learn to be differently, and yet it has been staunched by the forces of a securitising aesthetic organised around the denial of this freedom and a prevention of political experimentation.  Recognising this situation demands consideration of how it might still be possible to disrupt this aesthetic of world politics so as to (1) demonstrate the possibilities of solidarity beyond humanitarian militarisation, (2) confront the still-pervasive colonial will to capture and (3) challenge our very ‘selves’ as defined through the exclusion of Others.  To begin by thinking in detail about the lies we are, the fictions we make possible, and the aesthetics that sustain us and which we practice is an extension of Barthes’s and Stewart’s fragmentary practice into a mediated age in which the little details are intimately connected to the logistics of a global aesthetic.  The Arab Spring constituted an exhilarating and necessary series of attempts on the part of invisible people to be seen, but this explosion of colour was preempted by a humanitarian-military performance that engineers a fatal interception.  The task that remains is, as usual, complex.  It is nothing less than beyond us.  At the very least, remembering our naïveté, it is possible to realise how the political beings of the future will necessarily attend to aesthetics so that an ocular revolution, perhaps even a new ontology of our own eyes, might also be imagined, actualised, and practiced.


Thanks to Dr. Geoffrey Whitehall at Acadia University for helpful guidance and continual incitement to thought.


[1] I draw inspiration here from existing scholarship on the ethics of naïveté.  For instance, Jane Bennett’s work introduces a concept of naïveté that, alongside Adorno’s clownishness, constitutes her ethical stance towards conducting research (2010, p. xiii).  Specifically, she explores how it might be possible to develop such a “capacity for naïveté” by attending to those ideas and practices that have been delegitimized by mainstream philosophy and political theory (2010, p. 18).

[2] These activities are listed in NATO’s daily Operational Media Updates, which provide fascinating statistical declarations of combat activities within the past twenty-four hours.  See “NATO and Libya,” http://www.nato.int/cps/en/natolive/71679.htm, North Atlantic Treaty Organization, retrieved 12 August 2011.

[3] This description relies upon Jacques Ranciere’s beautiful articulation of politics as that realm concerning “what is seen and what can be said about it, around who has the ability to see and the talent to speak, around the properties of spaces and the possibilities of time” (2004, p. 13).

[4] All too often art and aesthetics are dismissed from matters of serious politics or hard power.  They are perceived as dissociated from survival.  Ranciere’s work helps those of us who have, for too long, apologized for caring about art and for feeling that an important connection exists between artistic practice, politics, and power.  An excellent articulation of art as primary and primal can also be found in Elizabeth Grosz’s Chaos, Territory, Art: Deleuze and the Framing of the Earth (2008).  Grosz writes that “art is not frivolous, an indulgence or luxury, an embellishment of what is most central: it is the most vital and direct form of impact on and through the body, the generation of vibratory waves, rhythms, that traverse the body and make of the body a link with forces it cannot otherwise perceive and act upon Art is the opening up of the universe to becoming-other” (2008, p. 23).

[5] For a critique of the urgency that characterises contemporary humanitarian moralism, see “Introduction: The Tyrant’s Bloody Robe” in Slavoj Zizek’s Violence: Six Sideways Reflections (2008, pp. 1-8).


Barthes, R. (1972). Mythologies (A. Lavers, Trans.). New York: Hill and Wang.

Bennett, J. (2010). Vibrant Matter: A Political Ecology of Things. Durham, NC: Duke University Press.

Bleiker, R. (2009). Aesthetics and World Politics. New York: Palgrave Macmillan.

Deleuze, G. & Guattari, F. (1983). Anti-Oedipus: Capitalism and Schizophrenia (R. Hurley, M. Seem, & H.R. Lane, Trans.). Minneapolis: University of Minnesota Press.

Demos, T.J. (2009). Dada’s Event: Paris, 1921. In B. Hinderliter, W. Kaizen, V. Maimon, J. Mansoor, & S. McCormick (Eds.), Communities of Sense: Rethinking Aesthetics and Politics (pp. 135-152). Durham, NC: Duke University Press.

Grosz, E. (2008). Chaos, Territory, Art: Deleuze and the Framing of the Earth. New York: Columbia University Press.

Hinderliter, B., Kaizen, W., Maimon, V., Mansoor, J., & McCormick, S. (2009). Introduction. In B. Hinderliter, W. Kaizen, V. Maimon, J. Mansoor, & S. McCormick (Eds.), Communities of Sense: Rethinking Aesthetics and Politics (pp. 1-28). Durham, NC: Duke University Press.

Joselit, D. (2009). Citizen Cursor. In B. Hinderliter, W. Kaizen, V. Maimon, J. Mansoor, & S. McCormick (Eds.), Communities of Sense: Rethinking Aesthetics and Politics (pp. 153-171). Durham, NC: Duke University Press.

Massumi, B. (1992). A User’s Guide to Capitalism and Schizophrenia: Deviations from Deleuze and Guattari. Cambridge: The MIT Press.

NATO. (2011). NATO and Libya. North Atlantic Treaty Organization. Retrieved 12 August 2011 from http://www.nato.int/cps/en/natolive/71679.htm.

Potts, A. (2009). The Romantic Work of Art. In B. Hinderliter, W. Kaizen, V. Maimon, J. Mansoor, & S. McCormick (Eds.), Communities of Sense: Rethinking Aesthetics and Politics (pp. 51-78). Durham, NC: Duke University Press.

Ranciere, J. (2004). The Politics of Aesthetics. (G. Rockhill, Trans.). London: Continuum.

Ranciere, J. (2007). On the Shores of Politics. (L. Heron, Trans.). London: Verso.

Ranciere, J. (2009). Contemporary Art and the Politics of Aesthetics. In B. Hinderliter, W. Kaizen, V. Maimon, J. Mansoor, & S. McCormick (Eds.), Communities of Sense: Rethinking Aesthetics and Politics (pp. 31-50). Durham, NC: Duke University Press.

Stewart, K. (2007). Ordinary Affects. Durham: Duke University Press.

Taussig, M. (2009). What Color Is The Sacred? Chicago: University of Chicago Press.

UN. (2011, 17 March). Security Council Resolution 1973 (2011). United Nations. Retrieved 20 August 2011 from http://www.un.org/Docs/journal/asp/ws.asp?m=S/RES/1973%20%282011%29.

Zizek, S. (2008). Violence: Six Sideways Reflections. New York: Picador.

OK, Computer: File Sharing, the Music Industry, and Why We Need the Pirate Party (2009)

Adrian Cosstick

The Pirate Party believes the state and big business are in the process of protecting stale and inefficient models of business for their own monetary benefit by limiting our right to share information. The Pirate Party suggests that they are achieving this goal through the amendment of intellectual property legislation. In the dawn of the digital era, the Pirate Party advocates that governments and multinational corporations are using intellectual property to: crack down on file sharing which limits the ability to share knowledge and information; increase the terms and length of copyright to raise profits; and build code into music files which limits their ability to be shared (Pirate Party, 2009). There are a number of ‘copyright industries’ that are affected by these issues, none more so than the music industry. Its relationship with file sharing is topical and makes an excellent case study to address the impact big business has had on intellectual property and the need for the Pirate Party’s legislative input. The essay will then examine the central issues raised by illegal file sharing. In particular, the future for record companies in an environment that increasingly demands flexibility, and whether the Pirate Party’s proposal is a viable solution to the music industry’s problems.


Mark Hillegas believes the theme in some of modern literature’s great works – Zamyatin’s We, Huxley’s Brave New World, and Orwell’s Nineteen Eighty-Four – demonstrates a growing fear that science and technology could be used to limit freedom (Hilegas, 1967, pp. 3). He writes [somewhat dramatically] in The Future as Nightmare that these works “describe nightmare states where men are conditioned to obedience, freedom is eliminated, and individuality crushed…where science and technology are employed, not to enrich human life, but to maintain the state’s surveillance and control of its slave citizens” (Hilegas, 1967, pp. 3). For the Pirate Party it is a fear that is fast becoming a reality. They believe the internet, together with intellectual property laws, are being used by the state and big business to limit freedom around the globe. The Pirate Party suggests that intellectual property is being used to: crack down on file sharing which limits the ability to share knowledge and information; increase the terms and length of copyright to raise profits; and build code into music files which limits their ability to be shared (Pirate Party, 2009). While it is easy to dismiss as a conspiracy, there are a number of ‘copyright industries’ which have a vested interest in curtailing certain freedoms, none more so than the music industry. This ‘vested interest’ is manifesting in scores of lawsuits, such as the recent lawsuit concerning Joel Tenenbaum, a Boston University student, who was ordered to pay four record labels a combined $675,000 in damages for downloading and sharing 30 songs online (Lavoie, 2009). The topical nature of music industry’s relationship with file sharing makes it an excellent case study to address the impact big business has had on intellectual property and the need for the Pirate Party’s legislative input. The paper will then move on to examine the central issues raised by illegal file sharing and whether the Pirate Party’s proposal is a viable solution to the music industry’s problems.

The Pirate… What?

The Pirate Party [or Piratpartiet] is a political party and lobbying organization that began in Sweden in 2006 (Pirate Party, 2009). The Party has branches worldwide, and while it is gaining publicity in countries like Australia and North America, it has particular influence in Europe. The Party won a seat in the European Parliament after it gained significant traction in the Swedish federal elections with 7.1% of the vote in July of 2009 (Moses, 2009). The win appears to have had a flow on effect. In September, the Party won 2% of the vote in the German elections, with at least 13% of first-time male votes. However, it was short of the 5% required to gain a seat in the German Parliament (Moses, 2009). This sudden spike in popularity followed a global legislative trend against file sharing, and the sentencing of four Swedes to a year in jail for running the web site The Pirate Bay. The Pirate Bay operated out of Sweden and was one of several mega-websites that provide easy access to ‘torrents’, which allow person-to-person [P2P] file sharing (Dvorak, 2006). While file sharing has been declared a breach of copyright and illegal, The Pirate Bay was not as easy to outlaw because it is a type of middleman – a website that does not host illegal material but lists and identifies where the material can be downloaded from the internet (Dvorak, 2006). Nevertheless, international pressure has seen the creators prosecuted and Swedish authorities have essentially terminated the website by threatening to shut down any Internet Service Providers [ISPs] who host it (Dvorak, 2006).

The History – Intellectual Property and the Music Industry

The popularity and plight of The Pirate Bay highlights a growing dissatisfaction with intellectual property laws [IP] and a desire for more free content [two key areas the Pirate Party represents in the political arena]. IP is a legal field that encompasses such creations as music, literature, art works, inventions; and the symbols, names, images and designs used in commerce. The Butterworths Concise Australian Legal Dictionary defines intellectual property as “A group of legislative and common law rights affording protection to creative and intellectual effort and include laws on copyright, design, patent, circuit layouts, plant varieties, confidential information, trademark and business reputation” (Pearson, 2007, pp. 341). At its most basic, intellectual property represents an individual moral issue. It requires individuals to consider the extent to which they can borrow someone else’s creative work without owing them some sort of moral debt or credit for their idea (Pearson, 2007). On another level, however, intellectual property has more in common with real property law. Any ‘borrowing’ or ‘use’ of property may constitute as theft or ‘free-riding’ (Pearson, 2007). Breaching intellectual property laws could also mean a significant loss of income to a group or individual. It then becomes a monetary issue where severe legal consequences apply. Breach of these laws can lead to courts enforcing major compensation for losses or even jail time.

Hence, governments, courts and commentators increasingly treat intellectual property as a type of real property (Lemley, 2005). The primary legislative focus is on Garrett Hardin’s concept ‘the tragedy of the commons’. He uses the analogy of a common property that farmers are allowed to use for grazing to illustrate his ‘tragedy’. Hardin explains that when farmers are permitted to use publicly owned land to graze their cattle, they tend to ‘overgraze’ because they have no incentive to take care of it. After a period of time it imposes costs on the farmers, as the land is no longer fit for grazing (Hardin, 1968). It also discourages the investment of time and money into improving the land because it may lead to one farmer spending money without any return or substantial benefit (Lemley, 2005). Therefore, the lesson from the economics of property rights appears clear – avoid common property and confer strong rights to intellectual property owners. This will allow owners to stringently manage the inventions they have already made, encouraging them to invest in identifying, developing and commercializing new inventions. Consequently, the trend in legislation around the world has been to protect copyright holders. The number of innovations that are copyrightable has increased; it is easier to qualify for copyright protection; owners have broader rights to control uses of their works; and harsher penalties apply for breaches (Lemley, 2005, pp. 14).

The push for new and rigorous intellectual property rights is due in a large part to the spread of multinational corporations. Reebee Garofalo suggests the ‘merger mania’ that began in the music industry during the late 1960s and continues to the present day illustrates why intellectual property law has evolved so strongly over the past 30 years. Artists and audiences may have considered the 1960s as a period of political awakening, but for the music industry it was an era of commercial expansion and corporate consolidation: capitalism had become hip (Sanjek & Sanjek, 1996). It saw the emergence of massive conglomerates that were a hybrid of music labels, film studios, TV networks and electronic companies. The amalgamation of Warner-Reprise, Elektra-Asylum, and Atlantic to form the Warner Communications empire is such an example (Garofalo, 2000). These entertainment conglomerates could achieve cross-media marketing through the various film studios and TV networks under their ‘corporate umbrella’, opening as “many revenue streams as possible” (Garofalo, 2000, pp. 343). A blueprint began to emerge where music videos on MTV were connected to Hollywood films. Then as the movie drew audiences it helped to sell the record. Advertising also became an excellent source of revenue. The Beatles’ song ‘Revolution’ was used to sell sneakers while Bob Dylan’s ‘The Times They Are A’Changin’ attempted to invigorate the image of an accounting firm (Garofalo, 2000). The conglomerates needed intellectual property to expand in order to collect profits at every stage and generate greater revenues from fewer products (Garofalo, 2000).

The eminent globalisation of these companies meant they were essentially worldwide manufacturing and distribution networks capable of marketing artists across the globe (Garofalo, 2000). Epic Records was under American ownership when Michael Jackson recorded Thriller in 1983. By the time he was set to release Dangerous the label was a division of the Japanese owned Sony-CBS. The rapid expansion into developing markets such as Asia, Africa and Latin America meant more sales, but crossing transnational borders made it difficult to ensure that artists were being adequately compensated for the use of their music (Garofalo, 2000). In 1982 it was estimated that piracy held 11% of the total market in the US, 21% in Latin America, 30% in Africa, and 66% in Asia (Garofalo, 2000). The music industry responded by treating music as an ‘export industry’ forcing copyright issues to be built into trade agreements such as the North American Free Trade Area [NAFTA], the Single European Market program, and the international General Agreement on Tariffs and Trade (Garofalo, 2000). The multinationals also blamed the introduction of blank cassettes and CDs for piracy rates. This resulted in levies on blank tapes and CDs, and legislation like the U.S. Audio Home Recording Act of 1992 that imposes charges on audio recording devices and media (Garofalo, 2000).

Big Money, Big Costs, Big Inefficiencies – Why We Need the Pirate Party

The Pirate Party and other commentators believe these developments in intellectual property law have pushed the music industry toward a manufacturer-centric environment (Pirate Party, 2009). This type of industry operates under a traditional model, “in which patents, copyrights, and other protections prevent imitators from free riding on their innovation investments…the user’s only role is to have needs” (Von Hippel, 2005). The traditional model has its foundations in the economics of property rights. To solve the ‘tragedy of the commons’, property law specifies that all externalities should be internalised – each cost and benefit should be returned directly to the owner (Lemley, 2005). Consequently, the conglomerates like to ensure that all the money spent on building and promoting an artist like Michael Jackson is not lost through ‘overgrazing’ (Lemley, 2005). The major effect this has had on the music industry is the propagation of high fixed and marginal costs. Fixed costs involve such things as the recording process, production, artwork, distribution, and advertising. The marginal cost is the expense of reproducing each copy of an Extended Play [EP] or Long Play [LP] on a physical storage unit such as a compact disc [CD] or vinyl (Benkler, 2006). This scenario forces artists to sign a record deal, as it makes it very difficult for individuals to reach sizeable audiences on their own. In order for a non-market product to compete with the mainstream equivalent it has little choice but to market itself through television, radio, and film to be able to distribute on an international scale (Benkler, 2006).

Technology and the Pirate Party – a Force of Change

No benevolent force is likely to develop a completely open, diverse and liberal music industry. Nevertheless, the introduction of the internet has led some to believe that it will challenge the system built by the conglomerates. The belief is that the internet has the ability to lower the cost of music, increase competition, and break the monopolistic hold that multinationals enjoy over the industry (Benkler, 2006). For over 150 years new technologies have tended to concentrate and commercialise the exchange of information, a reality which began with the commercialisation of newspapers, “high-volume mechanical presses and the telegraph combined with new business practices, changed newspapers from small-circulation local efforts into mass media” (Benkler, 2006, pp. 20). However, the internet appears to have the opposite effect. It provides the necessary tools for populations around the globe to compete against the mainstream with their own high quality non-market products. It can deliver accessible professional grade programs for recording and producing music to home computers, which can cut the need for expensive recording studios. The internet also offers an alternate way of reaching audiences, which bypasses the expense of creating awareness through conventional means such as television, radio and film. Furthermore, the internet has succeeded in reducing marginal costs to practically zero (Benkler, 2006). Music can now be electronically stored [mp3] and reproduced instantaneously, eliminating the need for a CD or Vinyl.

The internet’s ability to lower costs reaches further still. The internet has also enabled consumers to ‘download’ music for free (McCourt & Burkart, 2003). This ability to bypass the intellectual property rights of creators has existed in some form or another since the commercialisation of the internet in 1995 (Spitz & Hunter, 2005). Yet, it was the introduction of file sharing network Napster in 1999 that posed the greatest threat to the traditional economics of the music industry (McCourt & Burkart, 2003). Napster permitted anyone to reproduce and distribute digital content [music, videos, software, etc.] at zero marginal cost over a peer-to-peer network that was highly decentralised (Spitz & Hunter, 2005). A decentralized network refers to the architecture of Napster’s software – when a computer with the Napster program is installed and connects to the internet, it is configured to be both a server and receiver. Not only are users able to search and access the file lists of anyone else using Napster, they are also able to upload their own files to share. Essentially, a Napster user is connected to an online database compiled by some 6.7 million peers [the estimated number of users at Napster’s peak] (McCourt & Burkart, 2003). The Napster phenomenon also created a vast number of imitators such as Kazaa, Limewire, and eMule. These applications allow users to build massive private libraries of music for a minute fraction of the market cost.

The Pirate Party’s primary focus is to protect individuals [such as Tenenbaum] from ‘big brother’ type treatment, and to ensure the internet continues to offer the opportunity for new models of business and distribution to thrive and compete in the music industry. The Party aims to do this by amending intellectual property legislation so it strikes a balance between the “promotion of both the creation and dissemination of culture within the public sphere, and the rights of the author to derive both recognition and compensation for the creative process” (Pirate Party, 2009). The Party believes this can be achieved by copyright that allows the sharing of work for non-commercial purposes and protecting the work if it is to be exploited for commercial gain (Pirate Party, 2009). In this circumstance, an album or a song downloaded from somewhere like Napster or The Pirate Bay would not be ‘piracy’ as long as ownership of the work is for private consumption or to share with others for the same purpose. In an instance where the work is to be included in an advertisement or an individual wants to cover a song for financial gain, it would then be up to the owner of the intellectual property as to what sort of recognition and compensation is due.

The push for liberal copyright and the progression of free culture is not a concept that began with the Pirate Party. The Creative Commons, established in Massachusetts in 2001, is a non-profit organization that aims to build a layer of reasonable copyright law and since its induction has ported its licenses into 50 international jurisdictions (Creative Commons, 2009). Creative Commons work by providing a set of free licenses that people can attach to their content, describing how others are able to use and build upon their work. For example, “The creator can choose a license that permits any use, so long as attribution is given. They can choose a license that permits only noncommercial use. They can choose a license that permits any use so long as the same freedoms are given to other uses. Or any use so long as no derivative use is made. Or any use at all within developing nations. Or any sampling use, so long as full copies are not made. Or, any educational use” (Lessig, 2004, pp. 283). The Creative Commons hope their laws will demonstrate the importance of the public domain [sharing] to creativity while providing basic intellectual property protection. The essential difference between Creative Commons and traditional property rights is the former encourages others to share and build on an idea, while the latter is designed to keep everyone out. It is understood that these licenses promote a free and highly efficient exchange of information which will ultimately enable users to ‘stand on the shoulders of giants’ (Benkler, 2006). The idea is that individuals will be able to stand on a platform of information and influences that will be ‘higher’ than ever before, which should lead to better and faster innovation [or better quality music] (Benkler, 2006).

The Creative Commons demonstrates how free culture, technology, and intellectual property can complement one another. However, it is an alternative rather than a means for creating a competitive music industry. This is primarily because the Creative Commons does not have the ability to amend legislation. Yet, if the Pirate Party can gain more seats in governments worldwide it will be able to contest intellectual property laws and represent the percentage of the population who desire change. Amendments were made to copyright laws in Australian Federal Parliament, for example, which allowed 34 international entertainment companies to pursue a case against iiNet [an Australian Internet Service Provider or ISP]. The lawsuit aims to limit the capacity to file share and the internet’s ability to promote competition (Colley, 2009). The situation harks back to the US congress’s 1998 Digital Millennium Copyright Act, which contained measures giving US internet firms immunity from copyright suits arising from the use of their networks (Colley, 2009). In 2006, with the support of the Australian Internet Industry, Australian copyright laws moved to match US legislation so they could comply with the US Free Trade Agreement. This meant Australian ISPs were not liable as long as they “adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers” (Colley, 2009). It was believed this clause would encourage ISPs to ban users involved in piracy but it was essentially ignored. iiNET chief Michael Malone argues that the ISP’s service agreements did not provide it with sufficient contractual rights to take action against customers who infringe copyright (Colley, 2009).

But is File Sharing What it’s Cracked up to be?

The elimination of intellectual property laws that prevent the sharing of music for private consumption would avert lawsuits, such as the Tenenbaum or iiNet case, and protect new models of business and distribution like the Pirate Bay. However, the question remains as to whether the Pirate Party’s goals are worthwhile. There are strong grounds to suggest copyright has created a music industry that is ‘manufacturer-centric’. Yet, are the proposed alternatives an improvement? Richard Barbrook believes for free culture to be effective it requires every user to contribute to the collective knowledge in order for the full benefits to be realized (Barbrook, 1999). Free culture in the form of the ‘torrent’ system, which got the Pirate Bay into trouble, is a complicated process that does not allow every user to contribute. It requires an understanding that torrents are a sort of ‘pointer file’ which contain data describing the file, but does not contain any of the file’s actual content (Norton, 2006). Downloading the file’s content then requires the user to employ the correct software, such as BitTorrent – “a method of peer-to-peer file sharing, which lets users download a large file quickly while simultaneously sharing parts of it in the other direction to help other users” (Lendino, 2009). The software itself is also relatively complex, especially uploading, which can be difficult for the uninitiated. The overall process is alienating for some users, and yet, its complexity is not related to it being illegal, as BitTorrent and other similar programs are perfectly legal, much in the same way as a digital recorder or VCR (Lendino, 2009).

For those more technologically minded, the quality of the information available through free file sharing is also mixed. Although the torrent may be labelled as, say, one of Led Zeppelin’s albums there is no guarantee it is the right description let alone a real copy at all. Many files are purposely mislabelled so users are tricked into downloading a virus or the desired file could come with a Trojan, or other malware, buried in its contents (Norton, 2006). In an effort to discourage unlicensed file sharing, copyright holders have taken to hiring ‘spoofing’ services, such as Overpeer, to place decoy music files on torrent websites so the network becomes plagued with files of unacceptable quality (Garrity, 2003). This can range from files with poor sound or static, to sometimes no sound at all. Furthermore, the way in which BitTorrent and other file sharing software are designed affects the quality of the information on offer. BitTorrent interacts with two different types of users – “clients trying to download the file [known as peers, who will also upload pieces as they become available] and clients that have complete copies of the file available for upload [the seeds]” (Norton, 2006). Seeders are the most important because as long as the complete file is available anyone can ‘leech’ a copy. Yet, each leech from a seed’s computer counts toward that seeder’s upload, which is limited by his or her Internet Service Provider. By going over that limit, the seeder can incur monetary costs from their ISP. Therefore, seeders often remove the file after a short time, which damages the torrent, or they upload files of smaller size and less quality to minimise costs.

Computer and electronics giant, Apple Inc., launched a legal alternative to torrent and file sharing websites on the 9th of January 2001 at the Macworld expo in San Francisco (Apple, 2001). iTunes was billed as the world’s best and easiest to use ‘jukebox’ software that lets users create and manage their own music library (Apple, 2001). Apple explains iTunes as an “entertainment superstore that stays open 24/7…forget rifling through stacks of CDs…iTunes puts your entire music collection a mere click away …find what you’re looking for with a quick search that reveals results as you type” (Apple, 2008). In the eight years since its release it has surpassed Wal-Mart as the leading music retailer in the United States with song downloads in excess of 5 billion. Along the way it has also confirmed its place as the world’s number one online music store (Information Week, 2008). Unlike the torrent system, where the user has to sift through vague descriptions and follow a number of steps to download the song, iTunes minimizes the fuss at a click of a button for US$0.69, US$0.99 or US$1.29 per song (Apple, 2007). The files are retrieved from iTunes’ central server, which boasts a library of over 11 million high quality and virus free songs for customers to choose from.

Despite users having to pay to download files from iTunes, it’s had a prominent impact on music sales, particularly for the single format. Although albums had conventionally sold more units than singles, unit sales for the latter format had dropped in the US market from 116.4 million in 1997 to 8.4 million in 2002 (Music Week, 2008). At the later stage of this period, only a few thousand sales were enough to see a single become the week’s biggest seller and the charts were almost exclusively dependent on ‘airplay sales’ (Music Week, 2008). The turnaround since has been remarkable, with single sales in 2007 totaling a massive 813.1 million units. The boom has been accredited to the introduction of iTunes into the U.S. market. Richard Griffiths of Modest Management believes the boom is a good result for copyright holders, “It’s really positive. It’s down to the fact these tracks are available from day one. When people hear them on the radio they can go out and buy them. We’ve done nearly 6 million of [Leona Lewis’] Bleeding Love worldwide” (Music Week, 2008). Yet, Empire Artist Management director Neale Easterby acknowledges the ability to turn a major hit single into album sales can be more difficult as customers are being asked to spend US$0.99 per song “consumers are still looking for three or four hit singles before they go out and purchase the album” (Music Week, 2008).

People Still Want to Pay, Dammit!

Free culture does have its shortcomings, as shown by the problems with file sharing and the success of iTunes. Its flaws demonstrate that file sharing is still a long way from creating the world’s greatest public music library. iTunes also suggest that individuals still believe the priviledge of owning someone’s music for private consumption has a monetary value. Radiohead, an alternative rock group from the United Kingdom, further reinforce the perceived value of music. The group released their seventh long-play album, In Rainbows, via digital download on the 14th of October 2007 (Mayfield, 2008). In Rainbows was unique from previous digital releases as it was made available to consumers on a pay-what-you-want basis from the website www.inrainbows.com. After choosing In Rainbows for download customers were directed to a ‘checkout’ page on the website where they were asked to specify how much money they intended to pay for the album. Essentially the customer could pay whatever they preferred and had the option of downloading the album for free. The digital version of the album was followed by a physical release to worldwide audiences via XL Recordings on December 31st. The physical release sold for US$13.98 and was housed in a cruciform box containing stickers, which was intended to provide fans with the option of creating their own packaging by re-using an old plastic jewel case (Music Week, 2007). XL recordings also released a vinyl edition that retailed for US$20 and a limited edition box set which included: two CDs [one b-side album], two vinyls, lyrics, an artwork booklet, double gatefold presentation case and hardback slip box. It is now selling for between A$130 and A$160 on eBay (Music Week, 2007).

Radiohead have neglected to release any official statistics that indicate how many people downloaded the album, how many people paid money for it, or how much income the band received from the venture (Music Week, 2008). According to an interview with Radiohead’s lead singer, Thom Yorke, the project appears to have been very successful and has generated more digital income for the band than all of their previous albums combined (Music Week, 2008). However, there are a number of sources that have speculated further on the figures. Days after the release of In Rainbows a site called Gigwise.com, citing an unnamed source ‘close to the band’, claimed that 1.2 million copies had been downloaded. At a similar time, a survey conducted by a British company, Record of the Day, suggested that the average price paid for the album was about US$8 (Hardesty, 2008). Leading U.S. music industry magazine Billboard then rejected the numbers, putting the download figure at close to 400,000 units (Hardesty, 2008). ComScore, an American consumer research company that collects data on the online behavior of some two million people, also weighed into the debate. They estimated that in the first 29 days of October about 1.2 million people visited the In Rainbows website, and although a ‘significant percentage’ of them downloaded the album, ComScore said the average payment was US$2.26 (Hardesty, 2008).

The attempt to get an accurate idea of numbers was further confused by Radiohead’s manager who dismissed the optimistic Gigwise report as “exaggerated’. Other band representatives also described the less flattering ComScore data as “wholly inaccurate” (Hardesty, 2008). Yet, Ken Kovash of Mozilla, the organization that designed the Firefox web browser, suggest ComScore is likely to have underestimated the number of people who visited the site in September by 60% (Hardesty, 2008). Despite all of this conflicting information, a ‘ballpark’ figure of gross earnings by Radiohead can be established. Larry Hardesty believes that if ComScore’s less impressive figures are right, and even if the ‘significant percentage’ of downloaders they discuss means little more than half, then at US$2.26 per download, Radiohead grossed US$1.36 million in the last three weeks of October (Hardesty, 2008). Then there is the £40 deluxe box set to consider, and going by figures quoted from Radiohead, it seems to have sold in the region of 60,000 to 80,000 units. This would earn between US$4.45 million and US$5.4 million, a large percentage of which will be retained by Radiohead as they hold all the licenses to the album (Music Week, 2008). Furthermore, the band have pressed 25,000 vinyl copies; and sent an initial shipment of 400,000 CDs to the United States, 200,000 to Japan, and more than a million worldwide. Bearing in mind that Will Botwin, CEO of ATO Records, suggested “the band has probably gotten more publicity without saying anything than any band in the history of rock’n’roll”, then there is likely to be further demand for physical copies (Sexton, 2008). Even taking into account the most conservative estimates In Rainbows may have generated US$8 million.

How much money Radiohead were able to put in their pockets after paying off costs from In Rainbows is impossible to know. What can be derived from this venture is that new models of business and distribution, which do not use exclusive rights, can thrive on the internet. It also highlights the limitations of exclusive rights in the digital age and gives legitimacy to the Pirate Party’s claim that intellectual property can be manufacturer-centric, inefficient, and unable to ‘move with the times’. The possibilities offered by In Rainbows are why the Pirate Party is important. They need the ability to contest intellectual property rights so the music industry is encouraged to find new models of business that are more efficient than one which spends millions suing ISPs and individuals, while also having to deal with “$12.5 billion of economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7 billion in workers’ earnings, and a loss of $422 million in tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes” (RIAA, 2009). The balanced copyright that the Pirate Party speak of on their website should aim to be less about enabling file sharing to create the world’s greatest public music library [which is unrealistic] and more about creating a sustainable music industry.

Actually, Shouldn’t we be Saving the Record Label?

Sustainability involves more than creating a ‘reasonable’ layer of copyright so that free culture and big business can fight to offer the consumer something that’s competitive. It needs to acknowledge the broader economy of the music industry. In other words, the Pirate Party needs to accept that the internet is not the only ‘gatekeeper’ to industry and adjust intellectual property accordingly. When In Rainbows was first announced a number of media commentators said that it would threaten the very fabric of recorded music (Sexton, 2008). Yet, Radiohead recognize the success of the ‘pay-what-you-want’ concept was only possible due to the existence of the property right music industry in the first place, “[Byrne:] And that works for you guys. You have an audience ready…[Yorke:] Well, yeah. The only reason we could even get away with this, the only reason anyone even gives a shit, is the fact that we’ve gone through the whole mill of the business in the first place. It’s not supposed to be a model for anything else. It was simply a response to a situation” (Wired, 2007). Yorke’s comments indicate that record companies had nurtured Radiohead’s reputation through traditional gatekeepers to the point where they had built a large and devoted fan base. The established relationship between the fans and the band meant that people were willing to seek out the album, download it, and pay money for it (Wired, 2007). The band’s manager Bryce Edge states that this online model “couldn’t work for all…record companies still have a big role to play…they provide great services for artists” (Sexton, 2008).

The traditional gatekeepers such as television, radio and print still have a role to play in music, as new and upcoming artists have acknowledged. Vampire Weekend, alternative rock band from New York City, is the latest in a number of ‘buzz bands’ that have rocketed to fame using the internet’s rapid means of distribution. Other contemporaries include the Arctic Monkeys and Clap Your Hands And Say Yeah (Greenwald, 2008). Despite having internet audiences at ‘their feet’, none of these bands decided to use the internet as a means of releasing their material independently. In fact, all three have signed traditional record release contracts with major labels – Vampire Weekend are signed to XL Records (Metacritic, 2008). Even with the internet seemingly fulfilling the role of a record company, it seems strange that these new and popular bands have neglected to take up such freedoms at the beginning of their careers. Alexandra Patsavas, music supervisor for Grey’s Anatomy, Chuck, and Gossip Girl, believes that although the internet has managed to reduce fixed and marginal costs significantly, bands still require financial backing to get started and establish a fan base, “success might mean a synch on Friday Night Lights…It might mean a Letterman performance or inclusion on a magazine’s free CD. There are still gatekeepers, just many of them and smaller gates” (Greenwald, 2008). Patsavas explains that traditional gatekeepers such as radio, television, film, and advertising still serve a function in allowing audiences to discover and enjoy music (Garofalo, 2000). This means that record companies are still a necessary part of the music business, as they have the skills and finances to open ‘gates’ that are outside the reach of the internet.

The model of business for record companies in the digital age seems to revolve around building up an artist until they can stand on their own two feet and ‘do a Radiohead’. The dilemma for record companies is that they are losing popular artists at the expiration of their contracts and have become increasingly dependent on income derived from digital unit sales. If the Pirate Party were to legalise file sharing for private consumption it would continue to strip this income (Sexton, 2008). Furthermore, whatever digital income they can generate is often withheld from the artist, a key reason why Radiohead released In Rainbows on their own, “Well, first and foremost, you don’t sign a huge record contract that strips you of all your digital rights, so that when you do sell something on iTunes you get absolutely zero. That would be the first priority. If you’re an emerging artist, it must be frightening at the moment” (Wired, 2007). Yorke also indicates that long-term contracts with record companies, based on traditional property rights, are oppressive due to an inability to adapt to any changes within the industry. He believes a conventional release of In Rainbows would not have generated the same digital income, “In terms of digital income, we’ve made more money out of this record than out of all the other Radiohead albums put together, forever — in terms of anything on the Net. And that’s nuts. It’s partly due to the fact that EMI wasn’t giving us any money for digital sales. All the contracts signed in a certain era have none of that stuff” (Wired, 2007).

A recent venture between record label EMI and Grooveshark offers the type of constructive alternative that could set the trend for sustainability. Grooveshark is a streaming music service that offers advertiser-supported music on demand and, for $3 a month, you can get an ad-free version (Healey, 2009). The service helps you to manage the huge amount of material available online by allowing you to build a virtual collection from songs supplied by Grooveshark users. This collection can be accessed online from a computer or mobile phone anywhere in the world (Healey, 2009). Early criticism of Grooveshark centered on the library, which breached copyright and was limited to those songs uploaded by users. However, EMI Music Publishing recently got onboard, allowing Grooveshark listeners access to their massive catalogue of tunes in return for a slice of advertising and signup revenue (Grooveshark, 2009). The agreement offers the potential for record companies to receive enough compensation to perform their role, while remaining flexible to the demands of the digital age.


There is still a role for record companies to play in the music industry, but their relations with artists need to reflect the changes to this role. A record label’s ability to distribute material and reach audiences on a mass scale was once an integral part of an artist’s success. However, the introduction of the internet means this is no longer a label’s primary function. It is a shift that will reduce income to record companies and could hinder their ability to carry out another important function – building an artist’s career through traditional gatekeepers. Constructing an artist’s profile through various ‘gates’ is still a valuable service which can make a band profitable and popular, and record companies should receive due compensation. The amount of income derived from this service is a careful balancing act that should enable a record company to remain competitive with new ways of sharing information, while also incorporating the demands of the artist. If this balance can be achieved it will go a long way toward creating a sustainable music industry, and the Pirate Party need to ensure that legislation complements this scenario. Free culture has certainly highlighted the inefficiencies of the music industry but it is also a long way from being the ideal solution. We need the Pirate Party to turn its focus away from an idealistic vision of the world’s greatest public music library and work with the music industry for the benefit of artists, fans, and businesses alike.


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