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Tomarken.com » Zero-Sum Piracy
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To the future in reverse...
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Tomarken.com > Criticism > Zero-Sum Piracy (09-24-05)
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Zero-Sum Piracy

Richard Tebrick, Moderator of Shapes and Shaping

1. Ask me how I became a pirate…

I recently ran into something that happened about a year ago (this not being my area of interest, I am a little late with it): Namely, a usenet post:

ask me how i became a pirate Information from microsoft.public.windowsmedia.drm

Posted by Satoru Koshiba (JP):
“As far as I survey at this time some popular DRM Protected Video
Providers’s contents were cracked…
Many many unlocked video files were distributiong with no payment…

And …at 17:00(GMT+9:00) anonymous cracker named ‘lark’ upload source code of ‘DRM crack software’. Software name is “DrmDbg.exe” and “DRM2WMV”.

DrmDbg.exe will pick up “KID” and “Seed” from PC’s memory when user playback DRM Protected contents , and make “xxxxx.key” file. DRM2WMV will unlock ProtectedFile using “xxxxx.key”.”


I located and downloaded application, tried it on a sample DRM’ed WMV and it worked gangbusters. Which, of course, was not surprising - it makes a sort of intuitive sense how this works when you see it in action, and we are all used at this point to every ludicrous content-security attempt by corporations (heretofore referred to as “Microsoft” as a sort of cute nickname for “corporations forced into a specific model of software/content creation and distribution perpetuated by operating system monopolization on behalf of the Microsoft corporation”) being cracked in half. So, fine. I went to sleep. I don’t really download any DRM’ed content anyway: I don’t like it. Zzz.*

* Please note that I slept emphatically.

The following day, today in fact, I happened to have some time to browse the internet, and I had developed a nagging interest in how Microsoft took the news of Satoru’s discovery. To my surprise, they virtually ignored it. I will learn, very soon, not to be surprised at things like this. At this point, however, I need to backtrack.

DRM (digital rights management) is a system that applies to digital media, which, as we all know, is for all intents and purposes infinitely reproducible at zero degradation. This means that I can email you a copy of a document, still have the document, and both of our copies will be identical within a reasonable scope. This as opposed to a photocopy of a book, or a copy of a vhs tape, which lose quality with each successive copy. This fact has lead to a widespread phenomenon called piracy, which is quite similar to the undisambiguated phenomenon.

Traditionally, pirates are those who rob or plunder at sea, or sometimes the shore, without a commission from a recognised sovereign nation. They are now also those who commit acts of copyright infringement against sovereign coporate bodies, many of which own audio recordings or other media produced by artists and entertainers (human beings). In this way, and in sympathy with Marx, sovereignty in both cases boils down to owning human labor. We will return to this.

Now: Digital/copyright piracy has become such hit in the so-called bit-economy, that it has caused a major brouhaha in what might be called the dominant world order. This is a powerful phenomenon and very rich white men are losing sleep over it. Zzz.

To protect the sovereign bodies of those corporations now wildly threatened by this new breed of pirates, many zany schemes have been hatched. It has often reminded me of Rube Goldberg, who was famously incapable of doing very simple things like opening a door without the aid of preposterously complicated machinery.

To be fair to our corporate overlords, however, the task set before them is substantially more difficult than you or I would find opening a door. In fact, given that the program of stamping out human creativity and ingenuity has not been going nearly according to schedule, many have been so audacious as to suggest that their task is impossible. As a kind of funny joke, and keeping in the spirit of corporate creativity, a series of independent like-minded corporations developed systems of mandatory access control to protect things such as television commercials and pornography.

None of these systems, to date, address in principle (that is to say, some may address some elements on accident) what is called in the archaic fashion fair use. This queer expression is part of United States copyright law which is meant to suggest that:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Copyright Act of 1976, 17 U.S.C. § 107

2. Ouroboros

Which is all to say that if you or I were to purchase a song from the iTunes music emporium over the internet, we would be able to play it on exactly one specific platform, namely, the one we authorized. So, if we were to perchance have a non-Apple network music player attached to [our] stereo(s), we would be out of luck. This is a nonsensically limiting phenomenon, which has irritated a great many legal purchasers of music and or video content. Almost across the board, these “fair use”-related restrictions have lead to the technological breakthroughs which open the door for a flood of piracy on the so-called protected files.

So whatever, this point has been talked to death, and it seems clear at this point that one side isn’t going to change the other’s minds. The technology cycle is also obviously ouroboral (is this a word?). The question I want to insist on at this point is whether or not this dialogue has ever been allowed to play out on something like fair terms. Let’s take as an example of what I’m talking about a famous dialogue between the American philosopher John R. Searle and Jacques Derrida. Ostensibly what happens here is this: These two guys have very different thoughts about the world, and about language, which they are talking about specifically in this case through the lens of the analytical staple (this is a mixed metaphor) J.L. Austin. The content of this bitter exchange is not what interests me so much as something that I percieve to be an underlying incompatibility or better, a disinterest on the part of Searle that leads to something like a dogmatic barrier. Here’s how it goes:

Derrida writes an article about J.L. Austin, like I said, and it’s called Signature, Event, Context. Searle, who feels himself an heir of Austin, comes in to defend him against the “lunatic fringe” (he literally refers to Derrida and the estimable Richard Rorty in this way here). Ok: The point, and skipping right to Searle’s first response to SEC: (SEC itself is a complicated text and I don’t really think we can do it justice in the scope of this document - suffice it to say it makes considerable headway in the “reframing” of Austin). We are going to quote Marcel Dascal here, who says this very well:

In his ‘Reiterating the Differences: A Reply to Derrida’, Searle makes it quite clear that he doesn’t want to play the game in the ground and by the rules introduced by Derrida’s reframing of Austin. He presents his task in terms of ‘correcting’ Derrida’s mistakes ­ particularly those that led him to present a picture of Austin that is ‘unrercognizable’ (p. 204). He undertakes to do so by pointing out Derrida’s equivocations, by returning to well-established and familiar distinctions, and by denouncing invalid arguments. In so far as he, along with other analytic philosophers, assumes that these requirements form a universal and neutral baseline for any serious philosophical debate, seeing to it that they are fulfilled is an operation that might be properly called ‘deframing’. For those who doubt the assumption of a frameless neutrality and universality, the operation might be seen simply as an attempt to return to an arena considered (by Searle and others) to be the appropriate frame to discuss Austin, an arena where Searle’s proven skills can be put to full use.

“How Rational…” International Journal of Philosophical Studies Vol.9(3), 323-24.

Now, it seems clear to me that anything like “frameless neturality and universality” is at the bottom line dogmatic, but this actually ends up not making a difference as Searle’s first reply is fraught with allusion to “rules” - it begins and ends with such allusions. Dascal again: “It is because the proper rules for understanding and stating Austin’s position are not followed that Derrida’s confrontation with Austin ‘never quite takes place’” (326). In other words, according to Searle, Derrida’s engagement with Austin “never quite takes place” precisely because it does not follow some preset guidelines for the way a thinker might interact with Austin. Radically novel thought is excluded as a possibility from the start: Dogma.

3. The Zero sum

I have heard some variation of this idea dozens of times in relationship to computer piracy: “Intellectual property theft is (or is not) a zero-sum game.” In general, when corporate types say: Computer piracy is a zero sum game, what they are really saying, as I understand it, is that the loss of the owner of the stolen copyrighted media is equal to the gain of the pirate. And what is this supposed to tell us? Let’s take an example: If you were to purchase a copy of a compact disc, which I recommend that you do at some point, you would ostensibly be making this trade: $15, say, one half or one or two or three hours of your labor for a piece of musical media. The reason that trade works in general is because this is categorically not a zero-sum gain - which is to say, that both you and the producer of the purchased disc feel like you are getting a positive deal. (Elementary arithmetic: a positive number plus a positive number never equals zero.) Again, the suggestion of major retailers of media is that computer piracy, much like piracy on the high seas, amounts to a zero-sum game in favor of the pirate - the company loses as much as the consumer gains. And of course, there have been many very fine rebuttals to this argument and either side may or may not seem whiny or silly to you personally.

Now: Is any of this “zero sum” stuff even reasonable in the scope of the discussion? Why or why not?

But first (and really, this is my answer to that question), why are we allowing the scope of this dicussion to be so insanely limited? In other words, isn’t the possibility of the zero-sum gain extant entirely in a de jure economic plane of immanence, or, isn’t it that an actual zero-sum situation occurs only in an arbitrarily Cartesian (or whatever the economic equivalent of that is, Smithian?) economic setting, a setting, I should note, that is defaulted on even in the most likely candidate at least ontologically-speaking, the math machine itself - the computer. The evidence of this bankruptcy seems clearly provided mutatis mutandis the possibility of p2p technology itself! That is, in an economic climate of competition between digital piracy and drm technology, an economy decidedly unlike the one that produced a certain economic “rule set” that favors and protects copyright holders, this rule-set is still the only model we use to think this problem. It fails to question, from the get-go, the legitimacy of an entire model of trade and ownership (a model that things like p2p and open source software undermine on technological merit alone) - a rule-set which has, I might add, become the watermark for the entire world-currency system to begin with in a “virtual” economy extending far beyond the reach of networked technologies. The zero sum is, in other words, basically an extremely complex and internally differentiated concept in an economy in which value is assessed arbitrarily based on dollar hegemony.

To wit: The value of a widget is assessed at x dollars. The value of a dollar is assessed based on keeping the strength of a certain nation state’s economy afloat. This value translates into other values, y euro, z yuan, etc., but the dollar is the rosetta stone for this translation - there is no actual good or service-based value involved. Value here is pure politics. So, we are used to purchasing one widget for x dollars, where for us, as the consumers, x dollars has the value of b hours of work. Our piece of the bargain is that we work b hours in trade for, in the end, one widget. The owner of the copyright’s assessed value of the one widget, again, x dollars, is based in a sort of nebulous space whereby they determine what how big x can be without causing us to stop thinking that it’s a fair trade. “X” is apparently to be set at a higher value in the instance when a company’s profits suffer from the supposed loss based on piracy - that is, people who steal media with no intention of ever purchasing it. So who suffers? The legitimate consumer, and the company: namely, if, to prevent piracy, a company revalues its widgets at a higher cost to the consumer, what is the incentive for an extant pirate to start purchasing widgets? Hence, DRM: In which companies try to protect their intellectual property by creating software that basically walls off dozens of legitimate uses in order to prevent the few illegitimate ones. Which, if you remember what happens back up at the top of the page or about a year ago, doesn’t work in the first place. Anything like whether or not this all amounts to a “zero-sum game” would have to be worked out on an impossibly large scale.

So it’s not that it’s “wrong” per-se to argue one way or the other about whether digital piracy is (not) a zero-sum game, it’s just that it’s the wrong argument to have. The argument is really, in the first place, about the world economy and the status of the arbitrarily assessed value of a widget versus the actual labor cost to the legitimate consumer. It is unrealistic and unreasonable to think that people are going to put up with this forever, which is what digital piracy stands for - we will note here that almost as soon as the technology became widespread, it reached critical mass. Which is not to say that I advocate piracy - I don’t - but rather, that I’d avocate a discussion that steps back once or twice to take a look at the real issue here, the same absolutely political issue that we’ve always had: a hugely disproportionate assessment of the value of thing a, an seemingly insatiable desire to eradicate fair use and property-ownership by the individual, and of course, a set of not only archaic and corporate-friendly but completely unfair copyright laws.

Closing this (now getting long) document up, let’s say that framing computer piracy in terms of a fair economic model renders it ‘unrecognizable’, as was Derrida’s Austin to Searle. Of course piracy is wrong, but it is only wrong so decidedly in such a ‘recognizable’ economic framework - that framework where a corporation’s skills can be put to full use.


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