At the turn of the Millenium the language and historical cargo of the commons excited me as an alternative framework through which to think about copyright and patent issues, but at some point I lost interest. In part this was down to alienation at how I felt the term was misused within Creative Commons, reduced to a meaningless slogan in a licence which usually ‘granted’ users no more than they could have taken for themselves. In short it was legalistic, lacking in ambition, and signally failed to define an idea of user freedom in the realm of cultural goods akin to accomplished by the GPL in software – happily some other people took that challenge on.

Another reason for my estrangement was that there was a steady inflation of commons talk. Suddenly it seemed there were commons everywhere, anything even mildly desirable which the speaker determined everyone should have access to was a ‘commons’; an echo of socialism in a time which scarcely dares to utter its name. And the reason for my unease was that it seemed to me that this was happening in a pretty casual manner which delivered no political gain whilst significantly diluting any contemporary analytical power the idea of commons might have.

In the interim, two somewhat notable intellectual developments occurred, and an important material fact. The first regards Elinor Ostrom: even before she won a Nobel prize in 2009 hew work was widely read but the award of the prize brought a sense of public recognition to people working in some way within her paradigm. On a more minor register, Negri & Hardt’s political trilogy ended up focusing on the ‘common’ as a key terrain of political conflict and potential. From being a sideshow in the first volume, Empire, the commons had moved centre stage by the third volume – tellingly titled Commonwealth. And lastly there is the fact of the political and economic cyclone of 2007/2008, marking the end of neoliberal conceptual hegemony and a renewed interest in alternative frameworks. Due to the the 20th century’s ideological products having been widely discredited, interest in the commons has grown.

Over the next few weeks I want to begin to tease out whether there is something useful to be drawn from all this, or if we are simply witnessing the manufacture of an ideology of the commons.

More ominously for the Pirate’s future prospects the Green Party vote grew strongly, a source from which they have successfully syphoned quite some support in the last eighteen months. Federal elections take place this September (alongside regionals in Bavaria and  Hessen) but the PP’s chances of success are fading; opinion polls in recent months have them languishing around 3%

Recipe for Disaster

In part it’s a familiar story: a party, propelled to success by a generalised alienation from the political class, finds itself the beneficiary of protest votes and the falls out of fashion. Here it must be said that their elected representatives have attempted to transform themselves into ‘serious politicians’ in a most boring fashion, and without any success. Instead, the effort to define themselves coherently on a national level has led them to disintegrating.

This fragmentation derives from the lack of a clear (or even vague?) ideological framework framework. This is encapsulated in the tension over the policy demand for the basic income – as supported by the Berlin party – and the vision of the pirates as a social liberals in some other regions. This latter position would include party leader Bernd Schlumer, as well as the vice Sebastien Nerz (a former member of the Christian Democrats), and is now evolving its own internal organisational caucus in the form of the so-called the Frankfurt Kollegium. Meanwhile Johannes Ponader, the former political secretary  perceived as being on the left, has committed hara-kiri, after having been subjected to a public lynching cheered on by a media scandalised at his unashamed drawing of social welfare and pruriently fascinated by his ‘polyamorous lifestyle’.  All this has been accompanied by regular resignations from the collective leadership exposing a serious lack of solidarity from bottom to top. Mantras about the modernisation of politics through technology, participation and transparency are evidently not adequate.

To make matters worse the Pirates will go into the September’s election at a major financial disadvantage. Party financing in Germany is sourced largely from the state. The amount received is based on a formula whose essential elements are (i) number of votes received (ii) amount of money raised from own members. Because the Pirates have few fee paying members (perhaps as low as 11,000) they will get just 800,000 euros, despite their recent electoral success. To put this in context, two extreme right parties the NPD and Republikaner will receive a million and a half each – neither of these parties are in the Federal Parliament and both have been massively outvoted by the Pirates in regional elections over the last eighteen months. The CDU will receive 46 million! Elections are about money, and the PP not having much means that they cannot afford full time employees and all that stuff.

And while 2011 it was enough for the PP to be the ‘party of the internet’ in order to attract some support, but their sweep of victories awakened the other parties to the branding upgrade they required. In the last year both CDU and SPD have launched their own digital associations in an attempt to close the modernity deficit. In the debate over the introduction of a neighbouring right for newspapers even the CSU’s digital politics speaker opposed the so-called Google tax.

When in Doubt, Digital Rights are Always Good…

Now I’m sceptical about elections and representative democracy etc but if you’re going to play the game, hey, be smart about it, rather than behaving like a bunch of ingenues. Instead, even on issues which they should own they appear incapable of communicating their positions.

Most recently Telekom has been kite-flying the end of flat-rate broadband in a move which spells a clear threat to net neutrality and likely also a move to increase the gouging of consumers. Likewise the Government has failed to put an end to the copyright shakedown industry knows as the ‘abmahnung process’ whereby as many as 4.3 million internet users have received demands from lawyers for copyright infringement payments (between 400 and 2000 euros) in the last seven years. In all of the fractiousness they might want to get back to what they know to be shared ground. More will be revealed at the next party conference which takes place this month in Neustadt.

Franz Boas spent a lot of time in Berlin before leaving Germany for the US, partially driven by anti-Semitism. There he became one of the founders of modern anthropology and an important opponent of those who sought to legitimise racial inequality on the basis of biology. Boas died in the company of Levi-Strauss after lunch in Columbia University where he had taught for many years. A couple of his texts are up on Project Gutenberg, but rather little considering the scale of his ouput.

Sticking with anthropology I came across the work of Bronislaw Malinowski while reading Marcel Mauss’s “The Gift” where he is cited as authority on the patterns of gift circulation in Melanesia. He did extensive fieldwork on the Trobriand Islands and is credited for coining the term of ‘participant observation’. Notwithstanding his fame Malinowski has been heavily criticised by other anthropologists for his racist attitudes towards the Trobrianders whom he treats ‘primitives’ in his diaries.

Lastly Robert Musil, born in Austria, he lived for much of the 1920s in Berlin but returned to Vienna in 1933, where he remained until the Anschluss when he and his Jewish wife fled for Switzerland. His “Man Without Qualities”, an unfinished trilogy, is a much admired modernist novel, and has been lingering on my endless reading list for some time now. The first two parts were published prior to his death, but the last instalment was released posthumously by his wife in 1943.

All entered the public domain on January 1st this year, although in the case of Musil this obviously applies only to the German original of his works – the english translations which appeared int he 1950s will have separate copyrights of their own.

In 2007 we were in the San Francisco area to shoot interviews for Steal This Film 2. One of our point people in the Bay was our friend Peter Eckersley and we had planned to film with him in his house over a few drinks. At some point Jamie King came in having collared Aaron Swartz somewhere out on the street, and he agreed to go on camera as well. In addition to these two there was also Raph Levien, a programmer and creator of Advogato. We settled in for a marathon session.

See a transcript for “On Peer To Peer, Digital Rights Management and Web 2.0″.

The others drank vodka, I stuck to wine, and Aaron, if memory serves, kept it straight edge on milk. Luca Lucarini took care of the camera work whilst I did most of the interviewing, although there was some alternation, with interviewees occasionally becoming interviewers and Jamie taking over some times as well. Proceedings did not come to a halt until about 4.00 in the morning, by which time the bodies of all involved littered the room, curled up and asleep.

See a transcript for “The Network Transformation”

After the film’s release, I sat down with the tapes to see what material could be extracted to be made available online as part of our footage archive. Later I wrote to the interviewees to ask their agreement to make it available under a fairly permissive CC-BY-SA license. Aaron gave me his consent by mail shortly afterwards.As these clips make clear Aaron was extremely articulate and a compelling speaker. Although I knew about him by reputation beforehand, it after this interview that I started to pay attention to what he was saying and  doing.

2. Lockout

I learnt about his data extraction escapades at JSTOR because my own means of accessing it, via MIT, was blocked following the alert triggered by his activity. But this minor inconvenience was trivial in front of the admiration I felt for his wide-scale data liberation.

From the time of his arrest Aaron had many supporters, but not all of them felt comfortable with what he was alleged to have done. Some argued that his energy would be better invested in further attempts to reform the copyright system via campaigning and legislative amendment. Others, such as Orin Kerr, regard the actions of which he was  accused — brute force data-dumping of a proprietary database whilst concealing his identity — as placing him outside the boundaries of an implicitly ‘virtuous’ civil disobedience: where the protagonist sacrifices himself at the altar of the law in order to draw public attention to an intolerable wrong.  Kerr continues:

In his own words, he didn’t want to “just send a strong message opposing the privatization of knowledge.” Rather, he wanted to change the facts on the ground to make his preferred world a  fait accompli.   That is, he wanted to make the laws unenforceable, winning the debate unilaterally outside of Congress. In his words, he wanted to act so that the democratically-enacted laws that allowed privatization of knowledge would become “a thing of the past.”

While I disagree with what Kerr has to say, I like the way he phrases the second part of it, it has the ring of a synthetic manifesto to it. And on the net we really are millions who abide by the spirit of such a manifesto.

ps Mako has written a nice piece recalling some quirky moments with Aaron.

Cory’s fiction is pitched at ‘young adults’, a group whom has has apparently addressed with some success in works such as Little Brother, and this book’s protagonist is a seventeen year old from the north of England with a penchant for remixing video materials of his favourite actor, a practice which requires him to download copious numbers of films from the net. In the new climate of repressive copyright policy this results in his family’s internet connection being terminated. And the effects of the disconnection are not felt only by our hero, but also his family: his father relies upon the net for temporary jobs, his sister needs it for her schoolwork. Ashamed at the disaster he has brought upon them, he flees the nest, and the north, for London. Arrived in the city he is befriended by a wily elder, who introduces him into a low-cost, high-quality  existence lived off the fat of the metropolitan land.

TBC

Whilst pretty untaxing in the main there were some interesting factoids – 2000 films were banned and 11,000 more cut under the regime established by the state in 1923. These works seem tame and tepid to us who have lived in a different period, so it is bizarrely fascinating to learn that Gone With the Wind was cut in no less than eleven different sections. Film historian Kevin Rockett then goes on to relay how the State’s first censor, James Montgomery:

“…eliminated the childbirth scene, because films that depicted childbirth, even the word ‘maternity’ being put on a hospital ward was actually cut. So the whole broad policy of Montgomery was to ensure that any expression of the physical body was denied to the Irish audience.”

And I thought to myself: this moment is crying out for an extract excised from the movie, some steaminess or childbirth on the screen quick sharp. But the was nothing. Likewise when they got around to discussing Natural Born Killers – banned in 1994 – there wasn’t a frame of the opening Diner scene which according to the then censor was the reason for his decision (the film was subsequently unbanned).

So in the entire fifteen minute sequence there wasn’t a single frame from any of the films referenced. Instead what were viewers served up? A parade of talking heads, irrelevant shots of people walking on nondescript Dublin streets, closeups of the Censor’s office Nameplate, and a small portion of Pathé newsreel from undefined days gone by. That TV3 is cheap does not come as unexpected, what bothers me is something else.

Ignoring the Censorship of the Present

It troubles me that this segment on film censorship was in itself a scandalous example of censorship. In its form.  What mean is the refusal to use film clips without authorisation, out of fear of being sued for copyright infringement by the studios.

Both the video-games section and that on music videos used ample images from the subjects under discussion (we were shown almost the full video for ‘Girls on Film’, Frankie’s ‘Relax’ , and Prodigy’s ‘Smack Your Bitch Up’). There were thanks in the credits to the games companies for their images, and there is probably a blanket licensing agreement for the music videos. The film section was thus exceptional in its blandness.

Worse still the producers have apparently naturalised this constraint to such a degree that the fact that censorship  is exercised today via copyright and trademark law  is not deemed worthy of discussion (or alternatively there is an editorial decision not to discuss it). This gives me an Orwellian shudder.

Channel 4, TV3s, RTE and the Copyright Consultation Review

The interim report of a committee investigating copyright reform was published in the spring. Since then additional submissions have also been published on the Consultation’s website, including contributions from broadcasters RTE, TV3 and  Channel 4 et al. Interestingly they are silent as regards the use of film extracts in the creation of new works. This is a problem for the public, because these TV stations are of course the principal avenue through which audio-visual works reach the public.

In the UK Channel 4 have nurtured an organizational policy of robustly defending the reuse of copyright works under fair dealing provisions. This boldness was demonstrated as long ago as 1993 in the ‘A Clockwork Orange’ litigation, where they repelled an attempt by the copyright owners of the film to suppress a work comparing the changing standards of violence on television. Following the refusal of Stanley Kubrick and representatives to be interviewed for the program they used extensive extracts, amounting to 12 minutes of a total program duration of 30 minutes.

In addition Channel 4 has produced and broadcast other programs which rely on extensive excerpting, such as Sophie Fiennes’ The Pervert’s Guide to the Cinema and Mark Cousins more recent The Story of Film: An Odyssey. One can only suppose that their interest in fair dealing extends only to the jurisdiction out of which they operate – the UK.
No works in the vein of Fiennes and Cousins have been produced in Ireland to my knowledge, although it would be interesting to know more about the copyright issues with a program like Reeling in the Years. According to its FAQ the series’ incomplete release is due to copyright complexities and costs but its composing elements are principally newsreel and music, which anyway places it in a different category to the works mentioned above. In addition the form is essentially historical and chronological without voice-over or meaningful montage, rendering it peripheral as criticism and commentary.

Meanwhile the only subject in TV3s submission is its interest in being able to license materials from providers anywhere in the EU. Not a word about fair dealing, innovation or anything else, bar a little self-promotion.

In their submission to the CCR, RTE took the opportunity to bang the anti-piracy drum, complaining at the lack of effective deterrent to internet piracy.  Given that RTE is largely a publicly funded organization financed by the television license fee, it is telling that they do not feel that this might imply that their financiers should have any rights over the material produced with their money.

Some Users More Equal than Others?

RTE also consider themselves, rightly, to be users, and have commented on the both their reliance upon fair dealing and the desirability of extending the exceptions contained in the copyright act to the extent thought permissible under EU law.

However they do not grasp that the distinctions between different classes of users, nor accept that RTE is a unique user in an Irish context. When convenient it presents itself as custodian of the public interest. But its advocacy position is determined by skin it has in the game as dominant broadcaster and possessor of the most important moving image archive in the state. This archival position allows it to dictate terms, for example, to independent documentary producers with expensive rates for archival research and licensing.

They opposed the introduction of a ‘fair use’ clause on the grounds that it would introduce uncertainty.

Given that the broadcasters did not push the issue it is not surprising that the CCR did not take the issue on its report (understandably given the degree of detail under which they are buried), so when fair dealing with images does arise it is limited to  user generated material. In their report the CRC summarise the current conflict between reality and statute:

“Notwithstanding these exceptions, the law is increasingly out of step with users’ expectations, relating to matters such as format-shifting, parody, satire, pastiche, caricature, fan-fiction, and so on, and with the realities of user innovation.”

I am curious to see if and how they will analyse the situation as regards commercial broadcasters, where in many cases the argument is just as strong. Furthermore these broadcasters function as gatekeepers and as long as they follow a restrictive policy, challenging critical work will be kept off the channels to the mass public.

This second baptism coincided with its transfer to a new home in sunny Alicante, at the Office for the Harmonization of the Internal Market (OHIM), and organisation better known for its administration of EU Community Trademarks and Designs. At birth the EOIIPR was located within the Enforcement Unit at the Internal Market directorate without much in the way of staff or money. The move to OHIM changes this and they will now have 15-20 people on an annual budget of three and half million euros. A Regulation officialising the transfer was passed by the European Parliament in February.

That this transition unfolded without any great ruckus will have been a great relief to both Commission officials and private sector lobbyists for the Trademark and Copyright industries: public commotion over the ACTA treaty raised the worry that the re-establishment of the Observatory could be sunk as collateral damage in the shit-storm.

Function of the Observatory

Once installed the EOIIPR began a consultation with interested parties to devise its programme for the next year, which was presented at its Plenary meeting in Alicante two weeks ago. I find it notable that once again the only consumer or user group present was the European Consumers Organization (European Digital Rights did make a submission as part of the consultation in July). Otherwise this has been a conclave of bureaucrats and lobbyists.

In the short term the Observatory is tasked with sourcing of data regarding piracy, counterfeiting etc which can be used to demonstrate that the Intellectual Property Rights Enforcement Directive is insufficient as stands, and thus requires some form of successor. That the Commission has already decided that this is the case is evident from its review of that legislation.

Consequently the Observatory put out a tender, and duly commissioned RAND to devise a methodology which could generate a set of figures which could be presented as objective (in contrast to the research reports bought and paid for by vested interests).

RAND Report

I was initially cynical about RAND’s involvement. So imagine how refreshing it was to discover that industry ‘stakeholders’ were not satisfied with how the work was developing. Had the research outfit gone off reservation? Decide for yourself: here is a short presentation made in Alicante, and the full report is here. If you don’t have the stomach for it, here are a few things that I gleaned:

(i) Firstly, it contains no estimates as to the size of the market in counterfeits or the impact of  file sharing – referred to as unauthorised use of protected content (UUPC) – on the relevant industries or wider economy but is focused on building a methodology. As a result they address the lack of methodological and data transparency inherent in previous reports:

“Often the lack of clarity in fully describing the methods, assumptions and data underlying them constitutes a major barrier to an independent assessment of the statistical consistency of the results. This issue was also highlighted by earlier research efforts on the topic (e.g. OECD, 2008, p.78). In other cases, in the reports that produce the estimates reviewed above, more substantial issues remain poorly addressed from a scientific point of view” (P.17)

Later they extend their criticism to the limitations of the analytical frameworks more generally:

Overall, one of the main weaknesses of some of the existing estimates of the effects of counterfeiting and piracy on macro-economic variables such as GDP and employment is the assumption of a 100 percent substitution rate between counterfeit and genuine products – see for example the OECD (2008) critique of a 2005 IDC study. In addition, one aspect that seems to be systematically excluded from existing studies is consumer surplus. Consumer surplus refers to the welfare benefit of getting access to a substitute good at a lower price, while many studies consider the negative effects of counterfeiting and piracy on consumers (unemployment and health and safety risks) and on producers (lost revenues). Huygen et al. (2009) provide an example of a comprehensive treatment of the distribution of welfare effects and of their net balance (i.e., the balance between costs and benefits) in the case of file sharing (Huygen et al.,2009). From an economics point of view, any study that neglects consumer surplus in a welfare analysis is incomplete. (p.34)

(ii) Their own model (outlined in pages 41-65 of the full report) uses of sales forecast data generated internally by companies in affected sectors. Actual sales achieved are then deducted from the forecast numbers to identify the difference. Part of this discrepancy will be explicable retrospectively due to changed market conditions (e.g.  the arrival of new competitors, foreign exchange rate variations etc.) But one part will remain, an ‘unpredicted forecasting error’ some of which will derive from the substitution of product sales by counterfeit alternatives.

The result of this first process is then object of a second analysis to try to identify the amount attributable to counterfeiting for a specific product and national market. A series of factors are used in the regression: (i) rule of law (ii) corruption (iv) government effectiveness (iv) customs (v) tourism ; relevant metrics are obtained from international organisations such as the IMF/WB. These factors are presumed to have an effect in encouraging or deterring counterfeit trade.

(iii) Their assessment is  that the model is better suited to dealing with physical rather than digital goods, principally because of the difference in the utility and reliability of sales forecast data, but also because of the ease of supply and movement of digital goods.

(iv) Few firms were willing to cooperate with them to test drive the model, largely because of fears regarding control over commercially sensitive data. No digital media companies took part. Ultimately only one physical good manufacturer (unnamed) provided a full data set. The results obtained initially diverged strongly from the firms own research which had been conducted using mystery shoppers, whereby goods are purchased and then analysed for authenticity (apparently the gold standard in this field, but expensive to operate). Once the data was cleaned of severe outliers, it tracked the mystery shopping research more closely.

Consequences?

The Commission is now in a tricky position: they’ve paid RAND at least half a million for this and cannot simply sweep the results under the carpet. RAND have designed a model for use in real markets and products, rather than simply accepting that ‘piracy and counterfeiting’  are costing ‘Europe’ trillions of euros and hundreds of thousands of jobs. My guess is that it will now be minimised. What if any effect this will have on the IPRED review, due imminently, is uncertain.

VPNs can help protect the security of your communications with the network, and allow you to circumvent geo-blocking (where access to a resource is limited to those in a specific country). So far, so good. But there is a misconception circulating that use of a VPN provides a fail-safe cloak for filesharing, an error which is cultivated by the VPN companies themselves trumpeting claims that they keep ‘no logs’. This is obviously false. Otherwise every kiddie-porn trafficker, carder, scammer and spammer would be good to go. Companies operating retail VPN services have an obvious need to prevent such uses of their networks. Otherwise they would be blacklisted by those they purchase services from upstream. Secondly they will have to deal with police investigations and court orders consequent to criminal prosecutions.

The delivery of subscriber data on Lulzsec participants to police in the UK last year by Hidemyass is a case in point. I doubt any other service would have behaved much differently, unless they’re so shady that such stuff pales in comparison with what they and their other customers are up to – and you might think twice about transacting with such people. There may also be a services out there which are currently following another policy and who have not yet been brought into line, but that’s a matter of time: the court cases will come.

When No Logs Means… Just a Little Logging
When VPN providers say they keep no logs, they mean that they are not watching your traffic, but they will certainly know when you *log on* and *log off* their service, because such information is useful for them in managing their own network, supplying consistent quality of service and identifying abusive users so as to eject them. In many jurisdictions they are required to keep logs by law, as is the case under EU Data Retention and US Anti-Terrorism legislation. That said, there are wrinkles as to how long the logs must be retained, and this is an evolving legal question (the situation in Germany for example is in flux). This log data connecting a user with an internet protocol address is the information required by copyright enforcement agents who will have collected the other information necessary by observing your activity on whatever protocol you use – they just need to identify you.

What VPNs can change is the jurisdiction to which your virtual identity will be subjected if observed by a potential complainant. Copyright law is territorial, not as is sometimes wrongly put ‘international’. There are international treaties, and in the EU a process towards harmonisation, but court cases will be held in national courts and decided under national law. There are countries where copyright enforcement is still not regarded as a priority, or where the media companies have not installed an efficient processing infrastructure. This may be useful if you live in a place  with an enforcement apparatus industry. Even in Europe some jurisdictions may only require the handover of subscriber data if the complaint is criminal in nature, as has been the case in Spain, and thus will not stretch to common garden copyright infringement cases. But overall the situation of a VPN and an ISP are similar; they are both middlemen, the former is just more nimble in terms of setting its virtual location. In some cases ISPs are also willing to test the demands of complainants in courts because they have more resources, and interests, to do so.

With a little digging one discovers plenty of testimonies online by users who have had had their VPN service discontinued because their provider has received complaints under the Digital Millenium Copyright Act in the US. In fact, if one bothers to actually read (!) the Terms of Service, P2P and torrenting of copyrighted material is often listed as grounds for disconnection. Nobody is going to take serious heat to protect your mass entertainment supply – it’s not exactly wikileaks territory.

Fool’s Gold
If you want to snarf the latest Hollywood blockbuster, there is no technical silver bullet to guarantee that will not get grief. It has always been the case that the best protection in such scenarios lies simply in the huge numbers of people doing it. The likelihood of getting caught is low, but some people will. Ultimately this will only end when the current copyright are repealed. Until then (!) the more obscure and bounded the place where you’re trading files, the less likely it is to come under the radar; the internet is a big place with plenty of poorly mapped territories – check it out!

What I find wretched is that VPNs are just the latest in a sequence of products shilled to P2P users. First it was companies giving out malware-infected p2p clients, and making millions. Then came the direct download sites, distorting filesharing into a form of  FTP with a client/server architecture, and hitting the till register as they sold premium accounts – more millions. Next it was the turn of those peddling all you can eat Usenet subscriptions. Now is the time of the VPN spivs, trading on people’s fears.

What all of these companies have in common is that they want to sell you something you can either have for free, or that can’t be bought. Total anonymity in combination with high performance is simply inherently contradictory. You won’t enjoy torrenting over Tor! Anonymity ‘for hire’ is good only as long as you are faced with adversaries without sufficient motivation or resources. To believe otherwise is to delude yourself. As expert cryptoanalyst Bruce Schneier wrote:

“If you think security can solve your problem, then you haven’t understood security, and you haven’t understood your problem.”

Word.

——

ps No comments marketing commercial services please.

As predicted the Pirate Party surpassed the 5% hurdle yesterday in Nordrhein-Westfalen (NRW), winning an estimated 7.8% of the vote. This is their fourth successful election since the breakthrough in Berlin last September. That boost entirely changed their fortunes; just two weeks beforehand they had scored under 2% in the regional elections in Mecklenburg-Vorpommern, a figure around which they orbited in polls in Bremen, Rheinland-Pflaz and Hamburg earlier in 2011. But since Berlin they have entered regional Parliaments in Saarland and Schleswig-Holstein, and the NRW result is of particular significance due to its size – with 18 million inhabitants it is Germany’s most populous region by far, and has a greater population than all the former GDR regions combined.

Foreign media coverage understandably focuses on the scale of the CDU’s defeat and its consequences for Angela Merkel – its 26% represents its worst result in NRW ever – and the attainment of an absolute majority by an SPD-led coalition with the Greens. Once again, however,  the Greens have failed to capitalise on the weakness of the government and the return to prominence of environmentalist themes after Fukujima. Once the voter analysis comes in the reasons for this will be clearer, but it is certain that the alternate pole of attraction constituted by the Pirates is in part responsible.

Analysis of the PP Vote in Schleswig Holstein

Research produced after last week’s election in Schleswig-Holstein sourced the PP votes as follows:

CDU 14,000

FDP 14,000

Green: 13,000

SPD 10,000

Left 6,000

Others 6,000

Non-voters 11,000

First-Time Voters 6,000

Source: Infratest-dimap.

An analysis of voter choices correlated to social position suggested that the Pirates strongest constituencies are amongst workers and the unemployed, where they took 14% and 15% of the vote respectively. Interestingly the two parties most likely to lose votes to the PP were the Greens and the FDP (liberals), but the basic lesson of this research is the capacity of the PP so far to gather voters from across the ideological spectrum.

Copyright Bunfight

In response to the electoral emergence of the PP the debate around copyright in Germany has restarted in earnest. On Thursday the weekly newspaper Die Zeit published a letter titled “We are the Creators” where they condemned the ‘profane theft’ of intellectual property – characterised as a ‘great achievement of bourgeois freedom against the dependency of feudalism’ – defended the role of the publishers and other intermediaries commercially exploiting copyrights, and decried those who would use the net as an excuse for ‘stinginess and malice’. The coordinator of the letter campaign is himself not a ‘creator’ but rather a literary agent, suggesting a simple, albeit cynical, explanation for the vehement justification of the publisher’s function. In any case more than 3000 ‘creators’ signed up to the cause.

How such generalised reprimand of the public will be digested amongst the hoi polloi remains to be seen. History may have created a class of authors and publishers with the coming of bourgeois society, but it might be that in the digital era the masses have decided that they themselves are creators, and that the time for a further alteration of property and power relations has arrived …

For the moment however the talk is not of a revolution in property rights,  but rather copyright reform: ‘We are the Citizens‘. Likewise the PP’s current copyright policy is distinctly moderate:

• shorten the term of protection from the (current) life of the author plus seventy years to life plus ten;
• terminate all  transfers to an intermediary for exploitation after 25 years, returning the rights to the author;
• make any licensing assignment valid for those media known at the time
• stop prosecuting/pursuit of filesharers on the basis that it is merely reflects the current industry’s incapacity to satisfy demand.

Henceforth the policies of all political parties as regards the internet and communications will be a matter of public scrutiny, and irrespective of how one may feel about the Pirates in a more general sense, for this at least we have them to thank. Effectively they have attached a cost to coziness between political parties and the vested interests who would seek to have the net regulated for their profit. Last autumn members of the CDU were still floating proposals for a local version of the Hadopi/3 Strikes regime, but in the light of the election results, and the scale of the protests against ACTA, such a proposal is now clearly toxic and can be excluded.

While the political strategies of the copyright lobby find themselves blocked, the situation in the courts remains a concern. In April, for example, the regional court in Hamburg found in favour of the German rightsholders organisation GEMA, imposed a form of secondary liability (Störerhaftung) on Google  for works posted on Youtube without authorisation. The court required that they institute measures in addition their existing content-id system to keep works off the site, specifically a word filter which would block other versions of songs for which GEMA hold the rights, and that GEMA are not obliged to use content-id as a means of controlling infringing uses. The continuing failure of GEMA and Google to reach an agreement on royalties means that pop music available on the platform elsewhere in the world remains blocked on the German site. Other authorised services such as Hulu and Netflix are not available either.

Domestic Trifles Over: Please Return to the Economic Meltdown

With the elections are over discussion will return to the Eurozone clusterf*ck, a matter to which most Germans seem to pay little heed at least while the economy remains strong. This week however the matter may receive some attention as social movements mobilise for demonstrations against the European Central Bank and financial sector in Frankfurt, protests already forbidden by the city…