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Media Production and Information Policy

Growth Through Replication

Patrick Burkart and Lucas Logan

In the United States, a legal “change of state” (Braman, 2007) from industrial to informational occurred in the north at the end of the twentieth century, as the digitization of telecommunications networks was completed and the Internet subsumed other forms of communication. Five media conglomerates and a handful of powerful software and telecommunications companies demanded the legal guarantees for this structural transformation in the early 1990s, and the legislative work was completed around 1998. The European “change of state” is still occurring, and so it is instructive to observe – and somewhat surprising to discover – that most important aspects of the restructuring resemble the US model.

Basic conflicts among private interests pervade the legal reforms that have defined the products and services of our information age. Struggles to influence information policy disclose the structures of the information society (Braman, 2007). Our “informational” social systems – especially the media and telecommunication companies, consumer goods industries, standards-setting bodies, financial systems, and legal systems – have reworked the power relationships of consumer societies from their industrial-era formats. We analyze the EU information policy reforms in order to discern sites of social struggle and as a way to track the reconfiguration of media production and consumption. Although conspicuous consumption and domestic markets for retail flourish globally, the US provides a legal template for the replication of consumer society, an ideology of consumption, and organizational repertoires for franchising global brands. We explore some economic and political implications of the adoption of this template by European countries – which, facing large trade deficits once the US is in the media and communication markets, are “harmonizing” their national information policies to conform to EU and World Trade Organization (WTO) standards. These standards are set largely on the model of the US–Digital Millennium Copyright Act of 1998, even though in certain cases the replicas exceed their model's specifications.

In a white paper for Wired magazine, Pamela Samuelson (1996) described the excessive advantages sought by “copyright maximalists” when the deregulatory framework for telecommunications and digital media production was implemented through the US Telecommunications Act of 1996. The political agenda was even more explicit then than it has become today. It included the following points:

1. Give copyright owners control over every use of copyrighted works in digital form by interpreting existing law as being violated whenever users make even temporary reproductions of works in the random access memory of their computers.
2. Give copyright owners control over every transmission of works in digital form by amending the copyright statute so that digital transmissions will be regarded as distributions of copies to the public.
3. Eliminate fair-use rights whenever a use might be licensed.
4. Deprive the public of the “first-sale” rights, which it has long enjoyed in the print world (these are the rights that permit you to redistribute your own copy of a work after the publisher's first sale of it to you).
5. Attach copyright management information to digital copies of a work, ensuring that publishers can track every use made of digital copies and trace where each copy resides on the network and what is being done with it at any time.
6. Protect every digital copy of every work technologically (by encryption, for example) and make illegal any attempt to circumvent that protection.
7. Force online service providers to become copyright police, charged with implementing pay-per-use rules. (These providers will be responsible not only for cutting off service to scofflaws, but also for reporting copyright crime to the criminal-justice authorities.)
8. Teach the new copyright rules of the road to children throughout their years at school.

We argue that the information policies to be adopted in the EU reiterate the “maximalist” standard for copyright, but not without opposition. EU governments assigned their information policy legislation and research to the Information Society Commission. In its search for a common regulatory framework for electronic communications and in its work toward a single market in creative content online (EC, 2010c), the Commission has confronted a counterdiscourse opposed to copyright maximalism and an overly expansive patent-protection policy. The counter discourse has become a “pirate” political agenda. Founded in 2006, the Pirate Party of Sweden has not only articulated this counterdiscourse for the first time; it has also given rise to the Pirate Parties International (PPI) social movement throughout Europe. This chapter examines the negotiations over maximalist copyright policy in the EU and the ways in which the Pirate Party has influenced the debates.

Methodologically, we adopt the general approaches used in the critical study of the international political economy of communication in order to identify more basic conflicts than those that appear in legal proceedings, legislative hearings, and journalistic commentary on policymaking. This path, informed principally by Dan Schiller (2003), Vincent Mosco (2009), and Sandra Braman (2007), considers the processes of media market-making and commodification as underlying the interest-group dynamics that drive political processes of reform. In our analyses of completed or pending reforms we utilize a stakeholder analysis, which allows us to conceptually map economic and political interests to identifiable groups and to conflicts and alliances between them.

To do this, we first present the basic rationale of an information policy – by which we mean the legal regime governing intellectual property rights in cyberspace, telecommunications, and electronic commerce. Information policy in the EU is torn between the need to promote European production in media and communication sectors and the need to support the nondiscrimination principles of the WTO. Then we propose that the failure to balance intellectual property rights (IPRs) with economic, cultural, and social needs for balance and equity in the US is being replicated in the new information policies of the EU. These include the failure to protect private communication online, the failure to preserve an intellectual commons comprised partly by fair use and by the public domain, and the failure to protect innovative technologies as forms of free speech. We conclude by presenting the significance of political opposition to the new information regulations, including the opposition of the International Pirate Party – a social movement organized against copyright maximalism and online surveillance. These protest movements visibly disclose the ideological basis of the new legal protections for media production, which otherwise are mystified and obscured by bureaucracy.

We conceptualize these structural transformations by considering them as part of the continuing deployment of the Celestial Jukebox in new markets (Burkart & McCourt, 2006). The Celestial Jukebox is the set of technologies for production and distribution of commercial media that adhere to the copyright maximalist standards. The promotion of the “pay-per” model for digital production and distribution in Europe is not predicated on the consent of artists, fans, private citizens, workers, students, or even media industry functionaries. Its information policy discloses some ways by which “the regulation of social relations assumes a legal character” (Pashukanis, 1989, p. 79). In other words, information policy dictates only the apparent basis for the structures and processes of communication (Braman, 2007, pp. 1, 19–20; Mosco, 2009, p. 19). The social conflicts spilling out from the reform process demonstrate observably the political resistance and opposition to regime change, as well as the changing relationships between media producers and consumers that the reforms seek to legitimate.

Ideological Aspects of Information Policy

Information age policymakers tend to emphasize the aspect of information as a commodity and to minimize other aspects (Braman, 2007, p. 13), including its “public goods” characteristics.¹ Promoting the noncommercial value of information production and of the consumption of information has been left largely to protest groups. The most powerful stakeholders in the information society are part of an elite sector of transnational and multinational corporations with close ties to the state (Mosco, 2009). These stakeholders tend to lobby, successfully, for policies that are beneficial to specific and immediate economic interests (Braman, 2007, p. 23), and they express the unflagging impetus to commodify culture.

Information policy stakeholders are many, but among the most powerful are the corporations that represent major movie studios and music labels, large technology and software companies, and pharmaceutical companies (Love, 2009). For example, the International Intellectual Property Alliance (IIPA) is comprised of the Entertainment Software Association (ESA), the Motion Picture Association of America (MPAA), the Business Software Alliance (BSA), and the Recording Industry Association of America (RIAA), and it lobbies the United States Trade Representative (USTR) on Special 301 concerns and watch-lists (USTR, 2010; see below). Since these corporate institutions have the greatest influence in the debate over information policy, they are able to promote their specific economic interests and tend to do so at the expense of society's other stakeholders (Braman, 2007, p. 24). Long-term control of information policy gives corporations considerable power to regulate how information technologies are allowed to evolve (ibid., p. 19). This arrangement can have negative consequences for innovation and competition. The ability to control the terms of the debate over information policy is perhaps even more problematic, especially when incumbent interests can demand and win control over the creation and use of information (Benkler, 2006; Braman, 2007).

Although the “public goods” characteristics of digital information make it inherently difficult to commodify information, the legal system functions for this purpose. Creating markets for information depends in large part upon establishing restrictive policies that can diminish individual agency, for example by criminalizing peer-to-peer file sharing. Overly restrictive sharing policies are state-sanctioned methods for creating information scarcity (Mosco, 2009, p. 191) and for making new markets for digital products where none previously existed. For example, the business logic of copy-protecting music, software, e-books, streaming video, and video games is to minimize the number of non-payers who consume these goods. As there is no market remedy for the unpaid file sharing of commercial media, media owners have appealed to the world's legal systems to create harms claims in every instance of illicit sharing. Free-trade agreements that favor industrial claims to intellectual property over social and cultural claims to a public sphere are other examples of the use of the law for rearranging social relations so as to benefit investors and their commercial interests, for instance IPRs (ibid., p. 182). Very often the protection of these interests comes at the expense of noncommercial interests. Indeed, information policy has grown so lopsided in favor of intellectual-property-rights owners that, for example, ordinary Internet users are often considered guilty of infringement until proven innocent and their online interactions are policed by corporations or private institutions (Braman, 2007, pp. 179–180). Such was the case of Jammie Thomas, a Native American mother of four who was sent a cease and desist order and settlement offer from the RIAA in 2005, for allegedly sharing 24 songs through the Kazaa file-sharing network. Thomas appealed to a US District Court, where she pleaded not guilty and claimed to have had neither Kazaa nor the purported music files on her computer's hard drive. The first jury to have ever tried a file-sharing copyright infringement lawsuit found, on the basis of observations made by the RIAA's cyber-surveillance system called MediaSentry, that Thomas had “made available” the files, even though she had not distributed them. On an appeal and retrial Thomas was found guilty of willful copyright infringement, and she was ordered to pay the plain-tiffs $1.92 million – or $80,000 per song. The judge in the case called these damages “monstrous and shocking.”²

The criminalization of online IPR infringement expands through international law and trade agreements (FIPR, 2005). Criminalization is supported by transnational and multinational media corporations and by some software corporations (ibid., §1, para. 4). These corporations claim that maximally strict IPR enforcement is needed to offset the economic problems caused by counterfeiting and infringement (European Commission Directorate-General for Trade, 2010, para. 2). In the next section, we examine the structural role of information policy on media production and international trade.

Information Policy and the Balance of Trade

The dominance of state-owned enterprises in both East and West Europe lasted through the 1980s. After the breakup of the USSR and the so-alled “velvet revolutions” in the Eastern Bloc countries, television, radio, and telephone company privatizations accompanied structural reforms on Western, market-based models, as subsidies were dropped for film and other national media. By the 1990s, Western European countries were privatizing their telcos, deregulating their state-owned media and telecommunications firms, and developing “dual” public and private markets for broadcasters and cablecasters. Late privatizations of state-owned media firms, multiple language markets, political battles to protect national audiovisual markets from foreign imports (principally, US film and television), and public subsidies are factors keeping European markets fragmented, but also partially shielded from Hollywood imports. The centralizing initiatives of the European common market and the European Union seek strategies for mitigating and reversing the fragmentation. Facing continuing trade deficits in media and communications with the US of six to eight billion dollars annually (EC, 2005a; EC, 2010b), the 27 principal countries of the EU have responded with new information policies, principally in intellectual property rights law.³ Trade liberalization in all “electronic communications” and markets for telecommunications services was designed largely to promote investment in the communication sector. “The new regulatory framework adopted at EU level at the beginning of 2002 lays down clear and stable rules that should create certainty for investors” seeking access to the common market (EC, 2005a).

The US-based firms pressed the EC for, and largely won, standardized digital copy protections, copyright terms, and criminal-court remedies for broader categories of infringers abroad.⁴ The history of global IPR reforms to date discloses a replication of the US model for enhanced property rights and penalties through US foreign-policy objectives. Hadl and Hintz (2009) describe the reformatting of international legal and industrial systems to conform to the US and the WTO model of copyright as something akin to a “Washington Consensus” for intellectual property, especially copyright. Whereas the Washington Consensus in the 1980s and 1990s specified what fiscal reforms, structural reforms, free-trade measures, and austerity measures would be prerequisites for countries with privileged access to US consumers and markets for credit, the US copyright lobby can now be said to dictate the terms of copyright, trademark, and patent-law reforms from petitioning countries.

The propagation of US-style copyright regimes has become an explicit foreign-policy goal of the US and exerts influence through ongoing pressure from trade groups representing the content industries – principally the RIAA (Recording Artists Industry Association), the MPAA (Motion Picture Association of America), and the Business Software Alliance; through the operation of the US Trade Representative's office; and through the generation of regular “Special 301” reviews and official blacklists of US trading partners.⁵ Most recently, “Internet piracy specifically [. . .] was labeled a ‘significant concern’ in Brazil, Canada, China, India, Italy, Russia, Spain and Ukraine” in 2010 (USTR, 2010).

The global IP standardization project we describe takes key pieces from the US–Digital Millennium Copyright Act (DMCA) (non-circumvention), from the Sonny Bono Copyright Term Extension Act (copyright term extension), and from the joint policy initiatives of the US and EU in the Anti-Counterfeiting Trade Agreement (ACTA) (three-strikes provisions).⁶ These three policymaking zones constitute the legal umbrella for the “copyright maximalist” agenda that Samuelson describes (1996). The DMCA provides criminal penalties for the circumvention of copy protections (Herman & Gandy, 2006); the copyright-term extensions extend the copyrights for protected works by three generations; and the ACTA would standardize a system whereby purported infringers could be banned by law from ever accessing the Internet again in their lifetime. The project is still unfinished, as of this writing; the ACTA's final implementation has been delayed by protests in Europe and Canada over the unbalanced force it calls to bear on purported copyright infringers and over its nontransparent and nonparticipatory procedures, which have been negotiated in secret, by an executive branch.⁷ Using the asymmetrical power advantage enjoyed by US exporters and importers, the copyright lobby (principally the RIAA, the MPAA, and the BSA) tie any friendly trade and foreign relations with the US to the precondition that foreign countries adopt the US model of copyright reform and demonstrate a willingness to enforce the new provisions.

Creating an information policy that protects the interests of the key producers and distributors of the digital economy is an important basis for projecting what Sassen (1999) calls “network power” and what J. S. Nye (2004) calls symbolic “soft power” globally. “Soft power” means the power to influence foreign governments through noncoercive, cultural and political means, and it can also be said to include influence in world markets. The Telecommunications Act of 1996 lifted the media cross-ownership provisions that had separated content and carriage companies and encouraged the integrated telecoms to join the IPR owners and to unite around the DMCA. The DMCA, beside creating millions of new liability claims for the entertainment industry and the prospect of a revenue model based on collecting penalties from file-sharers, also implemented the World Intellectual Property Organization (WIPO) Copyright and Performances and the Phonograms Treaties Implementation Act. This Act harmonized US copyright law with the law of countries that signed previous copyright conventions and treaties. The 1998 Copyright Term Extension Act further extended the terms of most copyrighted works beyond the natural life span of humans.⁸ The Prioritizing Resources and Organization for Intellectual Property Act (2008; the PRO-IP Act) heightened penalties on copyright and trademark infringements and created the Office of the United States Intellectual Property Enforcement Representative (USIPER) in the executive branch. These contributed to existing frameworks for promoting e-commerce⁹ and “cybernetic commodification” (Mosco, 1996, 2009) – including sales-tax exemptions for online shopping, encryption standards for secure electronic payments, and penalties for online fraud.

Through these reforms of US information policy the legal system came to protect the interests of the largest incumbent producers of intangible goods and services – especially the media, telecoms, and software companies. It also strengthened their hand vis-à-vis other stakeholders. In return, the integrated conglomerates have devised the Celestial Jukebox model, wherein consumers must pay on-demand rates to licensed distributors for exclusive or near-exclusive access to digital media (Lehman, 1995, pp. 221–222). Its basis in the legal system is the existing legal realist tradition in the US, which defines information operationally, as a resource similar to physical resources that can be owned and stolen (Braman, 2007, p. 12). Information, by this definition, becomes part of an information environment, and the allocation of information resources to state agents, individuals, and the private sector becomes a primary source of struggle over power in the information society (ibid., pp. 12–13).

The Replication of the Celestial Jukebox

The replication of the legal structure that enabled the Celestial Jukebox to emerge in the US is occurring in the EU. Apart from exercising strong market power (owing to vertical integration of ownership and to exclusivity arrangements), the firms and other institutions operating the Celestial Jukebox also exert “network power,” which works through access controls and proprietary standards for hardware, software, and networking in markets for information and telecommunications services. When network power accrues disproportionately to media exporters with strong influence over US trade policy, it might be argued that the replication of the Celestial Jukebox in Europe stands to exert “soft power” there as well. Over the course of two strong up-and-down business cycles, Hollywood conglomerates have mostly incorporated the technology and business practices of the new media and their legal, technical, and financial support network, and they have mastered the contrivances needed for producing information scarcity. Media “convergence” has occurred both technologically and in the ownership and organization of conglomerates.

Whereas marketing and public relations discourse promote both convergence and new markets for the content industries as consumer bonanzas, the production and maintenance of conditions of information scarcity has become the critical function of integrated mass media and new media conglomerates. As Daniel Schiller relates:

The Celestial Jukebox, being the set of contrivances that tested the newly converged media business models, has been poised for export from the US. It is becoming available now to European countries whose legal systems previously resisted it, and this is happening through regulated markets for foreign media, consumer privacy protections, and unharmonized information policy.

As previously mentioned, the Celestial Jukebox's replication has required legal initiatives and mechanisms to transform Europe's legal system on the model dictated by Hollywood for the US. Specifically, the adoption and implementation of the European Union's Directive for the Enforcement of Intellectual Property Laws (IPRED) and of the ACTA have been US-based initiatives designed to propagate US-style information policy to the major trading partners of the largest media, telecoms, and financial companies. The IPRED and the ACTA are multilateral agreements that harmonize the legal systems of EU member states and provide legal cover for the exportation of the pay-per-use business models of the Celestial Jukebox.

Opponents of harsher IPR policies – including civil libertarian groups, information policy reform organizations, and many workers in the software and telecommunications industry – argue that criminalization stifles online innovations and the communicative freedom needed to create new intellectual property (FIPR, 2005; McLeod, 2005; Doctorow, 2010; EFF, 2010b). Opponents also argue that forcing Internet Service Providers (ISPs) to track customers and report possible infringement to IPR holders or to the state, a common practice in enforcing criminalization, creates a chilling effect for users and forces ISPs to act as police (FIPR, 2005, §2, paras. 6–10). The minimum specifications and technical requirements for an “Alternative Jukebox,” which prioritizes privacy, accessibility, and free speech rights for online culture sharing, have been elaborated elsewhere (Burkart, 2010; Burkart & McCourt, 2006).

These criticisms of aggressive, hegemonic moves to control intellectual property have emerged from an information commons movement (Braman, 2007, p. 183). This movement is made up of an array of individuals and organizations whose views range from fundamentally changing intellectual property laws through abolishing them to incrementally changing them by easing restrictions to access (ibid.). As a practical matter, intellectual commons groups, as weaker stakeholders in the information society, are more likely to succeed at enforcing incremental or partial change than fundamental change (Majchrzak, 1984, p. 71). For instance, a non-governmental, multilateral organization called the Foundation for a Free Information Infrastructure (FFII), which is supported by open-source software developers, by independent music labels, by consumer rights groups, and by cyberliberties activists, has been active in challenging the industry-backed IPRED and, with help from other civil society and business groups, it has managed to strip the legislation of harsh, over-reaching new patent laws (EFF, 2010b). Information commons groups play a central role in the formation of intellectual property policy by mobilizing power and resources tactically.

Alternative Tentacles: The Rollout of European Access Controls

The following sections analyze the key stakeholders of IPRED, IPRED 2, and ACTA. These three initiatives galvanized support among elite members of the European Parliament and also coalesced a weaker, much more diverse and diffuse set of opponents in civil society and in the private sector. The enumeration of competing stakeholder groups supports our broader claim that social conflicts drive the reform process; it will also facilitate a more thorough analysis of the stakeholder structure in future research.

IPRED and IPRED 2

The European Union initially adopted IPRED in 2004 (EC, 2004). IPRED harmonized counterfeiting and copyright penalties and remedies among EU Member States in order to reduce uncertainty and risk for IPR holders within the European Internal Market (Official Journal of the European Union, 2004). IPRED gave IPR owners the ability to order ISPs to turn in the names of users suspected of heavy trafficking (Hinze, 2004). The directive also enables search and seizure orders, injunctions, and the freezing bank accounts linked to those accused of infringing intellectual property. The directive assumes guilt until innocence is proven, since the mere charge of infringement triggers the IPRED provisions. Opponents of IPRED argue that the directive harms consumer privacy and places unfair burdens on ISPs and on small businesses that are forced by the state to police Internet usage. Despite the increased enforcement capabilities that IPRED gave to rights holders, small-scale copyright and patent infringement is still a matter of civil litigation (FIPR, 2005).

Under IPRED 2, however, copyright and patent infringement became a criminal activity, along with inciting or abetting infringement (EC, 2006). While IPRED 2 was being debated by the European Parliament in 2006, civil liberties groups and several European member states objected to provisions that overstep the abilities of the European Commission to regulate member states (FFII, 2006). Critics also objected to the IPRED 2's failure to distinguish between different magnitudes of copyright and patent infringement (EC, 2006; FFII, 2006). For instance, it links counterfeiting and piracy with organized crime and the drug trade, but it never clarifies a distinction between an online infringer violating copyright for home use and the types of counterfeiters who engage in organized crime. The proposal brands all infringers as criminal, without appropriate regard for the scale of infringement.

According to an analysis made by the Foundation for Information Policy Research (FIPR; see FIPR, 2005), industrial stakeholders were divided about the passing of IPRED and IPRED 2. The music industry – which has close ties to the US government (Kravets, 2009) – large consumer-products companies, pharmaceutical companies, and auto makers favored the legislation (FIPR, 2005). Additionally, the European Commission supported the passage of IPRED, giving supportive stakeholders an edge in asserting the specifics of the directive (FIPR, 2005). Opposition to IPRED included ISPs, auto-parts makers, makers of generic drugs, and civil society groups ranging from open-software groups to librarians (FIPR, 2005). The opposition groups did have the resources to make some significant revisions to IPRED, but they were not able to create enough effective mobilization to overturn the directive altogether (EFF, 2010b).

The IPRED's revisions focused on patent law, where non-governmental organizations (NGOs) like the FFII were able to convince policymakers that strict patent laws are harmful to innovation and could put the European Union further behind the US in terms of FIPR technological innovation (EFF 2010b; FIPR, 2005). Opposition groups focused on the harm that patent restrictions could do to the open-source community and pointed to potential economic damage (FFII, 2006). The FFII noted, for instance, that Microsoft lobbied for more severe software patent restrictions in the EU but lobbied for the opposite in the US, which suggested that Microsoft wanted to create an unfair competitive edge over its European rivals (FIPR, 2005, para. 3). The organizations opposed to patent revisions also benefited from strong support from open-source software groups and from Sun Microsystems (FIPR, 2005, para. 3).

That the opposition groups for patent provisions were more successful than the opposition groups for copyright provisions is a statement to the former's superior lobbying and messaging to members of the European Parliament. The claims that harsh patent laws could damper economic growth and harm technological innovation in the EU won out over the claims that stricter copyright provisions would harm European society. Specifically, the FIPR's response to IPRED 2 argues that new patent restrictions could raise the price of auto parts; eliminate the generic drug industry; hurt small business; force the European gaming industry to pay royalties to foreign companies like Microsoft and Sony; and discourage the use of open-source operating systems created by Europeans (FIPR, 2005). These arguments are firmly rooted in economic data, and information industries such as software are portrayed as firms whose products risk devaluation.

As for arguments against harsher copyright infringement, FIPR points to chilling effects on librarians; the criminalization of universities for aiding and abetting infringement when academics accidentally share work online that is copyrighted in a journal, or when students share music files; the criminalization of security research; the criminalization of street music; and the undermining of privacy through increased online surveillance (FIPR, 2005). These lines of argument portray criminalization of copyright infringement as something that will damage information as a shared resource, as opposed to information as a privately owned commodity. Proponents of criminalizing infringement spoke purely in terms of the economic dangers posed by online copyright infringement, and they were successful at pressing their agenda on decision-makers (EC, 2006).

Overall, the corporations supporting IPRED had more influence on rulemaking bodies than their opponents had, but the winner of particular policy debates was the side that best articulated the trade and investment benefits accruing to “Europe.” The social and cultural implications of policy are classified as secondary, and the primary obstacle in the way of passing IPRED 2 consists largely in legal questions over the power of the European Commission, and not in fears of the harm that the directive could cause in the EU (EFF, 2010b).

ACTA

ACTA was initially proposed by USTR to curb global counterfeiting and piracy (USTR, 2010). Governments currently represented in the negotiations include those of Canada, the EU, the United States, Japan, South Korea, Mexico, Morocco, New Zealand, and Singapore (EC, 2010a). The end goal is to create a much larger global coalition to engage in the trade agreement, as proponents of ACTA argue that the WIPO and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) do not police counterfeiting and piracy sufficiently. The intention behind certain aspects of ACTA is similar to the intention detectable behind IPRED 2: to strengthen copyright, patent, and trademark laws through criminalization measures and to give IPR holders more control over the work at the expense of consumer controls over the work.

ACTA is still in the negotiation phase and may not survive a sustained debate, but the manner in which this trade agreement was initially negotiated highlights the way in which transnational corporations and governments work together to create trade agreements that support specific economic interests at the expense of the greater culture and society (Geist, 2010a; Mosco, 2009). Civil liberties organizations as well as digital-rights groups and activists have intensely protested against ACTA's secret negotiations and provisions for IPR holders (Announcement, 2008). Opponents of ACTA argue that the public and the civil society groups are locked out of these negotiations (Hinze, 2004). Indeed, initial requests for access to ACTA were blocked when US President Barack Obama claimed state-secrets privilege over the negotiations, though pressure from the European Parliament did eventually spur the public release of an early ACTA draft (European Parliament, 2009; Love, 2009). The primary concern of opponents is the provision in ACTA for a graduated-response or three-strikes law, which would force ISPs to ban the Internet use of those accused of infringing intellectual property (FFII, 2010).

The “three-strikes” plan specifies a graduated-response strategy for the purported infringers – a strategy whereby ISPs, after being informed of a potential copyright violation by a third-party copyright holder, can send warning letters to users accused of copyright infringement (Ryan & Heinl, 2010, p. 3). After two of these letters, if the alleged infringer is accused again, he or she is in some capacity banned from using the Internet (ibid.). The need for, and the extent of, judicial review is a primary part of the debate over three-strikes laws (FFII, 2010). In its harshest form, a three-strikes law could ban someone from using the Internet over mere accusations of copyright infringement with no judicial oversight – which, again, pushes the legal supposition that individuals sharing information online are guilty until proven innocent of theft (Braman, 2007, pp. 179–180; FFII, 2010).

The entertainment industry disposes of the concerns of civil liberties groups and activists by claiming that strong intellectual property laws are needed in order to protect profits and artists in the global information economy. The entertainment industry is a powerful stakeholder in the ACTA negotiations thus far, as is evidenced by a list of those consulted by the USTR. The list was given to Knowledge Ecology International (KEI) in response to a Freedom of Information Act request and it included representatives of Sony Pictures, Time Warner, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) (Love, 2009). Additionally, organizations like the International Intellectual Property Alliance, which are heavily invested in stronger intellectual property laws, were consulted (ibid.). As direct consultants to the USTR in the ACTA negotiations, these key stakeholders have a position of greater power to negotiate from than the civil society groups that oppose ACTA have (Majchrzak, 1984). The list given to KEI only included one representative organization that supports intellectual commons ideal: Public Knowledge (Love, 2009).

The most powerful opponents of ACTA may not be civil society groups. India, China, and other developing nations have voiced their opposition to the secret ACTA negotiations, claiming that the provisions violate TRIPS and impose unfair standards on the developing world, for instance by forcing those nations to devote to protecting intellectual property resources that would be better spent on infrastructure and public health (Geist, 2010b). Such objections illustrate the conflict between global capitalism and cultural imperialism (the latter being often imputed to the former) – a conflict in which transnational corporations and governments demand the protection of commercial media over developmental priorities (Mosco, 2009, p. 73). The coalition of nations and corporations invested in ACTA has no power or leverage to order China or India to comply with this trade agreement (Geist, 2010b). These countries may prove to be less compliant negotiators than the European countries, in part because they can better afford to exercise their sovereignty due to their large internal markets.

Meanwhile, laws in France and in the United Kingdom have laid the groundwork for graduated-response laws such as those encouraged in recent drafts of ACTA. The provisions of the French HADOPI, like those of the British Digital Economy Act, exceed the specifications of the US template, and thereby they divulge new forms of copyright maximalism. By Samuelson's (1996) measures, HADOPI and the British Digital Economy Act of 2010 seem to be, if anything, examples of copyright super-maximalism in their call for additional legal protections for corporations, and even for higher legal penalties for alleged infringers.

Case Studies: HADOPI and the Digital Economy Act of 2010

HADOPI, France

The law (loi) or bill known as Création et Internet is France's answer to a graduated-response system designed to deal with intellectual property infringement (Ryan & Heinl, 2010). It is commonly referred to as the HADOPI law, a formula incorporating the acronym of the legislative body created by this law: the Higher Authority for the Distribution of Works and for the Protection of Copyright on the Internet (Haute autorité pour la diffusion des æuvres et la protection des droits sur Internet). The law represents the culmination of talks carried by the entertainment industry and ISPs with the French government to create new protections for intellectual property (Senate of France, 2009). The new law gives HADOPI the authority to oversee complaints from copyright holders over infringement. HADOPI is given the authority to suspend individuals' use of the Internet by up to one year for copyright infringement, and it can enforce software-blocking measures at institutions where infringement is found to be committed (ibid.). Initially HADOPI was to be given the authority to punish infringers on its own; but, due to legal complications, the law was rewritten so as to include judicial review (Ryan & Heinl, 2010).

Under the current draft, HADOPI turns in infringers to the courts after three warnings, and, in addition to cutting off their Internet access, it may fine them up to €300,000 and make them face up to two years in prison (ibid.). Currently, a private investigative company has been hired by the copyright industry to track down infringers in France and turn them in to HADOPI. This arrangement essentially allows private industry in France to police alleged copyright infringers and then to have them punished through the courts, a situation that showcases the corporate–governmental ties that govern information policy in an information economy (Braman, 2007).

The influence of powerful corporate stakeholders on French law affects democratic institutions also beyond the legal system. The HADOPI bill contains specific statutes that regulate the societal and cultural direction of the information society in France by modifying the education system (Senate of France, 2009). Article 15 of the law amends the education code for students in mandatory grade school and in college music and art classes, asking for it to be “informed of the dangers of downloading and of illicitly making available works or objects protected by a right of authorship or a related right for artistic creation” (ibid.). Additionally, the law mandates that secondary-education classes dealing with informatics and Internet certification are taught by teachers with specialized backgrounds in intellectual property law (ibid., Article 16). These classes are then to be used to inform students of the dangers of illicit downloading and counterfeiting and of the ownership rights of authors and creators.¹⁰ The modifications made here affect, potentially, the social upbringing of the French youth as a whole by giving it an understanding of intellectual property that is firmly in line with the hegemonic capitalist views of the most powerful stakeholders in the HADOPI debates. Changes to the educational system of France, no matter how slight, are clear examples of the constitutive power of information policy (Braman, 2007, p. 19)

Digital Economy Act of 2010, UK

The United Kingdom's Digital Economy Act does not fully introduce a three-strikes system, but it does establish a foundation for one by giving the Office of Communications (OFCOM), UK's communications regulator, the ability to instate such a rule eventually, if the measures that the Act introduces are ineffective (Department for Business Innovation and Skills, 2010). The current version of the Act requires ISPs to track suspected copyright infringers and to keep a record of how many times infringement has been committed. Copyright holders can at any time apply for a court order to get the names and addresses of these alleged infringers and to take legal action. Then copyright holders would send a cease and desist letter to the alleged infringer (Ryan & Heinl, 2010). Should this measure fail, copyright holders can take the accused infringers to court, for criminal litigation. The ISPs in the UK have one year from the enactment of the law (enacted in April, 2010) to devise methods for tracking copyright infringement. Additionally, ISPs are legally obligated to police users by slowing down connection speeds, by banning particular content from individuals outright, and by suspending service or in some other way limiting Internet access if they suspect copyright infringement (Digital Economy Act, 2010, §9). The Act was fiercely debated in the UK, where civil liberties activists claimed that the negotiations were unfairly influenced by the British entertainment industry and by Hollywood studios at the expense of numerous civil liberties groups and tens of thousands of individuals who protested the bill (“Call for ‘Fuller’ Debate, 2010; Doctorow, 2010). The success of corporate–governmental coalitions in promoting the new Washington Consensus highlights Mosco's (2009, p. 180) claims that the narrow economic interests of a select class of corporations control information policy.

Corporate control of the debate over information-age media policy is evident in the exclusion of the public and of information commons stakeholders in the terms of the ACTA debate (Love, 2009); in the proposal for IPRED 2, where copyright infringers of all types are treated as organized criminals and drug-trade kingpins (EC, 2006, p. 1); and in the HADOPI law, according to which the French government educates young people in the virtues of the policy of blocking Internet access for life (Senate of France, 2009, Articles 15 and 16). These policies create and try to impose an ideal of citizens as consumers who must be restricted in their access to information, but who must also use information policy as a constitutive force in order to alter social, economic, and cultural norms through education programs and through the labeling of sharing as criminal (Braman, 2007). Fortunately opposition has found some success – for instance the shelving of patent-law reforms in IPRED and the release of an early ACTA draft to the public (EC, 2010a; EFF, 2007). The arguments of opposition groups are also enhanced by the fact that these policies are, from the point of view of a stakeholder analysis, largely inefficient on an economic scale (Majchrzak, 1984).

Developing Alternative Models for Information Policy

Laws that limit the ability of noncorporate, non-state actors to engage in information sharing and cultural production in electronic networks also extinguish many of the potential welfare benefits of the networked information economy, which depends upon self-publication, collaboration, and a continual repurposing of cultural objects (Benkler, 2006, pp. 3–4). Benkler and Braman present the historical paradox that conflicts between the interests of industrial-age enterprises were solved and the parties were politically “reconciled” through laws that rapidly became either ineffective or draconian when applied to the private individuals (Braman, 2007 p. 63). As young people in particular have become technologically enabled “prosumers” or culturally productive consumers, the restrictions placed on their ability to share, remix, and play with copyrighted digital cultural objects has increased dramatically. While articulated clearly in the popular press (Doctorow, 2010; Klein, 2010), in media scholarship (Burkart 2010; Rodriguez, Kidd, & Stein, 2009), and in activism (PPI, 2012), the views of those calling for a networked, nonindustrial information economy have not yet found formal representation in any legal system. Leaving aside the implications for civil liberties and for the open society, failed information policy in an information society can also damage the structures and processes of communication and stifle the ability for future economic growth (Benkler, 2006, p. 135).

Successful lobbying for information policy reform must take practical economic considerations into account. Groups lobbying against the IPRED patent-law reforms had to consider that the software and software-based service industry in the EU generates approximately $240 billion per year in revenue (Pierre Audoin Consultants = PAC, 2009, p. 9). Likewise, proponents of progressive copyright reform have competed with representatives of the International Federation of the Phonographic Industry (IFPI) who claimed that piracy directly cost the European music industry a loss of $3.4 billion, or 36% of its total revenue (IFPI, 2010, p. 5). Benkler argues that, more than being able just to contribute to a global information economy, sharing and creating content is the only way for such an economy to succeed. The challenge, for progressive reformers, is not to convince policymakers to reject the notion of information as a commodity, but to emphasize the intrinsic benefits of information as a shared resource (Benkler, 2006). For instance, free software may be said to strengthen small business; and the chilling effects of the criminalization of copyright infringement may be said to endanger directly Europe's $25 billion content-creation sector (PAC, 2009, p. 117) by stifling innovation (FIPR, 2005, §1, para. 4).

While economic considerations and arguments are vital in changing information policy, individuals, NGOs, and various activist groups have built networks in defense of the right to be allowed in the debate over the future of the information economy. After all, there is no way to join the debate without a seat at the table. The networking that led to the rise of public awareness of the new ACTA commitments is a blueprint for how the intellectual commons movement should coordinate itself in policy debates (European Parliament, 2009). Political conflict over European information policy, emerging as it did from popular protest groups advocating stronger cyberliberties protections (for privacy, access, and free speech), has the potential to spill over into broader policy arenas than the media; these include software, “nonlinear” and video-on-demand (VOD) digital cable, and Internet Protocol television (IPTV). Networked activism promoting a new policy demands accountability from the information policies that are already set in favor of the economic interests of Hollywood content industries and other incumbent rights holders (Braman, 2007).

The election of two Pirate Party candidates from Sweden to the European Parliament has demonstrated the concept of networked activism in opposition to the new Washington Consensus; in particular, the work of Pirate MEP Christian Engström on the European Parliament's Committee of Legal Affairs has been instrumental in moderating the worst abuses of cyberliberties that were lurking in the draft legislation (Vandystadt, 2009). Although the political history of the Pirate Party is still young and the group itself springs from ongoing conflicts with the Pirate Bay (the Swedish search engine for file-sharing), the Pirate Party can be said to have already exerted a moderating influence over the implementation of the new Washington Consensus in Europe. MEP Engström has, for instance, disclosed the existence of an Internet Protocol observatory (an “IP observatory”) for online surveillance (Masnick, 2010). Engström has also crafted the language for Amendment 138 of the EU telecoms package, which would require judicial scrutiny for any invocation of three-strikes provisions throughout the EU (Vandystadt, 2009). The Pirate Party has a variety of cultural politics espoused by young people under 30 and organized in opposition to “normal” party politics, and also a variety of “anti-political politics,” to use Václav Havel's (1991) apt expression. “We are very strong among those under 30. They are the ones who understand the new world the best, and they have now signaled they don't like how the big parties deal with these issues” (Engström, quoted in Wood, 2009).

Conclusion

The international political economy of communication focuses on the ownership and control of the culture industries by the key players in the corporate world, in the public sector, and in civil society. We have used this approach to emphasize the mobilization of resources (power and money) that the private sector brings to bear on shaping information policy and to contrast the power of the private sector with the power of civil society groups, which operate in opposition and with greater difficulty, having fewer resources.

For young European adults “born digital” and for older Europeans who have learned practices of do-it-yourself media production and of culture sharing in digital formats, the foisting of a new set of prohibitions against copyright infringement, while debated as a legal matter, is something very personal and politically motivating. In the midst of ongoing economic and legal integration in the EU and EC, an environmentalism for the Internet is emerging. The oppositional politics of the Pirate Party has demonstrated that debating the online environment as a quality-of-life issue is now possible, and that information policy should be debatable and decidable through democratic processes.

What we have called the new Washington Consensus, while intending to promote the European common market, may actually conflict with existing trade policies for audiovisual media. On the one hand, in trade programs promoting “media pluralism” – such as the Media Plus Program (2001–2005), the eContent Program (2001–2004), and the ongoing Television Without Frontiers–the EU has reinforced structural advantages for vertically integrated European media companies and for strong national champions. These programs create non-tariff barriers for US media exporters, including new media content providers, and they make it harder for competitors to break into the European markets. Yet, on the other hand, by implementing copyright reforms on the US model, the European countries seem to create openings for the greater access of US-based content industries to commercial online channels.

We look at the case of Europe because, from Hollywood's perspective, the information policy governing Europeans has lagged behind that of the US. In the process of “catching up” and interlocking with legal norms and structures shared by the US and by WTO member states, European leaders hope to become competitive with the US as media exporters, and they grow national markets for media, software, and services. The incipient tension between old and new regulatory regimes for European media, together with new, social movement-style opposition to information policy reforms, suggests that the informatization of policy has not been seamless or automatic – even as its template replicates.

NOTES

1 Whereas “the consumption of private goods uses up scarce resources and therefore needs to be rationed (usually by the market and by prices), [. . .] public goods do not comply with this logic. The initial cost involved in establishing a public good may be high but then the marginal costs associated with supplying an extra unit of it are next to zero” (Doyle, 2002, p. 13).

2 A legal archive on this case is kept at www.ask.com/wiki/Capitol_v._Thomas.

3 We acknowledge (but set aside for now) the significant contributions to consumer data protection that EU legislation has codified – including anti-spam, opt-in, and restrictions on the use of cookies. These differences from US information policy have created trade friction, and EC regulators slowed down the expansion of many firms that sell access to online content and databases. We also recognize that, while the consumer role is over-emphasized in EC regulations to the detriment of the citizen role (Gollmitzer, 2008), community media and grassroots media advocates carve out noncommercial spaces for media producers (Jiménez & Scifo, 2009).

4 In the US the ownership and control of the “Celestial Jukebox” – the aggregate of commercial on-demand media services – was consolidated through coercive measures that required the subordination of private and non-commercial speech and other forms of cultural sharing to markets for commercial media (Burkart & McCourt, 2003).

5 The “decentralization” of US trade policy moved trade policy from the exclusive control of the executive branch to corporate interest groups in the mid-1970s (“Foreign affairs,” 2009).

6 “In October 2007 the United States, the European Community, Switzerland and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement (ACTA). Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada have joined the negotiations” (EFF, 2010a).

7 Public debate over the ACTA has been possible solely as a result of leaks of its various drafts.

8 For works created by individual authors, the Act extends copyright to the life of the author, followed by 70 years. Works of corporate authors are protected for 120 years after creation or for 95 years after publication, whichever comes first.

9 Unsuccessful attempts to accelerate reforms have fallen short in the US Congress; these include including the the Uniform Computer Information Transactions Act (UCITA), the Piracy Deterrence and Education Act (PDEA), and the Inducing Infringement of Copyright Act (INDUCE).

10 The following paragraph is added to a section of the education code mandating that students receive education in technology and computers via Article 16 of the bill Création et Internet: “Within this framework, in particular when preparing secondary students for the certificate in informatics and Internet, they receive from teachers previously sensitized in this subject information on the risks associated with using public on line communication services, on the dangers of downloading and illicitly making available works and objects protected by a right of authorship or a related right for artistic creation, as well as the sanctions for violating the obligation defined in article L. 336-3 of the intellectual property code and the crime of counterfeiting. This information also covers the existence of legal offerings of works and objects protected by a right of authorship or a related right on public on line communication services” (La Quadrature du net, 2012).

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FURTHER READING

Barber, B. (2001). McWorld vs jihad. New York, NY: Ballantine Books.

Barber, B. (2007). Con$umed: How markets corrupt children, infantilize adults, and swallow citizens whole. New York, NY: W. W. Norton.

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Klein, N. (2000). No space, no choice, no jobs, no logo: Taking aim at the brand bullies. New York, NY: Picador.

Office of the United States Trade Representative. (2010a, March). ACTA fact sheet (March 2010). Retrieved December 20, 2011, from http://www.ustr.gov/

Office of the United States Trade Representative, (2010b, March 24). New information on USTR.gov/ACTA. Retrieved December 20, 2011, from http://www.ustr.gov/

Ritzer, G. (2004). The globalization of nothing. Thousand Oaks, CA: Pine Forge Press.

Schiller, D. (1999). Digital capitalism: Networking the global market system. Cambridge, MA: MIT Press.