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The gray zone: Networks of piracy, control, andresistance

Burcu S. Bakioǧlu

To cite this article: Burcu S. Bakioǧlu (2016) The gray zone: Networks of piracy, control, andresistance, The Information Society, 32:1, 40-50, DOI: 10.1080/01972243.2015.1107164

To link to this article: http://dx.doi.org/10.1080/01972243.2015.1107164

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The gray zone: Networks of piracy, control, and resistance

Burcu S. Bakio�glu

Department of Film Studies, Lawrence University, Appleton, Wisconsin, USA

ARTICLE HISTORYReceived 17 July 2013Accepted 2 January 2015

ABSTRACTTaking Operation Payback and the broader context provided by The Pirate Bay as a point ofreference, I consider the role of network-based initiatives in shaping the digital rights movement. Iargue that Operation Payback is a significant milestone in copyright controversies because itexposed formal and informal, legal and extralegal strategies that have crystallized into an intricatebusiness model around intellectual property. The most consequential outcome of this operationwas that it created a focus on privacy violations that occurred at the behest of copyright, and thusrevealed the tensions between intellectual property and privacy. In so doing, it brought privacyconcerns front and center, galvanizing unprecedented support for the digital rights movement.

KEYWORDSAnonymous; copyright;digital rights movement;hacktivism; OperationPayback; piracy; The PirateBay

In September 2010, Anonymous, a nebulous activist col-lective, launched one of its first operations againstmedia’s anti-piracy industry. Famously known as “Oper-ation Payback is a Bitch,” the event came in the after-math of the Motion Picture Association of America(MPAA) hiring of an Indian software company, AiPlex,that openly admitted to launching Distributed Denial ofService (DDoS) attacks against The Pirate Bay. The hir-ing of such outfits to combat piracy especially in theregions of the world where copyright infringement goesunchecked has become common. But the public recogni-tion of this and its familiar target is what triggered thedustup. Shocked to see that their very own tactics werebeing used against an ally, Anonymous took to arms.Within days after The Pirate Bay (TPB) began to receivecyber attacks from AiPlex, Anonymous executed its firstmassive, crowd-sourced attack, citing a defense of free-dom of speech and civil liberties. In rapid succession,networked users within Anonymous knocked off morethan a dozen websites related to the pro-copyrightorganizations, disrupting their functionality, includingthose of MPAA, Recording Industry Association ofAmerica (RIAA), ACS:Law, and Davenport Lyons. Oper-ation Payback was the opening salvo in copyright-relatedattacks over subsequent years and a significant milestonein copyright history.

Understood by some to be a hegemonic legal institu-tion founded upon control and exploitation, copyrighthas been an integral part of global network capitalism.Christian Fuchs (2008) defines global network capitalismto be a transnational economic organizational model the

actors and substructures of which change dynamicallywhile its parts perpetually reorganize. This new regimehas created novel methods of domination, yet at thesame time opened the doors to new opportunities for thedisaffected to cooperate and challenge domination andto advance alternative futures. Fuchs sees this as “anantagonistic space that by producing new networks ofdomination also produces potential networks of libera-tion that undermine the centralization of wealth andpower” (Fuchs 2008, 119–120). Geoff Mulgan, whosework examines the relationship between communicationand control, makes similar observations. In his articula-tion, control is never a one-dimensional force, but ratherentails a complex set of variables that generate resistance(Mulgan 1991). Taking Fuchs’s ideas as a starting point,Simon Lindgren (2013) argues that global network capi-talism has spawned disruptive spaces that breed newmovements in a wide range of fields.

In this article, I frame copyright as a disruptive spacethrough which networked movements have flourished.Such movements work to counteract the regimes thatrestrict and regulate access to and use of media productsin the age of global networked capitalism. Specifically, Iexamine copyright as a contested terrain whereupon thepro-piracy/anti-copyright groups generate online andoffline networked movements that transform into hackti-vist mobilizations of piracy (Lindgren and Lundstr€om2011). Simultaneously in these networks, the anti-piracy/pro-copyright side counters such mobilizations withlegal, extralegal, and illegal measures facilitated by theregime of privatized piracy surveillance that matured in

CONTACT Burcu S. Bakio�glu bbakiogl@gmail.com Department of Film Studies, Lawrence University, Appleton, WI 54911, USA.Published with license by Taylor & Francis. © Burcu S. Bakio�glu

THE INFORMATION SOCIETY2016, VOL. 32, NO. 1, 40–50http://dx.doi.org/10.1080/01972243.2015.1107164

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the post-Napster era. The lack of a clear commitment toinformational privacy in the Digital Millennium Copy-right Act (DMCA) of 1998 and the subsequent court rul-ings have opened the floodgates to self-help surveillancemethods exercised by a variety of private entities (Katyal2005), which in turn has led to the emergence of a hostof entrepreneurial businesses providing such services(Lobato and Thomas 2011).

The roots of the hacktivist mobilizations of piracy canbe traced back to the 1980s, when a coordinated effort bya group of pirates, hackers, activists, and organizationscoalesced into what Hector Postigo refers to as the digitalrights movement. This group actively worked on design-ing “distribution technologies meant to counteract theeffects of existing technolegal regimes (laws and technol-ogies that regulate user practices)” in order to realize aculture of participation (Postigo 2012, 8). As Postigo(2012) demonstrates, hackers, activists, and organiza-tions worked to detach their activities from the stigmagenerated through criminalizing tropes created by themedia industry (i.e., theft, piracy, and pandemic), andinstead reframed their efforts within the context of civilliberties, citing rights to freedom of speech and access toinformation. Although Postigo’s work primarily centerson the well-known hacks1 of the Digital Rights Manage-ment (DRM) systems, peer-to-peer (P2P) file-sharingsites were equally consequential in shaping the digitalrights movement.

Operation Payback became the eye of the storm anddefined a pivotal moment in which the digital rightsmovement and the anti-piracy industry interfaced unex-pectedly. In one fell swoop, the operation brought tolight the disruptive space around copyright in whichthere are dynamic networks comprised of actors whoseagendas may or may not align in any given moment. Itexposed efforts to stop piracy primarily conducted bythird-party outfits and businesses that have no vestedinterest in stopping piracy, but rather, have developed abusiness model around it. In so doing, Operation Pay-back demonstrated that like the piracy efforts the anti-piracy industry is trying to eradicate, this industry oper-ates in a gray zone that has networks of stakeholderswith both complementary and conflicting agendas. Assuch, the operation gave the digital rights movement anunprecedented boost.

Operation Payback is significant by virtue of thisexposure that mobilized unprecedented support for thedigital rights movement. Free speech and fair use werethe primary concerns expressed by hackers in the earlierarticulations of the digital rights movement. OperationPayback brought privacy and surveillance front and cen-ter to the copyright controversies. More importantly, theoperation built a considerable following that paved the

way for the massive Internet protest against Stop OnlinePiracy Act (SOPA) and Protect IP Act (PIPA).

I open this article with background on network theoryand global network capitalism to contextualize piracyand hacktivism as network-based movements and toposition my contributions from the present study. In thesecond section, I follow Lindgren’s use of subpolitics todemonstrate how the individual (and in some casessmall-scale) activities of both 4chan-affiliate Anonymousand file-sharing communities achieve political signifi-cance. In the third section, I elaborate on Katyal’s notionof privatized piracy surveillance, wherein a new industryhas emerged founded upon the measurement, control,enforcement, regulation, and monetization of infringingactivities. Here, I show that P2P networks triggered a cri-sis not just in intellectual property, but also in privacy. Inthe last two sections I consider Operation Payback as ahacktivist initiative that exposed the questionablegrounds on which the anti-piracy industry operates, put-ting the activities of the technolegal structure on a parwith the supposedly nefarious efforts of the pirate net-works they are trying to eradicate. I conclude by examin-ing the role of this operation in the digital rightsmovement.

Piracy networks

Historically, the term piracy has been used to describe ahost of related activities stemming from a range of eco-nomic motivations with varying degrees of political legit-imacy. In its simplest form, piracy is alternative mediaconsumption that falls outside the parameters legiti-mized by the media industry. As such, it is a destabilizingforce that manipulates the production, transaction, andexchange of cultural goods. Rather than as a uniformpractice with a consistent agenda, Ramon Lobato framespiracy as harboring conflicting interests and goals andobserves that its meaning varies depending on the con-text (Lobato 2012). In its most commonly used sense,piracy is understood as theft, but, as he astutely observes,it could also be a legitimate business practice, a freespeech act, or even a form of political resistance. Some-times it is all these things at once (Lobato 2011).

Piracy derives its power through informal networks,the backbone of modern societies. In fact, Castells identi-fies networks as the primary organizational arrange-ments in the age of informationalism orienting humansin relation to crucial everyday life issues such as produc-tion, consumption, and experience (Castells 2001a;2001b; 2009). In his formulation, networks are imaginedto be distributed systems that are hard to control andimpossible to kill. Castells attributes their resilience tothree characteristics that he identifies as their flexibility,

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scalability, and survivability, which in combination allownetworks to adapt to changing circumstances as theyshrink and expand depending on the situation (Castells2009).

The real power of networks comes into play on atransnational scale that transects social boundaries andregional limitations. Thus, Castells purports that powerrelationships in the network society are seldom config-ured at a national level, but rather, constitute sociospatialformations that encompass local as well as global forces.For him, merely looking for territorial boundaries is notenough. Instead, he encourages a theoretical frameworkthat seeks to identify the sociospatial networks of power(local, national, global) that, in their intersection, config-ure societies (Castells 2009). Other scholars also makesimilar claims. Fuchs (2008), for example, observes thattransnational actors in a multitude of systems, such asthose that pertain to economy, polity, and the Internet,operate more and more on a global scale. Hence, Fuchsposits, the age of informationalism is characterized byglobal network capitalism that boasts of a transnationalorganizational model. In this formulation:

social structures are increasingly globally distributed, …actors and substructures are located globally and changedynamically (new nodes can be continuously added andremoved), and … the flows of capital, power, money,commodities, people, and information are processedglobally at high speed. (Fuchs 2008, 111)

The key insight here is that networks are closely inte-grated within capitalist transformation and thus embed-ded in the politics of struggle. For this reason, Fuchs(2008) proposes that even though global network capital-ism typically manifests as primarily an economic antago-nism between proprietary and open space, it alsosimultaneously leads to political and cultural antagonismbetween dominated and participatory space. The net-work logic, then, has effects that advance contradictoryforces at once. On the one hand, it helps the sustainable,cooperative, inclusive agendas, and on the other, it servesthe unsustainable, competitive, exclusive character ofsociety: “Network commons challenge network capital-ism, networked control is challenged by networked par-ticipation, and networked manipulation by networkedwisdom” (Fuchs 2007, 49). Piracy weaves a massive net-work situated in this contested terrain.

To be sure, piracy cultures are a sociospatial forma-tion that amalgamates a host of online social contextswherein information is remixed, reappropriated, shared,and recirculated. Lindgren and Lundstr€om (2011)explain that piracy cultures are comprised of “groups,media projects, interventions and networks that resist, orseek to develop different forms of, the dominant ways of

doing media and politics” (5). Among these cultures,they cite new social movements, radical citizen journal-ism and extremist media, remix culture, copyleft, peer-to-peer, and fan culture. The interventionist media andactivist practices advanced by media scholars like MeganBolar signal similar political undertones of such practices(Bolar 2010). These activities constitute a form of subpo-litics, a concept defined by Ulrich Beck (1997) as politicsoutside of the traditional systems in which the small-scale decisions that individuals make on a daily basisachieve political significance in aggregation even if thesedecisions may not appear to have a direct political refer-ence (Beck 1997). The notion of subpolitics locates poli-tics in spaces ordinarily considered to be apolitical inwhich individual users, by their sheer numbers, can initi-ate actions with political impacts even though theirefforts may be fragmented (Linde and Lindgren 2010).

It is this understanding that leads Linde and Lindgren(2010) to treat online piracy, especially those acts thatoccur on peer-to-peer networks, as subpolitical evenwhen participants do not openly consider their activityas such. With this understanding they conclude that insome cases piracy cultures have hacktivist mobilizations.Hacktivism, a form of social protest that grew out of thehacker culture, combines the transgressive politics ofcivil disobedience with the techniques of computer hack-ers. It uses illegal or legally ambiguous digital tools todevelop hacks that counteract the technolegal regimesdesigned to regulate content distribution (Jordan andTaylor 2004).

Copyright has generated a type of disruptive space inthe post-Napster era that is typical of global networkcapitalism. To be sure, disruptive spaces present sites ofstruggle where structure and hegemony can constrainagency and resistance. But they are also conducive to thedevelopment of tactics for coping with, evading, or resist-ing oppressive and limiting forces. They allow for a mul-titude of opinions, perspectives, ways of seeing socialreality, new forms of creativity, and direct activism(Lindgren 2013). In this way, these spaces become thebreeding grounds for social movements the goal of whichis to fill the gap that Castells (2001) views to have beenleft by the crisis of vertically integrated organizationsinherited from the industrial era. To be sure, the copy-right institution is one of the most glaring examples of avertically integrated organization against which P2P net-works have traditionally functioned as alternative dis-tributive networks. These networks facilitated a crisis inintellectual property, and thus became the battlegroundfor copyright negotiations. In so doing, they witnessedthe birth of various movements addressing digital rights.

The following section introduces Anonymous and TPBas sociospatial formations that have coalesced into

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networked movements. First I trace the ties of Anonymousto piracy cultures, examining how the group became a geo-political power through the use of distributive organiza-tional structures. Then I interrogate the role of TPB as alegitimate actor in the digital rights movement.

From lulzy pirates to hacktivists with a mission

Even with dozens of high-profile operations under itsbelt and dozens of arrests made of its members world-wide, little is known about Anonymous. Although Anon-ymous is famous for deploying various hacking tactics, itis not primarily a “hacker group.” In fact, its membershipcomprises folks from all walks of life, some of whomhack, while others perform complementary roles unre-lated to hacking. Behind the Guy Fawkes mask that hascome to symbolize the group, there is an amorphous col-lective whose membership, agenda, and tactics changedaily. Even as a nascent collective, Anonymous has fos-tered a unique culture through its idioms, memes, andiconography, which it owes to its alma mater, 4chan.2

The ability to be fluent in these practices, recognize itspeculiar language, and participate in the production ofthis culture is essential for consideration for legitimatemembership status in this group. Anonymous’s associa-tion with 4chan is also what links the group to piracycultures at large.

4chan message boards, notorious for extreme remix-ing habits, promote a distinct piratical aesthetic thatcame to be known as the copypasta culture wherein userscopy–paste the same content ad nauseam. The defaultform of communication in these message boards is viaimages swiped from all corners of the Internet that arethen edited, captioned, and reposted for the lulz (the plu-ral bastardization of the word LOL or laugh out loud). Itsparticipants shamelessly scan copyrighted contents andmake them available for their peers, making these boardsthe quintessential location for piracy cultures. Thegroup’s ties to 4chan and its subsequent adoption ofhacking as a part of its arsenal strongly suggest thatsome of the earlier activities of Anonymous membersconstitute a form of subpolitics that later transformedinto hacktivist mobilizations rooted in piracy cultures.

Despite the divergent ways in which various sectionsof the group have registered their response to power andcontrol, their use of tactical media provides their activi-ties with a cohesive politics of transgression. If one con-siders mundane activities such as laughter to be a tacticalresponse to power—as do Michel de Certeau (1984),Boler (2007), Burwell and Boler (2008), and Rita Raley(2009)—then the rise of a collective like Anonymous,from the seediest quarters of the Internet notorious forits offensive humor and outrageous pranks, comes as no

surprise. Prior to 2008, the group was infamous formembers’ outlandish pranks, elaborate trolls, and relent-less raids that wreaked havoc across the Internet, result-ing in the group being labeled as the “The Internet HateMachine” by Fox News in 2007. According to Coleman,the group’s taste for trolling has become the foundationupon which it builds its own irreverent brand of activistpolitics and has allowed it to develop its own tacticalarsenal.

The transition of Anonymous from trolling to activ-ism, specifically its transformation from the copypastaculture of 4chan into a collective that left its mark on thecopyright controversies, is a result of the political under-tones of these subpolitical activities coming to the fore-ground. Project Chanology, an operation that targetedChurch of Scientology, was the very first instance wherethe group was involved in trollish politics. Almostinstantly, the members of the group organized an Anti-Scientology network through their IRC (Internet RelayChat) servers and called it Chanology or Anonnet. Proj-ect Chanology marked a significant shift in group poli-tics, a change that incited much debate and internalconflict. While the earlier Anons, known as lolAnons,were committed to their trollish roots, using pranks andlulz as their de facto tactical strategy, the latter deployedextralegal and illegal uses of technology as a means ofresistance. Out of these conflicts emerged a distinct nodenamed AnonOps network within the group, which tookon politically charged endeavors.

It should come as no surprise, given the group’s rootsin piracy cultures, that its first purely political operation,untainted by the lulz, occurred in the realm of copyright.In an interview during Operation Payback, one of theAnons declared that group piracy is “the next step in acultural revolution of shared information.” They imagineit “as the beginnings to an information singularity; abeginning of true ‘equality of opportunity,’ regardless ofwealth or capacity” (Correll 2010, online). Others in thegroup had more realistic goals. They wanted to lead areal change. Another member explained: “Nobody wouldlisten to us if we said piracy should be legal, but when weask for copyright lifespans to be reduced to ‘fair’ lengths,that would sound a lot more reasonable” (Ernesto 2010,online). Their methods in achieving this goal, however,were controversial even among themselves.

Arguably, the group earned notoriety for its DDoSattacks post-2008, deployed through Low Orbit Ion Can-non (LOIC), an open source network stress testing anddenial-of-service attack application. Technically speak-ing, these actions require a large number of computersattempting to access a single website repeatedly in a shortamount of time in order to overwhelm the server, thusrendering it incapable of responding. The use of DDoS

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as a tool for social change has been controversial amonghackers, and its use has been one of the primary pointsof contention among the different nodes of Anonymous(Coleman 2011).3 Those who subscribe to ethical hackti-vism, for instance, hold the free flow of information onthe Internet sacrosanct and deem any interference withit as unethical and uncivil (Jordan and Taylor 2004). Thedilemmas surrounding DDoS attacks notwithstanding,the tactical uses of networks gave them the power theyneeded to become a force to reckon with in global net-worked capitalism.

In Operation Payback, Anonymous members werefighting to defend an alternative way of exchanginginformation, one native to the environment in which thegroup was born, one more in tune with the needs of theage of informationalism. Napster, the first of its kind, setto redefine the Internet, the music industry, and the waydigitally aware publics think about intellectual property.Lin and Beer (2005) explain that “the development ofP2P file-sharing technologies, users’ tacit knowledge andtheir online habits have transformed and challenged thedominance of entrepreneurs in the selling of informationgoods, as also traditional ways of production, marketing,licensing and distribution of information goods” (205).As such, Napster introduced an innovative, albeit disrup-tive, business model around P2P networks. Its untimelydemise gave birth to a host of other similar sites, eachbetter and wiser than the last, wary of the legal traps thatled to the downfall of the earlier ones. Put succinctly, anew system of distribution was built lawsuit after lawsuitfollowing Napster’s fall. In effect, these sites, by way oftheir distributive infrastructure, presented spaces thatwere conducive to sociospatial formations that, likeAnonymous, set out to reconfigure societies. Soonenough, TPB quickly became a provocative piracy actoron MPAA’s radar.

TPB was founded as a nonprofit organization on Sep-tember 15, 2003, by PiratbryeA<n (The Pirate Bureau), athink tank based in Sweden dedicated to the cause of theglobal copyright reformation, and its sister organization,Pirate Party. Its powerful activist liaisons provided TPBwith the legal and political muscle to live up to itstongue-in-cheek byline, “The galaxy’s most resilient Bit-Torrent4 site.” While PiratbryeA<n and Pirate Party pur-sue the route of legislative activism for global copyrightreformation, The Pirate Bay puts its agenda into practice,and in doing so, it believes it is assisting the free flow ofinformation and cultural creativity (Mauger 2012).

Those who are part of piracy cultures lack a distinctcollective identity that binds them to a unified socialmovement, something one needs to be mindful in ananalysis guided by the notion of subpolitics. Linde andLingren (2010), following Castells (2001a), have

identified three types of online piracy cultures in TPBwith varying motivations and interests: everyday culture(piracy is part and parcel of everyday life), political cul-ture (piracy as a form of resistance that upholds certainideals), and innovation culture (piracy is often a neces-sary evil for creative breakthroughs). TPB centralityemerges from its role in weaving these disparate voicesinto a unifying discourse.

As a part of its legitimating agenda and projection asan undivided movement, TPB has consistently linked itscause to preexisting movements (e.g., open source) tocreate “a historical project of their own by relating bothto history and the future” (Linde and Lindgren 2010, 9).In particular it has evoked famous precedents like theAdobe eReader hack and the DeCSS,5 both of whichbecame popular techniques for circumventing DRM sys-tems. The defenders of these hacks likened code tospeech and viewed copyright as a form of censorship andcontrol. Such ideas breathed life into what eventuallydeveloped into the free culture and digital rights move-ments at the hands of hackers, thinkers, and lawyers(Postigo 2012). At the same time, the Pirate Partybecame integral to the Nordic Piracy Movement by pro-viding hackers, crackers, and pirates with a platform topublicly promote their agenda while mobilizing them-selves democratically (Hintikka 2008, 340). RasmusFleischer of PiratbryeA<n has argued that “By developingtools and discourses of file sharing, we try to expand thegray zones and make room for the unforeseeable. Insteadof talking about things in the copyright industry’s uni-versal terms, [we] shift the focus to the diverse reality ofcultural circulation: what we call the Gray Commons”(quoted in Fleischer 2006, online). What makes graycommons problematic for the industry is that the bound-ary between fair and infringing use is frequently dis-missed in this discourse oriented toward reimagining aversatile network that accounts for the unforeseeable.

To be sure, this conceptual move is what renders TPBa contested zone and copyright writ large a disruptivespace—hacktivist mobilizations employing both institu-tional means (attempting legal change through tradi-tional politics, like The Pirate Party) and extra-institutional ones (unconventional, less accepted meth-ods including protest, direct action, and DDoS) (Postigo2012).

Originally designed to undermine existing technolegalregimes, P2P networks became a cunning weapon at thehands of the media industry. In other words, these sitesproved to be a boon and a curse for both sides. In the fol-lowing section, I discuss how the anti-piracy industryused these networks to spearhead a regime of privatizedpiracy surveillance, which then led to some third-partyentities building their business models centered on

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monetizing piracy. While Operation Payback initiallystarted with manifestos about copyright reformation andfree culture, ultimately its main impact was to bring vio-lation of privacy into focus, thus generating unprece-dented support for the digital rights movement.

The house that Jack built…

As a distributive network, P2P technologies triggered notonly an intellectual property crisis but also a privacy cri-sis, according to Sonia Katyal (2005). Out of these crises,a new mode of surveillance emerged—privatized piracysurveillance. It generated a culture of panopticism thathas enabled “a variety of entities—government, privateindividuals, and copyright owners—to exploit the powerof peer-to-peer frameworks to develop an increasinglyinvasive system of surveillance to guard against piracy”(Katyal 2005, 9). For Katyal, this is an unfortunate turnof events, because such measures, largely driven by com-mercial interests, sacrifice the most valuable aspects ofcyberspace, users’ digital rights. Operation Payback drewattention to the ever-growing tension between intellec-tual property and privacy and the commercialization ofthe anti-piracy industry.

Since the mid 1990s, as the Internet was commercial-ized, for-profit entities have built and maintained itsinfrastructure and assumed its daily operations.Although the Internet has a highly decentralized archi-tecture, gateways to the network provide nodes of con-trol that can regulate access. Consequently, commercialthird parties such as the Internet service providers (ISPs)serve as access portals. For Yen (2002), ISPs establish aquasi-feudal regime of distributed governance in which“state power becomes an incident of private propertythat gets fragmented through delegation to numerousprivate parties” (1240).

What solidified ISPs’ role in copyright enforcementand opened the doors for privatized surveillance regimeswere the Digital Millennium Copyright Act (DMCA) of1998 and the subsequent ruling for Napster. Together,Katyal posits, they amplified property frameworks at theexpense of digital rights (e.g., privacy, free speech, andfair use), and yielded a nearly unlimited power to intel-lectual property owners (Katyal 2005, 51). Here it isimportant to note that while a host of stakeholders par-ticipated in the deliberations leading to the DMCA, onlysuggestions made by the representatives of the mediaindustries had a significant impact. These suggestionsexhibited a lack of a consideration for how fair use mightchange in this emerging new medium and largely disre-garded the benefits of less copyright protection for freespeech, creativity, and changing user practices (Postigo2012). ISPs pushed to include the Safe Harbor clause

that granted them immunity from contributory liabilityif the infringing content were removed once notified.They argued that forcing ISPs to monitor users wouldhamper innovation, market expansion, and free speechand lead to surveillance of consumer practices that mightnegatively impact free speech (Postigo 2012). The notice-and-takedown regime set in place by the Safe Harborclause shifted the burden of detecting infringementonline onto the shoulders of copyright owners.

In the aftermath of DMCA, the Napster court rein-stated the directives for avoiding contributory liabilityset forth by the DMCA but required actual evidence ofknowledge of specific acts of infringement if ISP were tobe held liable. In a gross oversight, however, it did notspecify what constituted acceptable methods of searchingfor such information, nor did it establish the need forany privacy protection for subscribers (Katyal 2005). Ineffect, what was missing was an “assertive commitmentto informational privacy” (53). Because the courts con-ferred the property rights of user information onto thirdparties, it left the responsibility for protecting informa-tional privacy at the hands of commercial interests andthe doors wide open to a culture of privatized piracy sur-veillance. By all accounts, both DMCA and the subse-quent ruling of Napster set forth an implied series ofincentives for content owners to engage in “self-help sur-veillance of consumer activities through peer-to-peerframeworks” (Katyal 2005, 53). Perhaps the most trou-bling part is that these practices have become a businessmodel in their own right. Such businesses have not lim-ited their operations to the United States, but work glob-ally wherever anti-piracy measures can be turned into alucrative business.

By all accounts, the post-Napster era has triggerednew lines of businesses that specialize in the measure-ment, control, monetization, and regulation of theinfringing content (Lobato and Thomas 2011, 2). Lobatoand Thomas (2011) view piracy and anti-piracy meas-ures as fostering a web of economic activities that takeon an institutional form they call the anti-piracy indus-try. In their formulation, piracy embodies a generativelogic whereby “piracy produces new anti-piracy enter-prise, which in turn produces new formal workaroundsfor pirates, which generate new anti-circumventionresponses. … The pattern here is not leakage [as theindustry claims] but dispersal, with commercial opportu-nities created in both the legal and extralegal spheres”(Lobato and Thomas 2011, 2). Instead of being con-ducted by major media companies, anti-piracy work isnow being outsourced and subcontracted to an array ofthird parties comprising thousands of technicians, law-yers, analysts, researchers, lobbyists, and programmersand thus has become an increasingly privatized activity

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(Lobato and Thomas 2011). Suffice it to say, the anti-piracy industry has become the quintessential exampleof global network capitalism at work.

Crucially, even as the anti-piracy businesses claim themoral high ground in copyright protection, some of theoutfits have a suspiciously cozy relationship with thegray and black economies that they profess to be policing(Lobato and Thomas 2011). Some of the actors operateas bounty hunters, guns-for-hire, and cyber sleuths asthey enforce the rule of the land. In developing countries,for example, the anti-piracy profession attracts “formerpolicemen, heavies, turncoat bootleggers” and in caseswhere field investigators conducting anti-piracy work areunderpaid and abused, “they switch sides to work withthe pirates against the copyholders” (Lobato and Thomas2011, 9). In other words, the boundaries betweenenforcement and commercial piracy are hopelesslyblurred as actors move around and switch alliances asthey see fit. Hired outfits deploy a variety of methods,some of which expand into the realm of extralegal andeven illegal. In P2P sites, where users willingly open uptheir computers to insecure networks populated withunknown peers, cyber sleuths who use bots that crawlthe Internet sniffing for infringing activity can monitorusers (Shiels 2003). Recruited cyber sleuths implementways to turn unprotected file exchange among peers totheir own advantage by interfering with file transferringactivities. One such method of interference is to floodthe networks with decoy files under the disguise of block-busters that either emit a loud noise or give out warningsagainst copyright infringement when opened. Another isto place malware designed to identify and destroy copy-righted content located on the user’s computers in thesenetworks.6 In instances where the media industry fails tolegally shut down P2P sites, these outfits are hired totake them down by launching DDoS attacks. Not sur-prisingly, the ambiguous practices deployed by these out-fits to protect copyright have elicited equally ambiguousresponses leading to a technological warfare.

In some cases, a number of shady law firms have builta business model centered on monetizing online piracythrough speculative invoicing and mass litigation (Lobatoand Thomas 2011). Privatized piracy surveillance is thebackbone of this business model. Once the IP addressesof the alleged infringers are identified, media companiesor their representatives obtain court orders to retrievethe personal information linked to them from the ISPs.The infringers are then sent violation notices that givethem the option of either going to court or settling for areasonable sum. Faced with the prospect of a lengthyand expensive lawsuit, most defendants quickly settle foran amount reported to be $3000 to $6000 (Hughes2005). The underlying assumption of these operations,

of course, is that these addresses are accurate identifiersof individuals, an assumption that has been proven to befalse time and again. For instance, a study of take-downnotices served found that more than 30 percent of thesenotices are questionable claims and that many more aretechnically flawed (Urban and Quilter 2006).

Operation Payback began with an Indian outfit,AiPlex, shamelessly bragging about being behind theDDoS attacks against TPB. Fresh out of their first activistoperation against the Church of Scientology, the nebu-lous trolling collective Anonymous took it upon itself todefend the file-sharing site. It was business as usual untilthe retaliatory DDoS attack organized through 4chanmessage boards resulted in the accidental exposure of aspeculative invoicing scheme conducted by a British lawfirm, ACS:Law. This incident is exemplary in demon-strating the range of actors involved in the anti-piracyindustry and the cross-pollination of legal, extralegal,and illegal practices used by them.

Bringing down the house: Operation Payback(is a bitch)

The manifesto that Anonymous released prior to Opera-tion Payback indicated that the attack was a directresponse to the invasive strategies of copyright enforce-ment lobbied by the media companies. The groupclaimed that the industry’s “long outdated traditionalviews on copyright infringement enforced solely by richand powerful corporations need to be modified in lightof the modern age on the Internet, the Information Age”(Dunn 2010, online). It cited the United Kingdom’s Digi-tal Economy Bill and the European Union’s “threestrikes” legislation to spotlight that extensive global pro-copyright lobbying has resulted in unfair infringementsto personal freedom online. These two bills, Anonymousargued, threaten to stifle the Internet on accusations sup-plied by the music and movie industries (Mennecke2010).

Hours before the operation launch, however, Anony-mous saw that AiPlex had taken down its site in anticipationof a retaliatory attack. This precaution did not dissuadeAnonymous activists, who then proceeded to target MPAAand RIAA other pro-copyright organizations. Protestorsalso Google-bombed7 the name of the president of MPAA,accusing him of child molestation. Sites of the British Pho-nographic Industry (BPI), The Australian FederationAgainst Copyright Theft (AFACT), Stichting BeschermingRechten Entertainment Industrie Nederland (BREIN),Websheriff, and Dglegal all were brought down. Almostnine days after the initial attacks, the focus of Anonymousshifted to ACS:Law and Davenport Lyons (both of whichare United Kingdom-based law firms). Exposing security

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issues and Web server mismanagement, these attacks leftthese sites down for several hours at a time (Corrons 2010).

As sensational as these events sound, all of them werebusiness as usual for Anonymous. What makes this par-ticular operation worthy of discussion is the events fol-lowing the DDoS attack against ACS:Law. In its haste toput its site back up during the attack, the firm acciden-tally exposed its back-end servers and thereby confiden-tial information. What followed was a public-relationsdisaster. The information was quickly captured anduploaded to several BitTorrent sites (including TPB).This information exposed that ACS:Law had teamed upwith the porn industry and devised a shrewd businessscheme. It entailed tracking down BitTorrent infringers,converting their IP addresses into real names, and send-ing out warning letters threatening the alleged infringerswith litigation and exposure should they refuse an out-of-court settlement (TechnoLlama 2010). The docu-ments also contained personal exchanges, some belong-ing to solicitor Andrew Crossley, head of ACS:Law, whowas seen here shamelessly bragging about this scheme,while others belonged to his victims who were pleadingfor clemency and were deeply concerned that the allega-tions of sharing (gay) porn would damage their reputa-tions and family (Enigmax 2010). The documents alsorevealed that only a fifth of the money collected fromdamages paid was given to the rights’ holders, which leftthe law firm with 80 percent of the collected amountbefore paying ISPs and IP tracking companies (Griffiths2010).

Included in the same leak were the unencrypted per-sonal data of thousands of users, which were handed overto the law firm by Internet service providers (ISP), includ-ing Sky, British Telecom, and Plusnet. When questioned,British Telecom (the owner of PlusNet) admitted to send-ing the law firm the personal data of 500 alleged infringersunencrypted following a court order. Because they sent thedata unencrypted (expecting that the unprotected fileswould be securely stored by ACS:Law), they had breachedthe Data Protection Act and violated the very same courtorder, which required that the data be sent in an encryptedform, they were following (Halliday 2010). The incidentbrought into open privacy violations of the ISPs. Anony-mous, in its follow-up messages to the public, declared thatthe entertainment industry is resorting to legal action (or atleast threatening to do so) not to protect intellectual prop-erty or defend artist’s rights, but to make a profit. It saidthat the industry is “not interested in stopping piracy, butexploiting it” (quoted in Storm 2010, online). Following theACS:Law incident, Anonymous targeted other solicitingfirms and major porn companies engaged in similarschemes (Storm 2010). Anonymous activists took down thesites of Hustler, the U.S. Copyright Office, and Gallant

MacMillan (another law firm known for hunting downinfringers) and its client, the Ministry of Sound. This opera-tion left ACS:Law in turmoil, Crossley in legal trouble, andprivacy violations glaringly exposed. The Solicitors Disci-plinary Tribunal found Crossley guilty on seven charges,suspended him from practice of law for two years, andordered him to pay £76,326.55 in costs. ACS:Law, however,was fined only £1000 for the privacy breach. Privacy Inter-national decried the incident as a “travesty of data security”and began seeking legal advice on bringing charges againstthe infringing ISP (Halliday 2010).

In this case, the DDoS actions targeting TPB and thosetargeting the anti-piracy industry had strikingly differentmotivations and outcomes (Sauter 2013). Had TPB not hadpowerful allies and resources, the attack by AiPlex wouldhave been devastating for it, as its existence was solelyonline. The retaliatory use of DDoS by Anonymous, then,was a stand against censorship. However, the DDoS attacksagainst the media giants like the MPAA and RIAA neverposed any real danger to the existence of these organiza-tions. The websites of these organizations are merely infor-mational hubs wherein no official business is beingconducted. For this reason, Sauter concludes that Anony-mous did not achieve its stated objective of disrupting theoperations of these companies. She concludes that the pri-mary benefit of this operation was to garner media attentionand boost recruitment for Anonymous (Sauter 2013).

Although the operation neither caused major damageto the big players of the anti-piracy industry nor broughtabout a change in law that some of the Anons hoped itwould, I argue that its implications are far more conse-quential because it helped popularize the digital rightsmovement and bring awareness to the cause. On a mostimmediate level, it exposed a very corrupt interface inthe anti-piracy network: ACS:Law scheming with theporn industry to exploit the alleged infringers. Thatbrought the industry off the moral high ground it hadlong been claiming. The public began openly questioningthe legitimacy of the current copyright enforcement. Inthis new context, the DDoS attacks launched by Anony-mous lost their criminal flavor, and came to be perceivedas hacktivist initiatives geared toward a higher cause.

The morning after…

Examination of copyright as a contested terrain negotiatedby networks allows one to consider a wide array of actors,substructures, and stakeholders that are not immediatelyvisible. As Lobato and Thomas (2011) note, piracy and anti-piracy measures have spawned an anti-piracy industry thatspecializes in the measurement, control, monetization, andregulation of infringing activities. Piracy cultures, on theother hand, organized into networked movements, respond

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to copyright crises that impact civil liberties online. Theiractivities fuel the growth of a culture of participation thatPostigo (2012) theorizes to be the driving force behind thedigital rights movement. As such, they are a form of subpo-litics that generates a multitude of resistance points andachieves political significance on account of their aggrega-tion. As a zone of struggle in which domination of hege-monic rule has to be continuously won, reproduced, andsustained, copyright has become a disruptive space in whicha wide range of opinions, perspectives, forms of creativity,and direct action finds a home (Lindren 2013). Arguably,such negotiations find form in sociospatial formations thatemerge as a response to the crisis of vertically integratedorganizations inherited from the industrial era (Castells2001).

As horizontal distribution networks, P2P technologiesexasperate and lay bare the tension between intellectualproperty and privacy. To get ahead in this contested grayzone, each side resorts to legal, extralegal, and even illegalmethods that capitalize on the affordances and the weak-nesses of networked structures. The most consequentialof these methods is the regime of privatized piracy sur-veillance that has formed the basis of anti-piracy meas-ures, a practice that has now become a profit-makingindustry (Katyal 2005). In this sense, pro-copyrightactors turn the power of networks on their head. Groupslike Anonymous mobilize networked efforts to deployDDoS attacks to weaken the anti-piracy networks, as dothe pro-copyright groups in their efforts to take downP2P sites. It is in this environment that a group of hack-ers, pirates, activists, and collectives like Anonymouscomes together under the banner of the digital rightsmovement.

Operation Payback is a significant milestone in thedevelopment of copyright and a turning point for thedigital rights movement. It demonstrated that parts ofthe anti-piracy industry operate in both formal andinformal spheres, adopting legally questionable methodsfor financial gain. Moreover, it yielded proof that under-mined the media conglomerates’ narrative of piracy can-nibalizing economic growth and it did so in a very publicway. Instead, it showed that the piracy and anti-piracygenerate unprecedented commercial opportunities andthat the model is not one of revenue leakage via piracy,but rather of dispersal within the media industry com-plex (Lobato and Thomas 2011). In many ways themodus operandi of the anti-piracy industry is exemplaryof global network capitalism.

Finally, as Victoria McLaughlin (2012) observes, Anony-mous’s support base in Operation Payback became instru-mental in lobbying against the Stop Online Piracy Act(SOPA), Protect IP Act (PIPA), and the highly controversialAnti Counterfeit Trade Agreement (ACTA) in 2012. These

bills were perceived to be threats against civil liberties andwere confronted with an unprecedented tour de force. Theblackout loosely organized online on January 18, 2012, toprotest these bills became the largest online protest in his-tory, in which more than 115,000 sites participated. In theface of such a forceful reaction, the U.S. Congress shelvedthe bills indefinitely.

Dedication

In loving memory of my dad, Prof. Dr. Mehmet Bakio�glu.

Notes

1. In his discussion of the digital rights movement, Postigo con-siders the Adobe eReader hack, the DeCSS hack, and a seriesof iTunes hacks. Dmitry Sklyarov, a Russian citizen employedby the Russian company ElcomSoft developed the AdobeeReader hack. Adobe’s encryption restricted the eReader toread eBooks only from the distributors that Adobe had part-nered with and only on the reader application that originallyloaded the eBook. Five months after the official release ofAdobe eBook Processor, Elcomsoft began selling theAdvanced eBook Processor improved with Sklyarov’s hack,claiming that this advanced version gave legal owners moreflexibility with the books they had purchased. The FBIarrested Sklyarov during the hacker conference Defcon in2001.What followedwas a public-relations disaster for Adobeand a lengthy lawsuit (Postigo 2012, 63–84). The DeCSS hackwas developed in 1999 by an anonymous German program-mer known by the moniker Ham. It unlocked the ContentScrambling Systems that restricted the illegal distribution ofDVDs. Two months later, MPAA filed lawsuits against anumber of individuals posting or linking to posts of theDeCSS application. Postigo discusses how these suits shapedthe tenor of the digital rightsmovement (Postigo 2012).

2. 4chan is a simple image-based bulletin board where any-one can anonymously post comments and share images.Created by Moot, a veteran of Something Awful forums,4chan is a Western mirror site of Japanese Futaba Chan-nel image boards, otherwise known as 2chan. It boasts ofover a dozen threads dedicated to different topics includ-ing manga, anime, videogames, and music. Of these, the/b/ threads in which anything random could be postedbecame notorious for harboring trolls who used theforums to organize Internet-wide raids. Some of the well-known Internet memes have sprung from 4chan.

3. Coleman (2011) observes that the emergence of alternativeIRC networks resulted in frictions, with each node embracingdifferent methods and ethical considerations. Members of theAnonnet were skeptical about usingDistributedDenial of Ser-vice (DDoS), which became AnonOps’ signature response toa range of perceived injustices. AnonOps, on the other hand,deemed Anonnet to be too small to be effective. As one Anonputs it, “Anonymous is not Unanimous” (Coleman 2011).

4. The BitTorrent technology, designed also to overcome thebandwidth overload, allows the initial file sharer to generate ametainfo file (with a .torrent extension) from the file to bedownloaded. The central server, which serves as a tracker,

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identifies computers that have a complete copy of the file orare in the process of downloading. The tracker, then, allowscomputers that are running the Torrent client and are usingthe same metainfo file to trade bits and pieces of the originalfile until the file is complete (Li 2009).

5. See note 1.6. Because initiatives such as these are against the Computer

Fraud and Abuse Act, the entertainment industry hasintermittently lobbied for legislation that would createexceptions for copyright enforcement. In 2002, for exam-ple, U.S. Democratic Congressman of California HowardBerman proposed a bill that would exempt copyrightowners from computer fraud laws when they use meas-ures such as interdiction, decoy, or file-blocking to disruptfile-sharing (Katyal 2005; Lin and Beer 2005). Althoughthe bill was overturned, the strategy as discussed left thepublic wondering whether or not the media industry wasresorting to illicit tactics by way of outfits.

7. Google-bombing is a tactic that refers to practices thatcause a webpage to have high ranking on searches forunrelated keywords and is used for pranking.

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