TheSystemOfATakedown2

TheSystemOfATakedown2

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# Control and De-commodification in the Circuits of Academic Publishing


New media remediates old media. Media pays homage to its (media) predecessors which itself pays homage to its own (media) predecessors. Computer graphics remediates film which remediates photography which remediates painting. Attempts to understand new media-technologies always thoughtfully decides on set of metaphors (of the old and familiar) to approximate what is similar and yet on the vague edge of the metaphor to play with insights on the new. Every chosen metaphor has its semiotic distance decay or inverse-square law which shows how far it can carry on understanding and insights of the given phenomena. The work of intellect in the age of mechanical reproduction got its unfortunate metaphor: **intellectual property**. And as The Age of Mechanical was becoming more and more The Age of Discrete and Digital Reproduction another metaphor is emerging, a metaphor which reveals the quandary left after the decades of decay of intellectual property exponentially distancing itself from the work of intellect, and that metaphor is: schizophrenia. 

Technologies compete with each other. The aftermaths of their clashes in a society are sometimes dramatical. People lose their jobs, companies go bankrupt, disciplines lose their departments and computer users lose their old files. More often than not clashes of technologies bring the tensions and clashes in between different social groups. Their voices are (sometimes) heard and society tries to balance their interests.  Solidarity rarely resolves the tensions.

At the moment of crisis a social conflict, if not resolved through struggle, needs a juridical system to take care of it. 

According to Cornelia Vismann, the juridical system has two aspects: its theatrical aspect that has common roots with the Greek drama theatre and has its social function in the translation of a matter of social conflict (Germ. Ding) into a case for juridical dispute (Germ. Sache). And its agonistic aspect, not unlike the sporting competition where a winner has to be decided, that leads to judgment and sanction. It's clear that in our matter of social conflict the judgment and sanction have prevailed.

različite tehnologije svojim konkurentnostima donose konflikt.
društvo pokušava balansirati između onih koji su ugroženi tim konfliktima.
društvo za tu funkciju razvija pravni sistem.

društvo je u tom balansiranju izabralo metaforu intelektualnog vlasništva.

velike kompanije također dolaze u unutrašnji konflikt: primjer sony. možemo dati i primjere muzičke industrije koja klejma štetu od $150.000 po mp3ici. opskurna statistika muzičke industrije.

mit je u toj igri balansiranja na strani znanja. proizvodnja, distribucija, razmjena....
i u proizvodnji te strane su identificirani sa svojom ulogom u hakiranju. svojom ulogom u razmjeni znanja: open access i u slučaju mit press-a objavljuju knjige koje to podupiru.

naš slučaj je manifestacija tog konflikta. mi imamo projekt. taj projekt smo gradili na nastavku mit priče, projekt hakerskog pristupa, to je projekt i rezultat čitanja knjiga i onda i borisa groysa, ruski nadrealizam.... blahblah... projekt biva prepoznat od niza institucija (reina sofia, transmediale, brown...) pa tako i mit press i onda dobijemo ugovor i poziv da pišemo projekt. međutim zato jer metafora ne šljaka mi dobivamo i take down notice.

centar i periferija. fantazija centra je graditi alternativu, a realnost periferije je razvoj kroz "krađu".

i onda analiza take down noticea. wage and access.


Since 2012 the Public Library project has been developing and affirming scenarios for massive disobedience against the current regulation of production and circulation of books and articles in the digital realm. While the significance of that year might not seem immediately apparent to everyone, across the peripheries of an unevenly developed world of study and learning it created a resonating void. The takedown of the book-sharing site Library.nu early in that year produced an anxiety that the equalizing effect that the piracy had created – i.e. the fact that the access to that which was most recent and relevant was no longer a privilege of the rich academic institutions in a few countries of the world or, to start with, the sole preserve of the academia – that that equalizing effect would simply disappear into the thin air.

The starting point for the Public Library project was a simple consideration: public library is the institutional form societies have devised to make knowledge and culture accessible to all, regardless of their social or economic status. There's a political consensus across the board that this principle of access is fundamental to the purpose of a modern society. Yet as the digital networks have radically expanded the availability of literature and science, the expansion of provision of de-commodified access to digital objects has been largely denied to public libraries. For instance, libraries frequently don't have the right to purchase e-books for lending and preservations. If they do, they are limited how many times – 26 times in the case of one publisher – and under what conditions they can lend the digital objects before the license and the object itself are revoked. In the case of academic journals, it's even worse – with the journals becoming more and more only digital, libraries can provide access and 'preserve' only for as long as they pay the extortive prices for subscriptions. 

Recently the Public Library project has received two takedown notices for two books that can be found in its relatively small yet easily discoverable online collection. Incidentally, the takedown notices were sent by the MIT press – the same publisher that has commissioned a text on Public Library project for a collection on tactical media. As is conventional in academic publishing, the contract for the contribution offered no compensation, no wage for work. It's a curious aspect of the existing system of cultural and knowledge production, prevalent particularly in academic publishing, that products are commodities yet labor producing them is seemingly denied the same status.

It is starting from these two structural circumstances – the denial of wage and the denial of access – that I want to analyze why the questions of copyright infringement are not merely a matter of illegality, but open to a larger questioning of legitimacy of the historic compromise – if there ever was one – between the labor that produces culture and knowledge and its commodification encapsulated in the existing copyright regulation. A deep transformation, induced by factors of technological change and factors of economic restructuring, has been unfolding at various scales and levels, changing the way the works of culture and knowledge are produced and distributed in the unevenly developed world system. The copyright industry giants of the old and the IT industry giants of the present are sorting it out. There's a window of opportunity, however, inviting us to rethink and reorganize the mode of production of literature and science that has been with us since the dawn of print trade and the dawn of capitalism. It's a matter of change at the tail end of which is a dilemma if we're going to live in a more equal or a more unjust, in a more democratic or a more policed world. 

## Authorship, law and legitimacy

However, before we can talk of the structural change, the normative question we expect to be asked is whether something that is considered a matter of law and juridical decision can be made a matter of politics and political process. Let's see.

Copyright has a fundamentally economic function – to unambiguously establish individualized property in the products of creative labor. A clear indication of this function is the substantive requirement of originality that the work is expected to have in order to be copyrightable. Legal interpretation sets a very low standard on what counts as original, as its function is demarcate the differentiation of one creative contribution from another. Once the legal title is unambiguously assigned, there is a person holding property with whose consent the contracting, commodification and marketing of the work can proceed. In that respect copyright is not very different from the requirement of formal freedom that is granted to laborer to contract own labor power as a commodity, allowing the capital to maximize the productivity and appropriate the products of laborer's labor.

When we talk today of illegal copying, we primarily mean an infringement of legal rights of authors and publishers. There's an immediate assumption that the infringing practice of illegal copying and distribution falls under the domain of juridical sanction, that it is a matter of law. Yet if we look to the history of copyright, the illegality of copying was a political matter before it became a matter of law.

Publisher's rights, author's rights and mechanisms of reputation – the three elements that are fundamental to the present-day copyright system – all have their historic roots in the context of absolutism and early capitalism in Europe of the 17th and 18th century. Before publishers and authors could achieve the monopoly over the exploitation of their publications instituted in the form of copyright, they were forced to obtain a privilege to print books from royal censors. First printing privileges granted to publishers, for instance in the early 17th century Great Britain, came with the burden placed on publishers to facilitate control over the dissemination of the growing body of printed matter and the growing importance of reading culture in the aftermath of the invention of the print. The illegality, hence, in these early days of print referred either to printing books without the permission of the censor or printing books that were already published by another printer in the territory where the censor held authority.

The transition from the privilege tied to the publisher to the privilege tied to a natural person of the author would unfold only later. In United Kingdom this occurred as the guild of printers, Stationers' Company, failed to secure the extension of its printing privilege and thus, in order to continue with the business of printing books, decided to advocate a copyright for the authors instead, which resulted in the passing of the Copyright Act of 1709 also known as the Statute of Anne. The censoring authority and enterprising publishers now proceeded in lockstep to isolate the author as the central figure in the regulation of literary and scientific production. Not only did the author now receive the exclusive rights to the work, the author was also made – as Foucault has famously analyzed – the identifiable subject of scrutiny, censorship and political sanction by the absolutist state. 

And yet although the romantic author slowly took the centre stage of copyright regulation, (Martha Woodmansee) the economic compensation for the work would long remain no more than a honorary one. Until well into the 18th century the literary writing and creativity in general were regarded as resulting from the divine inspiration and not from the individual genius of the author. Writing was a work of honor and distinction, not requiring an honest day's pay. Money earned in the growing business with books mostly stayed in the hands of the publishers, while the author received literary a honorarium, a flat sum that served as a “token of esteem”. It's only with the increasingly vocal demand by the authors to secure material and political independence from the patronage and authority that they started to make claims for rightful remuneration.

## Copyright, labor and economic domination

The moment of full-blown affirmation of romantic author-function marks a historic moment of redistribution and establishment of compromise between the right of publishers to economic exploitation of the works and the right of authors to rightful compensation for their works. Economically this was made possible by the expanding market for printed books in the 18th and the 19th century, while politically this was catalyzed by the growing desire for autonomy of scientific and literary production from the system of feudal patronage and censorship in gradually liberalizing modern capitalist societies. The autonomy of production was substantially coupled to the production for the market. However, the irenic balance could not last unobstructed for very long. **Once the production of culture and science was subsumed under the exigencies of the market, it had to follow the laws of commodification and competition that no form of commodity production can escape.**Furthermore, by the beginning of the 20th century the copyright expanded to a number of other forms of creativity, transcending its primarily literary and scientific ambit, becoming part of the broader set of intellectual property rights that are fundamental to the functioning and positioning of capitalist enterprise.

The corporatization of production of culture and knowledge also marks a decisive break from the model of romantic author that singularized the authorship in the person of the author. The production of cultural commodities nowadays involves a number of creative inputs along the production chain from both credited (but mostly unwaged) and uncredited (but mostly waged) contributors. Moral rights of the author, a substantive link between the work and the person of the author, are markedly out of step with these realities. Yet they still perform a fundamental function in the moral economy of reputation, which then serves the legitimation and operation of the copyright in the context of commodification and monopolization. Moral rights allow easy attribution, incentivize the authors to invest their own and public resources in the hope of reaching the top of charts, rankings or indexes and help the markets develop along the winner-takes-all or 80-20 principles.

The levels of concentration in the industries with large portofolios of various forms of intellectual property rights is staggering. The film industry is a US$88 billion industry dominated by 6 major studios. Recorded music industry is an almost US$20 billion industry dominated by 3 major labels. The publishing industry is a US$120 billion industry where the leading 10 earn in revenues more than the next 40 largest publishing groups.

## The oligopoly and academic publishing

The academic publishing in particularly draws a stark relief of the state of play. It's a US$10 billion industry dominated by 5 publishers, financed up to 75% from the subscriptions of libraries and achieving extreme year on year profit margins – in the case of Reed Elsevier regularly of over 30%, with Taylor & Francis, Springer and Wiley-Blackwell barely lagging behind. Given that the work of contributing authors is not paid, but financed by their institutions (provided they are employed at an institution) and that the publications nowadays come mostly in the form of electronic articles licensed under subscription for temporary use to libraries and no longer sold as printed copies, the public interest could be served at a much lower cost by leaving closed-access publishers out of the equation. 

But that is not possible. The chief reason is that the system of academic reputation and ranking based on the publish-or-perish principles is historically entangled with the business of academic publishers. Anyone who doesn't want to put their academic career at risk is advised to steer away from being perceived as renegading on that not-so-tacit deal. While this is patently clear to many in academia, opting for the alternative of open access means not playing by the rules, and not playing by the rules can have real-life consequences, particularly for younger academics. They have to publish in prestigious journals if they want to advance in the highly-competitive and exclusive system of academia.

Copyright in academic publishing has become simply a mechanism of direct transfer of power from the producer to the publisher, giving publishers an instrument of controlling their strangle-hold on the output of the academia. But publishers also command the control over metrics and citation, pandering to the authors better tools to maximize the impact and position themselves. Copyright and reputation are extortive instruments that publishers can wield against the authors and the public to prevent an alternative emerging.

The academic publishing signals how the copyright industries might continue control the field as their distribution model now transitions to stream or licensed access model. As there is less and less autonomous infrastructure in computer networks making available copyrighted content, the centralization will entail effective control over rights of access, their monetization and enforcement. This will increase their economies of scale, but also lower the cost of enforcement: now that users receive most of their legal and illegal content through streaming, the copyright industries don't need  to resort to costly litigation over infringement, they can pressure the domain name registrars and hosting services to simply make the content inaccessible.

## Illegal yet justified, collective civil disobedience, politicizing the legal

However, when they do resort to litigation or are involved in criminal proceedings, they can rest assured that the prosecution and judicial system will uphold their interests over the right of public to access the culture and knowledge. Even when the irrationality of the copyright system lies in plain sight as it is in the case of academic publishing. Let's look at two examples.

On January 6 of 2011 Aaron Swartz, a prominent programmer and hacktivist, was arrested by the MIT police and U.S. Secret Service on charges of having downloaded a large number of academic articles from the JSTOR repository. While JSTOR, whom Swartz reached a settlement with and returned the files to, and later MIT would eventually drop the charges, the federal prosecution decided nonetheless to indict Swartz on 13 criminal counts, leading potentially to 50 years in prison and a US$1 million fine. Under growing pressure by prosecution Swartz committed suicide on January 11 of 2013. 

Given the draconian treatment at the hands of prosecution and the absence of institutions of science and culture that would stand up and justify his act on political grounds, much of Swartz's defense focused on trying to disculpate his acts, to make them less infringent or less illlegal than the charges brought against him had claimed. Rational course of action in irrational circumstances. However, this was unfortunately becoming an uphill battle, as the prosecution's attention was accidentally drawn to a statement by Swartz written in 2008 wherein he laid bare the dysfunctional of the academic publishing system came. In his Guerrilla Open Access Manifesto he wrote: “The world's entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations. [...] Forcing academics to pay money to read the work of their colleagues? Scanning entire libraries but only allowing the folks at Google to read them? Providing scientific articles to those at elite universities in the First World, but not to children in the Global South? It's outrageous and unacceptable. […]” After a no-nonsense diagnosis followed an even more clear call to action: “We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access. […]” Where a system has failed to change unjust laws, the responsibility was on those who had access to make injustice a thing of the past.

Swartz's heroic act was preempted. The scientific articles remained behind a paywall. The legality and illegality of his cause remained a matter of law, not a matter of politics. Yet where he had left off, others have continued by committing small acts of illegality on massive scale. In June of 2015 Elsevier won an injunction against Library Genesis, the largest illegal repository of electronic books, journals and articles on the web and against its subsidiary platform for access to academic journals Sci-hub.org. A voluntary and non-commercial project of anonymous scientists from mostly Eastern Europe, it provides access to over 41 million academic articles either stored in its database or accessed by bypassing the paywalls of academic publishers. As the only person explicitly named in Elsevier's legal complaint was Sci-hub's founder Alexandra Elbakyan, who minced no words: “When I was working on my research project, I found out that all research papers I needed for work were paywalled. I was a student in Kazakhstan at the time and our university was not subscribed to anything,” Being a computer scientist she found the tools and services on the internet that allowed her to bypass the paywalls. First she would make articles available on internet forums where people would file requests for they need, but then eventually she automated the process and made the access available to everyone on the open web. “Thanks to Elsevier’s lawsuit, I got past the point of no return. At this time I either have to prove we have the full right to do this or risk being executed like other ‘pirates’ […] If Elsevier manages to shut down our projects or force them into the darknet, that will demonstrate an important idea: that the public does not have the right to knowledge. […] Everyone should have access to knowledge regardless of their income or affiliation. And that’s absolutely legal. Also the idea that knowledge can be a private property of some commercial company sounds absolutely weird to me.”

**If the issue of infringement is to become political, the massiveness of infringing activity has to be reaffirmed, access technologically organized, civil disobedience collectively manifested. Only thus the illegal stands a chance of being transformed into the legitimate.**

## Universality of legal norms, juridical rationality, agonistic disposition of copyright protection

And thus we have made a full round to where we've started – to the parallel history of liberalism, copyright and capitalism – the birth of copyright from the operations of censorship in the early age of book business. Many will object to our demand to supersede law by politics. Transitioning from politics to law was an achievement as the despotism of political will was suppressed by the legal norms guaranteeing rights and liberties for the authors. That is true. But it requires qualification. 

As much of the elements of the contemporary legal system, the legal norms related to copyright were articulated and codified through the centuries of development of capitalist state and capitalist world system. The legal system is, if we take the insight of Nicos Poulantzas, genetically structured by the capitalist development. And yet it is partly autonomous, the development of its norms and institutional aspects is largely endogenous and responsive to specific needs of social subsystems. Still, if the law and the courts are institutionalized and lived rationality of the society, in the copyright debate courts have failed to bring a matter of conflict between the copyright and the right of access properly to a level of juridical balance. **The decisions in favor of copyright protections for academic publishers have predominated and hence the courts have affirmed their economic interest over the interest of the public.** In fact, they have shown that the determination of the law by the economy in the last instance is nowhere more direct than between the rights of corporations and the rights of access in a international setting of science marked by the uneven and combined development.

According to Cornelia Vismann, the juridical system has two aspects: its theatrical aspect that has common roots with the Greek drama theatre and has its social function in the translation of a matter of social conflict (Germ. Ding) into a case for juridical dispute (Germ. Sache). And its agonistic aspect, not unlike the sporting competition where a winner has to be decided, that leads to judgment and sanction. It's clear that in our matter of social conflict the judgment and sanction have prevailed.

Thus we have reached an impasse, where working within the juridical framework is irrational from a social point of view. There is now way around politicizing the illegality. Thus to finish I'll quote once more the one whom the Public Library remains indebted for inspiration and resolution: “There is no justice in following unjust laws. It's time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture. […] With enough of us, around the world, we'll not just send a strong message opposing the privatization of knowledge — we'll make it a thing of the past. Will you join us?”