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The Emergence of Copygrey Services

It’s the last day of AoIR 2010, and the first session I’m attending starts with Jan Nolin, whose interest is in filesharing. He describes this as Internet-based cultural consumption (IBCC), in order to move away from terms like filesharing, peer-to-peer networks, and other more limited concepts. IBCC is a broad and inclusive term, then (though excluding user-led content creation) – it includes societal contexts, technological and economical choices, social relationships, and political and legislative contexts.

IBCC has been important in shaping the Net – it has been in a tug of war pattern between legislation and technology: increased legislation leads to advances in circumvention technology, etc. There was a tech push from filesharers at first, then a legal response, then further evasive technology like Napster, then counter-evasive practices from the industty, and more recently a differentiation between white, black, and grey practices. Most recently there has been a specialisation and commercialisation of grey markets – an emergence of a copygrey business model.

Legislation has tended to serve very narrow industry interests (represented by the big five music labels, and the RIAA), or very broad interests – like the Intellectual Property Committee, and later through TRIPS, WIPO agreements, the DMCA in the US, and EU directives. Interestingly, the original 13 members of the Intellectual Property Committee were largely manufacturing and research companies (big pharma, technology, industry, with only one company from the entertainment industries).

Narrow ideas on legislation have shaped IBCC, however – addressing counterfeiting practices, treating digital property like any other property, enabling the prosecution of the owners of the sites which were offering counterfeited goods, and pushing for a recognition of cultural goods as licenced rather than owned after purchase. None of these old ideas have worked particularly well for digital goods, unsurprisingly.

Many loopholes for distribution have emerged (peer-to-peer filesharing practices exploit them, for example), but the entertainment industry has never moved away from these concepts. This has led to the rise of a grey market – a thriving but very strange field of business, where copyright intrusions are countered by privacy intrusions. Copygrey services supply media files through streaming or link pages, and they are clearly commercial (running ads, or offering subscriptions). Providers act formally legally (observing take-down requests), but continue to host commercial content.

Industry responses to this have been surveillance, obstruction, and take-down efforts; but the industry also needs copygrey services to exist as professional services. Such services are surveilled, producers of the technologyies are investigated, but there is also a tacit agreement between some of the content owners and the copygrey sites, operating through DMCA notices, for example.

Further, there are anti-copyright and surveillance services which have emerged, offering circumvention technology like proxies, SSL encryption, etc. This final domain undermines the operation of other copygrey services, and makes it easier to for content owners to catch those users with low information competence.