illegal copy in Mars & Medak 2019

of this economic function is the substantive requirement of originality that the work is expected to have
in order to be copyrightable. Legal interpretations set a very low
standard on what counts as original, as their function is no more
than to demarcate one creative contribution from another. Once
a legal title is unambiguously assigned, there is a person holding

property with whose consent the contracting, commodification,
and marketing of the work can proceed.5 In that respect copyright
is not that different from the requirement of formal freedom that
is granted to a laborer to contract out their own labor-­power as a
commodity to capital, giving capital authorization to extract maximum productivity and appropriate the products of the laborer’s
labor.6 Copyright might be just a more efficient mechanism of
exploitation as it unfolds through selling of produced commodities
and not labor power. Art market obscures and mediates the
capital-­labor relation
When we talk today of illegal copying, we primarily mean an
infringement of the 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 long before it became a legal one.
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 seventeenth-­and eighteenth-­
century Europe. Before publishers and authors were given a
temporary monopoly over the exploitation of their publications
instituted in the form of copyright, they were operating in a system
where they were forced to obtain a privilege to print books from
royal censors. The first printing privileges granted to publishers, in
early seventeenth-­century Great Britain,7 came with the responsibility of publishers to control what was being published and
disseminated in a growing body of printed matter tha

illegal copy in Medak 2016

ehind. [4] 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 commercial closed-access publishers out of the equation.
However, given the entrenched position of these publishers and their control
over the moral economy of reputation in academia, the public disservice that
they do cannot be addressed within the historic ambit of copyright. It
requires politicization.

## _Of Law and Politics_

When we look back on the history of copyright, before there was legality there
was legitimacy. In the context of an almost completely naturalized and
harmonized global regulation of copyright the political question of legitimacy
seems to be no longer on the table. An illegal copy is an object of exchange
that unsettles the existing economies of cultural production. And yet,
copyright nowadays marks a production model that serves the power of
appropriation from the author and market power of the publishers much more
than the labor of cultural producers. Hence the illegal copy is again an
object begging the question as to what do we do at a rare juncture when a
historic opening presents itself to reorganize how a good, such as knowledge
and culture, is produced and distributed in a society. We are at such a
juncture, a juncture where the regime regulating legality and illegality might
be opened to the questioning of its legitimacy or illegitimacy.

1. Jump Up For a more detailed account of this development, as well as for the history of printing privilege in Great Britain, see Mario Biagioli: »From Book Censorship to Academic Peer Review,« in: _Emergences:_ _Journal for the Study of Media & Composite Cultures _12, no. 1 [2002], pp. 11–45.
2. Jump Up The transition of authorship from honorific to professional is traced back in Martha Woodmansee: _The Author, Art, and the Market: Rereading the History of Aesthetics_. New York 1996.
3. Jump Up When referencing monopoly markets, we do not imply purely monopolistic markets, where one company is the on

illegal copy in Stalder 2018

been legally banned -- the best-known case in Germany
being that of the popular site -- more of them continue to
appear.[^21^](#c2-note-0021){#c2-note-0021a} Moreover, this phenomenon
[]{#Page_67 type="pagebreak" title="67"}is not limited to music and
films, but encompasses all media formats. For instance, it is
foreseeable that the number of freely available plans for 3D objects
will increase along with the popularity of 3D printing. It has almost
escaped notice, however, that so-called "shadow libraries" have been
popping up everywhere; the latter are not accessible to the public but
rather to members, for instance, of closed exchange platforms or of
university intranets. Few seminars take place any more without a corpus
of scanned texts, regardless of whether this practice is legal or

The lines between these different mechanisms of access are highly
permeable. Content acquired legally can make its way to file-sharing
networks as an illegal copy; content available for free can be sold in
special editions; content from shadow libraries can make its way to
publicly accessible sites; and, conversely, content that was once freely
available can disappear into shadow libraries. As regards free access,
the details of this rapidly changing landscape are almost
inconsequential, for the general trend that has emerged from these
various dynamics -- legal and illegal, public and private -- is
unambiguous: in a comprehensive and practical sense, cultural works of
all sorts will become freely available despite whatever legal and
technical restrictions might be in place. Whether absolutely all
material will be made available in this way is not the decisive factor,
at least not for the individual, for, as the German Library Association
has stated, "it is foreseeable that non-digitalized material will
increasingly escape the awareness of users, who have understandably come
to appreciate the ubiquitous availability and more convenient


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