In this essay I will argue that as peer-to-peer (p2p)-based file-sharing increasingly becomes the norm for media acquisition among the general Internet public, entities such as The Pirate Bay and associated quasi-institutional entities such as Piratbyrån, Zeropaid, TorrentFreak, etc. have begun to appear less as a reactive force (i.e. ‘breaking the rules’) and more as a proactive one (‘setting the rules’). In providing platforms for sharing and for voicing dissent towards the established entertainment industry, the increasing autonomy gained by these piratical actors becomes more akin to the concept of ‘positive liberty’ than to a purely ‘negative,’ reactive one.1 Rather than complain about the conservatism of established forms of distribution they simply create new, alternative ones. Entities such as The Pirate Bay can thus be said to have effectively had the ‘upper hand’ in the conflict over the future of copyright and digital distribution. They increasingly set the terms with regard to establishing not only technical protocols for distribution but also codes of behaviour and discursive norms. The entertainment industry is then forced to react to these terms. In this sense, the likes of The Pirate Bay become – in the language of French philosopher Michel de Certeau (1984) – strategic rather than tactical. With this, however, comes the added problem of becoming exposed by their opponents as visible perpetrators of particular acts. The strategic sovereignty of sites such as The Pirate Bay makes them appear to be the reason for the wider change in media distribution, not just an incidental side-effect of it.
2009. Vol. 10, 64-108 p.