In two weeks from now, Sigrid and myself are going to take part in a three-day-workshop entitled “Consuming the Illegal: Situating Digital Piracy In Everyday Experience“.  This exploratory workshop is funded by the European Science Foundation (ESF) and mainly organized by Jason Rutter, a Marie Curie Research Fellow at the School for Mass Communication Research, Catholic University of Leuven, Belgium. The self-stated goal of the workshop reads as follows:

“This workshop places internet piracy – the illegal downloading of digital content – within a context of research on consumption and everyday practice. Bringing researchers from a range of social science disciplines it aims to develop theoretical and methodological perspectives to examine consumer behaviour, practices and understandings to investigate a phenomenon usually framed as deviant.”

In our contribution, entitled “Transnational Copyright: Misalignments between Regulation, Business Models and User Practice” (PDF), we want to question one of the basic premises in current debates  on copyright and also the conference title, namely that the demarcation line between legal and illegal can be easily drawn. Instead, we argue, that

“proponents and opponents of extended copyright legislation and online copyright enforcement are using notions of legality and illegality for the purpose of strategically framing their aims and arguments in social struggles. Part of these struggles are presentations of copyright issues as being “resolved”, certain usage practices being definitely “illegal” or “legal”. A closer look at the literature, however, reveals that in many fields – even for legal practitioners – it is still very unclear and highly contested what is legal and illegal.”

Specifically in the realm of transnational law-making, this legal uncertainty is enhanced and multiplied by the lack of a universally recognized single authority in charge of law-making and the indeterminacy arising from the variety and distinctiveness of local contexts in which legal rules have to be applied. In our paper we identify three main sources of regulatory uncertainty in the field of copyright: (1) international regime complexity, (2) regulatory asymmetries and ambiguities, and (3) regulatory drift.

Whether new business models are considered legal or illegal is, due to this regulatory uncertainty, not clear up-front but often only in retrospect. While some  new platforms such as YouTube achieved great legitimacy in spite of a substantial proportion of (seemingly) infringing usage practices, others such as providers of P2P file sharing technologies have failed in gaining similar legitimacy in spite of a substantial share of non-infringing usage practices.

The paper is still work-in-progress, feedback and comments are highly welcome!