As the production of knowledge and information increasingly becomes the guiding force of capitalist expansion, legal structures transform to accommodate the consolidation of wealth and power in the hands of already powerful actors. Consequently, the digital terrain of cyberspace becomes a space of contestation in which, on the one hand amateurs, artists, and students of digital technologies develop new tools to share and distribute knowledge, and on the other, actors of capitalist governance such as the WTO, MPAA, RIAA struggle to enclose these spontaneous activities within certain legal limits. Social cooperation and production of our material and immaterial world- including production of science and technology – is rejected within a system that assumes the individual to be the main source of creativity. In order to establish the capitalist hegemony within the new matrix of knowledge, production, and power, states and international organizations that foster neo-liberal economic structuring push for legal actions against individuals and nation-states alike. The recent example of The Pirate Bay, although not unprecedented, can be treated as a microcosm that reflects the challenges posed to the capitalist system by a generalized piracy.

On April 17th 2009, the founders of The Pirate Bay, one of the largest online file-sharing databases, were sentenced to one year in prison and substantial fines for copyright infringement. On their website, the outspoken, self-declared pirates announced the news in an unsurprised tone and informed users that they would not retreat from their position: “The site will live on! We are more determined than ever that what we do is right. Millions of users are a good proof of that.” Indeed, The Pirate Bay is more than just a torrent search website, more than a movement, even more than “a long running art project” of performance, as its founders have claimed. Instead, it is a symptom of the inherent contradictions embedded within capitalist society. The proposition that digital piracy might in fact be a righteous act can lead us to the core of the problem with the structure of the command imposed by the capitalist system today.

In order to counter the logic so adamantly protected by organizations like the MPAA that piracy is “simply theft,” or, in other words, to de-mystify the neo-liberal ideology, one can only demonstrate the reality of the material processes of production. On the other hand, we need to investigate digital piracy with extreme caution in order to avoid romanticizing digital pirates or hackers. The Pirate Bay’s recent involvement in the civilian protest against the outcome of the 2009 Iranian elections, or their assistance to an anonymous website that criticizes the anti-internet stance of Scientology, should not make us assume that we are faced with high-tech democracy warriors. One of the founders of the website, whose financial support is crucial, is allegedly a neo-nazi. For those of us who have been following the discussions and lawsuits surrounding The Pirate Bay, this does not come as a surprise. Indeed, the initial mobilization against the F.B.I. backed police raid to the headquarters of the website has been framed around the question of Swedish autonomy and freedom with all the connotations of national pride.

Yet, the significance of digital piracy and intellectual property rights in understanding the contemporary capitalist structure does not permit us to dismiss The Pirate Bay affair neither as a front for neo-nazi propaganda nor as a manifestation of youth subculture. We are encountering a pervasive mobilization based on the discontent of global capitalist governance. In Sweden, The Pirate Party has gained a seat in the parliament, paving the way for other pirate parties in Europe. Jonathon Than of the UK Pirate Party expresses his surprise in an interview with Time Magazine:

We had expected to see 18-year-old computer science students as the first arrivals, but look at our forum and you’ll see a chartered accountant, a retired policeman, and a middle-aged punk all pulling in the same direction. A month ago getting our name on a ballot paper was a daunting task, today it’s an inevitability.

Moreover, digital piracy cannot but be thought in relation to the surge in the piracy “threat” that concerns the global capitalist governance. The question is: How does neo-liberal capitalism give rise to piracy? Here, I am not only talking about the Somalian pirates who captured the limelight in the majority of 2009, but also about the recent history of the WTO and its TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement as well as the MPAA (Motion Picture Association of America) and the RIAA’s (Recording Industry Association of America) billion-dollar crusade against copyright infringement. Apparently, we should treat online piracy as part of a larger phenomenon endemic to the capitalist system, as a specter that haunts global capitalism.

On the TRIPS website, the WTO puts forth the reasons why intellectual property is crucial in 21st century;

Ideas and knowledge are an increasingly important part of trade. Most of the value of new medicines and other high technology products lies in the amount of invention, innovation, research, design and testing involved. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, not usually because of the plastic, metal or paper used to make them.

To use a different terminology, contemporary capitalism is driven by “immaterial labor,” the labor that is based on knowledge production, including research, design, and services. Maurizio Lazzarato defines immaterial labor as “the labor that produces the informational and cultural content of the commodity.” The distinction between mental and manual labor is eradicated through the development of communication and information technologies that require the dissemination of knowledge and skill. However, in the current global division of labor, material labor is concentrated on the areas of cheap labor costs, leaving the Western world in charge of the production of knowledge. The TRIPS agreement is an important landmark in the structuring of the global division of labor and the assertion of the power of advanced capitalist countries.

Recent global struggle against the pharmaceutical monopoly on HIV/AIDS drugs is a proof that the TRIPS, instead of protecting human rights and creativity, is “a triumph for commercial interests and industry lobbyists (which) institutionalized a conception of intellectual property based on protection and exclusion.” In 2003, after years of negotiations monitored by the WTO, Brazil became the second country after Thailand to authorize the import of the generic version of HIV/AIDS drugs much to the success of the mobilization of Human Rights organizations. The history of the intellectual property related to pharmaceutical production demonstrates that the issue is not as simple as “illegal downloading” and has far-reaching consequences.

If, as the WTO states, ideas and knowledge are at the center of 21st century trade and production, then contemporary enclosures take place not only around physical resources like land and water, but also at the immaterial level of the “intellect.” One aspect of the Somalian piracy that the media (who is more comfortable portraying pirates as young thugs with guns) ignores is the knowledge and skill that enables the high-tech operations of the pirates. In fact, the experts say that pirate groups are made up of three different types of individuals, all requiring a specific knowledge necessary for capturing the ships: Ex-fisherman “who are considered the brains of the operation” because of their knowledge of the sea, ex-militiamen “who are considered the muscle,” experienced fighters of the Somali clan warlords, and the technical experts “who are the computer geeks,” because of their expertise in satellite phones, GPS, and military hardware.

The skill and expertise of the pirates, both on the oceans and on the web, should indicate that, despite all the attempts of the WTO to monopolize its production and use, there is a free circulation of knowledge. “Mass intellectuality,” arises as an antagonistic force to the same Post-Fordist production scheme that gave birth to it in the first place. At the heart of the problem of intellectual property lies precisely this paradox: as capital expands into immaterial spheres of knowledge production and circulation, the commanding structure has to limit its movement through trade agreements and constitutional enforcements. Well-before the WTO realized the importance of the “immaterial part of the trade,” Marx pointed out the intrinsic tendency of capitalist expansion into the intellectual sphere. The term “general intellect,” introduced in Marx’s Grundrisse posits that social cooperation and production are at the heart of the development of science, technology, ideas, and in general our cultural and symbolic universe.

However, in order to fully grasp the political implication of the concept of general intellect, we need to refer to another premise crucial to Marx’s framework: that of the “social individual.” The mystified conception of individual genius, upheld by the neo-liberal juridical system that codifies intellectual property, can only be countered with reference to the essential sociality that defines individuals. In the 1844 Paris Manuscripts, Marx asserts, “It is above all necessary to avoid once more establishing ’society’ as an abstraction over and against the individual. The individual is the social being.” The same claim is also presented in Theses on Feuerbach when Marx states that the human essence is not an abstraction inherent in each single individual, but an ensemble of social relations. However, it seems that the most influential instance of Marx’s critique of the bourgeois economist’s idea of the individual comes from the notorious first chapter of Capital where Marx ridicules the myth of Robinson Crusoe – the idea of the self-sufficient individual.

But the myth of individualism is so essential to the functioning of the system that in 1970s, the celebration of the individual comes back with a vengeance in Margaret Thatcher’s insistence that there is no such thing as society, but only individuals. Indeed, neo-liberal ideology is based on this concept of the individual as over and against the society. The legal protection of intellectual property mobilizes this concept of the solitary individual, who is seen as the source of production and creativity. It is stated in the TRIPS website that “Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.” Other leading lobbyists for exclusivity of the use of cultural production, like the MPAA and the RIAA, also appeal to the ideas of creativity, talent and genius to justify their vicious crusade. For example, Republican Senator Orrin Hatch, who spoke at 2009 World Copyright Summit, stated “We must ensure that our songwriters are not placed in situations where their property rights are ignored by infringers.” One government-backed research project conducted in the U.S. maintains that limited access is an imperative for securing the “constitutional intent of promoting the progress of science and the useful arts.” In other words, private ownership of intellectual property is seen as essential for progress.

In fact, RIAAs lawsuits against individuals are clear proof of how falsified neo-liberal ideology is. Their inability to comprehend the spontaneous growth of technologies that evade legal structure as well as the generalized social nature of online piracy led the prosecutors to waste their precious time on individuals guilty of copyright infringement. Now the RIAA announces, “In light of new opportunities to deter copyright infringement, the record industry was able to discontinue its broad-based end user litigation program.” Obviously the web became a much more controlled space as record companies saw profit to be made from legal downloading. Yet, the danger for them still lurks at the most surprising locations: At the 2009 World Copyright Summit Sen. Hatch announced, “This year, it was particularly disappointing to see that Canada, one of America’s closest trading partners, was listed on the Watch List.” Now Canada is listed among the top five countries on the Watch List along with China, Russia, Mexico, and Spain.

In this context of generalized piracy the concept of “general intellect” becomes more transparent. In a passage that begins with the phrase “Nature builds no machines,” Marx introduces the concept:

These are products of human industry, natural material transformed into organs of the human will over nature, or of human participation in nature. They are organs of the human brain, created by the human hands; the power of knowledge objectified [...] The development of fixed capital indicates to what degree general social knowledge has become a direct force of production, and to what degree, hence, the conditions of the process of social life itself have come under the control of the general intellect.

Here, Marx is concerned with the extent to which fixed capital (as machinery) confronts labor power as an alien power. That “living, form-giving fire” becomes dispossessed when “the monstrous objective power which social labor itself erected opposite itself as one of its moments belong not to the worker, but to the personified conditions of production, i.e. to capital.”

Indeed, advanced capitalist states and their trade organizations serve to guarantee this ownership of the products of social labor by capital. This is why the issue of piracy and intellectual property manifests itself as a crisis in the juridico-political structure. However, the keyword here is crisis. The crisis that piracy makes visible is the antagonistic power of what Marx saw as the effect of subsumption of labor power by capital (i.e. alienation, dispossession). Socially accumulated knowledge, skill and technical power confronts the current legal structure, revealing once again that the political structure based upon the materiality of the general intellect “is in no way interstitial, marginal or residual; rather, it is the concrete appropriation and re-articulation of the knowledge/power unity which has congealed within the administrative modern machine of the States.”

This is another moment of crisis in the history of capitalism where the legal system of the state intervenes to enclose what is common. The defiance exhibited by the digital pirates of The Pirate Bay, among others, is an expression of a resistance to the enclosure of the intellect. While offering their users merchandise with the logo of The Pirate Bay and disguising themselves under a democratic front, these pirates present the contradictions embedded in contemporary capitalism. The claim of righteousness of digital piracy needs to be taken seriously because today, thanks to a previous generation of free software developers, pirates, and hackers:

Record companies have licensed hundreds of digital partners that offer a range of legal models to fans: download and subscription services, cable and satellite radio services, Internet radio webcasting, legitimate peer-to-peer services, video-on-demand, podcasts, CD kiosks and digital jukeboxes, mobile products such as ringbacks, ringtunes, wallpapers, audio and video downloads and more.

The reluctant but inevitable commercialization of cyber space has taken its cue from the spontaneous creation and innovation of masses. After all, it is the driving tendency of capital to expand, for as Antonio Negri writes, “capital appears as a force of expansion, as production and reproduction, and always as command. Valorization is a continuous and totalitarian process, it knows neither limit nor repose.” However we now have to acknowledge that valorization functions in a contradictory way: As a constant reduction of everything to exchange value and as valorization of the social individual. Individuals and companies cannot claim exclusive rights of innovation as the production of ideas and knowledge is always social. In his dramatic representation of the dissemination of scientific knowledge and its social consequences, Brecht declares from Galileo’s mouth that, ” there is no scientific work that can only be written by one particular man.”

Cooperation is at the heart of society and labor, which now includes what has been regarded as unproductive labor or even nonwork. And the more the general social knowledge becomes a force in production, the more of a threat it becomes to the system. The recent surge of “piracy” and the virtual “commons” is not accidental. Now, there is a certain awareness of the dangerous scope of 21st century enclosures that attempt to confine production, circulation, and distribution of information and knowledge. Just like the 15th century enclosure acts that turned people into “free” workers, 21st century enclosures imposed by a variety of different lobby groups and organizations attempt to put fences around the digital commons. The juridical apparatus of the system functions to defend the present from the future. However, the logic of the state, of capital, has always been countered by another logic of resistance and it seems, at least for now, that the digital terrain is not as smooth as the lawmakers would like.