by Jon Ippolito
Source: http://www.nothing.org/osc/WhyArtShouldBeFree.htm [1]
The text is presented here in abbreviated form: only its final sections. (The full text is available at the site above.) Most of the essay is concerned with the way in which the current economy of art production benefits the artist last and least. We take up the argument as Ippolito considers the value of Creative Commons licences – which might be seen to favour the artist more than current copyright legislation, but as Ippolito proposes, could beneficially be replaced by a far more radical arrangement.
“Where there is no gift there is no art”. Lewis Hyde
[…]
Weaknesses of the License Approach
Voluntary licensing doesn’t require any changes in intellectual property law; this is both its strength and its weakness. As the name ‘Creative Commons’ suggests, open licenses have the potential to demarcate a public space immune from the restrictions of intellectual and physical property – in the same sense that a public park like the Boston Commons is a communal territory available to all citizens equally. But the rest of the digital world is already functionally a commons anyway – it’s just not legally one. Software piracy is rampant; Napster and its variants permit unlimited music sharing; and Web designers routinely pilfer code from other online sites whether it’s copylefted or not.
That leaves an enforceability dilemma for legislators. They could choose not to put any muscle behind enforcing their own laws protecting intellectual property, in which case those laws will only hurt law-abiding citizens. Or they could choose to enforce them by the only means possible: drastically curtailing the freedoms netizens currently enjoy in order to prevent unauthorized use of digital culture. Senator Hollings has already proposed such legislation: the Consumer Broadband and Digital Television Promotion Act. This act would mandate copyright-sniffing chips in every PC and make circumventing them illegal – effectively forbidding the sale of fully programmable personal computers and eliminating any hope of innovative approaches to recording, playing, catalogueing, and distributing music or movies. To disable the internet to save EMI and Disney is the moral equivalent of burning down the library of Alexandria to ensure the livelihood of monastic scribes. Unfortunately, these legislators don’t know enough about the Internet to understand why Webarchivist and Google deserve more protection than Britney Spears and The Little Mermaid. It won’t do artists any good to copyleft their movies if personal computers can only play videos produced by Hollywood studios.
The mutability of digital media creates another liability with voluntary licenses. Suppose digital artist Geoff Kuhntz scans a copyrighted postcard of seven puppies on a cushion, then uses Photoshop to replace all but one with a flowery background. Suppose Kuhntz then offers his image free of restrictions on a clearinghouse for open culture like Creativecommons.org. He’s free to do that, because his ‘transformative use’ of the original image qualifies for fair use protection against a copyright suit. Another artist downloads it, agreeing to abide by the terms of the license. She decides it would look better if there were seven puppies instead of one, so she clones them – and wham, gets hit with a copyright infringement suit by the original artist. You can imagine the same scenario taking place in other media – for example, if an excerpted Philip Glass riff were re-sampled into a minimalist composition that rivalled the original, or if a work of online art that depended on random combinations of image and text from other pages accidentally re-created something dangerously close to one of its victims’ Web pages. For digital culture, fair use is a porous category, which makes open licenses no guarantee you won’t be sued.
As Creative Commons consultant Wendy Seltzer has observed, these practical obstacles don’t necessarily mean the open license approach is wrong, just that it’s incomplete. Modest readjustments are not an adequate solution to a legal framework that is out of touch with digital reality. To complement open licenses, we need not a legal or illegal intervention, but a meta-legal one.
The Digital Sanctuary
The solution I’d suggest to the digital liability of open licenses is as practical as it is radical: a ‘digital sanctuary’. Digital objects are like rabbits – they reproduce easily. It is this promiscuity that creates practical problems for the commons approach. Let’s say you take your pet rabbit for a walk in a public commons. If it gives birth, the offspring are still your property, and you can prosecute anyone who takes them from you. But if your promiscuous bunny’s offspring happen to hop their way into a wildlife sanctuary, they could go from property to heritage - at which point your exclusive claim on them could vanish.
The internet could serve as such a sanctuary[1] for digital creativity, if our legal system were to treat any snippet of culture that found its way online as communal heritage. The effect of this rule would be that any form of streamable[2] creativity, be it a text file, JPEG, or MP3, is automatically copylefted. Streamable versions of fixed formats – such as the MP3 of a live concert or Quicktime bootleg of a movie playing in theatres – would be similarly protected, whether they were streamed by the fixed-format’s rights holder or by an unauthorized fan.
While this proposal would radically change the judicial understanding of the internet’s role in stimulating innovation, it wouldn’t change the actual everyday use of the internet very much at all. Although you’d never know it by listening to Hilary Rosen and Jack Valenti, most citizens treat the internet as a sanctuary already, surfing clear of online content that costs money.
In a global network, of course, enforcing open access – what Stanford cyberlaw guru Lawrence Lessig has called ‘copyduty’ – may be as difficult as enforcing closed access. To this problem I propose a compromise. Hollywood, the record labels, and anyone else who wants to restrict access to culture can try out innovative copy-protection schemes online, and hope that Jon Johansen doesn’t crack them – or more importantly that his doing so doesn’t cut into their profit margins. This ‘post at your own risk’ policy would mean that the circumvention of locked culture would be legal, but not guaranteed. A pet owner may choose to walk her bunny through the sanctuary with a leash – but if that bunny wriggles and hops away, the owner has no legal recourse to getting it back. Should the bunny emerge from the sanctuary and re-enter normal space, the owner can again assert property rights – and the same would be true of digital culture. Under this system, netizens could post endless remixes of The Phantom Menace online with impunity, but once they tried to distribute them in movie theatres, George Lucas could sue them for infringement.
The digital sanctuary is not a wilderness, but a wildlife refuge – not beyond the law, but protected by it. Legal paradigms like the protection of privacy and the prohibition on dangerous speech, which protect the public rather than rights holders, may still apply. We stamp out forest fires when they threaten parks; maybe we should also stamp out computer viruses that threaten the network. It’s not entirely clear how to enforce these protections, but it is important to note that the copy-protection schemes proposed by Hollings aren’t the way.
Of course, the media conglomerates and their content providers can continue to make money off of the things that can’t be streamed: immersive projections in big theaters, live concerts, leather-bound books you can read at the beach. Painters and sculptors would still have a choice of open or closed licenses for the products of their labour – they just couldn’t enforce copyright over online digital reproductions of their work. For their part, internet artists determined to make a buck could put digital leashes on their web sites and hope for the best.[3] Or they could be grateful for what they have: a refuge from property, poor in cash but rich in gifts.
Republished with permission given to use Creative Commons Attribution-NonCommercial-ShareAlike 2.0 England & Wales License.
•FOOTNOTES
[1] The digital sanctuary I propose, of course, is not defined by spatial boundaries. In that sense, the digital sanctuary is akin to an endangered species list, since the animals it protects are defined by a predetermined criterion rather than a predefined location or species. In terms of the criterion for protection, however, the digital sanctuary is the opposite of an endangered list: it protects not that which is most rare, but that which is most accessible.
[2] I’m using the word ‘streamable’ in the generic sense of anything that can conveniently be rendered in TCP/IP and circulated online.
[3] Of course, the half-life of exclusive online art has historically been short: cf. Vuk Cosic’s Documenta Done or 0100101110101101.ORG’s remake of Hell.com.