Copyfarleft: An Anarchist Gema?
I covered elements of Dmytri’s political critique of Creative Commons in the post below. For the full version I’d recommend the article that he co-authored with Joanne Richardson, Copyright, Copyleft and the Creative Anti-Commons. Now I want to move on to Kleiner’s proposal for an alternative approach to CC which eh outlined at the Oil event, as it is not dealt with in the paper. His approach takes existing organizational structures in copyright, and gives them a marxist twist.
His suggestion is to establish a form of cooperative which would function in the same way as the copyright collection societies, such as GEMA in Germany which collects licenses for musical performances. Members would assign their copyrights to the cooperative, which would issue free non-exclusive licenses to other members.This is a similar modus operandi to that used by the Free Software Foundation who collect copyright assignments from their contributors, and then grant back a series of guaranteed permissions which form the crux of software freedom. Non-members could still use the works but would have to negotiate and pay a licensing fee in the normal manner. The original twist is in the criteria for membership of the cooperative, which would be limited to those who do not employ wage-labour or capital-intensive technology in producing cultural works; Dmytri referred to these as the non-alienation clause, and it’s worth unpacking it a bit.
It is well documented that the vast majority of those using alternative licenses (Creative Commons, Free Art License etc) choose to apply restrictive non-commercial clauses to the reuse of their work. Effectively this negates the potential of the licensing system to impact on the mode of cultural production. As a (re)user you still have to get permission and are subject to what economists call transaction costs. Free software successfully altered the economic landscape of programming by enabling the accumulation of a large arsenal of code which any programmer could use for the purposes of their own work, thus saving them time, provided they complied with the terms of the General Public License. Kleiner locates people’s unwillingness to surrender control in their fear of exploitation, and at least in some parts of the Creative Commons ‘constituency‘, he is obviously on the button. It pains me to remember innumerable number arguments with video-makers unwilling to release their work for fear that they be ‘ripped off’ by a television station, as if Rupert Murdoch was just waiting for them to lower their license guard to give them a good shafting… He argues that if free use is only available to those following a method of production available to any cultural producer, regardless of their means, these fears can be assuaged. To give a practical example, this would mean that someone making a film on their own using off the shelf (probably pirated!) software on general purpose computers would be free to use images or music produced by other members of the co-operative, and would also be allowed to sell the resulting product and support themselves. On the other hand, a production company with fifty employees, using bespoke systems and dedicated animation workstations, would never be allowed ‘free use’ and would have to negotiate fees to clear the use of any works made by members of the co-op. In Kleiner’s framework, any license fees colected in the use way would flow to the co-op rather than the ‘individual’ creator, and would be reinvested in the expansion of the resources of the internal commons.
Copyfarleft essentially reformulates familiar problems from the creative commons discussion but arguably succeeds in framing them in a more interesting way. For those who use the non-commercial clause as an avatar for ‘keep satanic corporations away from me!’, he actually provides a means of identifying the ‘satanic’. But at a practical level, as a license, it would undoubtedly finish in the same theological attempt to ‘count the ‘number of angels you can fit on a pin’ which lies at the core of the non-commercial clause’s inanity. Let us recall at this point some of the basic issues raised by the latter. Site A offers works available for free and makes money off them by monetizing public attention through advertising sales. Site B sells .avi video files with printed covers at the cost of production and postage. Are either, neither, or both of these sites commercial? If one thinks about the alienation clause for ten seconds similar problems emerge: I make a film using unwaged labour, from youngsters who don’t have the money to buy a computer suitable as a basic video-editing machine, and then trade on the reputation gains of the output so as to make money in secondary activities (speaking, teaching, punditry) – has alienation take place? Has anyone been exploited?
Whilst the proposal has obvious conceptual difficulties, my real critique is a bit more unkind, which is that I think it projects desires from another political age onto an unwelcoming terrain. Effectively this framework expects people to apply a high-level political analysis to their online production, and this dies not jive with my perception of people’s motivations, which are complicated, contradictory and far from having the consciously contestational intention that Kleiner’s proposal implies as a given. In short his demand is for politics with a heroic capital P, in an age where the small ‘p’ is the fertile field of agency. Let me put it another way: there’s no problem in loosely aggregating millions of people around a diffuse pro-piracy/anti-copyright program, because it rhymes with their own interests, is composed of (a) negative thinking and (screw the industry!) (b) small homemade constitutive acts (rip!), and (c) the absence of heavy ideological baggage (all political shades love it!). Try and interest the same people in drawing up a political program that addresses the complexity of modern social organization and you’ll retain the attention of about .1% of them. Maybe 1.1%, if you can make them laugh with reasonable frequency.
In addition to the political problem, there is the matter of the lessons of recent history. Scrutiny of the story behind GNU/Linux, Wikipedia and any of the other really successful attempts to create functioning economic resources for their users, have proceeded by putting usability first, and limiting the political dimension to that which is directly pertinent to that field of activity. A totalizing critique of capitalist social relations simply has provided the base for a large-scale collaborative enterprise in the web so far. And there are some groups who are giving it a crack.
But now it’s late, so I’ll conclude. At a later point it will be worth taking a moment to consider how useful the contributions of Carol Rose, Elinor Ostrom and the scholarship on common property regimes/common pool resources could be.
Notwithstanding my criticisms, I really enjoyed Dmytri’s talk, and found the terms of the discussion much more stimulating that the usual drivel which is uttered when rooms fill up with pseudo-lawyers floundering around technical terms of art. With Mako and Jamie King, I used to joke that licenses should either be precise in their purpose like the GPL, or so outrageous as to open up other dimensions of reflection or satire – I always imagined it as a dadaist subversion of legal boilerplate. In Copyleft, Kleiner has managed to apply a similar method to good effect.
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What am I?
Alan Toner, intellectual property and communications researcher, living in Central European Time. You may have met me long ago at New York University, where I was once a fellow at the Information Law Institute and the Engelberg Center on Law and Innovation, read something I wrote for Mute or Diagonal, or conspired in the shenanigans around the World Summit on the Information society when I worked with WSIS: We Seize!, or through Steal This Film.
Leave a comment on an article if you want to get in touch.
Current Interest: Tracking of users via browser, mobile, or any other digital prosthesis. I believe that users need a universal opt-out from practices that put their web-reading habits in the hands of third parties – Do Not Track. Our online environment should be redesigned to make ubiquitous commercial surveillance impossible, just as it should make the political surveillance revealed by Snowden impossible. Those who believe that such observation brings them benefits are free to hold that point of view, but it just shouldn’t be hardwired into the architecture and should be a matter of free and informed choice.
Earlier I followed developments at the new-born European Observatory on Infringements of Intellectual Property Rights, and its first major project: the Intellectual Property Rights Enforcement Directive (IPRED 2), which will propose new criminal sanctions for IP offenses. The Foundation for a Free Information Infrastructure page dedicated to its previous instantiation can be found here. I’m also interested in ACTA and support the work of the people from Knowledge Ecology International, La Quadrature du Net, the FFII.
And I’m always interested in the conflicts around peer production, p2p and piracy.If you’re interested in this subject you can download and watch Steal This Film, and check out our searchable archive of interviews, built on an early version of pad.ma.
Since 2008 I have participated in a network organised by La Ex promoting alternatives to traditional copyright thinking, am a signatory of their Charter for Innovation, Creativity and Access to Knowledge, and a contributor to their work on Sustainable Models for Creativity in the Digital Age.
In 2005 and 2006 I spent time in Argentina, looking at disputes in the field of pharmaceuticals and biotechnology. At some point I’ll get back to this area, in the meantime, check out GRAIN.
Hedonism and the need to maintain some connection with material culture lies behind the occasional investigative wine tangent: how it’s made, the story it tells, and of course, how it tastes. Responsibility for this vice can safely be attributed to Critical Wine, a network of small producers in Italy who presented it in a political/cultural context that I found… compelling!
Here are links to some blog entries which I think are important:
- Akerman, Branco, Deneuve et al. Against Three strikes/Hadopi Law in France
- Three strikes Law against P2p in France (Hadopi)
- Anthropology Ethnography of P2P: A Day in the Life of a User
- 0xdb movie database goes live
- Resuscitating Alternatives to Copyright
- Intellectual Property Enforcement, European Style: Dogma Internally, Coercion Externally
- Search & Destroy: Enforcement in Eastern Europe
- Not Just Information: Sharing Physical Resources
- A 2016 Almanac
- The Machinic Sewer
- A Yahoo User’s Journey through the Unknown
- Filmpiraten Crush Austrofascists (at first instance…)
- Pirate Residuum
- Readings from the Book of (library) Genesis
- Cyberspace – the Fifth domain of Warfare?
- Demystifying AdTech
- The Hymn of Acxiom
- Knowledge is born free, yet is everywhere in chains…
- Adam Curtis in Berlin
- Baking Privacy and User Choice into the Web with Do Not Track
- civil liberties
- Data Protection
- European Court of Justice
- european directives
- european regulations
- european union
- material culture
- open video
- Pirate Bay
- Pirate Party
- social cooperation
- steal this film
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