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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.

Problems

I

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?

II.

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.

III

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.

November 22, 2007 - Posted by | /, berlin, copyright, licenses, oil21, social cooperation

8 Comments »

  1. OK, such a discussion could maybe take some interesting turns.
    I just feel the need to first clarify how to delineate the production employing “capital-intensive technology”?

    Comment by Rasmus | November 23, 2007 | Reply

  2. Hi Rasmus, Alan! Thanks for the comments and it was nice to see you recently at CCC.

    First of all, I completely agree with the dadaist subverision of the legal boiler plate, I often release my work under licences to do not actually exist, such as the Idiosyntactix General License Agreement, The Woody Guthrie, or simply “All Right Detourned.” Copyfarleft definitely is meant in the spirit, especially the term itself, in the end I am a member of the art and hacker communities, not the legal profession, the artist representative bureaucracy nor academia.

    The idea of a peer-production license and an anarchist collection society is, however, an idea I think can play a role, albeit a secondary role, in helping provide a framework for commons based artistic production to develop within the context of a capitalist society.

    To answer the question aske by Rasmus, my proposal does not deny free access to “capital intensive industry” but to organisation in which productive assets are not owned by those who employ them in production. In other words organisations where “owners” own the tools and “workers” use them. The proposal grants free access to organisations where workers own the tools they employ in production.

    It important to understand that my proposal is not intented to address Software licensing, but rather is indented to address artistic production, especially in the context of Artists who want to adopt commons based production within the exiting economic relations surrounding production and circulation media assets, such as music, movies.

    I explain in the article why neither Copyleft, nor “Copyjustright” can or does address the material subsistance of commons based producers of media assets such as movies and music.

    Copyfarleft is not meant to be an alternative to Copyleft, but rather to Copyleft Non-Commercial, which is commonly used to address, problematically, the fact that large, well financed organisations can more effectively control circulation channels than peer producers, and thus must be denied free access if commons based production of media assets is to be sustained.

    As to the inanity issue, I agree that drawing fine lines is difficult, but disagree that drawing such lines is necessary as it is enough to have an agreed upon framework for the common cases. In other words broad strokes are good enough.

    It should be easy to distinguish individual or collective from massive media corporation, especially as we could probably with a little thinking actually list each and every example of the later and maintain the list as it gets smaller and smaller with successive mergers and acquisitions.

    It is not hard to figure out that Sony would not qualify for free access under copyfarleft, and also that Sony neither wants nor expects free access, since the system of paying for access is entirely acceptable to them.

    Why then, should we insist on granting free access to media corporations who neither want nor expect it? Especially as I have explained that doing so renders commons based production of media assets economically unsustainable. Isn’t this more of a tokenistic counting of a pin’s dancing-angels capacity then saying we shouldn’t, if if does depend, like all Lockian “mixed modes,” on a sometimes difficult distinction?

    Meanwhile, for lack of a copyfarleft style license, many creative producers like Wu Ming are currently employing Non Commercial licenses which, not only deny free access to random house (a good thing as this means Random House must pay them to publish their books) but also prevents commons based producers from producing copies as well, which is a bad thing, as it means the only way physical copies of the work are produced and circulated is by Random House.

    Copyfarleft, IMO, is a far better and perfectly workable solution. The actual license could be called something like
    “Community” or “Peer” production license.

    And the idea of the Anarchist Collection Society goes one step further, collecting the royalties earned from non-free access for the benefit of the commons as a whole, rather the specific individual “author” of a given work, acknowledging that artistic production is a dialogue and not a unique and singular solo act of expression. Such a collection society could use the royalties to provide funding and infrastructure similar to that currently financed by arts councils.

    As to your arguments regarding depoliticized language, that is rather a stylistic issue, as an artists I chose the language that appeals to me, I don’t mind other people using different terminology, this doesn’t comment on the logic my analysis or proposal. However I do thing that when you say “all political shades love it” you are being shockingly naive. Politics is class struggle, the beneficiaries of privileged economic relations will never “love” anything that challenges the class structure, and they will always have their dupes. Pandering to dupes is a chumps game. They will never follow though in any genuinely radical change, if all you want to do is sell stickers, they may be a good market, if those that want to avoid understanding actual political issues are expected to be your base for any real change, you will change nothing but maybe their hair style.

    We can not fool people into abandoning capitalism with tricky neologisms that obscure political meaning, but must build upon existing struggle.

    “Scrutiny of the story behind GNU/Linux, Wikipedia and any of the other really successful attempts to create functioning economic resources for their users” will inevitable lead you to see the degree to which access to wealth, in the end, dominates the relations of production.

    Apache, Ubuntu, Mozilla, OpenOffice, Wikipedia have access to wealth.

    Wikipedia is perhaps the most odd member this group, but it is too still early to say what the long term influence of it’s ascendancy will be. None of the others listed can be described as peer producers.

    Most free software is written by those who subsistance is provided for by wage labour and whose employers use free software in production. Regardless of what you think of this fact, there is no reason to believe this mode will work for producers of music and movies.

    Also, I believe a Anarchist Collection Society can have the exact kind of appeal Alan insightfully describes in this passage:

    “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!).”

    Alan mistakes my work as intended to speak to a popular audience, it is not, it is intended for those interested in political theory, in other works other cranks like me, not the general public.

    An anarchist collection society could and should certainly appeal to the exact elements Alan proposes, using the language of music and movies, not my essays.

    Cheers.

    Cheers.

    Comment by Dmytri Kleiner | January 13, 2008 | Reply

  3. […] Diese funktionelle Trennung zwischen Dealer_innen und Produzent_innen von Kulturprodukten wird oft verwischt oder gar geleugnet. Darum erscheinen Kulturtechniken wie Download und Remix für viele auf der einen Seite lebensbedrohlich und verwerflich und auf der anderen Seite subversiv und sexy. Ist doch die Fülle an warenförmigen Kulturgütern so übermächtig, dass es geradezu automatisch gerecht und widerständig erscheint das „System“ in einen ästhetischen Krieg zu verwickeln. Diese Strategien, der, vor allem in den Neunzigern entwickelten, großflächigen, semiotischen Guerillaaktionen (Adbusting, Culture Jamming, Mashup, Sampling), flankiert von den Kulturtechniken der Raubkopie und des Filesharing, sind meiner Ansicht nach grandios nach hinten losgegangen. Die Verramschung und der Ausverkauf von Kulturprodukten, den wir derzeit erleben, ist leider nur die negative Seite des modernistischen Versprechens Künstler_innen könnten l’art pour l’art (4) machen, da die wesentlichen ökonomischen Probleme gelöst worden sind. Die Versprechen der Moderne sind auf ästhetischer Ebene eingelöst worden, aber auf der ökonomischen ausgeblieben. Lokale Sabotage- und Störaktionen helfen bei der Lösung der ökonomischen Probleme wenig. Sie sind vielmehr in einer simplen pseudo-revolutionären Geste verankert, deren catchy Parolen oft an der Realität vorbeigehen: (…) 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 (…), and (c) the absence of heavy ideological baggage (all political shades love it!) Alan Toner […]

    Pingback by theorie edit » Ars Gratia Artis? – Part III | March 15, 2012 | Reply

  4. […] in: Free Software Magazine (3) Mehr hierzu und zu den möglichen Problemen von Copyfarleft auf https://knowfuture.wordpress.com/2007/11/22/copyfarleft-an-anarchist-gema/ (4) Derzeit beträgt diese Frist ca. 70 Jahre nach dem Tod eines maßgeblichen Urhebers (siehe […]

    Pingback by theorie edit » Ars Gratia Artis? – Part IV | March 16, 2012 | Reply

  5. […] otro interesante post de crítica de Alan Toner a la propuesta original: entre los comentarios al post está una interesante respuesta de D. […]

    Pingback by ¿El cuidado desde/con las licencias libres? | tecnoCUIDADanOS | October 18, 2013 | Reply

  6. […] is said to have referred (I can’t find a direct reference) to this as the ‘non-alienation […]

    Pingback by Open Co-operatives (2) | Joss Winn | June 19, 2014 | Reply

  7. […] (…) 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 (…), and (c) the absence of heavy ideological baggage (all political shades love it!) Alan Toner […]

    Pingback by Ars Gratia Artis? – Part III | Realvinylz | September 14, 2014 | Reply

  8. […] La licence de Kleiner est délibérément idéologique. Alan Toner rappelle ainsi que les grands projets communs se sont construits sur un refus délibéré de toute […]

    Pingback by Rendre aux communs le produit des communs : la quête d’une licence réciproque | Sciences communes | September 21, 2014 | Reply


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