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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

A Creative Commons Conspiracy?

Dmytri Kleiner gave a presentation as part of oil21.org in its new premises the Wiederaufbau für Kreditanstalt, titled “Copyfarleft & Copyjustright – the critique of Creative Commons”. Those interested in such critiques may be interested in a short piece I wrote in 2004, as well as a much more substantial and articulate essay written by my friend Mako Hill, Towards a Standard of Freedom: Creative Commons and the Free Software Movement.

The substance of Dmytri’s argument is that whilst copyleft licenses such as the GPL are about users’ rights, Creative Commons (CC) is about producers’ rights and is not concerned with building a commons in the traditional sense – where it functions as an economic resource – at all. Instead Kleiner sees CC as an operation whose objective is to muffle the conflictuality expressed through the various expressions of anti-copyright culture which were incubated in the 80s but were massively bolstered by the emergence of the online environment and the opportunity it offered to move from critiquing the theory of copyright to a rejection of its control.

Whilst agreeing with much of the substance of the criticism of CC, I shy away endorsing what seems like a pretty tidy theory whereby CC was instrumentally created to quell the rising tide of anti-copyright. For example I’d argue that as soon as it became clear that the gate-keeping role of distributors of cultural works was in crisis, it became obvious to many people that there was an opportunity for many other cultural producers to get a part of the limelight, and that this would necessarily take place on terms which were different to those traditionally imposed by the cultural industries. Standard copyright provisions in this sense represent the inherited form of industrial regulation, designed by and for those with a stake in the old organization of cultural production. Lawyers of course wondered how they might manufacture themselves a role as advisers on rights issues, and offering an a la carte menu specifying permissions and reserved rights was an obvious way to do it. I know this because the idea occurred to me, too. So something like CC was always going to be born, it is a child of its time, a zeitgeist.

There is also a more historically specific and contingent aspect to all this. CC is Larry Lessig’s project to a significant extent, and has been the locomotive of his own views which are wide-ranging and not limited to the field of copyright. Co-founder James Boyle, for example, appears puzzlingly AWOL when it comes to ideologically contextualizing CC. CC came into the world after Larry’s defeat in the Eldred case and many years spent pushing a narrowly legalistic agenda, whose objective had been to persuade nine supreme court judges to adopt a conservative scheme of interpretation to overturn the legislature’s capitulation to Hollywood lobbying embodied in amongst other laws the Sonny Bono Copyright Term extension Act. By 2000, failure in court had called time on this strategy and it was time for a new one. Lessig confessed his errors in Free Culture and moved on: CC was the result. In addition 1999 had seen the explosion of p2p onto the landscape of legal conflict, and it was clear that somewhere down the road there would be a challenge to these technologies under one or another theory of secondary liability for copyright infringement. In such a situation it would be necessary to demonstrate that these technologies had substantial non-infringing uses. The last time a major case was fought on this issue involved the video cassette recorder in Sony v Betamax, where the fact that there existed some producers of broadcast television materials which did not object to copying, and some uses – “time-shifting” materials for later viewing – considered legitimate, cumulatively brought the technology within a space where it was allowed to exist even if it could be used for purposes infringement.

Millions of people are today using CC licenses that permit the reproduction of their ‘content’, such that any means of digital communication can have a significant non-infringing use. If one is searching for an instrumental explanation for the establishmnet of CC, I think this is it. And it has been successful, at least to the extent that when the Grokster et al. went down in the Supreme Court, they went down on the basis of a completely different theory than that used in Sony, a precedent most of the judges simply skirted around.

Ok, I started with the intention of writing about another aspect of Dmytri’s talk but got distracted. Tomorrow, I’ll be writing about the proposal for an anarchist GEMA (the German collective rights organization similar to ASCAP).

November 20, 2007 Posted by | /, berlin, copyright, licenses, oil21 | 1 Comment