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2.2. Paid in Full: Copyright, piracy and the real currency of cultural production

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2.2. Paid in Full: Copyright, piracy and the real currency of cultural production

by Armin Medosch

See 2.3 for the comments by Rasmus Fleischer (Piratbyrån) and 2.4 for the comments by Jonas Andersson.

In this text I would like to reflect on the copyleft-copyright discussion that has been raging since the inception of Linux, Open Source and the Internet. After years of strong involvement in this area and then a couple of years of relative silence I felt the need to base a reassessment of the copyleft-copyright debate on my own biography as an artist and writer, to join the abstract argument from my own standpoint. I would like to pick out two main markers for this reassessment, one being my own background in and involvement with media art since the mid 1980s, the other one the much more recent history of my work with Kingdom of Piracy (KOP) and a re-evaluation of the copyright debate in the light of what happened since the last major KOP publication on the subject with DIVE in 2003. My core argument is that a situation which is already bad for cultural producers is made worse by radicals on both sides of the copyleft-copyright debate. I hope that through this reflection I can contribute to a more nuanced understanding which is at the same time more complex and more truly radical. I also hope that artists and cultural producers can recapture the initiative in this debate which currently seems to be with lawyers and extremists on both sides of a growing copyleft-right divide.

Appropriation in media art

Various types of appropriation have a deep history in the arts, from Duchamp’s discovery of the readymade to the surrealists’ bricolages. The latter also experimented with collective creation to undermine individual authorship and emphasise subliminal and subconscious connections between people, linking Marx and Freud. Appropriation returned after the Second World War with Warhol and other pop artists and has never stopped growing since as these practices become more common place in the art world and, more recently, available as new cultural techniques for much larger numbers of people 1.

I was involved in what in retrospect seems a rather big if fragmented movement of appropriation practices which were characteristic for a number of art forms in the 1980s. Working with the group Subcom (for Subcultural Communications) which I had co-founded with Oil Blo and Antonia Neubacher, we tried to pinch holes into the media Stalinism2 of the cold war era. Our self-image was wrapped into a narration about a perceived dichotomy between the mainstream media and counter-cultural media. In this regard our references were provided by the DIY culture of post-punk, new wave, hip-hop and street culture, yet at the same time also contemporary fine arts and particular directions and subthreads such as performance, video art, conceptual art. A subcultural and countercultural media context was created 3 which found its common denominator in the critical analysis of and opposition to the mass media system by its proponents creating media systems of their own.

Working with ‘clichés’

Subcom experimented with nomadic living and working situations and archiving of field recordings of an ongoing project called Europe Report. Yet the main cultural technique was appropriation. In the early years, between 1985 and 1987, we created radio art pieces which were highly intricate collages of found objects, both textual and auditive (Radio Zitrone Comics). We called those ready-mades “clichés” (in a sort of Swiss German understanding of the word, which was introduced by my then best artistic colleague Oil Blo). A cliché was originally connoting a printing plate and later took on also the meaning of stereotype. We were convinced then that by remixing clichés we could create new meanings. In this regard we were influenced by the sampling aesthetics of hip-hop artists who worked with loops from audio vinyls. We also “scratched” but used audio tape and had very different aesthetic and political goals than these hip-hop artists. From 1989 onwards we also created scratch videos combining loops and computer manipulation of images. Both in audio and video we conducted an interrogation of the “clichés,” how they functioned in their own context, and how they could be opened up for entering new relationships. The commercial media world had become completely reified and its output unacceptable and we were trying to find different ways of playing its images back to audiences as a means for liberation. Rather than trying to overtly criticise these images we tried to over-expose their ideological content through a kind of magnifying glass technique. 4

Although we did not think of it as that at the time almost all of our work was based on what is now understood to be copyright infringement. We were aware of this aspect but considered ourselves to be too economically marginal and also too much part of an avant-garde art context to have to be afraid of prosecution for those small transgressions. As we also started using the Amiga computer more, our remixes became new work which only in parts relied on the original sample for its artistic affect.5 To do what we did then one needed to make quite an effort in many ways – from getting hold of the equipment to developing artistic techniques. 20 years later the same activity is apparently carried out by millions of young people worldwide yet without any reference to the art world.

Remix culture and its critique

In recent years ‘remix culture’ has gone mainstream. One of its most visible protagonists is the lawyer and Creative Commons co-inventor Lawrence Lessig. In his lectures he presents the culture of remix as a paradigmatic turn from a passive read-only culture to an active read-and-write culture. Lessig uses remix culture as an argument for the necessity of the Creative Commons (CC) licensing system for content. CC is the name of a licence scheme (and also of an internationally working non-profit organisation) which allows creators to choose and mix between different levels of freedom and protection. CC are saying that their licences would allow authors to safely share their texts and music yet still to retain ‘some rights’. Like many people I initially supported the idea strongly. In 2004 the colleague and author Janko Röttgers and me convinced Heise Verlag, the publisher of our recent books Mix, Burn and R.I.P by Janko and Freie Netze by me to undertake a test trial by allowing our books to be distributed freely as a PDF under a CC licence while the books were still sold as hard copies. This announcement was made in June 2004 in Berlin when the German version of the CC licence was debuted at the Wizards of Open Source conference.

Squeezed onto a panel I had to sit on the stage for about an hour during which Lawrence Lessig gave one of his rousing speeches delivered so acutely synchronized to his Flash presentation that this effect completely transfixed the audience. As I sat there I had an epiphany and scribbled some notes about how connected every art work was anyway because of the fundamental condition of humanity as social beings. So, even if a writer had to sit in a monks cell alone for a year to write a book, s/he was in a dialogue with everyone and everything. Through language and the symbolic realm, our creation was always co-creation already and “networked” so to speak. Lessig’s continued emphasis of the Internet and digital technology as the causes of a switch from read-only to a read-and-write-culture had made me feel uncomfortable and had triggered this epiphany. The fundamental connectedness of human beings to each other through language and culture including the whole of the symbolic realm (which includes, for example, numbers and the signs that mathematics and logics uses) does not depend on the Internet and digital gadgets to make us co-creators. Lessig’s take on remix culture seemed to turn everything into a digital soup embossed with the CC logo.

Having had to listen to more such speeches at future events I started to dislike the way Lessig (re)presented remix culture (apparently he has stopped to do so now, has handed over the helm of the CC ship to other people). It was full of generalisations and seemed to have as its main point of reference the audiovisual production of children or teenagers – usually some cool teenagers in their bedrooms remixing Japanese anime. Of all the examples which he showed, the most politically “critical” one was that duet between George W. and Tony Blair which everyone had seen 10 times at least. The way audiovisual elements were used in Lessig’s lectures left no space for any real cultural difference or an interrogation of other symbolic layers than the most blunt and obvious ones. Lessig tried to sweepingly claim the whole of remix culture for his CC project, yet presented just a minute aspect of it in his lectures. While superficially similar to our remix practice in the late 1980s it had actually nothing to do with it. Back then, in our minds we fought an image war with the cultural bourgeoisie, working with the whole breadth of artistic remix and appropriation techniques. Compared to that, LL’s version of appropriation art was like decaffeinated coffee without sugar and milk. This wouldn’t be a problem if this was just Lawrence Lessig’s take on it but unfortunately the examples he showed appear to be quite representative for a lot of what actually happens today on the net. The conflict of the images does not happen on those Web 2.0 video sharing platforms, there is no danger for subversion, because this type of production is neutralized politically through its amateur character. 6

Although it preceded Web 2.0, CC is ideologically closely linked to this new mass participatory culture. While it is fantastic that many amateurs now can enjoy diving into advanced cultural practices such as remix and appropriation, the Web 2.0 paradigm is the ultimate distortion of the values of a free (net) culture, using some of its slogans and concepts while enclosing user generated content into proprietary platforms. CC is aiding and abetting this tendency. 7 Another serious flaw is that the whole concept behind CC does so far not take into account the professional who creates cultural and digital content as a member of a creative profession who has devoted her or his whole life to this. CC does not pay any attention at all to the issue of an economic model for supporting cultural production. In an interview in a recent film (which will be discussed later in this text) Lessig appears to regard this as a matter which will automatically resolve itself in the future. If CC continues to disregard concerns about revenue models for professional writers, musicians, photographers it does indeed play into the hands of venture capital driven online projects such as Flickr or Youtube who make a fortune by harnessing user generated content. The way it has been promoted CC has been instrumental in establishing a paradigm which is based on a false moral postulate according to which every cultural producer has to put out their work for free.

Despite those serious concerns, when it comes to licensing my own work as a writer, CC is still an option. I must first point out that I have always been very loose with my copyright. Once a text is produced I am happy for it to be circulated widely, as long as this does not mean I get ripped off by some multinational publishing conglomerate. Money does not induce me to write a text, I write anyway. However, of course I need some form of funding, either by cross-subsidising myself through other activities or by being funded one or the other way directly to conclude longer writing projects and conduct research. While there is no direct causal link between creating a specific text and money, money cannot be left out of the equation completely. When it comes to licensing, in a less cut-throat capitalist world I would be happy for my texts just to be in the public domain, without any specific licence, or as I joke, under the “free and creative Armin licence”. 8 However, CC is now widely adopted and the legal hawks of CC have gone to quite some length to adapt the licence scheme to legislations in different countries. CC is used in a benevolent institutional context which I interact with in various ways. Therefore it can be appropriate to use specific CC licences.

While in some cases I find it agreeable to use CC licences I cannot bring myself to see them as “the solution” for all licensing and copyright-copyleft issues. A thorny issue remains that by using a CC licence such as the ones above, I waive the exclusive rights for any collection society to collect and distribute mechanical reproduction and statutory rights in my name. Such mechanical rights can be a nice side income if radio or TV were to use your work. By signing away this possibility it feels a bit like consigning oneself to eternal poverty as public radio in Europe remains one of the last good sources of income for high quality journalism – or for writing of any genre, in the form of short stories and radio plays.

Kingdom of Piracy

When in 2001 Shu Lea Cheang, Yukiko Shikata and I curated a net art exhibition for Taiwan’s Acer Digital Arts Centre (ADAC), we called it Kingdom of Piracy (KOP). Despite our cultural differences the three of us shared a very similar background in the 1980s appropriation art. Challenged with curating Taiwan’s first major exhibition of net art, we thought that net art and the intellectual property debate were a uniquely suitable topic. The intellectual property question formed the looking glass through which, we thought, a Taiwanese audience stood a good chance of getting a grasp of net art. We speculated that the issue was as important for international audiences, should the show ever travel. 9 The promised grant of 25.000 US$ by ADAC gave us the opportunity to commission 15 artists and 3 writers to produce new work. As Taiwan had been identified as a ‘pirate data heaven’ in a 1994 Arthur Kroker essay, we took this a bit further by calling the exhibition Kingdom of Piracy. What would have been a one-off event became, through the special circumstances that arose, a project that still continues today.

The Taiwanese government, nudged on by US foreign policy shortly after the start of our work for the exhibition, declared a ‘war on piracy,’ arrested students who engaged in file sharing, put on show trials against them and even organised a “spontaneous” pro-copyright demonstration in the streets of the capital Taipei. The following is guess-work (there might have been other, internal reasons too) but we think it was this climate that influenced our main sponsor, ADAC, to withdraw its support (although we had already commissioned the artists and writers to create new work which they had already began to create) and shut down our access to the server. From then on KOP became a floating, migrant kingdom. Our main sponsor had pulled out, yet thankfully Ars Electronica gave us the chance to premier the original KOP show in September 2002 in Linz. (After a prolonged email battle with ADAC and Acer lawyers we managed to finally get paid and reimburse commissioned artists and writers.) Shortly thereafter we were commissioned by FACT in Liverpool to create new works. This commission, received through Michael Connor, then in charge of FACT’s digital arts program, enabled Shu Lea Cheang to create the BURN installation and me to make the DIVE publication.

DIVE

DIVE, as pointed out in my introductory ‘Piratology’ essay (Medosch 2003), marked a turning point. As much as I had enjoyed the provocations contained in the original KOP concept and show, I felt that the time for piracy was over. As I joked at the time, we had become converted into “good” pirates. Because of Linux and the free software movement there was no more need for the bloody old galore. Instead, we could now legitimately explore the universe of free software and add to an ever expanding public sphere of digital goods in an open commons. The thinking was as follows: The Free Software Foundation had given us a licence model, the GNU General Public Licence, which had been adopted by coders worldwide. Through the success of Linux and other GPL-based software packages the ‘copyleft’ ideas embodied in the GPL had found strong support not just by a bunch of creative software developers but had made it into the mainstream of software engineering. Multinationals such as Sun and IBM had started to support GPL-ed software, maybe as a remedy to Microsofts market dominance, maybe also because they understood that not just the GPL but also the collaborative model behind it offered an advantage in terms of enabling better and cheaper, i.e. more efficient software development – which is what an industry participant wants. Linux and other GPL-ed software as well as the open standards on which the Internet is based created a public sphere of legitimately “free” things that could be copied, used and modified. Adding to this was the Creative Commons project, which was still quite new in 2003 but maybe then at its most dynamic stage. Although other free content licences had existed before, the publicity offensive undertaken by CC and the high-flying Harvard lawyers behind it quickly proposed CC as the most advanced and widely known model for copyleft licences for content producers.

In this situation we thought that rather than fighting the copyright industry with little provocations and rebellions, it was much more promising to support this legitimate universe of free software and the collaborative ethos behind it. So we produced DIVE, a combination of CD-ROM, booklet and website. The CD-ROM contained the Linux live CD Dynebolic. Through it, most PCs can quickly be turned into multimedia live production suites without having to make a full Linux install. But the CD had more space which allowed it to contain also many free software packages which would run on PCs and Macs – things such as OpenOffice, the Gimp, Blender etc.; moreover, it contained other resources such as introductions to net art with working digital code, guides to online communities and wireless community networks.

DIVE was made for cultural producers and small organisations who had maybe heard about free software and copyleft but who were still sitting on the fence, not sure if they should get involved. The publication served as a manual for net culture offering practical and philosophical entry points into the area. It promoted the idea that content producers can also participate in the “free” universe by packaging their work with copyleft licences such as the CC licences or the GNU Free Documentation Licence. A particular inspiration and motivation for us at the time was the notion that there was no more need for fighting against somebody, but being able instead to create our own worlds, beautiful islands of free software, free media and participatory “social” media platforms.

The production of DIVE gave me also the opportunity to develop some more theoretic ideas, contained in the ‘Piratology’ essay. There I proposed that nobody is born a pirate but that historically piracy in the old sense developed in South East Asia when colonial powers created a monopoly or oligopoly which robbed people of their livelihoods and left them no other chance. This principle can be easily transferred into the contemporary cultural realm. Large international vertically integrated media corporations stifle local cultural production by completely taking over marketing and distribution channels, thereby destroying the businesses of local distributors who offer more culturally diverse and more local goods, as happened with the music and comic book industry in Taiwan10.

The lines of conflict are drawn much more sharply in those economies that capitalist media tends to label as “emerging”. Whereas the odd cracked copy of Photoshop has always been around in the West (be honest, do you know anyone who is not a business and who ever bought Photoshop or MS Word?) the real action is in Kiev, Bangalore, Delhi, etc. As our research trips with KOP confirmed, in the East every major city has its pirate market such as Bangkok’s Pantip Plaza. Despite occasional police raids, usually ahead of American state visits or WTO negotiations, the reality is that almost everything is available on CD, VCD or DVD for prices ranging between €1 and €5 (or dollars, when the $ was still on a par with the euro). The picture here gets somehow muddled, depending on one’s moral criteria. From small family stores who make a few copies at the back of a store to organised criminal groups who copy millions of CDs, many different types of organisations are involved. People do it for financial gain and it would be a romantization to portray them as champions of cyber rights and net culture. At the same time our research has shown that piracy fulfils an important role by giving access to cultural goods which otherwise would be completely unavailable to the vast majority of the people.

This is confirmed by the film Pirated Copy (‘Man Yan’ in Chinese), which shows the daily life of sellers of pirated movie CDs on the streets. This excellent Chinese production, shot with many hand-held camera scenes and cheekily utilizing off-screen voices and contrasting images, using all of the European novelle vague repertoire updated for the age of the DV camcorder, does more than just exposing the effect of official crackdowns on street sellers – it also shows what a surprisingly strong interest the buyers of video CDs and DVDs have in “art movies,” a catch-all term for anything between Bergman and Almodóvar. And this is probably a realistic picture. In markets such as China, piracy not only serves to provide access to the products of mainstream commercial movie industries, may it be Hollywood, Bollywood or Korea, it also fills gaps in provision and provides access to art movies and more difficult fare which does not get official distribution for whichever reason. The pirate suddenly becomes a connoisseur who caters to sophisticated tastes and needs, epitomised in the scene when a seller and a policeman argue if In the Realm of the Senses is pornography or not.

To conclude this point, in regions that still suffer from the legacies of colonialism and imperialism as well as those of the neo-colonial world expressed through the TRIPS agreement 11, piracy, despite being an entirely commercially motivated activity carried out in black or grey markets, fulfils culturally important functions. It gives people access to information and cultural goods they had otherwise no chance of obtaining. In a grossly distorted world of global “free trade” those who capitalism treats merely as cheap labour can use piracy as a counter-hegemonic force by giving them a chance to empower themselves through obtaining information, knowledge and sophisticated cultural productions.12

A recent research trip to Brazil confirmed how ‘pirate’ practices extended from software to hardware and bandwidth in the slums that the Brazilians call favelas. The favelas have a thriving small industry of so called LAN houses which are mixtures of Internet cafés, public gaming centres and computer hard- and software shops. Everything is pirated here, from water and electricity to bandwidth, which arrives through dangerously slung CAT 5 cables. The computers are imported through the black market, the software is all pirated. In this way the slum-dwellers of Brazil get access to modern communication technologies. This does not only include pirated copies such as the recent hit movie Tropa da Elite, which was a hit on pirated DVD months before it reached the theatres, but also other advantages such as access to services and information which allow a long-marginalised population to realise their civil rights and get better chances on the labour market.

Let’s be ‘open’

Switching back to the situation in Europe and trying to assess what happened since the time KOP produced DIVE in 2003, on the positive side it is true that many people got infected by the FLOSS virus, got an interest in Linux and the collaborative principles behind free software and started to use CC licences for their own creative output. Since 1999 the Wizards of Open Source conference had been investigating how principles behind FLOSS could be applied to other areas. The seed had started to grow beyond software developers, academics and net culture intellectuals – circles traditionally concerned with such topics. Now also artists and broader circles in academia and civil society got involved. The middle class, or rather specific sectors of it, started to support things “open” and “free”. While in principle this was a positive development and a sign of success, it added impurities to an already complex picture. As the newcomers had not been involved with the thriving net culture and online communities of the 1990s they lacked a more intuitive knowledge of its values, which were derived from an earlier hacker ethics. This gradually led to a situation where an “open everything” hype started to create ever bigger waves. Increasingly “open” appeared to be conceptualised as a somehow undistinguished, generalized “openness” which was assumed to serve as an organisational principle behind the allegedly emerging global digital commons. The second major misunderstanding concerned the notion of ‘free as in freedom, not free as in free beer,’ which Richard Stallman had so tirelessly explained, yet still many people were unable to understand.

At this stage some groups and organisations tried to address those conceptual shortcomings by reassessing their own engagement with copyright and trying to deepen some of the notions that had formed the core of the discourse. The New Delhi-based research institute Sarai organised the conference Contested Commons, Trespassing Publics, in January 2005 in Delhi. As one participant put it, this was an attempt at formulating a “commons 2.0” and creating a more mature debate which did not assume a global arena of fair play but highlighted inequalities and structural differences in the global and local political economies surrounding the phantasm of a global digital commons. The Contested Commons conference opened up the debate beyond legal arguments about licensing and included topics such as urbanism 13 as well as intellectual property in agriculture and biotechnology, where enclosures of public knowledge affect people often much more directly than in the area of culture and general “information”. Many of the contributions to this conference brought home the point that the real pirates are actually the capitalists, historically, as capitalism in its rough early stages fostered a culture where everybody pirated as long as they got away with it – something which currently happens, at this day and age, as indigenous knowledge and nature itself is getting privatised by pharmaceutical and agro-industrial companies.

In 2004 and 2005 Kingdom of Piracy embarked on a research project called Commons | Tales | Rules which was designed to give more substance to the notion of self-regulation or self-organisation of the commons. In the Anglophone debate about the commons Garrett Hardin’s “The Tragedy of the Commons” (1968) counted as a canonical text for a long time. Hard to believe now, but this relatively short ideological piece which argues with biologistic metaphors of overpopulation was taken seriously enough to be the killer argument supporting “pessimism” about self-sustainability. Every commons, Hardin argued, would sooner or later be destroyed because all participants essentially acted as rational, utilitarian profit maximizers and the self-interest was higher then concern for the common resource. Research by the political scientist Elinor Ostrom (1990) however showed that Hardin’s findings were only true under specific conditions and that other conditions existed where collective commons management was indeed possible. With Commons | Tales | Rules we continued Ostrom’s thread as an artistic research project and tried, first, to find as many “tales” of susccessful commons management as possible, both in real life as well as in the digital domain. Subsequently, in the second part of the project we looked at rule-making as a process which is part of self-organisation. No resource can be held in a commons if there is not either an a priori ethic consensus or a process of communication about the rules to establish and enforce such a consensus. We tried to create situations of experimental “rule-making” in strongly decentralized power structures. We asked: how can we make rules if there are no rules and no leaders?

At about that time the media arts scene in London was preparing itself for two events: OpenCongress (Tate Gallery, October 2005; http://opencongress.omweb.org/modules/wakka/HomePage) and Node.London (March 2006; http://nodel.org/). Both appeared at a very specific point in time when not only the media arts scene but also the arts in general started to get into things “open” and “free”. The “open everything” hype peaked, yet at the same time the political economy was as conservative as ever, not conducive to things really open and free at all. There was a danger that while “openness” was widely discussed, this happened in a very unfree overall situation with a neo-colonial war waged in Iraq against the explicit will of the majority of the British people. For those and other reasons we felt the need to make a point about autonomy. The idea was not to talk about the concept of “the autonomy of art” in the way this was done by romantic art movements 150 years ago, but to claim another type of more pragmatic, less esoteric form of autonomy – autonomy as a free space of action for artists, artist-run initiatives and net culture activists. Taking this type of autonomy as a starting point we asked how this related to the “open” paradigm. Using the “free” format of OpenCongress we decided on a format where we would ask people to make statements of the format open = ‘something’ on the wiki (whereby something can be whatever you make of it) which would then be discussed in a group workshop until people either accepted the term or ruled it out by making a lot of noise using props such as spoons and half full water glasses. RULE OUT: Autonomy takes up on OPENNESS turned out to be entertaining as well as productive and encouraged us to go further in the direction of format invention and discursive intervention.

As a result of this, PLENUM was launched half a year later at Node.London, March 2006. Our investigation of rule making in a commons had led us to the issue of agenda-setting and public debate. In any given public debate, the “commons” is the communicative space which is shared. Depending on the situation, people, issues and context, different protocols rule how an agenda is defined and who takes up how much space in a debate. Instead of assuming a shared practice and methodology between participants in the Node.London project, we wanted to make visible the many differences and hidden or even unconscious agendas involved. KOP decided to organise a PLENUM for the participants of the Node.London festival whereby we would provide a very strong structure but not the content. PLENUM was conceived and realized as a theatre play in 5 acts which altogether lasted 12 hours, from dusk to dawn. The overall task for the participants was to set the agenda for media arts in London. Each act had a prescribed structure and task, yet the content of the discussion – the agenda itself – was provided by the participants. This intervention on a structural level was reinforced by a feedback loop in the shape of Pure Data sound artists led by Martin Howse who sampled and filtered the spoken word and played it back with the explicit goal of escalating the situation towards the final acts. Present were also two note-takers who penned notes on a chalk board and intervened when it appeared appropriate and thereby provided an additional element of self-reflexivity. Free alcohol and a free soup kitchen as well as a work-out area with a sandbag for boxing allowed participants to let out steam and the night duly escalated into operatic and performative extremes. PLENUM has so far been the end-point of our investigations of the tales and rules of the commons, confirming some of our ideas and leaving lots of space for further experimental research.

‘Open’ and the economy

Returning from the elites of media and fine arts to the bigger picture of social and technological development, it seems that the gap between copyright and copyleft is widening. From a certain point of view this could really be seen like a trench war between, on one side, the copyright industry and on the other one the pirates: commercial DVD and VCD pirates, file-sharers, downloaders and the stars of the scene such as the anarchist entrepreneurs of Sweden’s The Pirate Bay or the more business-minded people behind Mininova, as well as copyright liberals such as the CC lawyers, the EFF and similar groups. One of the central arguments of this text is that on both sides there are radicals who paint a grossly distorted picture which only serves their own interest but gets in the way of moving the discussion further and maybe even find solutions. A more nuanced thinking, freed from the spells of both copyright and copyleft radicalism, is capable of creating more radically different ideas. In order to make some progress in this direction I need to briefly open up this narrative onto a more general level.

Ever since the Industrial Revolution a market started to grow for cultural goods, such as books and magazines in the late 18th century. As culture became a commodity in early capitalism, this process accelerated alongside technological innovations in the 19th century. With the electrification of the world and the telegraph, telephone, record player, radio, industrialised newspaper, cinema and television, a multitude of channels for the dissemination of cultural commodities opened up. It was this process which provided the context for the introduction of copyright to give artists and artisans some level of control over their work and a financial incentive for its publication. As the tools of reproduction forms matured from mechanic to electric to electronic and digital, the old framework for maintaining control over distribution crumbled while the morality of the system had in itself long started to rot, as the beneficiaries of copyright were no longer artists but publishing companies and holders of large stocks of copyrighted materials. The late 20th century was characterized by a huge cultural industry which wielded immense power, both economically and socio-culturally, and for which intellectual property was vital as a business model. Towards the very end of the 20th century two entwined but not causally linked processes happened. To begin with, there was what business people call a “consolidation” of the culture industry. In the overall neo-liberal climate of the late 20th century the culture industry kept expanding in volume yet concentrated on the most profitable areas. During this process many values which had long been guiding principles went overboard. For instance, while newspapers in the past were funded by their proprietors and kept alive during also those phases that were non-profitable, because they were more than just a business and allowed the proprietor to leverage political influence, all media nowadays seem to be under the same profitability criteria. Those and other factors led to a shrinking of the industry and a polarisation of its workforce between the heavily exploited and precarious freelance work of the commercial media and cultural industries and the few stars who still enjoy the old perks of being in a privileged area of cultural production.

Further, I would also like to refer to Marx’ (1957) distinction between the use value of a good and its monetary value. The link between the two is not always straightforward. In cultural production use-value and monetary value can even be opposed to each other, as Bourdieu (1993) has shown. Since the neo-liberal revolution of Reagan and Thatcher, the financial value has become the single dominant one, with increasing disregard for all other values. Completely disconnected from this is another process which has to do with the dynamics of techno-cultural development. This “dynamics” (which is a result of the interplay of many different agents, and not an anonymous technological progress, as a technological determinist would have depicted it) creates a situation which is favourable to the replication of information. As our whole intellectual production has increasingly become digital, the availability of relatively cheap computer hardware and memory as well as broadband Internet access means that the costs for reproduction and dissemination of digital files race toward near zero. Meanwhile, as it has become clear that file-sharing in p2p networks and via torrents is impossible to be stopped, the culture industry of old – particularly in the US, which enjoys a worldwide cultural hegemony – has panicked and started to pursue strategies contrary to the flow of this techno-cultural dynamics. The whole model of the cultural industry, based on individual objects as carriers of sellable units of IP, is condemned to perish. To avoid this, the industry has started going to extreme measures. It tries to influence technological development and bend and tweak an unwilling technology as to force it to allow copy control (for instance through DRM, which the industry spells out as Digital Rights Management whereas critics call it a ‘restriction’ management) and it successfully influences politicians to make insane legislation which favours the copyright industry but harms almost every other area of human interest such as education, learning, innovation and creativity.

We are faced with a situation where the techno-cultural dynamic improves conditions for the distribution of works, while the economy of cultural production is in a deep crisis. The old cultural industries of television, radio, book publishing, record and film employ fewer people of which only a small percentage enjoy good conditions. As opposed to what these industries would want to make us believe, this is not caused by “piracy” but has, as explained above, other causes stemming from the industry itself. The contraction within the industry coincides with it being less open for unusual and critical forms of content. This conspires with an objective situation of a worldwide information infrastructure – the Internet – hungry for bits, but with no mechanism for the payment of small sums which would enable a sort of pay-per-view system directly rewarding content producers. The old model does not work anymore; a new model is not yet in sight. Those combined factors make the economic situation of cultural producers already very precarious.

Yet on top of that there is another “bug” which has affected the system, for which I blame the “open everything” paradigm. Over the last few years I have received many more “indecent” offers than ever before. I consider “indecent” an offer when a major institution which is obviously well funded asks me to write a text but fails to mention money. Since the “open” paradigm has become mainstream, an increasing number of institutions quite deliberately rely on content creators’ willingness to contribute “freely,” i.e. without pay, to their publications. It is one thing to be approached by a grassroots initiative with a strong political, activist track record to speak at their meeting for free or contribute a text to their publication, which is something I have always done with pleasure when I was satisfied that people’s motivations and the context were right. It is something else to be asked the same by very wealthy, major institutions comprising well funded university departments, art festivals and research institutes linked to political parties alike. Sometimes they even go so far to openly say that I was known as an open source activist and therefore I had to contribute to their publication as it also promoted the good cause. In the current climate the expectations have been turned around. Whereas in the past it was clear that asking a writer for a book contribution would involve some money offered, now the basic expectation is that everybody would contribute for free.

This sort of new voluntarism often presents itself in the shape of a (false) moral imperative. Experts in this type of copyleft Stalinism are people such as CC activist Cory Doctorow. He recently denounced American sci-fi writers for trying to defend their rights against a website which offered huge amounts of their books and short stories.http://free2air.org/ who provided me with the URL pieces of this puzzle." href="#footnote14_ehhldnx">14 Cory Doctorow, himself a sci-fi writer of sorts, continues to fan the flames with vitriolic language directed at professional writers who try to earn money from their work. Doctorow revels in controversy, and for good reason. As a publicly visible anti-copyright radical he has worked himself up on a high rung of the ladder of the reputation economy so that his income does not depend on revenue from the sci-fi stories which he writes. Through his skilled working of the reputation economy he has managed to become a sought-after speaker on the international business-class circuit of “activism”. And the more fanatic he becomes in his anti-copyright stance cheered on by his geek fan club on the Boingboing website, people who obviously have a bad taste in science fiction, the more famous he becomes and the more income he generates. But this type of creating profit from copyleft zealotry works only now and only for a small number of people.

While the culture industry contracts and consolidates, the European system of art funding also changes to the detriment of cultural producers. The situation is of course slightly different in each country. In the UK deep funding cuts have led to a signature appeal through which thousands of artists declare their dissatisfaction with the Arts Council. The capitalist rhetorics of EU governments steers all arts-related funding towards a ‘creative industries’ model with ever-closer integration between the arts and the needs of businesses or causes external to art such as urban regeneration and city marketing. At the same time in countries such as Austria, Switzerland and Germany the old art forms of the bourgeoisie – opera and theatre – get preferential treatment and are funded on a very high level, while contemporary art forms get this ‘creative industry’ treatment, i.e. are condemned to more precarious conditions. This has been addressed by the Bitnik art project in Zurich with their project Opera Calling. Bitnik placed bugs in the opera house which transmitted the performances via the telephone system to the outside world.

Besides the culture industry and funding there is also of course the opportunity for artists of joining academia. Having experienced this myself in a part-time position for the past five years, I can only say how happy I am to have left that apparatus which itself undergoes a capitalist restructuring that turns higher education into a commodity, with resulting collateral effects of squeezing staff, while offering less and less to the students15. In Britain it is now appropriate to speak of an education-industry complex, which has less and less place for critical artists and dissenting voices. Last but not least, when artists start to occupy full-time academic teaching positions this often marks the end of their impact as a creative and innovative force. At the end one may be forced to make a compromise with the creative industry, but this often means to lose control over one’s licensing terms and be forced to adopt strong proprietary copyright models against one’s own will. For instance, if I wanted to publish a book with a publisher – any publisher basically, commercial or academic – I would be expected to sign a contract and hand over my rights and participate in the old-style copyright industry regime. In order to benefit from the distribution and marketing power of a publisher, my writing suddenly disappears behind a legal wall of “ownership”. Academic publishers are often in this respect the worst, charging vast sums for accessing a single article online. For all those reasons I have withdrawn myself from the whole machinery and launched The Next Layer which is now my main outlet for writing besides occasional publications in a sympathetic context such as this book.

Open as in oligarch

There is a situation now where there is a deteriorating funding situation for artists’ and writers’ work, especially if their work is critically questioning social mechanisms and methodologically innovative, while at the same time institutions believe that it is not wrong at all to ask people to work for free. Sometimes this is added to by the notion that “authorship” was a somehow obsolete notion anyway. Everything writes itself just like the pages of the Wikipedia. It is easy to see how this creates a situation of negative feedback. Not only does it make it increasingly difficult to get funding for work of a certain complexity, and for work which needs long-term commitment, it also strengthens the hand of the copyright tsars and data lords as owners of the realm of commercial production where authors still get paid. The culture industry can present itself as the only “relevant” area of production vis-à-vis the amateur production on the Internet where everything is free as in gratis and therefore, in their worldview, without value. By establishing the financial value above the use value, only those who get paid are “legitimate” and “professional” producers. Not just me but many other “professionals” have returned to amateur-like ways of production regarding the financial aspect. To the same extent that independent thinking and free-spirited people are squeezed out of the culture industry, the Bertelsmanns and the Murdochs of this world benefit from a misunderstood “open” paradigm by cultural institutions who have become scroungers for free content.

Copyleft video discourse

A similar set of questions – the decline of the copyright industry and the new techno-cultural dynamics of file-sharing and p2p networks – has been addressed by two recent video productions, Steal This Film and Good Copy Bad Copy. Steal This Film II is another production by The League of Noble Peers, a group of copyleft activists held together by Jamie King. Steal This Film II is a definite improvement on the first Steal This Film which was a quickly cobbled together montage of images and propagandistic texts about copyleft. The second film is a quite investigative documentary, featuring many interviews with (mostly white and male) key protagonists of the copyleft paradigm – the heroes – and at least one baddy, a representative of the Motion Picture Association of America who admits that file-sharing can’t be stopped but people get sued nevertheless. The narration links together a historic overview of the effects of print on society, drawing comparisons with the pirated production of books under censorship in France in the run-up to the revolution with today’s efforts of the industry to stop the flow of pirated copies. This historic section is quite well-illustrated with many pictures from old books and contrasted with today’s copyleft heroes, the people who run The Pirate Bay.

What I disagree with is the McLuhanite take on history that the film is premised upon. Human history is presented as the shift from one media technology to another with unavoidable consequences. The implicit message is that we cannot influence technologically induced change, only adapt to it. The result of this change is that the copyright industry is doomed and, as it fights for survival, it creates artificial and harmful barriers to the free flow of information. What we can do as cultural producers is to dance on its grave. But this also implies that we cannot expect to get paid for our production according to the old model and there is not yet a new one in sight. Steal This Film II employs an interesting self-reflective strategy insofar as the video has been made with donations received after Steal This Film; it is also self-reflective insofar as it is about The Pirate Bay while at the same time being distributed via this platform (and even gets a link on the front page which will secure it a big audience); last but not least people can again donate to fund the next film.

The overall message of Steal This Film II is very similar to that of the Danish production Good Copy Bad Copy, with which it also shares some interview partners. Good Copy Bad Copy seems to have had the slightly bigger budget and was able to travel to Nigeria and Brazil and therefore was able to capture interesting insights into new models of production which have emerged there. The use of video for movie production, instead of film (which is more expensive), has made Nigeria the biggest film industry in the world in terms of numbers of films produced. In Belém in northern Brazil the Tecnobrega movement creates interesting remixes of popular “cheesy” (“brega” means cheesy) love songs with techno beats. The industry does not rely on sales of CDs, which are distributed by local dealers in markets at low cost prices, but finances itself through very large parties with big sound systems.

Both of these film projects are linked through ideology and people to yet another project called Oil of the 21st Century. Its title is inspired by a quote attributed to Mark Getty, chairman of Getty Images. While it is excusable for a heir of an oil dynasty to make such a comparison between intellectual property and oil one can only wonder what has driven the usually smart, Berlin-based artist Sebastian Lütgert to adopt this rather dodgy analogy. Of course oil (or maybe water) and not IP is the oil of the 21st century. Getty may dream of creating an industrial empire with his image database. Yet the paradox is that if the analysis of Steal This Film II and Good Copy Bad Copy is right (which I assume is what Lütgert believes), then the 21st century will be much less dominated by economics than the 20th century was. Then various forms of gift, exchange and solidarity economies will replace the model of forced collaboration within large hierarchical and bureaucratically led structures that capitalism offers. In that sense, there will be no more ‘oil’.

While Oil21C similarly reproduces some silly McLuhanisms, Lütgert, together with Jan Gerber, offers an interesting proposition with the more practical, database-driven project 0xdb.org. Thousands of downloaded art movies are offered for processes of collective gathering of meta-information, exploring links between different scenes, films and actors. This project shows that dealing with cultural goods can and should indeed go beyond the fetishization of the commodity character of the good in itself. The database offers a sort of art movie flaneur’s paradise exploring and making connections between the mental landscapes recorded on film. As users can annotate the scenes, this would theoretically result in a text-searchable database of films scene by scene. This project, by emphasising the diversity of connections between films and their fans, rebuts some of the critique levelled against copyleft radicals.

The main message shared by all three projects is a critique of the greedy cultural industry. As the industry defends its revenue streams, it seriously interrupts the free flow of information. Like in the case of Lawrence Lessig, this critique is underpinned by examples of remix culture which would not have been possible if the copyright industry had had its way. Of course those examples are not nearly as naff as Lessig’s remix children. Steal This Film II for instance shows some kids on the streets of London performing grime, a London-specific, contemporary evolution of various hip-hop and dancehall styles. Yet in the end this is the same populism as Lessig’s, only with better taste. The two movies in particular have a tendency of fetishizing file-sharing technologies. Their narrations reinforce the copy-left-right gap by implying some sort of historic necessity where one can only chose to be on the wrong (old, tired, copyright) or right side of history (p2p, hip, young, future). The League of Noble Peers, by nonchalantly ignoring the question of a new economic model for cultural production, nurses a very aristocratic sort of habitus. By publicly extending their precarity, they imply that everyone who does not follow that example is a dinosaur from the old Fordist 20th century. This is, in short, a doctrinal form of leftwing McLuhanism which only underpins the reasons why more people should read Richard Barbrook’s Imaginary Future (2007) that explains exactly why ‘the net’ cannot and should not be our inevitable future anymore. 16

Let’s (not) talk about money

Projects such as those described above serve a valuable role as propaganda tools but fail to fully address the question of economic conditions for cultural production. It needs to be pointed out that money or so-called business models do not form the exclusive angle from where to view such “economies”. Cultural production, in a broader sense, is economically made possible in ways which go beyond money. It is indeed boring to ask “but how can we make money now?” but the link between cultural production and money is a fractious one under any circumstances. Culture can economically exist because in many ways it does not obey the laws of the economy – despite being, at the same time, a culture industry (Bourdieu 1993). Individuals create because they have to. As stated elsewhere (Gombrich 1971), creatives are ‘sweating out’ their creative output through their daily existence. I do not want to idealize this type of “driven” artist who will keep creating in order not to go insane. There will always also be the cool professional who does not depend on creation for psychological survival. There are further incentives such as fame and the reputation among the peer group. But let’s agree that people produce culture anyway. The argument of the copyright industry that their way is the only way of financing cultural production is a red herring. Culture exists because it serves many needs both on the creator’s and recipient’s side. Creation is supported by a fabric of social relationships. I would go further and say that culture exists because of that fabric of social relationships; it literally grows out of those. Within those networks of relationships there are also many forms of internal support which allow art to get produced and artists to get through. On top of that there are also immaterial relationships between artists and their audiences which allow work to get produced – such as shared psychological worlds, matching needs and desires. These thoughts are similar to what I felt when I was sitting on the Creative Commons panel watching Lawrence Lessig speak in Berlin in 2004. Human culture is networked in many ways, not just through the Internet, and those networks are also the source of complex economies enabling artists to be creative.

Art and culture rely strongly on intrinsic qualities – qualities which are values in themselves and do not need any external justification or motivation. The diverse practices in art are often simply things that people like to do because it is pleasurable doing them and because it feels as an achievement having done something. I am relating here also to the crafty aspects of the art, the work with the material, the engagement with the properties of tools. If we talk about the economy of cultural production and how to make it sustainable then we need to look at all those things together, those social networks which facilitate cultural production and the intrinsic qualities in which both artists and audiences have a strong interest and investment. Those aspects are either ignored or cynically exploited by the cultural industries and the ‘creative industry’ models proposed by the cultural funding departments of nation states. While the immaterial values of art and culture are invoked in Sunday speeches by politicians, they are trampled on by the same people the following Monday when they make their next round of funding cuts.

While money is certainly not the only problem, completely dodging that question is not a solution in the long term. The copyleft radicals are maybe still very young and live in a squat or have very rich parents or both. Radicals on both sides of the copyleft/right divide do not want a solution. The business people just want to go on as usual – no compromise. The copyleft radicals receive cultural capital by appearing as modern day Robin Hoods stealing from an evil industry. Leaving those extremes aside, how can societies afford to have a rich cultural life which also includes top-quality works of art and not only amateur-based mass production? Some quite sane and useful suggestions have been made in recent years. One would be a sort of digital Shilling (alternatively ‘broadband tax’ or flatrate system) collected by the collection societies and redistributed to everyone who visibly contributed to content online. I would have my reservations about that because of the deeply conservative nature of the collection societies who have not shown any understanding of the nature of digital and networked culture at all in the last 10 years and seemed to have been very willing to become enforcers of the copyright industry. Nevertheless, maybe the collection societies can be reformed through good legislation and a new regime be introduced which indeed rewards authors and other content producers. 17 The other option would of course be the introduction of a basic wage for everyone. I am more sympathetic to this but it comes with its own problems such as creating an addiction to automatic hand-outs. However, both a digital Shilling plus a basic wage would be better than the status quo.

As we are looking at the economy of cultural production and its sustainability, I hope to have made it clear that this goes beyond money. Sustainability is also linked to social networks supporting or even enabling cultural production and is based on the intrinsic qualities involved in shaping those networks. We have to untie the knot between cultural production as such and cultural goods. The industry, of course, focuses on the products – cassettes, CDs, DVDs, files. Sometimes it is made to look as if only the product counts and this is what indeed the culture industry does, it fetishizes and favours the products, things to be sold and owned. However, cultural production does not always need to materialise in such things and is driven by many other factors than money and supported by diverse ecologies. It is important to make this distinction. If we look away from the product as a “thing,” then the concept of ownership also opens up to different interpretations. Ownership then is not just possession of something, but also implies care and responsibilities. Similar relationships also exist between authors and their works and authors and their audiences, there are mutual responsibilities involved.

Conclusions

In the light of everything said I need to revise my position. I would have loved to remain at that position of 2003 where I said that being a pirate is not necessary anymore because we have free software and the digital commons. Both of those are endangered and problematic in various ways. Because of the development of recent years which I hope to have sketched out above, the situation has worsened. We are experiencing a widening of the copyright divide between the radicals of both sides. While solutions exist in principle, there is no social consensus around them because they would mean that some compromise needed to be made. In that situation I think it is important to highlight the values of cultural production and the importance of a diverse concept of authorship. Rather than denouncing authorship as a concept of the past as some copyleft radicals do (just to big up their own status as “activists”) cultural producers need to redevelop their various bonds with the social humus of their various arts. This means also to recapture the debate and bring it back to our home ground. We, as cultural producers, cannot allow ourselves to be represented neither by the stooges of the old order nor by the copyleft Jacobinites who are so eager to denounce authorship that one would fear to be hanged just for admitting to be one of “those”. As the situation keeps worsening we need to find ways of being radical without denying the complexity of the issues involved. As the oligarchy has tightened its grip, and everybody is worse off, we cannot rely on the legitimately “free” as in FLOSS world alone. Acts of piracy can be very necessary sometimes, in combination with a variety of methods of cultural resistance.

What in the age of cultural mass consumption is really in short supply is not money but respect for cultural production and the life-long commitment of people who happened to end up as professional artists because there is maybe nothing else that they can do or want to do. Knowing full well that this can be easily misunderstood I nevertheless insist on this distinction of professionalism and on the notion of respect as an expression of the appreciation of the various bonds between authors, their works and the publics supporting them. This is the real currency in the economy of cultural production. In this sense I would like to say from my best proletarian background and with all my writers pride, just like Eric B and Rakim in the seminal 1987 album I would like to be Paid in Full.

  • 1. Felix Stalder maintains a short but good list of links relevant to appropriation in art.
  • 2. With ‘Stalinism’ I refer to a situation where in my home country Austria there were only two public TV channels on terrestrial television until very recently.
  • 3. This context was formed by groups such as Rabotnik and DFM, Radio 100, Van Gogh TV, the CCC and other early hacker and mailbox groups. For this context the term media art offers itself as a largely suitable descriptor.
  • 4. A loop is a magnifying glass insofar as it stretches one short moment in a film or video endlessly; freeze frame and slow motion are other magnifying techniques.
  • 5. In 1990 and 1991 we produced a series of works which we called Televisionwares, collections of our scratch videos with hip-hop soundtracks ranging from NWA and EPMD to BDP; with this work Subcom was part of a mainstream of the underground of remix culture in the late 1980s and early 90s whose visual influences included B-movies as well as art groups such as General Idea, Dara Birnbaum’s Wondergirl as much as Coldcut’s scratch videos on MTV Europe. Only in retrospect the contours of such a movement become visible, with magazines such as Vague Magazine, Re/search, San Francisco and the Osnabrück Film and Video Festival providing scarce virtual and real meeting places.
  • 6. Such a political neutralisation of amateur production was anticipated by Hans-Magnus Enzensberger who stated that that isolated amateur production would always be easily neutralized politically through its amateur character (cf. Enzensberger 1970)
  • 7. As one of many critiques puts it: ‘instead of creating the flowering alternative cultural space envisioned by many, they run the risk of creating the conditions for a new wave of privatisation of culture.’ David M. Berry on OpenDemocracy
  • 8. A more well formulated critique of the CC licences is offered by Florian Cramer in this posting on the nettime mailing list.
  • 9. The original KOP exhibition concept, written in 2001.
  • 10. cf. Whiteg Weng, “The Right to Copy”. For the reasons Weng describes in her text, the midnight market in Taipei was at the time not only a place to buy cheap hardware and pirated software, but also specialized cultural goods such as specific Japanese anime and manga which were very popular in Taiwan but did not get high street distribution.
  • 11. TRIPS: trade-related aspects of intellectual property are part of the agenda of the World Trade Organisation negotiations for multilateral agreements; through TRIPS the rich countries try to impose strong intellectual property protection on the rest of the world.
  • 12. This is also a core critique levied by the Bangalore-based copyleft activist and lawyer Lawrence Liang against Lawrence Lessig. According to Liang, Lessig creates a false dichotomoy between the ‘good’ filesharers in peer-to-peer networks and the ‘bad’ commercial pirates who sell copies of copyrighted films on the streets. The situation in poor countries does not allow such a distinction, Liang says. (Interview with the author, unpublished)
  • 13. Both Sarai and partner organisation ALF have a track record of rooting or situating “digital” topics in the real world experience, a thread common also to the series of Sarai Readers I—VI, cf. Sarai 2001—2007)
  • 14. A good summary from a moderate viewpoint of this story offers this article while Andrew Orlowski from The Register lays a bit more heavily into Cory Doctorow. Tracing the original sources of the dispute has become difficult as all evidence of it has been removed from Boingboing except for an apology by CD which does not really sound like an apology at all. Counter to usual practice on Boingboing the comment function has been disabled for this article. Special thanks for Adam Burns aka Vortex of http://free2air.org/ who provided me with the URL pieces of this puzzle.
  • 15. At the college where I worked management tried to apply a Fordist bureaucratic management style to higher education, by trying to make teaching measurable down to individual hours. The goal was to have fewer staff lead a higher number of students who receive less teaching to successful diploma completion.
  • 16. There is a very beautiful scene at the beginning of Steal This Film II where a video wall of talking heads from the ‘war on terror’ is gradually replaced by the many-to-many connections of peer-to-peer society. If only it was that simple.
  • 17. I do not fetishize individual authorship, other forms such as distributed authorship or collaborative forms of production and content filtering/moderation are as important as “authorship” in the traditional sense and also need to be supported. As the Free Software Foundation, who still maintains the gold standard in what means ‘free’ in licensing through the GPL, points out on its excellent page about licences the CC licences are actually so different that it hardly makes sense to speak of them as one and the same thing. The FSF recommends in particular the CC Attribution 2.0 and the CC Attribution ShareAlike 2.0 licences as free content licences. I have also flirted with the Free Artistic Licence as at first sight it seemed more universal than the CC licence, yet at a closer look turned out to be quite complicated. If I wanted to contest abuse I would have to go to court in Paris which would complicate the whole thing enormously.