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<nettime> My Lawyer is an Artist
Aymeric Mansoux on Sat, 12 Nov 2011 04:47:20 +0100 (CET)


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<nettime> My Lawyer is an Artist


Most discussions around the influence of the free software philosophy on
art tend to revolve around the role of the artist in a networked
community and her or his relationship with so-called open source
practices. Investigating why some artists have been quickly attracted to
the philosophy behind the free software model and started to apply its
principles to their creations is key in understanding what a free, or
open source, work of art can or cannot do as a critical tool within
culture. At the same time, avoiding a top down analysis of this
phenomenon, and instead taking a closer look at its root properties,
allows us to break apart the popular illusion of a global community of
artists using or writing free software. This is the reason why a very
important element to consider is the role that plays the license as a
conscious artistic choice.

Choosing a license is the initial step that an artist interested in an
alternative to standard copyright is confronted with and this is why
before discussing the potentiality of a free work of art, we must first
understand the process that leads to this choice. Indeed, such a
decision is often reduced to a mandatory, practical, convenient,
possibly fashionable step in order to attach a "free" or "open" label to
a work of art. It is in fact a crucial stage. By doing so, the author
allows her or his work to interface with a system inside which it can be
freely exchanged, modified and distributed. The freedom of this work is
not to be misunderstood with gratis and free of charge access to the
creation, it means that once such a freedom is granted to a work of art,
anyone is free to redistribute and modify it according to the rules
provided by its license. There is no turning back once this choice is
made public. The licensed work will then have a life of its own, an
autonomy granted by a specific freedom of use, not defined by its
author, but by the license she or he chose. Delegating such rights is
not a light decision to make.  Thus we must ask ourselves why an artist
would agree to bind her or his work to such an important legal document.
After all, works of art can already 'benefit' from existing copyright
laws, so adding another legal layer on top of this might seem
unnecessary bureaucracy, unless the added 'paper work' might in fact
work as a form of statement, possibly a manifesto. In this case we must
ask ourselves what kind of manifesto are we dealing with, what is its
message? What type of works does it generate, what are their purpose and
aesthetic?


The GNU manifesto

In the history of the creation and distribution of manifestos the role
of printing and publishing is often forgotten or given a secondary role.
But, what would have become of the Futurist Manifesto without the
support of the printing press and the newspaper industry in France and
the rest of Europe? Not much, probably. So it is not without irony that
one of the anecdotes often given to illustrate the motivations of
Richard Stallman to write the GNU Manifesto, the founding text behind
the free software movement, is tightly linked to the story of a
defective printer. Indeed, very often, the origin of the document starts
with a story about a problem Richard Stallman and some colleagues of his
faced when Xerox did not give away the driver source code of the printer
they had donated to MIT, preventing the hackers at the lab to modify and
enhance it to fit their specific needs. In this case, this particular
printer model had the tendency to jam and the lack of feedback from the
machine when it was happening made it hard for the users to know what
was going on. [1] Beyond the inability to print, and behind what seems
to be a trivial anecdote, this event still remains one of the best
examples to illustrate the side effects proprietary software can have in
terms of user alienation. The programmers and engineers that were using
the printer could have fixed or found a workaround for the jamming, and
contributed the solution to the company and other users.  But they were
denied the access to the source code of the software. Such a deadlock is
one of the reasons why the GNU manifesto was written. What is unique in
this manifesto, is the idea that software reuse and access should be
enforced, not only because it belongs to a long history of engineering
practice, but also because software has to be free.

Looking at the text itself, we can see that the tone and the writing
style used by Stallman make the GNU Manifesto closer to an art
manifesto, than to yet another programmer's rant or technical guideline.
As a matter of fact, we can read through the document and analyse it
using the specific art manifesto traits that Mary Ann Caws has isolated
based on the study of art manifestos produced during the twentieth
century. [2] For instance Caws explains that "it is a document of an
ideology, crafted to convince and convert." This is correct, the GNU
manifesto starts with a personal story, turns it into a generalisation
including other programmers and eventually involving the reader in the
generalisation and explaining to her or him how to contribute right
away. Caws also characterises the tone of manifestos as a "loud genre",
and it is not making a stretch to see this feature in the all-capital
recursive acronym GNU and the way it is introduced to the reader. It is
the first headline of the manifesto and sets the self-referential tone
for the rest of the text, as well as embodying a permanent finger
pointing to what it will never be: "What's GNU? Gnu's Not Unix!."
Furthermore, she reminds us that the manifesto âdoes not defend the
status quo but states its own agenda in its collective concern", which
is what Stallman does with the use of headlines to announce the GNU
road-map and intentions clearly: "Why I Must Write GNU," "Why GNU Will
Be Compatible with Unix," "How GNU Will Be Available," "Why Many Other
Programmers Want to Help," "How You Can Contribute," "Why All Computer
Users Will Benefit." the GNU Manifesto also instructs its audience on
how to respond to the document with the presence of a final section
"Some Easily Rebutted Objections to GNU's Goals" that lists and answers
common issues that come to mind when reading it. Last but not least,
manifestos are often written within a metaphorical framework that
borrows its jargon from military lingo and for many the GNU Manifesto is
being perceived and presented as a weapon, essential in the war against
the main players of the proprietary software industry, such as
Microsoft. In fact many hackers saw in the GPL an effective tool in "the
perennial war against Microsoft." [3] Thus, when the copyleft principle,
the mechanism derived from the GNU manifesto, is introduced in the 1997
edition of the Stanford Law Review, it is precisely described as a
"weapon against copyright" [4] and not just a 'workaround' or 'hack'.


>From the manifesto to the license...

This particular concept of freedom, as it is expressed in the manifesto,
is focused on the usage and the users of software. It will eventually
lead to the maintenance by the Free Software Foundation (FSF) of a
definition of free software and the four freedoms that can ensure its
existence. On top of that, the GNU Manifesto is practically implemented
with the GNU General Public License (GPL), that provides the legal
framework to enable its vision of software freedom. It means every work
that is defined by its author as free software, must be distributed with
the GPL. The license itself works as a constant reference to the
manifesto, by the way it is affecting the software and its source code
distribution. Every software distributed with the GPL becomes the
manifestation of GNU, and the license's preamble is nothing else but an
alternative text paraphrasing the GNU Manifesto. This preamble is not a
creative addition to the license, on the contrary the Frequently Asked
Questions (FAQ) of the FSF even insists that it is an integral part of
the license and cannot be omitted, thus making form and function
coincide.

Even though the GPL was specifically targeting software, it does not
take long for some people to see this as a principle that could be
adapted or used literally in other forms of collaborative works. As
early as 1997, copyleft is mentioned as a valid framework for
collaborative artworks in which artists would pass "each work from one
artist to another." [5] Of course, this is suddenly brought to our
attention not because of the collaboration itself, but because of its
sudden legal validity. Indeed the idea of passing works from one artist
to another and encouraging derivative works is nothing new. For
instance, back in the sixties, mail artists such as Ray Johnson even
used the term "copy-left" in their work, [6] and it was possible on some
occasions to spot the now very popular copyleft icon, an horizontally
mirrored copyright logo, marking a mail art publication. In this context
copy-left was seen as a symbol of "free-from-copyright relationships"
with other artists in a way that was "not bound to ideologies".[7] In a
strange twist, the use of this term is echoing years later, not without
cynicism, in some reproductions of Johnson's works which are now stamped
"Copyright the estate of Ray Johnson."[8]

So why a sudden interest in such practices? Precisely because of the
growing development of intellectual property in the field of cultural
production. At the time, under the 1976 copyright act, the only
recognised artistic collaborative work was the joint work, in which it
is required that all the authors agree that all their contributions are
meant to be merged into one, flattened down, work. This made perfect
sense in the context of the print based copyright doctrine but was
clearly not working for digital environments where the romantic vision
of the author is dissolved in the complex network of branches, copies
and processes inherent to networked collaboration. This situation
provided much headache to lawyers focused on the copyrighting of
digitally born works. One of these works is for instance Bonnie
Mitchell's 1996 âChainArtâ project, in which her students and fellow
artists were invited to modify a digital image and pass it to someone
else using a file server.  In such a project the whole process and its
different iterations are the work itself, not the final image at the end
of the chain. The work exists as a collection of derived, reused and
remixed individual elements that cannot be flattened down into one
single 'joint work' and as a consequence, from a legal perspective,
could neither be protected nor credited properly under the limited
copyright regulations.[9] No surprise then that Heffan picked the Chain
Art project as an example of artistic work that could greatly benefit
from the GPL and the use of copyleft that can encourage "the creation of
collaborative works by strangers".[10]


...and back to the manifesto

Although this conclusion makes perfect sense legally, it clearly
overlooks and diminishes the artistic desire to reflect upon the nature
of information in the age of computer networks. Many artists adopted the
GPL early on, not because of their wish to collaborate with strangers,
but instead to augment their work with a statement derived from the free
software ideology. For instance Mirko Vidovic used the free software
definition to develop the GNU Art project,[11] in which suddenly, the
GPL becomes a political tag, a set of meta data that could be applied to
any work of art. By choosing the GPL as a means of creation and
distribution, artists are aiming at implementing an apparatus similar to
the digital aesthetics that Critical Art Ensemble (CAE) had described
"as a process of copying [â] that offers dominant culture minimal
material for recuperation by recycling the same images, actions, and
sounds into radical discourse".[12] The weapon against copyright becomes
a flagship for the recombining dreams of the digital resistance as
envisioned by CAE. But by directly reusing the GPL, projects such as GNU
Art failed none the less to really break through the position of
Stallman that refuses to take part in judging if whether or not works of
art should be free.

This is why a few lawyers, MÃlanie ClÃment-Fontaine, David Geraud, as
well as artists, Isabelle Vodjdani and Antoine Moreau, felt the need to
make more explicit the artistic context and motivations of a liberated
work of art by creating the Free Art License (FAL), equivalent to the
popular free software GNU public License and articulated specifically
for the creation of free art.  [13] Suddenly, the license becomes an art
manifesto. In the FAL the rules of copyleft are exposed, they stand on
their own and enable the artistic creation, not for the sake of creating
but as a means to produce singular and collective works. What is seen as
freedom is just a very specific definition as envisioned in the GNU
manifesto and that can only exist within the set of rules it represents.
Moved to an artistic context, the rules to define freedom become a
system to make art. In the same way that 'cent mille milliards de
poÃmes' was the 1961 OuLiPo manifestation of creative rules, the free
art license is also a combinative manifesto, one that enables free art.
It is not a simple adaptation of the GPL to the French copyright law, it
is a networked art manifesto that operates within the legal fabric of
culture.

Anyone who respects the rules of the FAL is allowed to play this game.
Just like the ludic aspect in OuLiPo's work, and its probable root from
Queneau's flirt with surrealism, artists who start to consciously use
the GPL and the FAL solely for its 'exquisite' properties might start a
superficial relationship with the creative process. Indeed, Raymond
Queneau, co-founder of the OuLiPo reminded us already that we should not
stop at the process' aesthetics itself because "simply constructing
something well amounts to reducing art to play, the novel to a chess
game, the poem to a puzzle. Neither saying something nor saying
something well is enough, it is necessary that it be worth saying. But
what is worth saying? The answer cannot be avoided: what is useful."[14]
In other words and adapted to the FAL, the network aesthetics are not
enough, their existence must be contextualised and positioned to escape
its fate of a convenient technological and legal framework. This is why
if the game aspect is obvious in the collective works that surround the
FAL, we must see beyond the rules that are presented to us to perceive
that such an artistic methodology aims to be an answer to the issue
perceived by Chon in the analysis of the âChainArtâ project. Namely, to
engage with the fluidity of information and try to turn the clichÃd
attitude of artists towards their unique and immutable contributions to
art into a useful game. At the same time the emphasis is put on the
collective nature of production and not community work.

The main issue with the intention of the FAL is that unlike the digital
aesthetics modeled by CAE from LautrÃamont's ideas,[15] the mechanism of
a free art, against the capitalisation of culture and for the free
circulation of ideas within the network can only work by making the
machine responsible for this very same capitalisation legitimate. While
the mail art derivatives are happening outside of any obvious legal
regulations, the copyleft art is literally hacking the system to reach a
symbiosis and establish a kingdom within the kingdom. As a consequence
these political works are very different from the artistic politics
developed after the Russian revolution and World War I. Here, the artist
is not an agent of the revolution but the vector of an 'arevolution'. A
copyleft art is in the end not so much a critical weapon but instead a
cornucopia that operates recursively and only within the frame of its
license. Artists that are engaging with it, thus turning the license in
a shared manifesto, cannot materialise an anti-culture, a counter
culture, nor a subculture, they must create their own from scratch.
Instead of seeking opposition and destruction of an enemy, they aim at
founding and building.


Conclusion

If we look at 1897 MallarmÃ's 'Un coup de dÃs jamais n'abolira le
hasard', it is possible to only see it as an interesting visual design
experiment in poetry. This approach misses the reason why this work
exists in the first place. By turning art into the gathering and
composing, even painting of both time and space within a text, it
reached the apotheosis of parnassianism and symbolism upon which
modernism broke through.[16] A similar issue of complex lineage and
contextual information surrounds a document such as the FAL and leads to
concurrent 'raisons d'Ãtre.' Indeed, the FAL is not just an 'excercice
de style,' it is the embodiment of several elements that are announcing
important changes in artistic practices: a call to turn legal rules into
a constrained art system, a reflection on the nature of collaboration
and authorship in the networked economy, a living archeology of the
creative process by bringing traceability and transparency, and
ultimately, the mark of an age of copyright and bureaucratic apotheosis
that is pushing artists to develop their practice within the
administrative structure of society and embed it in their creative
process.

Unfortunately, and this is one of the reasons there is so much confusion
and misunderstanding about the use of such licenses by artists and
theoreticians, is that, with such a manifesto where form meets function,
once the license is used, it triggers a process of rationalisation that
leads to a fragmentation of the original ideology and intention into
different, possibly contradictory, elements:

    * A toolkit for artists to hack their practice and free themselves
    from consumerist workflows.

    * A political statement against the transformation of the digital
culture into what CAE calls the "reproduction and distribution network
for the ideology of capital".

    * A legal and technical framework to interface with the current
system and support existing copyright law practices.

    * A lifestyle, and sometimes fashion statement.

In practice it is possible for an artist to only see one of these facets
and either ignore or not be aware of the others, making the license as
manifesto multidimensional, open to different interpretations, not
unlike the medium it was drafted in: the law.

---

[1] Sam Williams, Free as in Freedom: Richard Stallman's Crusade for
Free Software, ed. Sam Williams (Sebastopol: O'Reilly and Associates,
Inc., 2002).

[2] Mary Ann Caws, Manifesto: A Century of Isms (Lincoln: University of
Nebraska Press, 2000).

[3] Ibid. 1, p. 13.

[4] Ira V. Heffan, "Copyleft: Licensing Collaborative Works in the
Digital Age," in Stanford Law Review, Vol. 49, No. 6 (Jul., 1997), pp.
1487-1521.

[5] Ibid.

[6] "From Mail Art to Net.art (studies in tactical media #3)", McKenzie
Wark, email on the nettime mailing list,
http://www.nettime.org/Lists-Archives/nettime-l-0210/msg00040.html.

[7] "RYOSUKE COHEN MAIL ART - ENGLISH", accessed May 13, 2011,
http://www.h5.dion.ne.jp/~cohen/info/ryosukec.htm.

[8] Ibid. 6.

[9] Margaret Chon, "New Wine Bursting from Old Bottles: Collaborative
Internet Art, Joint Works, and Entrepreneurship," in Oregon Law Review,
Spring 1996.

[10] Ibid. 4.

[11] "GNUArt", accessed May 13, 2011, http://gnuart.org.

[12] Critical Art Ensemble, "Recombinant Theatre and Digital
Resistance," in TDR (1988-), Vol. 44, No. 4 (Winter, 2000), pp. 151-166.

[13] "Free Art License 1.3," accessed April 19, 2011,
http://artlibre.org/licence/lal/en.

[14] Constantin Toloudis, "The Impulse for the Ludic in the Poetics of
Raymond Queneau," in Twentieth Century Literature, Vol. 35, No. 2
(Summer, 1989), pp.  147-160.

[15] Ibid. 12.

[16] Jacqueline Levaillant, "Les avatars d'un culte: l'image de MallarmÃ
pour le groupe initial de la Nouvelle Revue FranÃaise," in Revue
d'Histoire littÃraire de la France, 99e AnnÃe, No. 5 (Sept. -Oct.,
1999), pp.  1047-1061.



a.
--
http://su.kuri.mu


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