The emergence of free software, file sharing and art forms based upon sampling and reuse of other media has created a serious problem for the traditional copyright system. The music and film industries, in particular, are in the middle of what basically amounts to an all-out war against their own consumers to prevent them from downloading and sampling their property. It is clear that digital network technology poses a serious problem to the recording and film industries.
In the earlier stages of the free software movement most corporations, especially software companies, reacted very negatively to the idea of copyleft, and tried to fight it with the same aggressive tactics The Recording Industry Association of America (RIAA) and its friends are unleashing on the file sharing community. Most famous of these was the SCO Group"s legal actions against companies that use or promote Linux. The actions of RIAA can be understood in that same way: it is a conservative reaction to protect their interests. However, not all owners of property believe that legal action can stop new technologies from emerging. Many believe that the music and film industry will need to adapt and that copyright law must be modified for this changing environment. Thus, just as capital joined the copyleft software movement to reduce the cost of software development, capital is also joining the copyright dissident art movement to integrate file sharing and sampling into an otherwise property-based system of control.
The dissidents of intellectual property have had a rich history among avant-garde artists, zine producers, radical musicians, and the sub-cultural fringe. Today the fight against intellectual property is being led by lawyers, professors and members of government. Not only is the social strata of the leading players very different, which in itself might not be such an important detail, but the framework of the struggle against intellectual property has completely changed. Before law professors like Lawrence Lessig became interested in IP, the discourse among dissidents was against any ownership of the commons, intellectual or physical. Now center stage is occupied by supporters of property and economic privilege. The argument is no longer that the author is a fiction and that property is theft but that intellectual property law needs to be restrained and reformed because it now infringes upon the rights of creators. Lessig criticizes the recent changes in copyright legislation imposed by global media corporations and their powerful lobbies, the absurd lengths to which copyright has been extended, and other perversions that restrict the creativity of artists. But he does not question copyright as such since he views it as the most important incentive for artists to create. The objective is to defend against IP extremism and absolutism, while preserving IP"s beneficial effects.
In his keynote at Wizards of OS4 in Berlin, Lessig celebrated the Read-Write culture of free sharing and collaborative authorship that has been the norm for most of history. During the last century this Read-Write culture has been thwarted by IP legislation and converted to a Read-Only culture dominated by a regime of producer-control. Lessig bemoans the recent travesties of copyright law that have censured the work of remix artists like DJ Dangermouse (The Grey Album) and Javier Prato (Jesus Christ: The Musical). Both were torpedoed by the legal owners of the music used in the production of their works, as were John Oswald and Negativland before them. In these cases the wishes of the artists, who were regarded as mere consumers in the eyes of the law, were subordinated to control by the producers - the Beatles and Gloria Gaynor, respectively - and their legal representatives. The problem is that producer-control is creating a Read-Only culture and destroying the vibrancy and diversity of creative production. It is promoting the narrow interests of a few privileged "producers" at the expense of everybody else. Lessig contrasts producer-control to the cultural commons - a common stock of value that all can use and contribute to. The commons denies producer-control and insists on the freedom of consumers. The "free" in free culture refers to the natural freedom of consumers to use the common cultural stock and not the state-enforced freedom of producers to control the use of "their" work. In principle, the notion of a cultural commons abolishes the distinction between producers and consumers, viewing them as equal actors in an ongoing process.
Lessig claims that today, within the context of the Creative Commons project more specifically, the possibility of a Read-Write culture is reborn. But is the Creative Commons really a commons? According to its website, Creative Commons defines the spectrum of possibilities between full copyright - all rights reserved - and the public domain - no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work - a "some rights reserved" copyright. The point is clear: Creative Commons exists to help "you," the producer, keep control of "your" work. You are invited to choose among a range of restrictions you wish to apply to "your" work, such as forbidding duplication, forbidding derivative works, or forbidding commercial use. It is assumed that as an author-producer everything you make and everything you say is your property. The right of the consumer is not mentioned, nor is the distinction between producers and consumers of culture disputed. Creative Commons legitimates, rather than denies, producer-control and enforces, rather than abolishes, the distinction between producer and consumer. It expands the legal framework for producers to deny consumers the possibility to create use-value or exchange-value out of the common stock.
This problem of creating "commons deeds" for works that are not really a common stock is typical of the Copy-just-right approach typified by the Creative Commons. Had the Beatles and Gloria Gaynor published their work within the framework of Creative Commons, it would still be their choice and not the choice of DJ Dangermouse or Javier Patro whether "The Grey Album" or "Jesus Christ: The Musical" should be allowed to exist. The legal representatives of the Beatles and Gloria Gaynor could just as easily have used CC licenses to enforce their control over the use of their work. The very problem of producer-control presented by Lessig is not solved by the Creative Commons "solution" as long as the producer has an exclusive right to choose the level of freedom to grant the consumer, a right that Lessig has never questioned. The Creative Commons mission of allowing producers the "freedom" to choose the level of restrictions for publishing their work contradicts the real conditions of commons-based production. Lessig"s has no basis to use DJ Dangermouse and Javier Patro as examples to promote the cause of Creative Commons .
Lessig"s praise of the Free Software movement likewise rings false because its architecture assures everyone (technologically as well as legally, in the form of its licenses) the possibility to use the common resource of the source code. Despite its claim to be extending the principles of the free software movement, the freedom Creative Commons gives to creators to choose how their works are used is very different from the freedom the GPL gives to users to copy, modify and distribute the software as long as the same freedom is passed down. Stallman recently made a statement rejecting Creative Commons in its entirety because some of its licenses are free while others are non-free, which confuses people into mistaking the common label for something substantial when in fact there is no common standard and no ethical position behind the label. Whereas copyleft claims ownership legally only to relinquish it practically, the references to ownership by Creative Commons is no longer an ironic reversal but real. The pick and choose CC licenses allow arbitrary restrictions on the freedom of users based on an authors" particular preferences and tastes. In this sense, Creative Commons is a more elaborate version of copyright. It doesn"t challenge the copyright regime as a whole, nor does it preserve its legal shell in order to turn the practice of copyright on its head, as copyleft does.
The public domain, anticopyright and copyleft are all attempts to create a commons, a shared space of non-ownership that is free for everyone to use. The conditions of use may differ, according to various interpretations of rights and responsibilities, but these rights are common rights and the resources are shared alike by the whole community – their use is not decided arbitrarily, on a case by case basis, according to the whims of individual members. By contrast, Creative Commons is an attempt to use a regime of property ownership (copyright law) to create a non-owned, culturally shared resource. Its mixed bag of cultural goods are not held in common since it is the choice of individual authors to permit their use or to deny it. Creative Commons is really an anti-commons that peddles a capitalist logic of privatization under a deliberately misleading name. Its purpose is to help the owners of intellectual property catch up with the fast pace of information exchange, not by freeing information, but by providing more sophisticated definitions for various shades of ownership and producer-control.
What began as a movement for the abolition of intellectual property has become a movement of customizing owners" licenses. Almost without notice, what was once a very threatening movement of radicals, hackers and pirates is now the domain of reformists, revisionists, and apologists for capitalism. When capital is threatened, it co-opts its opposition. We have seen this scenario many times throughout history; its most spectacular example is the transformation of self-organized workers" councils into a trade union movement that negotiates legal contracts with the owners of corporations. The Creative Commons is a similar subversion that does not question the "right" to private property but tries to get small concessions in a playing field where the game and its rules are determined in advance. The real effect of Creative Commons is to narrow political contestation within the sphere of the already permissible.
While narrowing this field of contestation, Creative Commons simultaneously portrays itself as radical, as the avant-garde of the battle against intellectual property. Creative Commons has become a kind of default orthodoxy in non-commercial licensing, and a popular cause among artists and intellectuals who consider themselves generally on the left and against the IP regime in particular. The Creative Commons label is moralistically invoked on countless sites, blogs, speeches, essays, artworks and pieces of music as if it constituted the necessary and sufficient condition for the coming revolution of a truly "free culture." Creative Commons is part of a larger copyfight movement, which is defined as a fight to keep intellectual property tethered to its original purpose and to prevent it from going too far. The individuals and groups associated with this movement advocate what has been called a smarter IP, or a reform of intellectual property that doesn"t threaten free speech, democracy, competition, innovation, education, the progress of science, and other things that are critically important to our social, cultural, and economic well-being.
In an uncanny repetition of the copyright struggles that first emerged during the period of Romanticism, the excesses of the capitalist form of intellectual property are opposed but using its own language and presuppositions. Creative Commons preserves Romanticism"s ideas of originality, creativity and property rights, and similarly considers "free culture" to be a separate sphere existing in splendid isolation from the world of material production. Ever since the 18th century, the ideas of "creativity" and "originality" have been inextricably linked to an anti-commons of knowledge. Creative Commons is no exception.
The Free Software foundation, publishers of the GPL, take a very different approach in their definition of "free," insisting on the "four freedoms:" The freedom to use, the freedom to study, the freedom to share, and the freedom to modify. This is consistent with the idea of "free" in the history of free culture, for instance, the journal Situationist International was published with the following copyright statement:
"All texts published in Situationist International may be freely reproduced, translated and edited, even without crediting the original source."
Even earlier, Woody Guthrie including the following note in a 1930's songbook distributed to listeners who wanted the words to his recordings had the following message:
"This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin' it without our permission, will be mighty good friends of ours, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."
In these cases what is evident is that the freedom being insisted upon is the freedom of the consumer to use and produce, not the "freedom" of the producer to control. If free culture is really intended to create a common stock for cultural peer-production, then the framework provided must specifically be designed in such a way that can not be used to attack free culture, the GPL and the terms presented by Woody Guthrie and the Situationist International pass this test, the Creative Commons does not. Moreover, proponents of free cultural must be firm in denying the right of Producer-control and denying the enforcement of distinction between producer and consumer, Lawrence Lessig and the Creative Commons, affirm both the right and distinction of the Producer and as such can only be considered the sworn enemies of free culture.
One reaction to this has been Benjamin Mako Hill's Criticism of the Creative Commons, along the same lines as Stallman's, that the Creative Commons, with it's combination of free and non-free licenses, does not define any single standard of freedom for cultural works. To address this, Mako Hill and others undertook the Freedom Defined project and produced a set of free terms, in the image of the GPL, for Cultural works. However, the project failed to address the issues of applicability of a standard copyleft licensing approach to cultural works, not asking if art could be funded from Capital demand as a producer's good such as software, or if it is merely meant to be a non-commercial activity financed by related or non-art activity or perhaps by grants. As a result of not addressing the economic basis of free culture, the project did not produce a distinct option for artists more compelling than the existing copyleft mutations or anticopyright. To make matters worse, the Creative Commons responded by adding to their plethora of conflicting choices by marking some of their licenses with a shield stating "Approved For Cultural Works" when the license is compatible with the definition of cultural works as defined by the standard copyleft approach of the Freedom Defined project. The end result is despite it's well-meaning intent, it only serves to make the Creative Commons even more confusing, and produced yet more licensing categories which continue to fail to address the distinction between software and art. Artists continue to not use the licenses, according to Creative Commons statistics, it is estimated that perhaps around 16% of Creative Commons licensed works are licensed ander the "Approved" licenses, the overwhelming majority of the rest choosing more restrictive licenses, often with "non-commercial" and "non-derivative" terms, in other words non-free licenses that prevent the works from effectively being part of any common-stock of cultural works. For free cultural to create a valuable common stock it must deny the privilege of the producer to control the common stock
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