~~ Robert Fripp, _Discipline Global Mobile: Mission Statement_
"The problem of the work of art as a commodity raises a large number of questions important in the theory of information..."
I always tell people, music is a form of communication that predates language, straight up. It's been around forever. And it wasn't until about the turn of the century that they figured out a way to bottle the water, you know? Before that, music was a river. It was a river and everyone could sip from that river. But then someone came along with the idea that, "Hey, we can bottle this, and we can sell this water." And people were like, "Well, that's kind of cool, that's convenient, because I can take it home with me, or I can put it in my pocket and take it on a walk and have something to drink," which is fine. That's a reasonable industry, to go ahead and put some water in a bottle and sell it. That's fine. But the problem is when they start trying to discourage people from going to the river, or trying to close the river, or even worse, poison the river -- then it's not all right. Then it stinks.
And, for me, music is not an industry. Music is not even entertainment. Music is not just a soundtrack. Music is part of life. It is a straight-up form of communication, and it resides in every person in the world. And that's where I'm coming from in terms of music. That's exactly the world that I want to be… that's what I want to lean toward. It's sort of like clothes -- you live in a cold climate in a country that has these kinds of laws that you have to wear pants all the time, but basically, they're fairly artificial, they're a bizarre thing when you think about it. If you think about it, the whole deal is weird -- why does everyone have to wear clothes all the time? But that's the context in which I exist. I can appreciate [it] and I can go on with that. At the same time, when it comes to music, there are certain elements of what we do with music that are just distasteful. If people see music as just a living, they're just screwed. They're just gonna make something that's not music, in my opinion. But there are plenty of other people out there who are making incredible music who are not even thinking about money, and that's really where you're gonna find all the new ideas. It's always in the free space.
- Ian MacKaye - interview with Mike Watt of Minutemen/fIREHOSE
Chuck Dukowski from Black Flag said that he'd rather work a day job for the rest of his life than be dependent on his music for his living. That was in a _Damaged_ magazine article called "Apocalypse Now". That quote fucking blew me away. It hit me exactly where I lived.
- Ian MacKaye of Dischord Records, Fugazi and Minor Threat
Greg Ginn, guitarist for
Black Flag and founder of SST Records: "We didn't turn down any free
gigs, because those were the best. It'd cost us money, because we'd rent
PAs, but I always liked free gigs because anybody can wander in. You could
get different people at random, not pre-selected groups of people, and
maybe they would get something out of it. That's how I got into music,
stuff . . ."
Off on your way, hit the
There is magic at your fingers
For the Spirit ever lingers,
Undemanding contact in your happy solitude.
All this machinery making
Can still be open-hearted.
Not so coldly charted, it's really just a question
Of your honesty, yeah, your honesty.
One likes to believe in the
freedom of music,
But glittering prizes and endless compromises
Shatter the illusion of integrity.
For the words of the profits
were written on the studio wall,
And echoes with the sounds of salesmen.
Art is a process which wishes to be observed. I don't expect it to thank me, but it gets what it wants when I pay attention to it.
How shall we describe the fallacy in the "the labourer is worthy of his hire" argument for treating instances of people experiencing art as instances of consumers being supplied with products and service? "Art comes into being as play", says Ozenfant, of whose writings few are aware.
And what of the idea that the artist is special by virtue of his gift, and therefore not to be given a craftsman's hourly rate? Isn't gratitude a more appropriate attitude for The One Gifted? Ozenfant also says, "The only efficacious 'gift' is the will to elevation: a special tropism".
Those who don't realise this talk a lot about "talent", which sounds like a personal resource, marketable. Ozenfant: "Talent in art is the innate awareness of what is great." He implies that it is not talent that is responsible for artistic creation. "Creation is led up to by each moment, every gesture of our lives: not by a sudden decision. It is the degree to which, little by little, we have raised ourselves, that brings us level with certain heights." From this point of view, the paper trail of cashed checks does not truly delineate the artist's success, either qua artist or qua human being.
At the musical weekends and other events we have here, the music is free. Guests pay for accommodation, meals, and the support system for their hanging out in such a place and way as to induce some of them to indulge their artistic impulses. For this the others are grateful, and thereby greatly inclined to benefit them in turn if and when they can, and as they mostly will remain in the same human network for the rest of their lives, the chances of an artist receiving some karmic reciprocation, probably out of all proportion to the energy expended by hirself divided by the number of people who heard/saw it, makes this cycle of compensation at least as worthwhile participating in as an open-and-shut gig for which people they will never meet again buy tickets at any price.
Money is what you give when you have nothing to offer. Or when it's what's needed most, which is far less often than we are automated to presume.
Artists should act as if they'd taken some version of the Hippocratic Oath, even if preferring to take Visa or Mastercard.
- Chris Case
"Ancient Jewish writ laid down that every intellectual was to practise an occupation other than that of the spirit. Law most wise! St. Paul was a tent-maker, Spinoza polished lenses. Other instances are Leonardo da Vinci and Michelangelo working as engineers, El Greco as an architext; Montesquieu was a jurist, Balzac a printer, Bossuet a prelate; Buffon, Goethe, Lamarck, naturalists; Berthelot, chemist; Taine, Renan, Michelet, Henri Poincari, professors. Paul Valiry had a clerical post at the Agence Havas, Barris was a deputy. Claudel and a number of young writers like Rubens and Chateaubriand are diplomats. Stendahl was a soldier and consul, Descartes an officer, Beaumarchais a financier, Shakespeare and Molihre actors. The list is a long one. One even asks oneself if many great creators existed who practiced nothing but their arts (after mentioning Philip, architect of the Escurial, who was also king, St. Thirhse d'Avila, poet and saint, and Villon, thief.)"
"The artist, at least at the beginning of his career, should protect the liberty of his art by work which is as remote and different as possible from it, so that nothing in him shall be injured. Some think it is time lost. But it can definitely be affirmed that work that consists in paying court to critics, picture dealers, and amateurs of art is no less so, where art is concerned."
- Ozenfant- _The Foundations
of Modern Art_
The Free Music Philosophy (v1.1)
What is the Free Music Philosophy (FMP)?
It is an anarchistic grass-roots,
but high-tech, system of spreading music:
the idea that creating, copying, and distributing music must be as unrestricted as breathing air, plucking a blade of grass, or basking in the rays of the sun.
What does it mean to use the term "Free Music"?
The idea is similar to the notion of Free Software , and like with freeware, the word "free" refers to freedom, not price. Specifically, Free Music means that any individual has the freedom of copying, distributing, and modifying music for personal, noncommercial purposes. Free Music does not mean that musicians cannot charge for records, tapes, CDs, or DATs.
The above definition of Free implies that any tangible
object cannot be made free. However, something that can be copied arbitrarily
many times, like music, should be set free. When I say music, I mean the
expression of ideas (in the form of a musical composition or a sound recording)
on some medium, and not the medium itself. Thus you have the freedom to
make a copy of my CD, the freedom to download soundfiles of my songs from
my server on the Internet,
the freedom to cover or improve upon a song I've written, but you are not
necessarily entitled to free CDs.
Why must we Free Music?
Music is a creative process. Today, when a musician publishes music, i.e., exposes it to the outside world, only a privileged set of individuals are able to use the music as they please. However, the artist has drawn from the creativity of many other musicians and there is an existential responsibility placed upon them to give this back unconditionally, so creativity is fostered among people. As a dissenting opinion in the Vanna White vs. Samsung case , Judge Kozinski writes:
All creators draw in part
on the work of those who came before,
referring to it, building on it, poking fun at it; we call this
creativity, not piracy.
Isn't free copying of music infringing copyright law?
The Audio Home Recording Act (AHRA) , states:
action may be brought under this title alleging infringement of
copyright based on the manufacture, importation, or distribution
of a digital audio recording device, a digital audio recording
medium, an analog recording device, or an analog recording medium,
or based on the noncommercial use by a consumer of such a device
or medium for making digital musical recordings or analog musical
A literal reading of the law indicates that individuals can make copies of music recordings for personal noncommercial use and cannot be sued for copyright infringement. The message we get from this law is "Music listeners, start copying!"
Why is the Audio Home Recording Act of 1992 inadequate?
It is inadequate because the entire ethical basis of copyright law with respect to music has been perverted---free copying, and other uses, of music is ethical even if it is not legal. The main motivation for the law being passed is due to a tariff that is imposed on blank Digital Audio Tapes (DATs). The tariff goes back to the music industry in order to compensate the supposed loss of profits that arise as a result of unauthorised home taping. But the majority of the funds collected goes not to the creators of the music, but to the record companies! See Richard Stallman's The Right Way to Tax DAT for more information . Thus it makes sense to follow the Free Music Philosophy and encourage direct reimbursement to the artist rather than go through a bureaucratically-entangled and unbalanced system.
Why is freeing music the ethically right thing to do?
First, limiting your creativity to specific audiences, especially based on monetary reasons, is shirking existential responsibility and destructive to society as a whole; today, when people create, they're creating by standing on the shoulders of giants. Second, it's fair that people pay for music only if they like it after listening to it first; the present system does not allow for this for all forms of music. Third, in order to prevent "illegal" copies from being made, a tremendous burden (restricting legitimate expression) must be placed on all individuals to circumvent what is human nature. This is a rather impossible task and is probably the reason the AHRA was passed in the first place. Fourth, the derivative clause prevents the incorporation of your own ideas to enhance other people's expressions, and this is abridges the free exchange of ideas and information. Finally, the current practices of the recording industry, which exploit both artist and consumer in the interests of profit, are unethical, and one must take steps to force changes.
What about the intellectual property rights of the individual?
Intellectual property and other such "rights" have essentially existed to benefit society rather than the individual. The U.S. Constitution, for example, states that the purpose of Copyright is "to promote science and the useful arts." The Free Music Philosophy ensures that both society and the individual benefit. The individual's creative freedom is completely unabridged. This freedom is more important than any "right" society could give. To quote Stallman :
"Control over the use
of one's ideas" really constitutes control
over other people's lives; and it is usually used to make their
lives more difficult.
Won't musicians starve to death if they freed their music?
Musicians currently make money through a variety of sources: sales of records, merchandise and concert tickets, and royalties from commercial airplay. Freeing music will certainly not be detrimental to the sales of merchandise and concert tickets, nor will it affect compulsory or performance royalties. If anything, it will improve sales since people will continue supporting artists they like by going to their concerts and buying their merchandise. Profits from record sales will also not be affected because people will be encouraged to buy directly from the artist for the added bonuses of liner notes, lyrics sheets, and packaging. Thus Free Music can be used as a marketing tool to ensure that musicians do not starve. An approach where people send the artist a "donation", if they found value in the music they copied, is another way to make money in a direct fashion.
What about copying music at concerts?
Copying music at concerts for personal noncommercial use should be allowed. Chances are, most recordings that people make at concerts are not going to be of high quality, but some will be. These recordings can then be collected, assembled, and released by the artist, much the way the Butthole Surfers have bootlegged themselves. Here, there is some sort of a selection pressure for the best songs recorded live and it is a great way to obtain low-cost material for a future live album.
Won't record companies exploit musicians who make Free Music?
No, because the artist will still retain enough rights in order to ensure against monetary exploitation by commercial interests. Free Music can be used only for personal noncommercial non-profit purposes. In order to have total freedom, music must be free for commercial purposes also. This does not mean you cannot receive payment for commercial uses of your music. This means that you have no control over the nature of the commercial use of your music. Fortunately, with respect to music, there already exists some of this freedom (in the form of compulsory mechanical licenses and the public performance model). While there could be more freedom in music in this regard, I have left this as an optional issue.
Won't talented and dedicated musicians give up music because there's a possibility they won't be multi-millionaires?
Consider the fact that except for a few hundred musicians who are on top of the billboard charts, the chances of making a living by record sales in the present system are very low. This system cannot be worse for most musicians. In fact, this is an excellent reason to justify the statement that most musicians perform and record with creativity as the primary motivation---any money-minded person can easily use their talents in other fields to increase the probability of actually making some. Thus the source of talented music will never dry up. What we might actually see is more creative and self-indulgent forms of music being perpetuated.
Shouldn't musicians deserve rewards for their creativity?
The greatest reward musicians should have is their own music and nothing else. According to a study reported in the 19, January 1987 issue of the Boston Globe, Alfie Kohn reports on a psychological study that shows that creativity diminishes if it's done for gain . He writes: "If a reward - money, awards, praise, or winning a contest - comes to be seen as the reason one is engaging in an activity, that activity will be viewed as less enjoyable in its own right. With the exception of some behaviorists who doubt the very existence of intrinsic motivation, these conclusions are now widely accepted among psychologists." It follows then that the best music I've heard to date is from artists, who are struggling to make ends meet working two jobs, who are doing their music with an inherent passion and a desire to share it with people, and not because they have a contract to do so.
Shouldn't musicians ask rewards for their creativity?
Sure they can. As a musician, I'm happy when someone appreciates my work and shows it in some form. But I also do not believe that musicians should want rewards in ways that restrict the spread of music. As Stallman writes :
the desire to be rewarded
for one's creativity does not justify
depriving the world in general of all or part of that creativity.
But the above question is worded wrong. It should be: Should record companies, controlling people's activities in order to achieve monetary gains, make every music lover pay them in the name of musicians as long as they give back a small fraction of what they make in order to justify the charade?
I think not.
Why am I doing this?
My personal motivation is to see more self-indulgent and noncommercial forms of music spread around so creativity is enriched. Why should corporate labels and commercial radio decide what we get to hear and make millions of dollars by exploiting artists? Why not let the people who love music decide for themselves?
What should you, as a musician, do?
If you are a like-minded
independent artist not wanting corporate controls interfering with your
creativity, and would like more freedom in society, then this is a way
to spread your music widely. If your music is different and you don't think
it has much chance of being spread on commercial radio then you can try
the Free Music Philosophy. If you are tired of commercial interests controlling
what is heard by the people and you want the people to decide for themselves,
this is one path you can take. Finally, this way you could be on a major
label or an indie and your integrity isn't compromised
since you're giving your fans what they want.
What should you, as a music fan, do?
If the freedom of copying and using music appeals to you and you would like the idea spread around, then when you copy a album of anyone, regardless of whether they follow this philosophy or not, send them a donation to enable them to continue their making of music. What you contribute should be dependent on what the music was worth to you. You could also go to the artist's concerts or buy releases and merchandise directly from the artist. Finally, if you have the resources, you could support band(s) which have adopted the FMP by putting their sounds on the Internet. Support the music you like in some way!
Why will the Free Music Philosophy work?
In this digital age, the quality of home recordings have substantially increased, to a point where "perfect" replicas of audio recordings are made easily. Recordings can thus be spread around without the need for major distribution. If the music is good, it will spread far more rapidly, in an almost exponential fashion, rivalling the distribution power of a major record label. Further, the Internet allows for a even greater distribution. If you consider the approach that asks for donations, listed above, you could, in theory, make more money than by being on a major label, and still retain all the creative freedom possible. You will be eliminating all the middlemen and be able to provide CDs for prices four times cheaper than what they are sold for, and still make more profit per CD sold than you would by being on a major label!
The freeware idea in terms of computer software, which operates under similar principles, has worked . Consider the fact that the best written pieces of computer software are also software that can be copied without restriction (this includes Linux, and all the GNU software, and various software related to making music like sound format converters, sequencers, and multitrack recorders). I see no reason why the Free Music should also not produce equally excellent results.
How does one go about freeing music?
1. Set up a server
on the Internet with your music, or deposit your
soundfiles in a Free Music Archive (FMA) where people can access your
music over the net. I am currently compiling a list of sites that will
let you store your music files .
2. Include a notice
of this form with all records, tapes, CDs, and DATs
you sell/give away:
Permission to copy, modify,
and distribute the musical compositions and
sound recordings on this album, provided this notice is included with
every copy that is made, is given for noncommercial use only.
If you obtained this by making a copy, and if you find value in
this music and wish to support it, please send a donation based
on whatever you thought the music was worth to the address given
on this notice.
include a copy of this document if you wish. If you do support the
Free Music Philosophy idea, and have a site on the Internet, a link
back to this site would be useful. In a sense, that statement is
copylefting your music .
The donation request is an optional one. Restricting it to noncommercial uses is also optional (see below).
It's easy for you to say all this, but are you a musician? Do you realise the difficulty of maintaining a day job and making music at the same time?
Yes, I consider myself a musician (though some may debate classifying what I make as "music"). I am indeed consistent with the philosophy I've outlined above. The name of my band is TWISTED HELICES and my music can be copied off of the Internet without restriction . I even allow commercial for-profit copying and use without requiring payment (though even if I required payment, the freedoms I speak of in this manifesto will still exist). I make my music by sacrificing many things, sleep being primary among them. There is definitely more of a sense of fulfillment when you do something because you love it and not because you are obligated to. It is not as though I have a great day job and I'm preaching to you all. It's completely to the contrary. I am completely existential in this regard (I would not copy other people's music if I minded them copying mine). Write me personally if you want me to justify this more to you.
What will happen to the music industry in this digital age?
You, the artist, will have more power with your recordings with this approach. You can be as creative as you want and spread your music around and no one can stop you, as they did with Nirvana's _In Utero_ 12", and say "you need to change the production on this album because it won't sell as is." Perhaps we can then see individual music instead of music for the masses. Given the nature of how you can spread your music around the Internet, you will be enriching the amount of information in the net as well as reaching audiences in ways you've never dreamt of before!
In a more futuristic sense, the major record label's stronghold on what kind of music gets heard by the people will be broken. Music has become an institutionalised industry that churns out musical product. The music industry restricts copying and other uses of music in order to maximise profit, but this comes at a great cost, that of abridging the spread of creativity. This will change. It is now possible for performers to spread their musical message directly to fans via high-technology, thus enriching the artist and the music world in all possible ways. Music is about creative and passionate ideas. Not product.
ideas should freely spread from one to another over the
globe, for the moral and mutual instruction of man, and
improvement of his condition, seems to have been peculiarly and
benevolently designed by nature, when she made them, like fire,
expansible over all space, without lessening their density at any
point, and like the air in which we breathe, move, and have our
physical being, incapable of confinement or exclusive
Thanks to Shriram Krishnamurthy (firstname.lastname@example.org)
and Lynn Robitaille (email@example.com) for critical reading of this manuscript.
Special thanks to Richard Stallman (firstname.lastname@example.org) for valuable discussions.
The GNU Manifesto by Richard Stallman.
2. White v. Samsung Electronics America, Inc., 971 F.2d 1395
See dissenting opinion by Judge Kozinski.
The section in title 17 (copyrights) chapter 10 about the prohibition
of certain infringement actions.
The Right Way to Tax DAT by Richard Stallman.
A Boston Globe Article problematizing the notion of rewards.
The official GNU/Free Software Foundation www site.
List of sites where you can free your music (and those that support
What is Copyleft?
TWISTED HELICES band page.
ASCAP & BMI -- Protectors of Artists or Shadowy Thieves?
This is a review of the Maximum Rock 'n' Roll reprint titled Everything
you've wanted to know about Major Labels.
Fair Use essay by Negativland.
Free Music Progress and Prospects article.
The Economy of Ideas by John Perry Barlow.
Ram Samudrala || email@example.com
"Where there is no gift there is no art." --Lewis Hyde
Artists have been both instigators and beneficiaries of the digital revolution. But the delicate ecology that sustains that revolution is at risk of being overwhelmed by the business of art. In the war brewing over creativity in the digital age, artists are going to have to choose a side--and a lot rides on their decision.
The entrepreneurs have been waiting at the gate for some time now, perhaps fueled by journalists' obsession with how much a Web site should cost.1 Until recently, the brick-and-mortar art world had little economic incentive to take its online counterpart seriously. But now that a critical mass of museums has taken the plunge and commissioned artists' Web projects, the more adventurous dealers are testing the waters, wondering whether they should cast in a hook to see if any forward-thinking collectors would take the bait. Some artists--especially those who already have a beachhead in the art market--are delighted at this prospect. But exchange economies tend to steamroll gift economies; if the art market does take root in cyberspace, we have to make absolutely sure that it doesn't overrun the precarious ecosystem that gave rise to the rich global community we call digital art. For property, intellectual or personal, is the enemy of art.
This essay offers neither a Marxist attack on personal property nor a rosy vision of George Bush writing artists a fat check every year. It is simply an acknowledgment of the fact that a gift culture dies if people stop giving. Making art into property helps plenty of folks--even a few artists. The problem is, it cripples artists more than it helps them, by covertly impeding their power to create, to get paid, even to give.
Artist Ilya Kabakov claims that our society needs artists not to create more information or imagery--we've got enough of that already--but to recombine and envision the culture we already have. Fortunately, today's artists have tools that enable them to reinterpret culture as never before. Digital sampling has transformed music, data mining is a critical piece of Internet art, and the reinterpretation of classics is a rich source of contemporary literature. Yet as artists have been moving in this direction, lawyers have been moving in the opposite one, towardprohibiting the re-use of culture. So they've sued 2LiveCrew for sampling _Oh Pretty Woman_, Arriba Soft for re-framing Leslie Kelly's photos, and Alice Randall for rewriting _Gone With The Wind_ from the slave's perspective. Property--intellectual property--is their rationale.
Intellectual property lawyers running amok have extended the term of copyright eleven times in forty years. It is literally illegal to write software to fast forward past commercials on your DVD. If Senator Fritz Hollings' bill prevails, it will be illegal to sell a fully programmable computer that can run multimedia.
Intellectual property isn't all bad. We probably should fine those guys on Canal Street who sell hot copies of Photoshop for $30. The supposed attempt to protect *artists* via expanded copyright protections, however, is just a smokescreen for guarding corporate profits.
The root of this problem is not the "intellectual" part of intellectual property, but the "property" part. For intellectual property isn't the only possible pollution of the creative ecosystem. The art market's presumption that art is physical property also serves as a smokescreen--and not just for digital artworks.
In principle, there is nothing wrong with wanting to make a living as an artist. What's wrong is the perception that our society's art market will ever make that possible for more than a token few.
The folks this market benefits most are the middlemen: auctioneers, dealers, critics, art school faculty. The meager salary I reap as a curator is premised on a plentiful supply of art to choose from, good and bad. If there are only three artists in town--no matter how good they are--you don't need museums and magazines to point them out to you. The plentiful supply of art in our culture is the product of the unrecompensed labor of countless artists working away in their studios. For no great art was ever made in isolation; indeed, good art plays off the expectations developed by bad artists. There is no way for a market-driven art world based on finding and immortalizing superstars to survive without a rich culture of art to draw from. Yet to say the art market helps the starving artist is tantamount to saying the lottery helps the poor: it profits a tiny percentage, and distracts the rest from their impoverished social position with dreams of sudden affluence.
Leaving aside artists as a class, the evidence that the market has encouraged art that better serves society is pretty scant. It's possible, to be sure, that the need to find a marketing niche is responsible for the pluralism apparent in recent contemporary art. Unfortunately, artists who find such a niche also find themselves caught in what Joseph McElroy has called "brand slavery"--the inability to sell works outside of a signature style for which they have become known. The market also discourages artistic paradigms that depart from the model of solitary genius; I've had dealers admit to my face that they can't take on collaborative work because it won't sell.
Even those selected by the market can end up hostages to it. Musicians and writers gladly sign away their rights for the chance to publish with a major record or book label. Even terms written explicitly into a contract can be meaningless if the cost of litigation is prohibitive for the struggling artist. In my gallery experience as a visual artist, I've had to build pedestals, repaint walls, design, print, and mail my own announcements--and then lose 50% commission on anything I sell.
But what proof is there that artists would bother to make art--much less curators exhibit art and critics write about it--if there were no market to sell it and no copyright to protect it? It turns out there is a vast and vibrant artistic community for which the number of artworks ever sold to a willing buyer can be counted on one hand. Though scarcely a decade old, this community has produced more artistic genres and manifestos, public exhibitions, and critical writing than the market-driven artworld has in the past three decades. It's been more democratic and geographically diverse; statistics indicate that its audience is at least as large as visitors to galleries and museums. This body of evidence is right under your fingertips. It is the Internet.
The invisible hand is a theory. Copyright is a theory. The benefit of propertyless art is a fact--a global, instantly accessible fact.
But that may change, now that Internet art is finally gaining a foothold in galleries and museums. Ironically, it is online artists who have the most to lose from the grafting of an exchange economy onto this extraordinary refuge from property. For market influences threaten to carve up their vital public sphere into separate domains of private ownership. Say goodbye to connective art like Shredder, Netomat, and the Impermanence Agent. Internet artists eager to usher sales of their work may end up trading their wildlife refuge for a zoo.
Can't Internet artists have their cake and eat it too--sell their work and still have it accessible online? The problem is, dealers who play by the rules of property will want to offer collectors exclusive viewing rights. Even if artists try to sell those rights themselves--say, by offering art online via subscription or pay per view schemes--they may find themselves in the same predicament as their dot-com predecessors. Seventy percent of adults can't see themselves paying for *any* form of online content. Conditioned by Napster, free e-mail, and open source software, the general public has got it into their heads that the Internet is for everyone. nd they're right.
Property's apologists might insist that giving art the status of property doesn't impede its ability to be given away. Wrong. Artists *are* constantly giving, in the sense of working without pay--yet property law makes sure that artists aren't the ones empowered by giving art. If you make art to give away, you won't show a profit on your income tax return, and the IRS will reject as a "hobby" expense your attempt to write off your studio rent. Even if you show a profit, you can only write off the cost of materials for any charitable donations, whereas the *collector* of your work can write off the market value. So if Robert Rauschenberg gives a white painting to the Menil Collection, he gets a $100 tax break to cover the stretcher bars, canvas, and tube of titanium white. If he gives it to a Rockefeller and he gives it to the Menil, Mr. Rockefeller gets a $100,000 tax break.
If you think artists don't get an even break giving away art while they're alive, just wait until they're dead. My father, a second-generation abstract painter, was well known in the 1950s, but his market shrank when he moved away from New York City in subsequent decades. Nevertheless he continued to paint prolifically and had hundreds of unsold works in his studio when he recently died. As heirs, my brother and I were faced with the dire prospect that the IRS could take his asking price for a painting, multiply by the number of paintings in his inventory, and then levy taxes on this multimillion-dollar figure. But paintings aren't chairs or bolts; you can't just liquidate them at the drop of a hat. I'm sure my father thought of his artistic legacy as a financial safety net for his children, but it has become a road straight to bankruptcy.
Nor are there many options for artists and their heirs to avoid being saddled with "property debt." Establishing a foundation to support a dead artist's work sounds nice, but it requires gobs of liquid capital and entails self-dealing rules that prevent beneficiaries from being decision-makers. Non-traditional bequests are even more costly; gay or lesbian partners of deceased artists, for example, aren't allowed the million-dollar tax exemption of legal spouses. After participating in a conference on estate planning for artists, painter Philip Pearlstein summed up his assessment in the handbook published by the conference's organizers:
"When I die, my studio will have to be emptied of all my paintings....once the stuff is in the moving van, where will it go? After all these years of painting, have I simply created a terrible burden for my wife and children? They will have to give directions to the driver of that van. It almost seems that the easiest solution would be for them to take a few souvenirs and have the rest driven to the town dump."
Unfortunately, even Pearlstein's draconian solution wouldn't prevent his family from paying inheritance taxes, for they're based on the estate's value at time of death. You can't give property away to avoid inheritance tax; you can't even avoid throwing it away. Attorney John Silberman once asked the IRS how they would judge a body of works that were made purely for art's sake, with little commercial potential. The response was, "If you do not want to pay taxes on them, destroy them before you die."
Which is exactly what artists should do: destroy their artistic property before they die. But how can you destroy artistic property without destroying art?
THE OPEN LICENSE
The answer is with an open license. Open licenses have rarely been applied to art, but they've been a driving force behind much of the software that runs the Internet. The archetype for open licenses is Richard Stallman's GNU Public License, which when attached to a piece of software guarantees that all works based on that software must inherit the same freedoms embodied by the original. Such freedoms can include a requirement that the source code be *transparent* to anyone who wants to see how it was made; that it be *recombinant*, meaning that anyone can recombine elements of the original product to make a new one; that it be *credited*, so there is a record of all the collaborators who may have modified an original product; and finally that it be *circulating*, that recipients of the code not attempt to prevent others from freely distributing any derivatives based upon it.
While all of these terms are potentially applicable to code-based products like Internet art, the last criterion is applicable to any form of open culture, from paintings and sculpture to academic research and argument. Soon, artists will be able to learn about and apply such open licenses, thanks to the efforts of a group of affiliates of Harvard's Berkman Center for Internet and Society who will soon launch a clearinghouse for open licenses at Creativecommons.org.
I'm not proposing that creators be locked into open licenses for all their projects. Individuals could choose on a project-by-project basis which works to be open licensed and which to be distributed based on the closed terms of traditional property. I'm just not sure there's a good reason to call the latter work art; "commercial art" strikes me as a contradiction in terms.
"You can't fight capitalism," I hear some readers say. "The art market has assimilated corners of fat and scribbled blackboards by Josef Beuys, even though there's little evidence he wanted them sold. If a dealer wants to sell your work, they will." Yeah, unless you make it illegal. The GNU Public License uses a strategy called copyleft--an ingenious twist on copyright--to enforce openness. Creators of copylefted products retain their copyright so they can sue anyone who tries to constrain access to work they distributed for free. Open licenses won't put dealers and appraisers and the rest of the middlemen out of business. But it will release the lock the market has on deciding the fate of art--just as GNU/Linux has released the Microsoft's lock on the fate of software.
But why would artists choose open licenses? How would they pay the studio rent and DSL bill? The same way their parents' and grandparents' generation did, the same way the overwhelming majority of them do now: a day job. Day jobs suck, but they help reinforce the line between the choices artists make for commercial reasons and the choices they make for their art. Ironically, Internet artists often complain about having to hold down a day job, despite the fact that they're the artists whose skills put them in the best stead for landing lucrative part-time jobs. Part of the problem is the expectations of comparable wage from the dot-com boom. Something tells me that Merce Cunningham and Nam June Paik never bitched about how much more money they could have made doing developees or smashing pianos for the commercial world.
THE BENEFITS OF GIVING
Artists aren't the only ones whose illusions would be shattered by taking away the false promise of commercial success through selling art. Up to now, capitalist societies have been able to excuse their unwillingness to support artists by entrusting that responsibility to the art market. America, for example, ranks somewhere alongside Iran when it comes to public sponsorship of the arts: 6$ per capita, compared to Canada's $46, France's $57, or Germany's $85. Our policymakers don't see this as a problem because they're under the impression American artists make a living on the market. When I try to breathe some reality into the stratospheric deliberations of NEA chiefs, copyright registrars, and arts organization policy wonks, they look at me like I'm crazy in the head. Without the pretense of market compensation, the wealthy and powerful might be under a little more pressure to sponsor free health care, grants, and other mechanisms to sustain this invaluable cultural production. But even if they don't, the difference would only be felt among the tiny percentage of artists who currently make any substantial living off their work. And even those artists wouldn't get pinched by the unfair laws preventing them from empowering themselves through giving.
There are also individual benefits to giving--altruistic and economic. To exclude art from an exchange economy doesn't imply it will have no economic value; it's just that its economic value won't be determined by exchange. I'm not talking about the benefits you get by being an Andrew Carnegie or John D. Rockefeller Jr. Those people gave with the expectation of getting something else in exchange: tax writeoffs, spin control, the ability to sleep at night. I'm talking about the currency of gift economies--communities that circulate rather than exchange gifts. Achilles and Odysseus had Kleos. The Impressionists of fin-de-siecle Paris had the Troc. Slashdot has egoboo; Everything2.com has experience points. They mean respect, they mean prestige, but they also mean people will listen to you and talk about you. And those things are just as important to the starving artist as the bread on his table. As writer Joline Blais puts it, to sell the products of artistic labor is to take away artists' power as the source of the gift.
Kleos and egoboo don't pay the bills, but no middleman has a cut of them either. And they *can* lead to grants, commissions, patronage, and other financial rewards that aren't based on property. Yet any creator who plays according to the rules of gift economies should be judged according to them--in the eyes of the Copyright office and IRS, among others. All of culture, whether protected by closed copyright or not--Mickey Mouse, Bart Simpson, the whole kit and kaboodle--should be fair game when it comes to appropriating material for an open-licensed work. Open-licensed artworks would have no clear sales value, and hence not be taxable as income or inheritance. If you get a grant to help you give more things away, you shouldn't pay tax on that money. The primary job of the executor of an artist's estate should be to give the inheritance away in the manner most consistent with the artist's intent.
There should also be consequences for the receivers of these gifts, who would be beholden to the circulation requirement of open licenses. For museums to acquire open-licensed art would require them to transform from collecting institutions to circulating institutions. This change would be just as dramatic for paintings as for online art, for museums commonly exhibit less than ten percent of the works in their collection; the rest gather dust in basements and warehouses. No schoolchild will ever see inspiration in a sculpture banished for eternity to a wooden box. Paintings on a warehouse rack are not common culture, but a dollar value in the assets column of some annual report handed out at board meetings. Art is cultural heritage, not an investment to be squirreled away in a vault as a form of commodity speculation. To acquire an open-licensed work, museums would have to drastically reshape their acquisitions policies to ensure the works in their collection spent the maximum possible time on public view--if not on their own walls, then on loan to other institutions. In return, however, such *circulators* would qualify for regulatory tax benefits of their own.
WEAKNESSES OF THE LICENSE APPROACH
Voluntary licensing doesn't require any changes in intellectual property law; this is both its strength and its weakness. As the name "Creative Commons" suggests, open licenses have the potential to demarcate a public space immune from the restrictions of intellectual and physical property--in the same sense that a public park like the Boston Commons is a communal territory available to all citizens equally. But the rest of the digital world is already functionally a commons anyway--it's just not legally one. Software piracy is rampant; Napster and its variants permit unlimited music sharing; and Web designers routinely pilfer code from other online sites whether it's copylefted or not.
That leaves an enforceability dilemma for legislators. They could choose not to put any muscle behind enforcing their own laws protecting intellectual property, in which case those laws will only hurt law-abiding citizens. Or they could choose to enforce them by the only means possible: drastically curtailing the freedoms netizens currently enjoy in order to prevent unauthorized use of digital culture. Senator Hollings has already proposed such legislation: the Consumer Broadband and Digital Television Promotion Act. This act would mandate copyright-sniffing chips in every PC and make circumventing them illegal--effectively forbidding the sale of fully programmable personal computers and eliminating any hope of innovative approaches to recording, playing, cataloging, and distributing music or movies. To disable the Internet to save EMI and Disney is the moral equivalent of burning down the library of Alexandria to ensure the livelihood of monastic scribes. Unfortunately, these legislators don't know enough about the Internet to understand why Webarchivist and Google deserve more protection than Britney Spears and The Little Mermaid. It won't do artists any good to copyleft their movies if personal computers can only play videos produced by Hollywood studios.
The mutability of digital media creates another liability with voluntary licenses. Suppose digital artist Geoff Kuhntz scans a copyrighted postcard of seven puppies on a cushion, then uses Photoshop to replace all but one with a flowery background. Suppose Kuhntz then offers his image free of restrictions on a clearinghouse for open culture like Creativecommons.org. He's free to do that, because his "transformative use" of the original image qualifies for fair use protection against a copyright suit. Another artist downloads it, agreeing to abide by the terms of the license. She decides it would look better if there were seven puppies instead of one, so she clones them--and wham, gets hit with a copyright infringement suit by the original artist. You can imagine the same scenario taking place in other media--for example, if an excerpted Philip Glass riff were re-sampled into a minimalist composition that rivaled the original, or if a work of online art that depended on random combinations of image and text from other pages accidentally re-created something dangerously close to one of its victims' Web pages. For digital culture, fair use is a porous category, which makes open licenses no guarantee you won't be sued.
As Creative Commons consultant Wendy Seltzer has
observed, these practical obstacles don't necessarily mean the open license
approach is wrong, just that it's incomplete. Modest readjustments are
not an adequate solution to a legal framework that is out of touch with
digital reality. To complement open licenses, we need not a legal or illegal
intervention, but a meta-legal
The solution I'd suggest to the digital liability of open licenses is as practical as it is radical: a "digital sanctuary." Digital objects are like rabbits--they reproduce easily. It is this promiscuity that creates practical problems for the commons approach. Let's say you take your pet rabbit for a walk in a public commons. If it gives birth, the offspring are still your property, and you can prosecute anyone who takes them from you. But if your promiscuous bunny's offspring happen to hop their way into a wildlife sanctuary, they could go from property to heritage--at which point your exclusive claim on them could vanish.
The Internet could serve as such a sanctuary for digital creativity, if our legal system were to treat any snippet of culture that found its way online as communal heritage. The effect of this rule would be that any form of streamable creativity, be it a text file, JPEG, or MP3, is automatically copylefted. Streamable versions of fixed formats--such as the MP3 of a live concert or Quicktime bootleg of a movie playing in theaters--would be similarly protected, whether they were streamed by the fixed-format's rights holder or by an unauthorized fan.
While this proposal would radically change the judicial understanding of the Internet's role in stimulating innovation, it wouldn't change the actual everyday use of the Internet very much at all. Although you'd never know it by listening to Hilary Rosen and Jack Valenti, most citizens treat the Internet as a sanctuary already, surfing clear of online content that costs money.
In a global network, of course, enforcing open access--what Stanford cyberlaw guru Lawrence Lessig has called "copyduty"--may be as difficult as enforcing closed access. To this problem I propose a compromise. Hollywood, the record labels, and anyone else who wants restrict access to culture can try out innovative copy-protection schemes online, and hope that Jon Johansen doesn't crack them--or more importantly that his doing so doesn't cut into their profit margins. This "post at your own risk" policy would mean that the circumvention of locked culture would be legal, but not guaranteed. A pet owner may choose to walk her bunny through the sanctuary with a leash--but if that bunny wriggles and hops away, the owner has no legal recourse to getting it back. Should the bunny emerge from the sanctuary and re-enter normal space, the owner can again assert property rights--and the same would be true of digital culture. Under this system, netizens could post endless remixes of _The Phantom Menace_ (vhs/ntsc) online with impunity, but once they tried to distribute them in movie theaters, George Lucas could sue them for infringement.
The digital sanctuary is not a wilderness, but a wildlife refuge--not beyond the law, but protected by it. Legal paradigms like the protection of privacy and the prohibition on dangerous speech, which protect the public rather than rights holders, may still apply. We stamp out forest fires when they threaten parks; maybe we should also stamp out computer viruses that threaten the network. It's not entirely clear how to enforce these protections, but it is important to note that the copy-protection schemes proposed by Hollings aren't the way.
Of course, the media conglomerates and their content
providers can continue to make money off of the things that *can't* be
streamed: immersive projections in big theaters, live concerts, leather-bound
books you can read at the beach. Painters and sculptors would still have
a choice of open or closed licenses for the products of their labor--they
just couldn't enforce copyright over online digital reproductions of their
work. For their part, Internet artists determined to make a buck could
put digital leashes on their Web sites and hope for the best. Or they could
be grateful for what they have: a refuge from property, poor in cash but
rich in gifts.