following text is an edited transcript of the panel discussion Share/Share
Alike, which took place on November 21, 2003 at Eyebeam in New York
and republished with permission from Eyebeam, New York (http://www.eyebeam.org).
Peretti, Director of R&D, Eyebeam
FEATURED SPEAKER: Prof. Lawrence Lessig
Lessig is Chairman of the Board of Directors of Creative Commons,
Professor of Law at Stanford Law School and founder of the school's
Center for Internet & Society. He was named one of 50 top innovators
by Scientific American
in 2002; one of National Law Journal's
top 100 most influential lawyers in 2000; and one of Business
Week's E-Biz 25. Lessig received a BA
in economics and a BS in management from the University of Pennsylvania,
an MA in philosophy from Cambridge, and a JD from Yale. He is one
of the country's leading commentators on legal aspects of new communication
technologies in cyberspace. He's the author of many publications
on cyber law and cyberspace, including two books: The
Future of Ideas: The Fate of the Commons in the Connected World and Code and Other
Laws of Cyberspace.
Blais, co-founder of the Stillwater Program at the University of
McLaren, founder and editor of Stay Free Magazine (http://stayfreemagazine.org)
and curator of the exhibition "Illegal
Ippolito, Associate Curator of Media Arts at the Guggenheim Museum
you need permission before you capture someone's image and share it
with others? This was extremely important to some people who thought
they lost their soul if their image was taken without their permission
and had a very strong interest in asserting that permission was needed.
The courts had to decide: do you need permission to take -- do you
need permission to pirate, we might say -- images before you capture
them on a Kodak?
LARRY LESSIG: In 1839, Louis Daguerre
invented the daguerreotype, the technology to produce photographs.
This was an expensive, clumsy, very difficult to integrate technology,
and so the market for photographs looked something like this graph.
Then in 1888, George Eastman produces a new technology, the Kodak
-- inexpensive, versatile technology that consumers can use to produce
and capture images. The market takes off.
the time Eastman makes his invention, there was a decision that
the courts had to make. Do you need permission before you capture
someone's image and share it with others? This was extremely important
to some people who thought they lost their soul if their image
was taken without their permission and had a very strong interest
in asserting that permission was needed. The courts had to decide:
do you need permission to take -- do you need permission to pirate,
we might say -- images before you capture them on a Kodak? The
court said no. You didn't need permission to take images. Images
were in this sense free.
is that freedom, too, that is responsible for the extraordinary
growth of the market for photography. For we can imagine what the
world would have looked like if the courts had gone
the other way. Imagine if the courts had said you needed permission
to take or to pirate images before you actually captured or developed
them. We can imagine the law attempting to support this regime through
lots of effective regulation. For example, there could have been
a Daguerre Machine Control Act that would have attempted to control
when Kodak was allowed to develop images, depending upon whether
permission was given.
The results of this would be obvious. The
market would not have looked like a steep upcurve [free] -- it would have
looked like relatively flat graph [unfree]. It
would have grown, but it would have been small. It would have been
professional and commercial, not non-professional and consumer-driven.
It wouldn't have been a democratic technology for capturing and
the early 90s, a documentary filmmaker named John Ellis shot a documentary
film about the San Francisco Opera. He wanted to capture the Wagner
Ring Cycle as it was being produced at the San Francisco
Opera. And in one scene, he captured the brilliant combination of
an image of stagehands playing checkers while the opera was being
played in the background with a television set in the far corner
of the room, on which The Simpsons
were broadcast. So, for three and a half seconds this Fox Studio
content was on the screen of his shot -- barely visible, but you
could make it out. Ellis went to Fox Studios and said, "I need
permission to include your content in my DMCA -- content in my film."
That permission was granted under the condition that he pay for
this three and a half seconds; a fee of ten thousand dollars. Ellis
responded, "I don't have ten thousand dollars to pay for three
and a half seconds in this film -- a barely visible image of The Simpsons.
I don't have that kind of money." Fox's reply was , "I
don't give a damn what you have money for. It's ten thousand dollars
or you can't use our content."
is lots of piracy out there, tons of it. There is theft of content
all over the place. We often have an image of the theft, which is
unrelated to the full range of the kind of "piracy" that
is going on. An example are these images of George Bush and Tony
Blair edited to make them appear to be singing a love song to each
other (http://www.atmo.se). Extraordinary
piracy; illegal under the law. Extraordinary creativity enabled
by this rip-mix-and-burn technology -- technology that defines a
potential culture where people can use speech in different ways,
but ways that the law defines as illegal now. Piracy. This democratic,
technologically enabled potential is rendered illegal by the lawyers.
are stories; here's an argument. We should understand the way
this rule of copyright law has changed. The first way to understand
it is to make two distinctions: first, the distinction between
commercial culture and non-commercial culture, if that is sensible
anymore; and second, the distinction between publishing and transforming,
or taking an exact copy of something versus changing it into something
you take those two distinctions and map them together on a single
page, it looks like this:
point we should begin to recognize in this debate is how radically
this map describes the changes of the law in just 200 years. When
copyright law was born, all it regulated was the commercial publication
of someone else's work.
left free the act of transforming someone's work, even for a commercial
purpose. You could translate it, or abridge it, or take a novel and
turn it into a play. Copyright had left free the non-commercial transformation
of culture. You could sit around and criticize a story, retell the
story differently, enact it in a way that made it sound different
to you and your friends around you. And because copyright required
an affirmative act before you got the benefit of the law's protection
-- because you had to actually register your work and claim protection
-- the vast majority of published work was never protected
by copyright at all. In the first ten years, 1790-1800, ninety-five
percent of published work did not enjoy the benefit of copyright protection.
Which means that non-commercial publishing was still totally free
from law's regulation. In the first hundred years of copyright, this
map changes: the law is expanded to reach commercial transformation,
but leaving free non-commercial transformation.
1909, an accident happens and the law is changed to refer not to publishing
anymore, but to copying. It is an accident because copyright law would
have used the word copy to refer to what you did to art -- you copied
a painting or copied a statue. The law referred to what you did to
the written word or a book as publishing. You didn't copy it, you
published it. But the new law incorporated copying rather than publishing,
and that had an unintended consequence-- that the scope of the law
depended upon the technologies for copying.
first this didn't matter much because the only technologies for copying
were big machines, and those machines were typically owned by publishers.
The law regulated publishers and commercial activity primarily.
the point is that as the technology of copying changes, so does the
law. As the technology reaches more broadly, the law reaches more
broadly. As the Xerox machine begins to be very dominant in 1970,
you have a weakening of the line between copyrights regulation of
commercial activity and non-commercial activity, since the law has
to worry whether copying books on a Xerox machine interferes with
commercial copying. The law expands.
the birth of the Internet, we have a very radical and unintended
change. The law regulates everywhere because everything you do in
the context of this technology produces a copy.
make this absolutely clear and think about an example: a book before
the Internet. Here are all the uses of a book.
of these uses are unregulated. They are not fair uses -- they are
unregulated uses. For example, if you read a book, give somebody
a book, sell a book, sleep on a book, it doesn't produce a copy
-- it's unregulated by copyright law. These are uses of creative
work that the law leaves free. At the core of these uses is a set
of uses that is properly regulated by copyright law.
example, if you publish a book, this is properly regulated by copyright
law. You need permission to publish. Our tradition also recognized
a thin sliver of exceptions called "fair use" -- uses that
otherwise would have been regulated by copyright law, but must remain
free according to the law. For example, if you quote my book in the
process of critically reviewing it, i.e. negatively reviewing it,
that is a bad idea (laughter). But you could do that whether you have
my permission or not -- even if I say you are not allowed to do it.
The law says that even though you are copying my book -- sections
of it, to make the review stick -- I have no control over that copy
because it is important for free speech reasons that copy occurs.
This is a sliver of exceptions, but the point is to understand that
these exceptions don't describe the full range of freedoms that we
have with content. There were lots of uses which the law left unregulated.
the Internet, where every act is a copy. It sounds absurd that the
law would recognize this as a significant distinction, but the law
is guilty of many more absurd things than this. Every act is a copy,
which means this presumptively unregulated space becomes presumptively
regulated. The very same uses that you were entitled to independent
of the law's regulation before the Internet, you are now, in the
context of the Internet, granted only if you can justify them through
the thin sliver of fair uses.
means that in an important and unintended way, the law has been
bloated to give copyright owners -- or media companies that hold
copyright -- a much larger claim over the creative process than
they have ever had in the past. When you add that explosion of legal
protection to the radical transformation that has occurred in the
concentration of media, those two facts put together produce a conclusion
that we have to put into the center of this debate. Never in our
history have fewer exercised more control over the development of
our culture than now. Not even at the time when copyrights were
perpetual, because even then, they were just regulating a tiny aspect
of copyrighted works used, namely publishing. The point is that,
as the law has expanded and as media has become more concentrated,
we live in a world where the ability to create increasingly depends
upon getting the permission of somebody else. We move from a free
society to a permission society. From a free culture where your
ability to build on other people's works is defined by the limits
of the law, to a futile culture where the law encompasses all of
this property in a way that makes it extraordinarily hard for creators
to build upon it.
lawyers hear this story, their first response is to say, "Oh,
what are you talking about? The law protects fair use. We don't
have to worry about all of these changes, because the fair use provisions
of the copyright law guarantee the freedom a democratic society
needs. So, don't worry if the law presumptively reaches all this
culture. You can always claim fair use in defense" -- a tiny
sliver of an exception.
problem with this claim -- that our fears are overblown, that the
First Amendment fundamentally protects fair use -- is that it is
a claim made by people, lawyers, who have no conception of the burden
or costs that they impose on the process of creativity. It is a
claim made by lawyers who don't recognize how bad and expensive
the system of legal protection is in the United States right now.
Ellis is one of the people who should have been able to rely upon
fair use when he wanted to use three and a half seconds and was
told he had to spend ten thousand dollars for that. He should have
been able to invoke the law of fair use. In fact, when I wrote about
this story, Judge Poshner responded with a very negative review
of the account by saying, "Obviously, fair use protected John
Ellis' use of that work, so there is no problem with copyright law.
It should be a fair use defense."
I asked Ellis, why didn't you rely on fair use? His response was,
"The Simpsons fiasco
was for me a great lesson in the gulf between what lawyers find
irrelevant in some abstract sense and what is crushingly relevant
in practice to those who actually are trying to make and broadcast
documentaries." He had asked one of my colleagues at Stanford
Law School whether this would be fair use and "he confirmed
that Fox would depose me and litigate me to within an inch of my
life, regardless of the merits of the claim. He made it clear that
it would boil down to who had the bigger legal department and deeper
pockets -- me or them."
The legal system is structured so that the fair use right is the
right to hire a lawyer, and the right to hire a lawyer is a right
to hire somebody who will say to you: "Well, you want to be
able to use this content? Here is what you've got to do. Get permission."
The fair use right turns into a machine to turn all users of content
into people who, Oliver Twist-like, turn to the content owners and
say, "Please, Sir, may I?" Yet, the definition of what
fair use was supposed to be was a protection that guaranteed the
right of people to use content without getting permission first.
idea that fair use solves the problem is true in the La-La-Land
of lawyers, but has no relevance to the actual way in which content
gets created. In the real world, what happens in the face of a fair
use claim is that publishers say, "I don't care about fair
use. I just want you to guarantee I will never be sued."
than embracing fair use as the solution to all of our problems,
the first thing we have to do is to liberate ourselves from the
image of fair use as our savior. Would the world be better if we
had more lawyers defending our fair use rights? No, the world would
be worse. We would have even more of a permission culture. Rather
than relying on fair use, we should be evoking this simple idea:
it's not fair use we should be appealing for, it's a stronger, more
robustly defined right of free use of free culture. Not free use
that says there is no copyright protection -- a free market is not
a market where property doesn't exist. A free culture is a culture
that has lots of property in it. The point is that the restrictions
of that property are balanced by a deep sense of the importance
of access to culture for the purpose of building and transforming
need a way to build this appreciation, a way to build the idea that
there has to be a balance between the extremism of property and
the extremism of total piracy. A balance to this debate that doesn't
exist right now. Right now, the way Washington views this issue
is to think that it is a choice between property or piracy. And
because they have a vision of piracy different from the example
that I just showed you, they choose property. We need something
in the middle between these two ideas. One idea of that something
in the middle is the "Get Creative" flash video viewable
isn't remaking the world by changing the law yet. It's about remaking
the world through artists voluntarily signaling to others that they
want a vision of copyright that is balanced -- more balanced --
through this voluntary expression of a commitment to opening their
content up in certain ways. Feeding a space of free culture that
other people can build upon, freely knowing that the permission
here is granted beforehand -- meaning, you don't need a lawyer to
movement branches across the world. A project called the International
Commons has taken these licenses and begun to port them into 40
countries. These will be released in the next six months, so that
people from around the world can express the same freedoms using
their own local law and this expression of freedom becomes enforceable
across the world --as a way of making content available and as
a way of showing the importance of balance in a debate that has
become so extreme that balance isn't recognized.
the first nine months of this project, over a million link-backs
to these licenses have been established on the Net. That is both
an undercount and an overcount. An undercount because people will
often put up a ton of content and link it all with one license.
An overcount because many people have these licenses built into
their blogs and although it might sound repetitive to have every
single page of a blog licensed, it is a number.It's a pick up
of people who are trying to participate in this expression. And
an increasing number of people are doing it in the context of
recent favorite was Loca Records
who released a bunch of their content all under a Creative Commons
license embedded in the code, which will enable this content to be spread
with MP3s that have Creative Commons licenses attached and the
licenses will carry the permissions inside of MP3 readers so that
people can identify the content that is available.
this is just one idea. And while my brand is pessimism -- usually
I don't think any idea will work -- here is one space to show
people artists who have willingly made content available in terms
other than the terms given to us by the RIAA and who believe in
a tradition where you can take and build on content without the
Viacom Legal Department backing you up.
ask, "Is this going to be enough?" And they ask it especially
in the context of other areas of this battle, which have been
not as successful as this one. For example, the extraordinarily
personal defeat that we had in the case of Eldridge v. Ashcroft
in the Supreme Court -- attempting to get the Supreme Court to
stand up for the principles of the founders of our Constitution
who insisted that copyrights be limited and that Congress could
grant a copyright for limited times. But conservatives on the
Supreme Court most grotesquely looked at that claim as an appeal
to original values and said, "No." Seven to two, the
court refused to restrict Congress's bloating of copyright law.
the middle of this personal frustration over the defeat, somebody
said to me, "Tell me, when was the last time the court ruled
for principle and against all the money in the world?" I
thought about it. I'm one of the last naïve law professors
believing that what the Supreme Court does is rule for principle.
I asked myself, what are the important cases? When they ended
segregation, it wasn't a bunch of rich racists on the other side
but a bunch of poor Southerners who they were ruling against.
So when was the last time the Supreme Court ruled in favor of
principle against all the money in the world? I don't yet have
an answer to that.
Except that this suggests an answer
to how this campaign has to be waged. Not in the context of legal
battles, not in the
context of ways to use law to get the world changed -- that strategy,
I increasingly think, is hopeless. But instead, in a context where
we get beyond the obliviousness of Republicans and the capturedness
of Democrats to this issue. We need to get beyond the place of
politics into a place where creators demonstrate how they think
the field of creativity should be governed. Governed by a concept
of what Richard Stallman repeatedly forces us to focus on -- freedom.
Creators who want to show that freedom, want to give that freedom,
and expect to get that freedom from others who would be part of
this creative process.
is the freedom that defines a free culture. A freedom that has
been our tradition and yet is being taken from us. Not because
of a revolution via the political process in favor of that retraction,
but because the unintended effect of the law gives those with
the most power in this debate the opportunity to say, "Defend
us against the pirates or you will defeat the system we call
property." We have to redefine piracy. We have to show
people that the opportunity to build on our culture is what
a free culture is about. And the people who do that will be
creators, artists, who demonstrate by their actions the tradition
that we have to reclaim! Thank you very much.
JONAH PERETTI: Thank you. All the respondents on this panel
are fighting to preserve free culture or promote free culture
in their own way, particularly in the area of new media art.
The respondents will present some projects they are involved
with. With these projects, they are fighting against the corporate
control of ideas and media and trying to figure out ways to
promote new kinds of collaboration and creative expression.
Eyebeam, we support dozens of engineers and artists in our residency
program, we publish books, we have an online forum -- which
also is presenting this panel -- and we have education programs
where students are learning new media production and new media
literacy. We are reaching a point now where we are trying to
figure out, how should all of this work be licensed, how should
it be distributed? What are the kind of strategies that might
help us to support artists' creative work and help enrich the
public domain? Some of the ideas that you suggest on this panel
we might actually implement -- make sure that they are good!
first speaker will be Joline Blais, who is the co-founder of
the Stillwater Program at the University of Maine. She will
present The Pool,
an online environment that stimulates and documents collaborative
art, text, and code.
JOLINE BLAIS: Thank you. I want to respond to the request of
artists and of people who are not yet artists but may become
artists, to build a free culture. I think that The Pool is
one architecture that attempts to build that culture. What Larry
presented to us were examples of the barriers to creativity
that are legal. What I want to propose is that the barriers
are not just legal, but ideological. I want to mention two types
of ideological barriers to creativity.
Pool [click image for complete view of interface]
first is that we live in a culture that largely interpolates us
as consumers, as opposed to producers. We are used to consuming
culture produced by corporations that take our "public domain
stories" and then repackage them and sell them to us. And
second, we live in a culture that uses the paradigm of a star
system of single artists, rather than the idea rooted in a tradition
of people such as Homer, who is not a single author but an entire
community that builds a story. I remember the sort of exam question
that a student would respond to by saying, "Well, in The
Iliad, Homer…" The Iliad
was not written by Homer, but by a people of the same name. It
wasn't written by a single person, but by an entire community
of listeners and speakers and people who passed the story around
from context to context, and actually built that story for us.
The idea that culture comes from a single person who is a star
and has some kind of specific skill they train their whole lives
to bestow on the rest of us -- the broadcast model of producing
culture -- is still pervasive.
think what The
Pool does most accurately is show what is needed to redefine
the paradigm of culture production. As I said before, the battle
is not just a legal battle. What we are trying to do here is find
a space and a way of working that brings more people into the
process of creativity -- that connects them with each other, that
allows them to contribute in different ways, and that allows a
whole culture to be built upon different seed ideas and different
iterations of a particular project.
have designed, at the University of Maine, an architecture that
tries to break that paradigm of the single artist and bring culture
back to communities of people that can create together in different
kinds of ways -- The
Pool, which is an architecture
for asynchronous and distributed creativity. I will describe the
project and then talk about the implications. http://river.asap.um.maine.edu/~jon/pool/splash.html
is an Art Pool, a Code Pool, a Text Pool, and a Theme Pool. In
the Art Pool, you see floating, swimming texts or words on the
left hand side -- these represent art projects. If I roll over
a particular project, I see a description of it. Contributors
to The Pool can contribute just a paragraph idea
-- an "Intent," or paragraph description for what might
be an artwork. Then they get attribution for that idea. Somebody
else can pick up that idea, take off and say, "Well, you
can implement this with PHP, with a database, and a little bit
of a Flash interface," and that would be an example of an
"Approach," or the next stage to this project. Then,
a third person might come along and say, "Hey, I have a different
approach. I think you should not use PHP, but you should use ASP,
and so on." A fourth person comes along and says, "I'm
going to build this and I'm going to do it this way." The
person who actually builds it and makes it work is producing a
we have here is a model of artwork that is done in stages:
"Intent," a description of what it might be; an
"Approach," an idea of how it could be implemented
-- sometimes with visuals; and, finally, a "Release,"
which happens when you finally get the working artwork online,
in public or however you want to distribute it. There is also
a scaling system -- any project that is higher up on
this list has been rated highly by people who came in as visitors.
If the project appears on the right, it means that not only
has it been rated highly, but it has been rated by a large
number of people. So you get two different scales on which
to rate the projects.
projects that have been most recently placed in The
Pool are swimming, they are
moving around. The projects that are in
larger type have a larger "artist stream," meaning
there have been a number of Approaches and Releases and the project is very richly developed by a number of different people. Therefore,
it comes up larger in text size.
you scroll to the upper right hand corner you get more details
about the artwork. You can get a description of the versions,
you can get reviews of the project, you can get relationships
to other projects in The Pool. These are all tagged by keywords, so you
can get the subjects that are involved, as well as ratings.
We have devised a rating system including overall rating,
technical rating, perceptual rating.
you scroll to the bottom right corner, you'll get what we call
the "artist stream." You can see how many approaches
there are for an Intent and how many different releases
for each approach. Each of these is tagged to a particular
person who may have worked on that particular part of it.
So, you could have a dozen different artists working on
this at any different stage and all of them are credited.
encourages people to come to this pool and do a number of
different things. They can say, "Gee, I'm a Flash coder,
I would like a project. I'm not sure what to work on but
I notice that somebody has this Intent here that would be
great to articulate with Flash. I'm going to write to that
person or I'm going to pick up that idea, take it to the
next step and submit it as an approach. Next, I'm going
to find somebody else who does PHP. We're going to work
together and produce a release for it." So, people
can contribute different amounts at different stages. It's
not necessarily a single person producing an entire piece,
but a whole structured community of people working on the
project over time.
One of the artworks in The Pool
is "UMaine WiFi," which was produced by one of
our students. It's an example of a project that actually
got to the release stage. On a map of the University of
Maine you can see where the WiFi access nodes are located.
Little green points tell you what building you are at, and
they give you information about what the WiFi network is
like and whether or not you can get on. This is an example
of a project that made it all the way to a release stage.
itself is open source, you can go there and look at the
code, you could reproduce The
Pool, and many of the projects
in there are open source. Each person who makes a contribution
can choose their own type of licenses -- attribution, non-commercial,
share alike, etc. Licenses can be chosen within this particular
think what The Pool does
most accurately is show what is needed to redefine the
paradigm of culture production. As I said before, the
battle is not just a legal battle. What we are trying
to do here is find a space and a way of working that brings
more people into the process of creativity -- that connects
them with each other, that allows them to contribute in
different ways, and that allows a whole culture to be
built upon different seed ideas and different iterations
of a particular project. I'm very interested in finding
out what the overlap might be between the legal battle
and this other attempt to build a culture of production,
with more producers and more artists with a different
model of how art can be produced.
JON IPPOLITO: I have a question for Larry in this context.
I'm a big fan of Creative Commons and also worked on
We built in a "how to use it" filter, so you
could actually throw out some of the Creative Commons-like
terms to filter out projects that can be transformed,
or can be combined, or can be commercialized. If you add
that to the filter, you should get a particular subset
of them. Given what Joline has shown about the idea of
the "artist stream" and the fact that new media
projects often have many collaborators, it seems that
Creative Commons licenses, in contrast, right now seem
geared primarily to one artist, one artwork, or perhaps
one group / one artwork model. I'm just curious whether
you have ideas about ways in which we can break that particular
culture from the standpoint of new media?
LARRY LESSIG: First of all, the objective is exactly to enable
this kind of collaborative process of creativity. The
way to think about what Creative Commons is doing is that
we're trying to get the law out of the way of the collaborative
process of creativity. We believe that if you get the
law out of the way, the technology and the opportunity,
mixed with lots of creative people, will produce extraordinary
of the problem is that the law thinks of copyright in
an individualistic way -- it's to the author. The structure
of Share Alike in our licenses, for example, says that
if you create -- if you take my content and you incorporate
it into your content -- you must make your content as
freely available as mine was. That is the kind of copyleft
idea that the GPL was born out of. This concept essentially
assures that it is a community that is building on top
of the same work, and nobody can shut it down because
it is always going to be open to the community. But, unfortunately,
the way the law is structured right now, that is the most
we can do. It is a hack of the law to enable it to facilitate
this kind of collaborative construction.
AUDIENCE: I'm curious whether The Pool is
limited to Internet-based artworks or if it is open to
projects that aren't necessarily technical?
JOLINE BLAIS: As a portal, as a network through which people
Pool is Internet-based but that doesn't
limit the fact that projects can be created outside this
structure for different venues or distribution. We started
building this with the University of Maine students; now
we also have Berkeley
students who are contributing and University of Maine
students are commenting. We are developing a culture
that we hope to build across the country, beginning
with university students who are going to be, I hope,
our next crop of creative people and bringing this back
to our communities. We hope that they, in fact, teach
us what is necessary as we build this.
I was just thinking that educators would love
something like this to bounce curriculum ideas around
in and that type of environment. I think it's awesome.
JONAH PERETTI: I have a question for Larry. You gave the
example of the Blair-Bush video as something that is
illegal. Millions of people have seen it. It circulated
really widely. People are e-mailing it to each other.
So the fact that it was illegal didn't really matter
in terms of the suppression of it. I think that there
are instances where something is technically illegal
but actually is being distributed freely.
LARRY LESSIG: I think it matters significantly that it's
illegal. And the way in which it matters is that it
makes it hard to build businesses around the ability
to mix in this way. I mean businesses like CDS, I mean
businesses by people who want to create content and
share it or sell it according to what they think they
need to do.
for example, is an extraordinary enterprise of collage
art construction, but they are constantly limited in
their ability to do this in a way that is self-sustaining.
Because if they sell what they produce, they lose the
benefit of any fair use exception and become targets
for litigation, which of course they suffered when they
were sued by Casey Kasem for the use of U2 in one of
their creations. (http://www.metroactive.com/cyber/neg.html)
are right, there will always be art. It will be driven
underground if it's rendered illegal, and it will maybe
seem more sexy and exciting because it's illegal, and
perhaps there will be cooler parties. But the question
is whether we are creating an environment where a wide
range of people can participate in the creative act
without having to be a criminal. The world where you
had to be a criminal to be a creator was the Soviet
Union. And what is weird is that we have kind of recreated
that environment here under the name of cultural control
or intellectual property. This is totally unrelated
to an important part of our past, which is to freely
develop commercially and non-commercially however creators
JONAH PERETTI: I think that a lot of the people we work with
at Eyebeam are not doing commercial work -- they are
doing artwork. And often times the work will sell in
galleries or be displayed in museums, even though it
is clearly violating the law. And they don't feel like
criminals. They do their art, they do their collage,
and they sell it. This is also meant as a transition
to our next speaker, Carrie McLaren, the Founder and
Editor of Stay Free Magazine, which will also be on sale.
Carrie will talk about the "Illegal Art" exhibition
that she curated.
CARRIE MCLAREN: "Illegal
Art" was a multimedia exhibit that opened in New
York last year and traveled to different cities across
the country. The idea of the exhibit was that all the
work in it appropriated intellectual property in one
way or another. Some of the artists had run into legal
troubles, some of them hadn't. We wanted to try to get
a mix to show some
of the gray areas that are involved.
had a visual exhibit, we did film screenings, we had lectures,
and we did a related issue of Stay Free magazine. The point
was to try to encourage a public debate about copyright by
showing some of the real tangible ways in which the new laws
had been inhibiting free expression. I want to give a few
examples and you can also see and read about the stories behind
them at our website.
Husar is a Canadian painter who painted over some Harlequin
Romance novel covers and was threatened by Harlequin. Noel
Tolentino, who did Bunny Hop Magazine, used a Matt Groening character
on the cover and was threatened with a lawsuit by Matt Groening.
Wally Wood, who was an illustrator for Mad Magazine, did a
Disney memorial orgy.
thing that I found in doing this show was that the visual
artists actually ran into the fewest problems. The more mass-produced
something is, the more likely it is to run into copyright
issues. Where we are seeing the real crackdown is in music,
which already has been alluded to. The sharing, the give and take
that has built American music is now being rendered illegal.
I think this is most obvious with sampling where it is now
"verboten" to appropriate as little as two bars
from a piece of music. Artists no longer have an ability to
use collage techniques in doing hip-hop or electronica. They
can't use really tiny samples and use lots of them. They have
to just use just a couple of things and loop them over and
has happened in music with the sampling has also happened
in film and video. That is, there are basically two main ways
in which copyright has been cracking down on film and video
artists. First, Larry mentioned this in his talk, is the fact
that it has become a habit in the industry that you have to
clear in advance the use of any copyrighted or trademarked
image of any kind -- it could be the outside of a building,
it could be a poster, a logo of some kind -- that appears
on screen. This particularly effects documentary filmmakers.
was a documentary shot in Florida documenting a rape that
took place at a frat party. When they went to clear the music
that was playing in the background at the party, they weren't
able to. So, the distributor dropped the film and it never
saw the light of day. That is one way in which copyright has
cracked down on film and video art.
second way stems from the DMCA, particularly the part that
makes it a crime to break the encryption on electronic content.
The long and short of it is that it prevents artists from
editing or manipulating TV clips or taking advertisements,
or sitcoms, and recombining them into something new. We had
a lot of this type of film and video on our website, and also
in the screenings. You can download these on the site, too.
JONAH PERETTI: So, have you had trouble with the site?
CARRIE MCLAREN: No. None at all.
JONAH PERETTI: Why not?
CARRIE MCLAREN: It would be stupid to go after us because
the whole idea of the site is to make a point about copyright.
When corporations go after artists or people who are doing
this type of thing, they know they can intimidate many of
them who will then just bow out, and say, "Forget it,
we're going to pull our work, because we don't want to deal
with going to court. We can't get a lawyer. We don't have
the resources." In the case of Illegal Art, Disney
and other corporations were informed about it and I guess
they thought, "Oh, you're going to get pro bono lawyers
and make a big stink about it, because the whole point is
to talk about copyright. So, you would see this as an opportunity."
That proved to be the case.
JONAH PERETTI: Professor Lessig, how should we think about this
issue of using new strategies to do creative work, where
the lawyers can't get to you because they know that it would
be a PR mess or that you are using peer-to-peer networks
to distribute the content, so it would be hard to stop it
once it's released?
CARRIE MCLAREN: Can I add something to that? You brought
up the example of Negativland -- I know that since that
lawsuit happened, they have more leeway because nobody is
touching them. They made a whole record that basically cut
up Pepsi commercials. NPR sent Pepsi the record, then called
them up -- journalists do this all the time. Likewise, somebody
from The New York Times sent them the CD and asked them
what they thought. Pepsi said, "Ooh, they're no Frank
Sinatra" or something corny along these lines. But
they were not going after Negativland. Some say they have
had more freedom since Napster because companies are now
more concerned with piracy than transformative art.
JONAH PERETTI: It appears that some are trying to hack
the system and some are trying to create a new system like
Creative Commons or other ones. What are the pros and cons
of those two approaches?
LARRY LESSIG: The important thing is to recognize that
the law's effect is not always felt directly through litigation,
people being sued -- but often indirectly through a distributor
saying, "Well, can you get error and omissions insurance
for your film? If you can't clear every shot then you're
not going to get the insurance." And so they will say,
"I'm sorry, we're just not going to distribute your
set of rules operates as a kind of business presumption
within the publishing industry or the distributor industry.
My point is that the reality is not what the law says or
whether somebody is going to file a lawsuit against you
directly. All of that is affected by the background -- what
one or two cases suggest about how much freedom one has
or doesn't have.
think one way to push the issue is to build content that
you know you can use. That is the Creative Commons strategy.
The other is to be willing to suffer the extraordinary
burden of defending your rights through litigation. You're
right, Negativeland is freer, but only in that particular
context. If we had 20 other cases like that, it would
help establish some kind of right. We run a clinic that
takes on cases, it's a fair use project. We say, "If
you have a fair use claim that is legitimate we will defend
it" -- affirmatively defend it in the sense that we will
sue the other party and say, "come and defend your
absurd claim about your copyright."
first case is defending the use of Peter Pan. A woman
has written a brilliant version of Peter Pan, where the
children are trying to convince Peter Pan that only Michael
Jackson doesn't want to grow up. Growing up is really
a great thing. Neverland is not a happy place. The owners
of the Peter Pan copyright have threatened a lawsuit against
her because she is using Peter Pan without their permission.
The only problem is that a huge chunk of Peter Pan material
is in the public domain. Their view, though, is that as
long as any Peter Pan material is not in the public domain,
none of it is in the public domain effectively. That is
a completely outrageous claim. So we have affirmatively
said, "Okay, we will sue the owner of the copyright
and defend your fair use right."
got six other cases where we made that same offer and
in each of those cases, the author enters into a very
rational calculus. We have to say, "You understand
that if we sue them, they will counter sue you. If they
counter sue you and we lose, that is your house -- it's
gone." It's a very serious consequence if you lose
a copyright case. We can't guarantee you are going to
win, so you have to be willing to take that risk. Most
sane people are not willing to do that. Fortunately, there
are cases like Negativeland or this woman, Emily Soma,
who are willing to take that risk, but it's going to be
JONAH PERETTI: Just a quick story. A few students at NYU developed
a website called, "What is Victoria's Secret?" that parodied Victoria's Secret advertising.
They were students in my course who used images from Victoria's
Secret sites and images of bulimic models on their website.
Within two weeks, they received a phone call from the
Victoria's Secret lawyer who wanted us to take the site
down but refused to send a cease-and-desist because she
was afraid that it would add more publicity. There were
students on the phone telling her, "send me a cease-and-desist
and I'll take the site down." And she replied, "I'm
not going to do that." She wouldn't return e-mail.
She would only talk on the phone.
have heard a lot of these stories. You see these weird
situations where the PR is lined up just right and a project
is getting attention. The lawyers are afraid to crush
the little creator because they think it's going to spread
virally on the Internet and create more problems for their
brand. We saw it on a larger scale with Al Franken's book.
So I think you need to figure out the best way to get
sued if you're going to get sued.
move on. The final respondent is Jon Ippolito, who is
an Associate Curator of Media Arts at the Guggenheim Museum.
He is going to present the Open Art Network (http://three.org/openart),
an initiative that promotes open architectures for artists
working with digital tools.
JON IPPOLITO: I think you're right, it's up to us creators.
I happen to be an artist in my spare time and it's up
to us to step in where these lawyers have met us half
way. They have staked reputations and careers to help
us out and I think that it behooves us to step up to the
plate and come up with some creative techniques of our
own, as Jonah was saying.
it wasn't computer scientists who came up with the
concept of open source. It was artists. Consider this
quote from John Cage in 1969, "Computers are
bringing about a situation that's like the invention
of harmony. Sub-routines are like chords. No one would
think of keeping a chord to himself." A musical
chord -- this is a composer talking. "You would
give it away to anyone who wanted it. You would welcome
alterations of it. Sub-routines are altered by a single
punch." This was back when punch cards were hot
-- which shows you how old this idea is. "We're
getting music made by man himself, not just one man."
And, excusing the sexist language, I think that translates
very directly into a lot of things we are discussing
1970, Nam June Paik, a disciple of John Cage, came
out with an article, "Global Groove and
the Video Common Market," in which he
proposed an open economy for sharing video and creating
video. That was 1970! So artists have been open
to this idea for a while and I think it's time that
we revisit the situation.
Commons licenses are great, they are a fabulous
beginning. We as new media specialists, however,
have to help the lawyers to get up to speed with
some of the new technologies and techniques we use.
The Open Art Network is an attempt to go to the
artists and grassroots artist projects to do that.
issue is attribution. How do you portray an entire
author stream rather than just a single author?
There is also the issues of what exactly are you
making free? Right now most of the art projects
licensed with Creative Commons licenses are an MP3,
sometimes a DivX movie, sometimes text. These are
great things for consuming, and sometimes for reusing
but they are not the mother file. I love this term,
the mother file. It was invented by Rick Reinhart,
who is also a digital artist, and works at the Berkeley
Art Museum and Pacific Film Archive.
He gives us a great story, where Pixar, who had
just released Toy Story, show
up at the Pacific Film Archive, speak to the director,
one of the experts on film preservation, and say,
"We want to save Toy
Story, and we want your advice on how to do it."
She launches into the usual rap about acetate versus
celluloid, cold storage, all the things you need
to know about film preservation. They respond, "No,
we don't want to save the film -- we want to save
the movie. The film print is fairly useless -- you
can just make another one of those any time. We
want to save the render files so that we can go
back and make the scene from the back of Woody's
head instead of the front of Woody's head."
It dawned on them -- it's not about the final version.
It's not about the MP3 that is posted there or the
film print that goes in the canister. It's about
the document or the artifact with the most potential,
the most fertility to produce new variations in
the future. And, by the way, be the most preservable,
because it is the most able to translate from one
medium to another when old media die.
idea of a mother file is something I think we need
to preserve in our licensing agreements, too. How
do we keep available the thing that comes before
the final product? We call this Recombinancy. It's
a variation on open source in the sense of source
code but it goes past source code.
For example, Flash files
have a source format called FLA. That is not the
same as the SWF -- if you try to import an SWF and
mess with it, you have a limited amount of capabilities
to modify that. Whereas if someone gives you the
original mother file, the FLA file, you have lots
of abilities to change just about every feature.
Adjust tweens, motions, morphs,
text -- it is pretty extraordinary. We propose that
people post the Flash file at the same place that
they post the mother file for it.
same with high resolution audio or image files. You
might have a Fruity Loops file that makes your audio
mix. You might have a PhotoShop file with lots of
layers or an Illustrator file that produced a vector
image or ended up being rastorized as a GIF. All this
sounds very technical, but it basically means giving
someone the toolbox instead of giving them the house
with nails built into it that you can't pull apart.
are somewhat familiar with this from the world of
open code development. But the artists who are participating
in this network are really trying to open up the paradigm
so that you can see the work behind the scenes. To
give you an example of some name brand artists who
have been involved: the Carnivore project
by Radical Software Group, RSG -- which sniffs networks
and creates visualizations based on data passing around
a local area network -- includes a number of artists
who have already contributed source code behind the
projects that they made. The attempt is not just to
archive source code, but also develop a way to annotate
it. I'll talk about that in a moment. There is a Flash
visualization that Joshua Davis, probably the most
famous Flash designer in the world, and some of his
fellow programmers contributed. There is a Java client
contributed by Mark Napier. A Director client by Mark
Daggett. A Perl client by Alex Galloway. A sample
for the creation of a Visual Basic client by John
the idea is not just to have artists put their work
out there, but also to create peer pressure. If we
get these big names -- and there are more on the list
that I can't show you yet because they are coming
soon -- then it's similar to the Creative Commons
licenses, the licenses that you find when you go to
CreativeCommons.org. There is always a new person
there, there's always a new band, a new writer, an
author, someone who's posting things, to exert peer
pressure. So when people say, "Oh, well, you
know, you can't beat copyright." You say, "Cory
Doctorow did, or John Klima did."
me give you another example -- a project by Mark Napier
called Open Java. Now, Java is a compiled
language. That is to say, unlike the HTML that gave
rise to the World Wide Web in the first place -- where
you just go up to view source in your browser, and
boom, there it is; you can see it, you can modify
it, you can learn it -- Java comes down to you in
compiled format. Unless you reverse engineer it, there
is no way to tell how it was made.
Napier got the idea that we should build components,
where you can not only see the code -- because that's
already present in the GPL and comparable licenses
for software -- but where you learn the code, learn
how to build it in an environment that encourages
that learning. I won't go into detail, but suffice
it to say that Open Java is not a library. A library
is what we are familiar with from open coding where
a bunch of things can be pulled down and used for
free or used under certain license terms. This is
a set of standards or protocols by which code components
can communicate with each other. By coding to this
standard, programmers can independently build components
that talk to other code.
sounds like geeky stuff, but the point is that it
is made by someone who is known as a new media artist.
If you want to know how he works, he is not only giving
you the code behind it with no annotation, which is
common in open source projects, he is actually showing
you how it was made in a sort of educational setting.
There is an example of a kind of 3D engine that was
made with this; he takes it apart and tells you how
to build it. You can look at the source code if you
want, but you can also just play with it and learn
by the demo nature of it what can be done with Java
in this type of 3D open environment.
a kind of opening question for the new media artists
in the audience and for us on the panel, I would ask,
what things do we need? What kinds of tools and resources
do we need to build our work? And how can we inform
people like Larry and his colleagues to help us build
a legal environment that nurtures those?
JONAH PERETTI: Do you want to comment on the way Creative Commons
could interface with this kind of system? You were
talking about some of the differences between new
media art and an MP3 or music. Have you had people
trying to license works through Creative Commons that
are difficult to license?
LARRY LESSIG: Absolutely right. And you have to show us how
we can structure the license so it serves this purpose
best. Enabling people to effectively take the source
code of art and share that in a way that makes sense
is great -- we would do it tomorrow, in a heartbeat.
If you want to run the project, we will do it right
reason why we have been slow in this area: it was
very important that we didn't step on the free software
movement's licensing of software. We didn't want to
come in and start replacing GPL because despite Microsoft's
fuss about it. I think GPL is a very important license,
a part of the ecosystem, and it should be supported.
So we wanted to step away from software initially.
Flash problem is one we hit right away with our own
code. We released our own Flash. What we are looking
at is a way to marry these two projects. For example,
we have the GPL as the legal layer of a license, but
on top of it we put a human-readable version and a
machine-readable version and call it a CCGPL license.
So we are not touching the license, but we are enabling
people to mark the content in a way that is machine-readable.
most important to me that we get to a world where
you can say, "Show me all the Flash objects out
there that have something to do with the Empire State
Building and that I'm allowed to release in a non-commercial
way," and bingo, the search engine pulls all
that together. That is what the strategy of our licenses
drives to. The way we would extend it would be in
exactly this way.
Brazil, literally just
before this meeting, announced that they were going
to release all of their government code under GPL.
But only with the understanding that their government
code -- the code to run their government offices --
would be expressed in a machine-readable format, like
a CC license. So, Brazil has already committed us
to this process. If you participate in it, I promise
that in three months we will have a license that will
allow all of your source files to be made available
in exactly that way.
JOLINE BLAIS: It seems like right now the burden of fair
use falls on individual artists, and they pay the
price for trying to exercise fair use. I wonder
if there is a way of restructuring the legal code
so that companies who go after people who are exercising
fair use pay the penalty and the burden?
LARRY LESSIG: My first advice is not to ask for advice
from a lawyer who loses as consistently as I do.
Unfortunately, the American tradition -- it's actually
a very complicated argument -- doesn't easily allow
the burdens of the litigation to be shifted to the
losing party. That's good in the context of civil
rights; for example, if you had to sue GM for sexual
harassment and you lost, GM could shift a million
dollars in legal fees to you. You would never sue
GM for sexual harassment. So, usually it is a good
problem here is that the penalties for copyright
infringement are so severe that it stops people
from trying to exercise their right. Hillary Rosen
says, "What is the difference between going
into a Tower Records and taking a CD off the shelf
and walking out, versus downloading the same content
off the Internet? It's both stealing." Well,
one difference is that if you go into a Tower Records
and steal a CD, you might be hit with a thousand
dollar fine. That's the maximum the law in California
would allow. But according to the RIAA, if you download
ten songs from the Internet you are liable for $1.5
million in damages.
difference is that, according to the law, it's really
bad to download from the Internet and not so bad
to steal from Tower Records. Now, that's just screwy.
So here, too, the law is mixed up. The reality is
that there is not going to be any easy way to handle
it. The most we can do is create free legal services,
which is what we are trying to do, and find more
brave people to try to invoke that.
JOLINE BLAIS: I have another follow-up question regarding
the problem of people losing their houses when they
actually join your campaign to bring these suits.
Cornelia Sollfrank and Female Extension (http://www.artwarez.org/femext/) found a great way
for punitive artists to produce artwork -- there
is no 'person' behind it. It is being produced by
a machine. So, imagine an artwork that violates
copyright but doesn't have a single person behind
it that you can actually bring to court, and there
is no house to lose behind it. There must be artistic
or other kinds of interventions where people don't
have to lose their house to bring these cases to
LARRY LESSIG: You have a dangerously clever mind, and
it's good you stayed far away from law school. Regarding
your question, we'd be happy to try to figure whether
that's possible but, so far, the house is always
there to be taken. In California it's pretty warm
so it's not as bad as losing your house out here.
JONAH PERETTI: Two things need to happen now. Larry Lessig
needs to get on a plane and we'll open up for questions
for the respondents.
AUDIENCE: I think we heard a good discussion about
law out of the way. I
wonder about getting the money out of the way.
It seems like -- especially in artistic production
idea of trying to earn a living by that production
is a whole battle in itself. And I see, whether
it is universities or museums, that there is some
kind of sponsorship behind a lot of the discussion.
What happens to artists who try to make a living
by controlling the proliferation of their work?
There are individuals, for example video artists,
who don't want their work to be bootlegged and they
create artificial scarcity by selling ten thousand-dollar
videotapes because they certainly couldn't sell
ten thousand one-dollar videotapes and keep making
their work. Do you have any thoughts around how
to actually make money and still make this work
in this environment?
JON IPPOLITO: I think a lot of it depends on the personality
of the artist. There are certain artists who are
good at releasing content for free and having
it spread, and they end up getting famous because
of it. Then they are able to sell work for higher
prices, and also sell things that are either objects
or limited edition work. Other artists give away
their code and everyone just takes it and copies
it and forgets about them.
think there are certain people who are good at
saying, "Oh,I'm releasing code or I'm releasing
work, but I'm still going to keep tabs on it and
have good relationships with all the different
people involved, and sort of manage it."
I feel like it really varies between artists --
I have seen different artists' careers evolve
and sometimes it works really well for them to
have a more open approach and sometimes it doesn't.
That's just an empirical observation.
The market is the
way artists make a living. If I didn't have the
presumption that "Oh, we're all going to
make it with the market," I would have a
more convincing case when I'm trying to argue
for a really substantive kind of grant system
-- healthcare or whatever you want to ascribe
to artists. Okay, let's come up with some other
ideas, just because neither of those options are
Another one is for
those artists who are known well enough to want
to protect their software and not open the code
and throw it out there or, in the case of video
artists, who want to hold control of the master
video. Bill Viola is an example. He is a technical
perfectionist. He doesn't want anyone else to
do the migrations of the master video. He wants
to control it himself. Which would mean that when
he editions his work in three, and the Guggenheim,
MOMA and ZKM each get a copy,
they get a DVD. Well, that sucks. You scratch
a DVD, it's gone. And it is poor compression quality,
has very limited migratability and is protected
by an encryption scheme -- all reasons to not
store things for the future on DVD.
what does Bill Viola do? He doesn't want to
give out his master not just because other people
would copy it and make money off it in theory
but also because he wants to control how it
gets transferred to high definition and the
formats that will come in the future. I think
what he does is deferred rights. He says, "I'm
giving you a copy of my master. A perfect digital
copy. But I'm also making you sign an agreement
that says you won't copy it unless I'm dead
or I give you permission." If his studio
burns down and the master he has is gone with
it, we didn't lose that work from culture. It's
not just a bunch of crappy DVDs that museums
have as a pale reflection of the original.
or, I should say, programmers have done this before
in certain commercial contexts -- they have put their
source code on escrow with a third party. Let's say
you were a business and you contract with someone to
make a whole enterprise system, and that company goes
out of business. Well, if it is closed code you are
screwed -- you can't make a single change. But if the
company goes out of business and you go to the escrow
company and say, "I want the source code back.
It says here in the contract that I can have it,"
okay, you're good to go. So the idea of deferred rights
is another option for artists who don't want to release
their work in an open way into the environment yet,
but recognize that in the long term there may be a reason
to keep it open for a cultural legacy.
last example is to follow the model of Red Hat and other
open code providers. Provide a service -- a service
associated with the work. Put a free version out there
like Eudora Light. And also make a more expensive professional
version that one has to pay for. Now, that could be
higher resolution, it could be fancier graphics, or
it could simply be that you guarantee to maintain it
because, especially when we are talking with new media,
these formats go out of date on a monthly basis. A couple
of web formats just went out of date since we started
you want your work to stay alive or you want a work
that you collected to stay there for the future -- whether
you are a museum or an individual private collector
-- you need to have some kind of maintenance agreement.
Now, the artist can say, "Okay, I have all those
copies out there. The technology lets you copy those
freely so it doesn't really make sense for me to charge
for that. But, if you want me to come in and fix it
-- it worked for Netscape 4, now you want it to work
for IE 6 -- my time is not infinitely copyable. So now
I get paid for that in the same way that Red Hat Linux
gets paid not for distributing Linux course code, which
is essentially free, but for making the manuals and
having someone on tech support to respond to it. So
there you have four different models.
AUDIENCE: Joline, your many-to-many strategy, a kind of
meme virus, to me really seems to get to the heart of
what the real dilemma is -- that the net by nature is
transformative and collaborative, and global. Everything
else is based on a static, nation-oriented view. Even
Larry Lessig says it's "the law," but he is
talking about a very specific law and yet this language
gets very rooted in culture. We live in a culture where
company logos are basically almost like official words
because they are so much out there in the public arena.
there is the question about time that just came up.
The thing that I haven't heard anyone mention much --
only implicitly -- is the temporal relevance of something.
Our world is dynamic, so time matters. The order in
which things happen is crucial but I haven't heard this
addressed yet in terms of how one is going to
approach and handle temporality. I mean this in the
sense of temporal indexing. The problem is the net --
you could take a snapshot of it, but everything about
the process is dynamic. The relative order of things
as well as some sort of absolute referential time are
both relevant. You could say, "I did this at midnight
on that date," but you could also say, "I
just did it before him, but after them." It seems
like that should be built into the solutions.
then there is this: you have one-to-many, which is traditional
publishing; many-to-one, which is production; and then
many-to-many, which is what we are talking about. And
all these laws just seem drastically out of sync --
the patent law and invention is out of sync with the
times as badly as copyright is.
just really curious what all your opinions are about
many-to-many and time, and how one could address that,
and also collaboration versus nationalism, which seems
to be where we are heading.
JOLINE BLAIS: You mean, where is a contribution fitting in when
it comes to time?
Yes. It should be built into the way one is approaching
this, because it is as relevant as anything else. Maybe
it doesn't matter that it was at midnight, but it really
matters that I did it in conjunction with someone before
JOLINE BLAIS: I think I have a different take on your
sense of time but I would like to try to come back to the question of
many-to-many. I also think I have a different concept of culture than
has been articulated. I would like to free culture from both the legal
system and the commercial system. I would like to bring culture back to
the people to whom it belongs. I don't think of this as global, although
I see that the tools we use are sometimes articulated in that kind of
realm. I see culture as a very local phenomenon. I think that if you want
culture to survive, then you have to rely on your particular community
to support you. You produce culture within a community and that community
supports you. It may be a local, geographic community, it may be an online
community, like the open source community. You survive because you belong
to this community.
if everyone in a small town -- for example, my small town in Orono,
Maine -- decided for one month to drop their DSL connections and
cable TV and not go see any broadcast medium, which is all one-to-many
kind of culture, and we said, "We're going to take all of this
money and we're going to support our local artists and teach them
how to talk about who we are right here and preserve what we are
right here and not get our culture from Hollywood or from repackaged
stories that Hollywood took from us, but instead create our own
community devises different ways to support its artists. What if everyone
in a small town -- for example, my small town in Orono, Maine -- decided
for one month to drop their DSL connections and cable TV and not go see
any broadcast medium, which is all one-to-many kind of culture, and we
said, "We're going to take all of this money and we're going to support
our local artists and teach them how to talk about who we are right here
and preserve what we are right here and not get our culture from Hollywood
or from repackaged stories that Hollywood took from us, but instead create
our own culture."
model that I come back to over and over again exists in Brittany. I spent
about ten years there on a small island. One Christmas I got stranded
there. We went to a party on Christmas Eve in an old barn. It was decorated
with all these nautical things but it wasn't like a barn full of "nautical
paraphernalia." These were fishing nets that had been broken and
could no longer be used so they were put up on the wall.
months before, one of the people who used one of the nets drowned at sea.
Everybody in the town knows that and they remember. The fishing net represents
that. And the buoys that are there are from the various last catches --
they break and get put up there, too. All of the stuff in that barn is
local and reminds people of their own local culture. They go there and
they fiddle. They don't get Hollywood films or Disney films. They fiddle
and they make their own music. And they may rip, mix, and burn, but they
are doing it in the context of their own lives and their own culture,
and they are supporting each other somehow.
not sure what the answer is, but I think that when we stop buying our
culture from big corporations and big media, we won't have to rely on
them for our salary.
This question is for Jon. I like the idea of
your project -- the open sourcing, new media artwork -- but, going back
to the community, the server space and bandwidth isn't free. It also goes
back to Lessig's idea about fair use being abstract. It's great and abstract
to share the source file or a mother file, but a lot of us know who produces
that stuff. The source or mother file often is exponentially larger than
the product. Especially if you want to use everything you had like the
high res source that went into the Flash movie, etc.
there any concrete steps that you are taking in Maine or at the Guggenheim
to share some of this cost in an open way -- like having some server space
and some bandwidth?
JON IPPOLITO: Good question. Actually, the forum associated
with this panel, Distributed Creativity, is hosted up in Maine
so we do some creative hosting. I think one of the primary questions
is -- if you are working in this mode, is it worth it to download a
version that may take a long time, maybe as long as it takes to download
the latest Disney trailer? Because when you have it, then you can manipulate
again, you still have the issue with formats. Let's say that I get a
PhotoShop document, a PSD, or I get a Flash, FLA file, download. Great,
I have what the artist created, I can work with that, I can adjust it
with the same amount of options that the artist had. It just takes a
while to download. Moreover, it takes money to buy that application,
right? Flash is around $800 now if you buy it off the shelf? Even Microsoft
Word and so forth, these are not inherently open formats.
I have actually pushed really hard to use open formats whenever possible.
What you are looking at here, The Pool, does
rely on some server side stuff, but the server side components are My
SQL and PHP, which are both open formats. What you are looking at as
the interface is all DHTML. DHTML, as you know, is a wonderful environment
with lots of interesting kinetic properties that is completely open.
If you go into the View Source, you can find everything that is there.
There is no fancy program you need besides a text editor, which comes
free with just about every operating system.
I look at, say, the Open Art Network -- thank you WiFi -- it says at
the bottom, "Code used in this site." Boom, there it is. There
is no special application you need in order to look at a Java script
or a style sheet. It's right there, you can modify it tomorrow. In fact,
it includes a sample of how to modify it. There are instructions how
to call it from your HTML document. So, again, we are trying to make
it as accessible as possible. And you are absolutely right, some of
these closed formats take forever to download but we are trying to actually
stimulate the use of client side open formats like DHTML.
AUDIENCE: If you do download a CD off the Internet,
instead of going to Tower Records, isn't it stealing to just go and
take work that someone labored on for two years and download it and
not pay them for it?
CARRIE MCLAREN: One thing I would throw out there is the cases
of file sharing where people are getting music that you can't buy in
the store -- at least if you don't live in New York. I think there is
a lot of room for reasonable people to debate.
JONAH PERETTI: You are looking at two extremes. On the one hand
you have the idea that all music and all media should be free. And on
the other hand, you have the idea that music should not enter the public
domain for 90 years and be controlled by a very narrow group of corporate
interests. If you look at Creative Commons, for example, there are a
bunch of different licenses that are in the middle, that aren't on either
side of the extreme.
There is the Founder's Copyright, which
is a Creative Commons license that covers the originally mandated 14
years, which is how long copyrights were when the founding fathers established
copyright law. That means material would be protected for 14 years.
But after 14 years, it would enter the public domain and could be used.
There are other licenses that say people can use material for non-commercial
purposes only. Maybe I'm downloading the latest 50-Cent album just for
my own enjoyment, but maybe I'm downloading parts of it to use to create
a new work. There are differences between those two things. Maybe some
should be allowed and some shouldn't. Part of the issue is that there
isn't any middle ground where people can specify these things.
JON IPPOLITO: I think Jonah is absolutely right. Consider,
for example, the ability to give. I can give Joline or Carrie a CD.
I cannot give them an MP3. I cannot share it. If I bought it legally,
I do not have the right to share it on a P2P system and that seems
wrong to me. It gets back to the issue of copying -- the example that
Professor Lessig gave about books, and the difference between a physical
book and a digital copy.
AUDIENCE: I had a question about The Pool. It seems
like a brilliant project but, playing the Devil's advocate, I would
like to know how you deal with cherry-picking? People coming in, looking
at projects, writing down all the information, and not admitting that
they did it, not contributing. Is it a problem? Have you seen it?
How do you deal with it?
JOLINE BLAIS: It actually is under hot debate right now
how we will deal with that. One of the proposals is that we form a
community. In other words, the price of admission is participation.
If you contribute something then you may take something and that way
you become a member. By having contributed something, you join a community.
I think that one of the biggest discussions here is that we are not
just interested in a bunch of things that people can take. We are
actually interested in producing a community of people that works
piece of the environment that you haven't seen articulated is the
Discussion Board, where people who are playing, and swimming, and
moving around in The Pool can talk to each other about what
is happening and what should happen. It's a very grassroots kind of
process. The people who are building it come up with questions like
this all the time, and we have to deal with them.
possible approach is the kind of click-route, so that before you get
into the site, you have to click something stating that, by default,
any intent that is placed here is non-commercial and attributed. You
always know who created the project and it's not commercial in the
first iteration. You stop the poaching for commercial uses early in
the stream. Those have been two possible ways of coping with this
so far. I'm not sure that those are the only solutions. Once we see
problems coming up, we will have to tackle them as we go.
Have you noticed that there is a certain type
of artist that is willing to participate, and others who are more
JOLINE BLAIS: Yes. In fact, I have one project in mind where
a group of students whom I was working with produced a game idea.
They were concerned that if they put this in The
Pool, they couldn't market it afterwards and because
they didn't want anyone else to take it, they wanted to be non-commercial.
Does that tie their hands? With what restrictions? Can somebody else
take off with a different version of it?
So, yes, there have been some concerns
on that end. Do I contribute? Is someone else going to be able to
rip it off and implement it before I do? I think those are questions
for which we haven't necessarily found the answer yet but which we
are tackling right now. These are excellent questions. If anybody
has any suggestions or solutions we would be very glad to hear them.
JON IPPOLITO: As a legal footnote: just because you have licensed
something in an open way doesn't mean someone can't go to you and
renegotiate the terms. It just means this is the default license.
If you say all of these ideas are there with non-commercial use and
Sony comes knocking on the door and says, "Oh, I want to make
your game for Play Station 2 or 3," then you could say, "Okay,
we'll negotiate a separate license." But the open licenses, such
as Creative Commons and GPL, are just the default uses.
This is a question about the interface of The Pool. Is
there ever a point where something expires in The Pool? I
had a similar site, Art Mark, where people could submit projects and
other people could collaborate -- it's a similar idea. At this point,
many of the project sites are quite out of date. And when you try
to talk to the people, they say, "That was two years ago, or
that was last year. We're done. Or, we're not doing it anymore."
JOLINE BLAIS: Yes. The question is actually a bigger one
-- it's a question of scalability. When there are more projects, how
will you be able to see them all? And when there are so many, do you
keep, let's say, ten years worth? One of the proposals for this is
that projects fade over time. But when somebody picks up a fading
project and adds a new approach or a new release, it then bumps back
up to a very distinct text. Then over time we have an algorithm that
fades the text out. You might be able to search for it, but it wouldn't
be part of the major interface. So that has been one proposal.
JON IPPOLITO: Nevertheless, one way to get a view of the
community as a whole, when it gets really complicated, are the themes
associated with each project, which are just subject keywords. What
is the subject? You can actually search projects and filter everything
that had to do with, for example, "community." That's one
way of digging for relevant works.
a little buggy but we have been at work on a Theme Pool. The idea
here is to spider through all those themes and see which are the biggest
ones. What is everybody talking about right now? What is everybody
working on? And, as you can see, "community," not surprisingly,
is pretty big. It has a lot of contributors. John Bell, Matthew James,
and Jamie Cox being the people who have contributed the most projects.
"Network" is also big. "Story," and so forth.
And "Mobility" has been rated highly because it is in the
upper right corner but so far there have only been a few projects
like that. Whereas "Star Trek" is not highly rated yet but
maybe it will get there.
JONAH PERETTI: I just want to thank all of our panelists
for their insights. And also Beth Rosenberg, Eyebeam's Co-Director
of the online forum. Lastly, I want to encourage everyone to participate
in the ongoing online forum. You can go to Eyebeam's website, and look for the Distributed Creativity link. That
will take you to the forum, which will be hosted by a variety of communities
in the future.