[Ossf] <Share> [Fwd: [participants] Copyright, Copyleft and the Creative Anti-Commons]

[Tzu-Chiang Liou]

Dear all,

FYI, interesting argument.

TC

-------- Original Message --------
Subject: 	[participants] Copyright, Copyleft and the Creative Anti-Commons
Date: 	Thu, 28 Dec 2006 20:24:59 +0545

	

	

	



Deal Commoners,

I found this article very informative, You may be interested to read it 
once...

http://multitudes.samizdat.net/Copyright-Copyleft-and-the.html ..... 
(Berlin, 2006. Anticopyright. All rights dispersed. )  (text attached 
below, Apologies for such a long text)

Best Regards,

Hempal Shrestha

PS: Wish you a Happy and Commons New Year 2007.


Main Article
________________________________________________________________________________ 



The author has not always existed. The image of the author as a 
wellspring of originality, a genius guided by some secret compulsion to 
create works of art out of a spontaneous overflow of powerful feelings, 
is an 18th century invention. This image continues to influence how 
people speak about the "great artists" of history, and it also trickles 
down to the more modest claims of the intellectual property regime that 
authors have original ideas that express their unique personality, and 
therefore have a natural right to own their works - or to sell their 
rights, if they should choose. Although these ideas appear self-evident 
today, they were an anomaly during their own time. The different 
pre-Enlightenment traditions did not consider ideas to be original 
inventions that could be owned because knowledge was held in common. Art 
and philosophy were products of the accumulated wisdom of the past. 
There were no authors - in the sense of original creators and final 
authorities - but only masters of various crafts (sculpture, painting, 
poetry, philosophy) whose task was to appropriate existing knowledge, 
re-organize it, make it specific to their age, and transmit it further. 
Artists and sages were messengers, and their ability to make knowledge 
manifest was considered a gift from the gods. Art was governed by a gift 
economy : aristocratic patronage was a gift in return for the symbolic 
gift of the work. Even the neoclassical worldview that immediately 
preceded Romanticism viewed art as imitation of nature and the artist as 
a craftsman who transmitted ideas that belonged to a common culture.

The Romantic revolution marked the birth of proprietary authorship. It 
abolished the belief that creations of the human intellect were gifts 
from the gods that could be policed by royal decrees. But while it 
liberated the productive capacity of individuals from supernatural 
causes and political control, it located this capacity in the 
sovereignty of the individual, ignoring the larger social context of 
production. And it chained the production of knowledge to the idea of 
private property that dominated philosophical and economic discourse 
since Locke. Romanticism?s re-definition of the artist as an original 
creator was an effect of a combination of political, economic and 
technological transformations. Industrial production during the 18th 
century led to increasing commodification. The enclosure of the commons 
forced many farmers who had lived off the land to become workers in 
industrial cities, and the dominance of market relations began to 
permeate all spheres of life. The sharp rise in literacy created a new 
middle-class public of consumers ­ a necessary precondition for 
commercializing culture. The capacity of the printing press to mass 
reproduce and distribute the written word destroyed established values, 
displacing art from the courts to coffee houses and salons. And as the 
feudal world of patronage withered away, along with the system of 
political sovereignty that had supported it, for the first time writers 
and artists tried to live from the profits earned from the sale of their 
works.

Romanticism was born as a contradictory response to these developments. 
It was an opposition to capitalism, but one expressed through the 
language of private property and the assumptions inherited from the 
philosophical discourse that legitimated capitalism?s mode of 
production. Romanticism denounced the alienation and loss of 
independence spawned by industrial production and market relations, and 
portrayed the artist in heroic opposition to the drive for profit. 
Adopting Rousseau?s metaphors of organic growth and Kant?s notion of 
genius as an innate force that created from within, Romantic authors 
celebrated the artist as a spontaneous, untamed being (like nature 
itself), guided by intuitive necessity and indifferent to social rules 
and conventions. By locating the work of art in a pre-social, natural 
self, its meaning was free from contamination with everyday life. Art 
was neither public, nor social, nor similar to the labour of workers who 
produced commodities. It was self-reflexive, offering a window to a 
transcendent subjectivity.

In the mid 1750s, Edward Young and Samuel Richardson were the first to 
argue that the work of an author, since it was a product of his unique 
personality, was more truly an author?s property than the material 
objects produced by a worker. This idea found its most enthusiastic 
supporters among German and English Romanticism, but also echoed in 
wider literary circles. In 1772 Lessing connected originality to rights 
over ideas and argued that authors were entitled to economic profits 
from their works. Realizing that the problem with defining ideas as 
property was that many people seemed to share the same ideas, in 1791 
Fichte argued that for an idea to be regarded as property it had to have 
some distinguishing characteristic that allowed only a single individual 
to claim it. That quality lay not in the idea itself but in the unique 
form the author used to communicate it. Ideas that were common could 
become private property through the author?s original form of 
expression. It is this distinction between content (ideas) and form (the 
particular style and expression of those the ideas) that provided an 
initial foundation for intellectual property law. By the 1830s 
Wordsworth had effectively linked the notion of genius - defined as the 
introduction of a new element into the intellectual universe - to legal 
stakes in the copyright wars. Arguing that artistic genius was often not 
recognized by contemporaries but only after an author?s death, he became 
an active lobbyist for extending copyright to 60 years after an author?s 
death. Wordsworth?s duality in invoking the author as a solitary genius 
as well as an interested economic agent was symptomatic of the 
complicity between Romantic aesthetics and the logic of commodification. 
The Romantic worldview tried to elevate art to a pure space above 
commodity production, but its definition of the creative work as 
property reintegrated art into the very sphere it sought to negate.

The existence of "copy rights" predated 18th century notions of the 
author?s right to ownership. From the 16th to the 17th century royal 
licenses gave exclusive rights to certain publishers to copy (or print) 
particular texts. In 1557, England?s Queen Anne granted an exclusive 
printing monopoly to a London guild of printers, the Stationers Company, 
because it assured her control over which books were published or 
banned. The first copyrights were publishers? rights to print copies, 
which emerged out of the ideological needs of absolutist monarchies to 
control knowledge and censor dissent. After the Licensing Act expired in 
1694, the monopoly of the Stationers Company was threatened by 
provincial booksellers, the so-called "pirates" from Ireland and 
Scotland. The Stationers Company petitioned Parliament for a new bill to 
extend their copyright monopoly. But this was a different England from 
1557 : Parliament had executed King Charles I in 1649, abolished the 
monarchy and installed a republic under Cromwell, restored the monarchy 
with Charles II, overthrew James II in the Revolution of 1688, and, in 
1689, it passed the first decree of modern constitutional sovereignty, 
the Bill of Rights. The Statute of Anne, passed in 1710 by Parliament, 
turned out to be a hard blow against the Stationers Company. The Statute 
declared authors (not publishers) to be owners of their works and 
limited the copyright term to 14 years for new books and 21 years for 
existing copyrights. The Statute, which was subtitled "An Act for the 
Encouragement of Learning, by vesting the Copies of Printed Books in the 
Authors or purchasers of such Copies, during the Times therein 
mentioned," tried to balance the philosophical ideas of the 
Enlightenment with the economic interests of a nascent capitalism by 
creating a marketplace of knowledge through competition.

The Statute?s aim was not to create an author?s copyright but to break 
the Stationers Company?s monopoly. Since this monopoly was too well 
established to be attacked superficially, reversing the ownership from 
publisher to author provided a solid basis. After the Statute of Anne 
was passed, the Stationers Company ignored its time limitations and a 
battle over literary property began in the law courts that lasted more 
than 50 years. In Millar vs. Taylor (1769), a London publisher belonging 
to the Stationers Company won a verdict supporting a common-law right of 
perpetual copyright despite the Statute of Anne. This decision was 
overturned in the landmark case of Donaldson vs. Becket (1774) ; the 
ruling in favor of the Scottish bookseller Donaldson rejected the 
argument for perpetual copyright and upheld the limits set out in the 
Statute of Anne. The principal players in what the press hailed as the 
great cause concerning literary property were not authors. Publishers 
sued each other in the courts, invoking the author?s rights as a pretext 
in their battle for economic power. The notion of the author as an 
originator with a natural right to own ideas may have been invented by 
artists and philosophers, but it was publishers who profited from it. 
Laws are not made by poets but by states, and states exist to enforce 
economic privilege, adopting whatever philosophical legitimation they 
find convenient at any given time. The Statute of Anne codified the 
capitalist form of the author-publisher relationship : copyright was 
attached to the author at birth but automatically assumed by publishers 
through the "neutral" mechanisms of the market. Authors had a right to 
own the products of their labour in theory, but since they created 
immaterial ideas and lacked the technological means to produce books, 
they had to sell their rights to another party with enough capital to 
exploit them. In essence, it was no different than having to sell their 
labour. The exploitation of the author was embedded in the intellectual 
property regime from its inception.

Intellectual property laws have shifted with the winds of history to 
justify specific interests. Countries that exported intellectual 
property favored the notion of authors? natural rights, while developing 
nations, which were mainly importers, insisted on a more utilitarian 
interpretation that limited copyright by public interest. During the 
19th century, American publishing companies justified their unauthorized 
publication of British writers on the utilitarian grounds that the 
public?s interest to have great works available for the cheapest 
possible price outweighed authors? rights. By the beginning of the 20th 
century, as American authors became popular in Europe and American 
publishing companies became exporters of intellectual property, the law 
conveniently shifted, suddenly recognizing the natural rights of authors 
to own their ideas and forgetting previous theories of social utility. 
During the 20th century, intellectual property law has extended the 
rights of owners in several ways : by increasing the duration of 
copyright to lifetime plus 70 years, by standardizing international IP 
regimes to benefit corporations in economically dominant countries 
(achieved through shifting IP governance from the World Intellectual 
Property Organization to the World Trade Organization), and by 
redefining the means of protection and the types of intellectual 
property that could benefit from protection. Until the middle of the 
19th century, copyright meant only protection against verbatim copying. 
Toward the end of the 19th century, this was redefined so that the 
property protected by copyright consisted (against Fichte?s definition) 
in the substance, and not in the form alone ­ which meant translations 
were also subject to copyright. Later this protection was extended to 
any close approximation of the original, like the plot of a novel or 
play or the use of the characters from a movie or book to create a 
sequel. The types of property protected by copyright have also expanded 
exponentially. In the beginning, copyright was a regulation of the 
reproduction of printed matter. But the legislation changed with each 
new technology of reproduction (words, sounds, photographs, moving 
images, digital information). At the beginning of the 20th century 
copyright was extended from covering texts to covering "works." During a 
landmark court case in 1983 it was argued that computer software was 
also a "work" of original authorship analogous to poetry, music and 
painting in its ability to capture the author?s originality and creative 
imagination. This illustrates the wildly different contexts in which the 
myth of the creative genius has been invoked to legitimate economic 
interests. And in each of the landmark cases the focus has always 
shifted away from corporations (the real beneficiaries) to the 
sympathetic figure of the author, who people identify with and want to 
reward.

 > Intellectual Property as Fraud

If property is theft, as Proudhon famously argued, then intellectual 
property is fraud. Property is theft because the owner of property has 
no legitimate claim to the product of labour. Except by denying workers 
access to the means of production, property owners could not extract any 
more than the reproduction costs of the instruments they contribute to 
the process. In the words of Benjamin Tucker, the lender of capital is 
entitled to its return intact, and nothing more. When the peasants of 
the pre-industrial age were denied access to common land by the new 
enclosures, it can be said that their land was stolen. But if physical 
property can be stolen, can intelligence or ideas be stolen ? If your 
land is stolen, you cannot use it anymore, except on the conditions set 
by its new private "owner." If ownership of an idea is analogous to the 
ownership of material property, it should be subject to the same 
conditions of economic exchange, forfeiture, and seizure - and if seized 
it would then cease to be the property of its owner. But if your idea is 
used by others, you have not lost your ability to use it ­ so what is 
really stolen ? The traditional notion of property, as something that 
can be possessed to the exclusion of others, is irreconcilable with 
intangibles like ideas. Unlike a material object, which can exist in 
only one place at a given time, ideas are non-rivalrous and 
non-exclusive. A poem is no less an authors? poem despite its existence 
in a thousand memories.

Intellectual property is a meaningless concept - ideas don?t behave like 
land and cannot be possessed or alienated. All the intellectual property 
debates fought in courthouses and among pamphleteers during the 18th 
century intuitively grasped this contradiction. What became obvious in 
these debates was that the rights to own ideas would have to be 
qualitatively different from the rights to own material property, and 
that the ease of reproducing ideas posed serious problems for enforcing 
such rights. In parallel to the philosophical debates about the nature 
of intellectual property, a monumental discourse criminalizing piracy 
and plagiarism began to emerge. The most famous rant against piracy was 
Samuel Richardson?s 1753 pamphlets denouncing unauthorized Irish 
reprints of his novel Sir Charles Grandison. Contrasting the enlightened 
English book industry with the savagery and wickedness of Irish piracy, 
Richardson criminalizes the reprints as theft. In actuality his claims 
had no legal basis since Ireland was not subject to England?s 
intellectual property regime. And what he denounced as piracy, Irish 
publishers saw as a just retaliation against the Stationers Company?s 
monopoly. A year before Richardson?s pamphlets, there were street riots 
in Dublin against British taxation policies, which were part of a larger 
political struggle of Irish independence from Britain. By arguing that 
this Cause is the Cause of Literature in general, Richardson framed the 
battle over literary property in purely aesthetic terms, isolating it 
from its political and economic context. But his use of the piracy 
metaphor recalled Britain?s colonial history and brutal repression of 
sea pirates. 18th century maritime piracy has itself been interpreted as 
a form of guerilla warfare against British imperialism, which also 
created alternative models of work, property and social relations based 
on a spirit of democracy, sharing, and mutual insurance.

Richardson?s account of originality and propriety excluded any notion of 
cultural appropriation and transmission. Never was work more the 
property of any man than this is his, he claims, portraying his novel as 
New in every sense of the word. His claim is especially ironic given his 
own appropriation, both in the novel and in the pamphlets, of stories of 
piracy and plagiarism from the popular literature of his time and from 
Heliodorus? The Ethiopian, a 3rd century romance which was widely 
parodied throughout the 18th century. The idea of originality, and the 
possessive individualism it spawned, created a tidal wave of paranoia 
among the author "geniuses," whose fear of being robbed seemed to mask a 
more basic fear that their claim to originality was nothing but a fiction.

Artistic creation is not born ex nihilo from the brains of individuals 
as a private language ; it has always been a social practice. Ideas are 
not original, they are built upon layers of knowledge accumulated 
throughout history. Out of these common layers, artists create works 
that have their unmistakable specificities and innovations. All creative 
works reassemble ideas, words and images from history and their 
contemporary context. Before the 18th century, poets quoted their 
ancestors and sources of inspiration without formal acknowledgement, and 
playwrights freely borrowed plots and dialogue from previous sources 
without attribution. Homer based the Iliad and the Odyssey on oral 
traditions that dated back centuries. Virgil?s Aeneid is lifted heavily 
from Homer. Shakespeare borrowed many of his narrative plots and 
dialogue from Holinshed. This is not to say that the idea of plagiarism 
didn?t exist before the 18th century, but its definition shifted 
radically. The term plagiarist (literally, kidnapper) was first used by 
Martial in the 1st century to describe someone who kidnapped his poems 
by copying them whole and circulating them under the copier?s name. 
Plagiarism was a false assumption of someone else?s work. But the fact 
that a new work had similar passages or identical expressions to an 
earlier one was not considered plagiarism as long as the new work had 
its own aesthetic merits. After the invention of the creative genius, 
practices of collaboration, appropriation and transmission were actively 
forgotten. When Coleridge, Stendhall, Wilde and T.S. Eliot were accused 
of plagiarism for including expressions from their predecessors in their 
works, this reflected a redefinition of plagiarism in accordance with 
the modern sense of possessive authorship and exclusive property. Their 
so-called "theft" is precisely what all previous writers had regarded as 
natural.

Ideas are viral, they couple with other ideas, change shape, and migrate 
into unfamiliar territories. The intellectual property regime restricts 
the promiscuity of ideas and traps them in artificial enclosures, 
extracting exclusive benefits from their ownership and control. 
Intellectual property is fraud - a legal privilege to falsely represent 
oneself as the sole "owner" of an idea, expression or technique and to 
charge a tax to all who want to perceive, express or apply this 
"property" in their own production. It is not plagiarism that 
dispossesses an "owner" of the use of an idea ; it is intellectual 
property, backed by the invasive violence of the state, that 
dispossesses everyone else from using their common culture. The basis 
for this dispossession is the legal fiction of the author as a sovereign 
individual who creates original works out of the wellspring of his 
imagination and thus has a natural and exclusive right to ownership. 
Foucault unmasked authorship as a functional principle that impedes the 
free circulation, the free manipulation, the free composition, 
decomposition, and recomposition of knowledge. The author-function 
represents a form of despotism over the proliferation of ideas. The 
effects of this despotism, and of the system of intellectual property 
that it shelters and preserves, is that it robs us of our cultural 
memory, censors our words, and chains our imagination to the law.

And yet artists continue to be flattered by their association with this 
myth of the creative genius, turning a blind eye to how it is used to 
justify their exploitation and expand the privilege of the property 
owning elite. Copyright pits author against author in a war of 
competition for originality ­ its effects are not only economic, it also 
naturalizes a certain process of knowledge production, delegitimates the 
notion of a common culture, and cripples social relations. Artists are 
not encouraged to share their thoughts, expressions and works or to 
contribute to a common pool of creativity. Instead, they jealously guard 
their "property" from others, who they view as potential competitors, 
spies and thieves lying in wait to snatch and defile their original 
ideas. This is a vision of the art world created in capitalism?s own 
image, whose ultimate aim is to make it possible for corporations to 
appropriate the alienated products of its intellectual workers.

 > The Revolt against Intellectual Property

The private ownership of ideas over the last two centuries hasn?t 
managed to completely eradicate the memory of a common culture or the 
recognition that knowledge flourishes when ideas, words, sounds and 
images are free for everyone to use. Ever since the birth of the 
proprietary author, different individuals and groups have challenged the 
intellectual property regime and the "right" it gave to some private 
individuals to "own" creative works while preventing others from using 
and re-interpreting them. In his 1870 Poesies, Lautreamont called for a 
return of impersonal poetry, a poetry written by all. He added, 
Plagiarism is necessary. Progress implies it. It closely grasps an 
author?s sentence, uses his expressions, deletes a false idea, replaces 
it with a right one. His definition subverted the myth of individual 
creativity, which was used to justify property relations in the name of 
progress when it actually impeded progress by privatizing culture. The 
natural response was to reappropriate culture as a sphere of collective 
production without acknowledging artificial enclosures of authorship. 
Lautremont?s phrase became a benchmark for the 20th century 
avant-gardes. Dada rejected originality and portrayed all artistic 
production as recycling and reassembling - from Duchamp?s ready-mades, 
to Tzara?s rule for making poems from cut-up newspapers, to the 
photomontages of Hoech, Hausmann and Heartfield. Dada also challenged 
the idea of the artist as solitary genius and of art as a separate 
sphere by working collectively to produce not only art objects and 
texts, but media hoaxes, interventions at political gatherings and 
demonstrations on the street. Its assault on artistic values was a 
revolt against the capitalist foundations that created them.

Dadaist ideas were systematically developed into a theory (if often 
suffering on the level of real practice) by the Situationists. The SI 
acknowledged that detournement - putting existing artworks, films, 
advertisements and comic strips through a detour, or recoding their 
dominant meanings - was indebted to Dadaist practices, but with a 
difference. They saw Dada as a negative critique of dominant images (one 
that depended on the easy recognition of the image being negated), and 
defined detournement as a positive reuse of existing fragments simply as 
elements in the production of a new work. Detournement was not primarily 
an antagonism to tradition ; it emphasized the reinvention of a new 
world from the scraps of the old. And implicitly, revolution was not 
primarily an insurrection against the past, but learning to live in a 
different way by creating new practices and forms of behavior. These 
forms of behavior also included collective writings, which were often 
unsigned, and an explicit refusal of the copyright regime by attaching 
the labels "no copyright" or "anticopyright" to their works, along with 
the directions for use : any of the texts in this book may be freely 
reproduced, translated or adapted even without mentioning the source.

It is these twin practices of detournement (Lautremont?s necessary 
plagiarism) and anticopyright that inspired many artistic and 
subcultural practices from the 1970s to the 1990s. John Oswald started 
doing sound collages that remixed copyrighted works during the 1970s. In 
1985 he coined the term plunderphonics for the practice of audio piracy 
as a compositional prerogative, which he and others had been practicing. 
Oswald?s motto was : if creativity is a field, copyright is the fence. 
His 1989 album Plunderphonics, which contained 25 tracks that remixed 
material from Beethoven to Michael Jackson, was threatened by legal 
action for copyright violation. Negativland has become the most infamous 
of the plunderphonic bands after their parody of U2?s song "I Still 
Haven?t Found What I?m Looking For" was sued by U2?s record label for 
violating both copyright and trademark law. Plundervisuals also has a 
long tradition. Found footage film goes back to Bruce Connor?s work in 
the 1950s, but became more prevalent after the 1970s with Chick Strand, 
Mathew Arnold, Craig Baldwin and Keith Sanborn. With the invention of 
the video recorder, the practice of scratch video, which detourned 
images recorded directly from television programs and ads, became very 
popular during the 1980s because of the relative ease of production 
compared to the found film?s splicing of celluloid. A form of more 
depolititicized, postmodern plagiarism has also achieved widespread 
reputation in literary and artistic circles during the 1990s with Kathy 
Acker?s novels - her Empire of the Senseless plagiarized a chapter of 
William Gibson?s Neuromancer with only minor rewriting - and with 
Sherrie Levine?s image appropriations of Walker Evans, Van Gogh and Duchamp.

Steward Home, a well-known proponent of plagiarism and organizer of 
several Festivals of Plagiarsm from 1988-1989, has also advocated the 
use of multiple names as a tactic for challenging the myth of the 
creative genius. The significant difference is that whereas plagiarism 
can be easily recuperated as an artform, with star plagiarists like 
Kathy Acker or Sherrie Levine, the use of multiple names requires a 
self-effacement that draws attention away from the name of the author. 
The use of multiple names goes back to Neoism, which encouraged artists 
to work together under the shared name of Monty Cantsin. After his break 
with Neoism, Home and others started using the name Karen Eliot. The 
practice also caught on in Italy, where the Luther Blissett name was 
used by hundreds of artists and activists between 1994 and 1999. Luther 
Blissett became a kind of Robin Hood of the information age, playing 
elaborate pranks on the culture industry, always acknowledging 
responsibility and explaining what cracks in the system were exploited 
to plant a fake story. After Luther Blissett?s symbolic suicide in 1999, 
five writers who were active in the movement invented the collective 
pseudonym Wu Ming, which means "no name" in Chinese. The collective, 
anonymous name is also a refusal of the machine that turns writers into 
celebrity names. By challenging the myth of the proprietary author, Wu 
Ming claims they?ve only made explicit what should already be obvious - 
there are no "geniuses," thus there are no "lawful owners," there is 
only exchange, re-use and improvement of ideas. Wu Ming adds that this 
notion, which once appeared natural but has been marginalized for the 
past two centuries, is now becoming dominant again because of the 
digital revolution and the success of free software and the General 
Public License.

Digitalization has proven to be much more of a threat to conventional 
notions of authorship and intellectual property than the plagiarism 
practiced by radical artists or critiques of the author by 
poststructuralist theorists. The computer is dissolving the boundaries 
essential to the modern fiction of the author as a solitary creator of 
unique, original works. Ownership presupposes a separation between texts 
and between author and reader. The artificiality of this separation is 
becoming more apparent. On mailinglists, newsgroups and open publishing 
sites, the transition from reader to writer is natural, and the 
difference between original texts vanishes as readers contribute 
commentary and incorporate fragments of the original in their response 
without the use of quotation. Copyrighting online writing seems 
increasingly absurd, because it is often collectively produced and 
immediately multiplied. As online information circulates without regard 
for the conventions of copyright, the concept of the proprietary author 
really seems to have become a ghost of the past. Perhaps the most 
important effect of digitalization is that it threatens the traditional 
benefactors of intellectual property since monopolistic control by book 
publishers, music labels and the film industry is no longer necessary as 
ordinary people are taking up the means of production and distribution 
for themselves.

Free software guru Richard Stallman claims that in the age of the 
digital copy the role of copyright has been completely reversed. While 
it began as a legal measure to allow authors to restrict publishers for 
the sake of the general public, copyright has become a publishers? 
weapon to maintain their monopoly by imposing restrictions on a general 
public that now has the means to produce their own copies. The aim of 
copyleft more generally, and of specific licenses like the GPL, is to 
reverse this reversal. Copyleft uses copyright law, but flips it over to 
serve the opposite of its usual purpose. Instead of fostering 
privatization, it becomes a guarantee that everyone has the freedom to 
use, copy, distribute and modify software or any other work. Its only 
"restriction" is precisely the one that guarantees freedom ­ users are 
not permitted to restrict anyone else?s freedom since all copies and 
derivations must be redistributed under the same license. Copyleft 
claims ownership legally only to relinquish it practically by allowing 
everyone to use the work as they choose as long the copyleft is passed 
down. The merely formal claim of ownership means that no one else may 
put a copyright over a copylefted work and try to limit its use.

Seen in its historical context, copyleft lies somewhere between 
copyright and anticopyright. The gesture by writers of anticopyrighting 
their works was made in a spirit of generosity, affirming that knowledge 
can flourish only when it has no owners. As a declaration of "no rights 
reserved" anticopyright was a perfect slogan launched in an imperfect 
world. The assumption was that others would be using the information in 
the same spirit of generosity. But corporations learned to exploit the 
lack of copyright and redistribute works for a profit. Stallman came up 
with the idea of copyleft in 1984 after a company that made improvements 
to software he had placed in the public domain (the technical equivalent 
of anticopyright, but without the overt gesture of critique) privatized 
the source code and refused to share the new version. So in a sense, 
copyleft represents a coming of age, a painful lesson that relinquishing 
all rights can lead to abuse by profiteers. Copyleft attempts to create 
a commons based on reciprocal rights and responsibilities ­ those who 
want to share the common resources have certain ethical obligations to 
respect the rights of other users. Everyone can add to the commons, but 
no one may subtract from it.

But in another sense copyleft represents a step back from anticopyright 
and is plagued by a number of contradictions. Stallman?s position is in 
agreement with a widespread consensus that copyright has been perverted 
into a tool that benefits corporations rather than the authors for whom 
it was originally intended. But no such golden age of copyright exists. 
Copyright has always been a legal tool that coupled texts to the names 
of authors in order to transform ideas into commodities and turn a 
profit for the owners of capital. Stallman?s idealized view of the 
origins of copyright does not recognize the exploitation of authors by 
the early copyright system. This specific myopia about copyright is part 
of a more general non-engagement with economic questions. The "left" in 
copyleft resembles a vague sort of libertarianism whose main enemies are 
closed, nontransparent systems and totalitarian restrictions on access 
to information rather than economic privilege or the exploitation of 
labour. Copyleft emerged out of a hacker ethic that comes closest to the 
pursuit of knowledge for knowledge?s sake. Its main objective is 
defending freedom of information against restrictions imposed by "the 
system," which explains why there?s such a wide range of political 
opinions among hackers. It also explains why the commonality that links 
hackers together
  the "left" in Stallman?s vision of copyleft - is not the left as it?s 
understood by most political activists.

The GPL and copyleft is frequently invoked as an example of the free 
software movement?s anticommercial bias. But there is no such bias. The 
four freedoms required by the GPL ­ the freedom to run, study, 
distribute and improve the source code so long as the same freedom is 
passed down ­ means that any additional restriction, like a 
non-commercial clause, would be non-free. Keeping software "free" does 
not prevent developers from selling copies they?ve modified with their 
own labour and it also does not prevent redistribution (without 
modification) for a fee by a commercial company, as long as the same 
license is passed down and the source code remains transparent. This 
version of freedom does not abolish exchange ­ as some free software 
enthusiasts have claimed ­ nor is it even incompatible with a capitalist 
economy based on the theft of surplus value. The contradiction inherent 
in this commons is partly due to the understanding of proprietary as 
synonymous with closed-sourced or nontransparent. Proprietary means 
having an owner who prohibits access to information, who keeps the 
source code secret ; it does not necessarily mean having an owner who 
extracts a profit, although keeping the source code secret and 
extracting a profit often coincide in practice. As long as the four 
conditions are met, commercial redistribution of free software is 
nonproprietary. The problem is more obvious when translating this 
condition to content-based works, like poems, novels, films, or music. 
If someone releases a novel under a copyleft license, and Random House 
prints it and makes a profit off the author?s work, there?s nothing 
wrong with this as long as the copyleft is passed down. To be free means 
to be open to commercial appropriation, since freedom is defined as the 
nonrestrictive circulation of information rather than as freedom from 
exploitation.

It comes as no surprise that the major revision in applying copyleft to 
the production of artworks, music and texts has been to permit copying, 
modifying and redistributing as long as it?s non-commercial. Wu Ming 
claim it is necessary to place a restriction on commercial use or use 
for profit in order to prohibit the parasitic exploitation of cultural 
workers. They justify this restriction, and its divergence from the GPL 
and GFDL versions of copyleft, on the grounds that the struggle against 
exploitation and the fight for a fair remuneration of labour is the 
cornerstone of the history of the left. Other content providers and book 
publishers (Verso, for example) have expanded this restriction by 
claiming that copying, modifying and redistributing should not only be 
non-profit but also in the spirit of the original - without explaining 
what this "spirit" means. Indymedia Romania revised its copyleft 
definition to make the meaning of "in the spirit of the original" 
clearer after repeated problems with the neofascist site Altermedia 
Romania, whose "pranks" ranged from hijacking the indymedia.ro domain to 
copying texts from Indymedia and lying about names and sources. 
Indymedia Romania?s restrictions include : not modifying the original 
name or source since it goes against the desire for transparency, not 
reproducing the material for profit since it abuses the spirit of 
generosity, and not reproducing the material in a context that violates 
the rights of individuals or groups by discriminating against them on 
the basis of nationality, ethnicity, gender or sexuality since it 
contradicts its commitment to equality.

While some have multiplied restrictions, others have rejected any 
restriction at all, including the single restriction imposed by the 
initial copyleft. It is the movement around peer-to-peer filesharing 
that comes closest to the gesture of anticopyright. The best example is 
the Copyriot blog by Rasmus Fleischer of Pyratbiran (Bureau of Piracy), 
an anti-IP think tank and the one-time founders of Pirate Bay, the most 
used Bittorent tracker in the P2P community. The motto of copyriot is no 
copyright, no license. But there is a difference from the older 
anticopyright tradition. Fleischer claims that copyright has become 
absurd in the age of digital technology because it has to resort to all 
sorts of fictions, like distinctions between uploading and downloading 
or between producer and consumer, which don?t actually exist in 
horizontal P2P communication. Pyratbiran rejects copyright in its 
entirety ­ not because it was flawed in its inception, but because it 
was invented to regulate an expensive, one-way machine like the printing 
press, and it no longer corresponds to the practices that have been made 
possible by current technologies of reproduction.

Stallman?s original definition of copyleft attempts to found an 
information commons solely around the principle of information freedom ­ 
in this sense it is purely formal, like a categorical imperative that 
demands freedom of information to be universalizable. The only limit to 
belonging to this community is those who do not share the desire for 
free information ­ they are not excluded, they refuse to participate 
because they refuse to make information free. Other versions of copyleft 
have tried to add further restrictions based on a stronger 
interpretation of the "left" in copyleft as needing to be based not on a 
negative freedom from restrictions but on positive principles like 
valuing social cooperation above profit, nonhierarchical participation 
and nondiscrimination. The more restrictive definitions of copyleft 
attempt to found an information commons that is not just about the free 
flow of information but sees itself as part of a larger social movement 
that bases its commonality on shared leftist principles. In its various 
mutations, copyleft represents a pragmatic, rational approach that 
recognizes the limits of freedom as implying reciprocal rights and 
responsibilities ­ the different restrictions represent divergent 
interpretations about what these rights and responsibilities should be. 
By contrast, anticopyright is a gesture of radicality that refuses 
pragmatic compromises and seeks to abolish intellectual property in its 
entirety. Anticopyright affirms a freedom that is absolute and 
recognizes no limits to its desire. The incompatibility between these 
positions poses a dilemma : do you affirm absolute freedom, knowing it 
could be used against you, or moderate freedom by restricting the 
information commons to communities who won?t abuse it because they share 
the same "spirit" ?

 > The Creative Anti-Commons Compromise

The dissidents of intellectual property have had a rich history among 
avant-garde artists, zine producers, radical musicians, and the 
subcultural fringe. Today the fight against intellectual property is 
being led by lawyers, professors and members of government. Not only is 
the social strata of the leading players very different, which in itself 
might not be such an important detail, but the framework of the struggle 
against intellectual property has completely changed. Before law 
professors like Lawrence Lessig became interested in IP, the discourse 
among dissidents was against any ownership of the commons, intellectual 
or physical. Now center stage is occupied by supporters of property and 
economic privilege. The argument is no longer that the author is a 
fiction and that property is theft, but that intellectual property law 
needs to be restrained and reformed because it now infringes upon the 
rights of creators. Lessig criticizes the recent changes in copyright 
legislation imposed by global media corporations and their powerful 
lobbies, the absurd lengths to which copyright has been extended, and 
other perversions that restrict the creativity of artists. But he does 
not question copyright as such, since he views it as the most important 
incentive for artists to create. The objective is to defend against IP 
extremism and absolutism, while preserving IP?s beneficial effects.

In his keynote at Wizards of OS4 in Berlin, Lessig celebrated the 
Read-Write culture of free sharing and collaborative authorship that has 
been the norm for most of history. During the last century this 
Read-Write culture has been thwarted by IP legislation and converted to 
a Read-Only culture dominated by a regime of producer-control. Lessig 
bemoans the recent travesties of copyright law that have censured the 
work of remix artists like DJ Dangermouse (The Grey Album) and Javier 
Prato (Jesus Christ : The Musical). Both were torpedoed by the legal 
owners of the music used in the production of their works, as were John 
Oswald and Negativland before them. In these cases the wishes of the 
artists, who were regarded as mere consumers in the eyes of the law, 
were subordinated to control by the producers - the Beatles and Gloria 
Gaynor, respectively - and their legal representatives. The problem is 
that producer-control is creating a Read-Only culture and destroying the 
vibrancy and diversity of creative production. It is promoting the 
narrow interests of a few privileged "producers" at the expense of 
everybody else. Lessig contrasts producer-control to the cultural 
commons - a common stock of value that all can use and contribute to. 
The commons denies producer-control and insists on the freedom of 
consumers. The "free" in free culture refers to the natural freedom of 
consumers to use the common cultural stock and not the state-enforced 
freedom of producers to control the use of "their" work. In principle, 
the notion of a cultural commons abolishes the distinction between 
producers and consumers, viewing them as equal actors in an ongoing process.

Lessig claims that today, as a result of commons-based peer-production 
and the Creative Commons project more specifically, the possibility of a 
Read-Write culture is reborn. But is the Creative Commons really a 
commons ? According to its website, Creative Commons defines the 
spectrum of possibilities between full copyright - all rights reserved - 
and the public domain - no rights reserved. Our licenses help you keep 
your copyright while inviting certain uses of your work - a "some rights 
reserved" copyright. The point is clear : Creative Commons exists to 
help "you," the producer, keep control of "your" work. You are invited 
to choose among a range of restrictions you wish to apply to "your" 
work, such as forbidding duplication, forbidding derivative works, or 
forbidding commercial use. It is assumed that as an author-producer 
everything you make and everything you say is your property. The right 
of the consumer is not mentioned, nor is the distinction between 
producers and consumers of culture disputed. Creative Commons 
legitimates, rather than denies, producer-control and enforces, rather 
than abolishes, the distinction between producer and consumer. It 
expands the legal framework for producers to deny consumers the 
possibility to create use-value or exchange-value out of the common stock.

Had the Beatles and Gloria Gaynor published their work within the 
framework of Creative Commons, it would still be their choice and not 
the choice of DJ Dangermouse or Javier Patro whether The Grey Album or 
Jesus Christ : The Musical should be allowed to exist. The legal 
representatives of the Beatles and Gloria Gaynor could just as easily 
have used CC licenses to enforce their control over the use of their 
work. The very problem of producer-control presented by Lessig is not 
solved by the Creative Commons "solution" as long as the producer has an 
exclusive right to choose the level of freedom to grant the consumer, a 
right that Lessig has never questioned. The Creative Commons mission of 
allowing producers the "freedom" to choose the level of restrictions for 
publishing their work contradicts the real conditions of commons-based 
production. Lessig?s use of DJ Dangermouse and Javier Patro as examples 
to promote the cause of Creative Commons is an extravagant dishonesty.

A similar dishonesty is present in Lessig?s praise of the Free Software 
movement because its architecture assures everyone (technologically as 
well as legally, in the form of its licenses) the possibility to use the 
common resource of the source code. Despite its claim to be extending 
the principles of the free software movement, the freedom Creative 
Commons gives to creators to choose how their works are used is very 
different from the freedom the GPL gives to users to copy, modify and 
distribute the software as long as the same freedom is passed down. 
Stallman recently made a statement rejecting Creative Commons in its 
entirety because some of its licenses are free while others are 
non-free, which confuses people into mistaking the common label for 
something substantial when in fact there?s no common standard and no 
ethical position behind the label. Whereas copyleft claims ownership 
legally only to relinquish it practically, the references to ownership 
by Creative Commons is no longer an ironic reversal but real. The pick 
and choose CC licenses allow arbitrary restrictions on the freedom of 
users based on an authors? particular preferences and tastes. In this 
sense, Creative Commons is a more elaborate version of copyright. It 
doesn?t challenge the copyright regime as a whole, nor does it preserve 
its legal shell in order to turn the practice of copyright on its head, 
like copyleft does.

The public domain, anticopyright and copyleft are all attempts to create 
a commons, a shared space of non-ownership that is free for everyone to 
use. The conditions of use may differ, according to various 
interpretations of rights and responsibilities, but these rights are 
common rights and the resources are shared alike by the whole community 
­ their use is not decided arbitrarily, on a case by case basis, 
according to the whims of individual members. By contrast, Creative 
Commons is an attempt to use a regime of property ownership (copyright 
law) to create a non-owned, culturally shared resource. Its mixed bag of 
cultural goods are not held in common since it is the choice of 
individual authors to permit their use or to deny it. Creative Commons 
is really an anti-commons that peddles a capitalist logic of 
privatization under a deliberately misleading name. Its purpose is to 
help the owners of intellectual property catch up with the fast pace of 
information exchange, not by freeing information, but by providing more 
sophisticated definitions for various shades of ownership and 
producer-control.

What began as a movement for the abolition of intellectual property has 
become a movement of customizing owners? licenses. Almost without 
notice, what was once a very threatening movement of radicals, hackers 
and pirates is now the domain of reformists, revisionists, and 
apologists for capitalism. When capital is threatened, it co-opts its 
opposition. We have seen this scenario many times throughout history ­ 
its most spectacular example is the transformation of self-organized 
workers? councils into a trade union movement that negotiates legal 
contracts with the owners of corporations. The Creative Commons is a 
similar subversion that does not question the "right" to private 
property but tries to get small concessions in a playing field where the 
game and its rules are determined in advance. The real effect of 
Creative Commons is to narrow political contestation within the sphere 
of the already permissible.

While narrowing this field of contestation, Creative Commons 
simultaneously portrays itself as radical, as the avant-garde of the 
battle against intellectual property. Creative Commons has become a kind 
of default orthodoxy in non-commercial licensing, and a popular cause 
among artists and intellectuals who consider themselves generally on the 
left and against the IP regime in particular. The Creative Commons label 
is moralistically invoked on countless sites, blogs, speeches, essays, 
artworks and pieces of music as if it constituted the necessary and 
sufficient condition for the coming revolution of a truly "free 
culture." Creative Commons is part of a larger copyfight movement, which 
is defined as a fight to keep intellectual property tethered to its 
original purpose and to prevent it from going too far. The individuals 
and groups associated with this movement (John Perry Barlow, David 
Bollier, James Boyle, Creative Commons, EFF, freeculture.org, Larry 
Lessig, Jessica Litman, Eric Raymond, Slashdot.org) advocate what Boyle 
has called a smarter IP, or a reform of intellectual property that 
doesn?t threaten free speech, democracy, competition, innovation, 
education, the progress of science, and other things that are critically 
important to our ( ?) social, cultural, and economic well-being.

In an uncanny repetition of the copyright struggles that first emerged 
during the period of Romanticism, the excesses of the capitalist form of 
intellectual property are opposed, but using its own language and 
presuppositions. Creative Commons preserves Romanticism?s ideas of 
originality, creativity and property rights, and similarly considers 
"free culture to be a separate sphere existing in splendid isolation 
from the world of material production. Ever since the 18th century, the 
ideas of "creativity" and "originality" have been inextricably linked to 
an anti-commons of knowledge. Creative Commons is no exception. There?s 
no doubt that Creative Commons can shed light on some of the issues in 
the continuing struggle against intellectual property. But it is 
insufficient at best, and, at its worst, it?s just another attempt by 
the apologists of property to confuse the discourse, poison the well, 
and crowd out any revolutionary analysis.

Berlin, 2006. Anticopyright. All rights dispersed.

Note:  (This text developed out of a series of conversations and 
correspondences between Joanne Richardson and Dmytri Kleiner. Many 
thanks to all who contributed to its production : Saul Albert, Mikhail 
Bakunin, David Berry, Critical Art Ensemble, Johann Gottlieb Fichte, 
Michel Foucault, Martin Fredriksson, Marci Hamilton, Carla Hesse, 
Benjamin Mako Hill, Stewart Home, Dan Hunter, Mark Lemley, Lawrence 
Lessig, Karl Marx, Giles Moss, Milton Mueller, Piratbyran, Pierre-Joseph 
Proudhon, Toni Prug, Samuel Richardson, Patrice Riemens, Mark Rose, 
Pamela Samuelson, the Situationist International, Johan Soderberg, 
Richard Stallman, Kathryn Temple, Benjamin Tucker, Jason Toynbee, 
Tristan Tzara, Wikipedia, Martha Woodmansee, Wu Ming. )

________________________________________________________________________________ 

Hempal Shrestha

Program Officer
Bellanet Regional Secretariat, Asia


-- 
TzuChiang Liou, Project Manager
OSSF Supports Software Freedom  http://www.openfoundry.org
Institute of Information Science, Academia Sinica, Taiwan
E-mail: tcliou at iis.sinica.edu.tw
MSN: tcliou at msn.com
GTalk: tcliou at gmail.com
TEL:+886-2-2788-3799 ext.1404
FAX:+886-2-2651-8660 
Mobile: +886-937835052

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