…how can you destroy artistic property without destroying art?

THE OPEN LICENSE

The answer is with an open license. Open licenses have rarely been
applied to art8, but they've been a driving force behind much of the
software that runs the Internet.9 The archetype for open licenses is
Richard Stallman's GNU Public License, which when attached to a piece of
software guarantees that all works based on that software must inherit
the same freedoms embodied by the original. Such freedoms can include a
requirement that the source code be *transparent* to anyone who wants to
see how it was made; that it be *recombinant*, meaning that anyone can
recombine elements of the original product to make a new one; that it be
*credited*, so there is a record of all the collaborators who may have
modified an original product; and finally that it be *circulating*, that
recipients of the code not attempt to prevent others from freely
distributing any derivatives based upon it.10

While all of these terms are potentially applicable to code-based
products like Internet art, the last criterion is applicable to any form
of open culture, from paintings and sculpture to academic research and
argument. Soon, artists will be able to learn about and apply such open
licenses, thanks to the efforts of a group of affiliates of Harvard's
Berkman Center for Internet and Society11 who will soon launch a
clearinghouse for open licenses at Creativecommons.org.

I'm not proposing that creators be locked into open licenses for all
their projects. Individuals could choose on a project-by-project basis
which works to be open licensed and which to be distributed based on the
closed terms of traditional property. I'm just not sure there's a good
reason to call the latter work art; "commercial art" strikes me as a
contradiction in terms.

"You can't fight capitalism," I hear some readers say. "The art market
has assimilated corners of fat and scribbled blackboards by Josef Beuys,
even though there's little evidence he wanted them sold. If a dealer
wants to sell your work, they will." Yeah, unless you make it illegal.
The GNU Public License uses a strategy called copyleft–an ingenious
twist on copyright–to enforce openness. Creators of copylefted products
retain their copyright so they can sue anyone who tries to constrain
access to work they distributed for free. Open licenses won't put
dealers and appraisers and the rest of the middlemen out of business.
But it will release the lock the market has on deciding the fate of art–
just as GNU/Linux has released the Microsoft's lock on the fate of
software.

But why would artists choose open licenses? How would they pay the
studio rent and DSL bill? The same way their parents' and grandparents'
generation did, the same way the overwhelming majority of them do now: a
day job. Day jobs suck, but they help reinforce the line between the
choices artists make for commercial reasons and the choices they make
for their art. Ironically, Internet artists often complain about having
to hold down a day job, despite the fact that they're the artists whose
skills put them in the best stead for landing lucrative part-time jobs.
Part of the problem is the expectations of comparable wage from the dot-
com boom. Something tells me that Merce Cunningham and Nam June Paik
never bitched about how much more money they could have made doing
developees or smashing pianos for the commercial world.12

THE BENEFITS OF GIVING

Artists aren't the only ones whose illusions would be shattered by
taking away the false promise of commercial success through selling art.
Up to now, capitalist societies have been able to excuse their
unwillingness to support artists by entrusting that responsibility to
the art market. America, for example, ranks somewhere alongside Iran
when it comes to public sponsorship of the arts: 6$ per capita, compared
to Canada's $46, France's $57, or Germany's $85. Our policymakers don't
see this as a problem because they're under the impression American
artists make a living on the market. When I try to breathe some reality
into the stratospheric deliberations of NEA chiefs, copyright
registrars, and arts organization policy wonks, they look at me like I'm
crazy in the head. Without the pretense of market compensation, the
wealthy and powerful might be under a little more pressure to sponsor
free health care, grants, and other mechanisms to sustain this
invaluable cultural produc! tion. But even if they don't, the difference
would only be felt among the tiny percentage of artists who currently
make any substantial living off their work. And even those artists
wouldn't get pinched by the unfair laws preventing them from empowering
themselves through giving.

There are also individual benefits to giving–altruistic and economic.
To exclude art from an exchange economy doesn't imply it will have no
economic value; it's just that its economic value won't be determined by
exchange.13 I'm not talking about the benefits you get by being an
Andrew Carnegie or John D. Rockefeller Jr. Those people gave with the
expectation of getting something else in exchange: tax writeoffs, spin
control, the ability to sleep at night. I'm talking about the currency
of gift economies–communities that circulate rather than exchange
gifts. Achilles and Odysseus had Kleos. The Impressionists of fin-de-
siecle Paris had the Troc. Slashdot has egoboo; Everything2.com has
experience points. They mean respect, they mean prestige, but they also
mean people will listen to you and talk about you. And those things are
just as important to the starving artist as the bread on his table. As
writer Joline Blais puts it, to sell the products of artistic labor is
to tak! e away artists' power as the source of the gift.

Kleos and egoboo don't pay the bills, but no middleman has a cut of them
either. And they *can* lead to grants, commissions, patronage, and other
financial rewards that aren't based on property14. Yet any creator who
plays according to the rules of gift economies should be judged
according to them–in the eyes of the Copyright office and IRS, among
others. All of culture, whether protected by closed copyright or not–
Mickey Mouse, Bart Simpson, the whole kit and kaboodle–should be fair
game when it comes to appropriating material for an open-licensed work.
Open-licensed artworks would have no clear sales value, and hence not be
taxable as income or inheritance.15 If you get a grant to help you give
more things away, you shouldn't pay tax on that money. The primary job
of the executor of an artist's estate should be to give the inheritance
away in the manner most consistent with the artist's intent.

There should also be consequences for the receivers of these gifts, who
would be beholden to the circulation requirement of open licenses. For
museums to acquire open-licensed art would require them to transform
from collecting institutions to circulating institutions. This change
would be just as dramatic for paintings as for online art, for museums
commonly exhibit less than ten percent of the works in their collection;
the rest gather dust in basements and warehouses. No schoolchild will
ever see inspiration in a sculpture banished for eternity to a wooden
box. Paintings on a warehouse rack are not common culture, but a dollar
value in the assets column of some annual report handed out at board
meetings. Art is cultural heritage, not an investment to be squirreled
away in a vault as a form of commodity speculation. To acquire an open-
licensed work, museums would have to drastically reshape their
acquisitions policies to ensure the works in their collection spent the
maxim! um possible time on public view–if not on their own walls, then
on loan to other institutions. In return, however, such *circulators*
would qualify for regulatory tax benefits of their own.16

WEAKNESSES OF THE LICENSE APPROACH

Voluntary licensing doesn't require any changes in intellectual property
law; this is both its strength and its weakness. As the name "Creative
Commons" suggests, open licenses have the potential to demarcate a
public space immune from the restrictions of intellectual and physical
property–in the same sense that a public park like the Boston Commons
is a communal territory available to all citizens equally. But the rest
of the digital world is already functionally a commons anyway–it's just
not legally one. Software piracy is rampant; Napster and its variants
permit unlimited music sharing; and Web designers routinely pilfer code
from other online sites whether it's copylefted or not.

That leaves an enforceability dilemma for legislators. They could choose
not to put any muscle behind enforcing their own laws protecting
intellectual property, in which case those laws will only hurt law-
abiding citizens. Or they could choose to enforce them by the only means
possible: drastically curtailing the freedoms netizens currently enjoy
in order to prevent unauthorized use of digital culture. Senator
Hollings has already proposed such legislation: the Consumer Broadband
and Digital Television Promotion Act. This act would mandate copyright-
sniffing chips in every PC and make circumventing them illegal–
effectively forbidding the sale of fully programmable personal computers
and eliminating any hope of innovative approaches to recording, playing,
cataloging, and distributing music or movies. To disable the Internet to
save EMI and Disney is the moral equivalent of burning down the library
of Alexandria to ensure the livelihood of monastic scribes.
Unfortunately, the! se legislators don't know enough about the Internet
to understand why Webarchivist and Google deserve more protection than
Britney Spears and The Little Mermaid. It won't do artists any good to
copyleft their movies if personal computers can only play videos
produced by Hollywood studios.

The mutability of digital media creates another liability with voluntary
licenses. Suppose digital artist Geoff Kuhntz scans a copyrighted
postcard of seven puppies on a cushion, then uses Photoshop to replace
all but one with a flowery background. Suppose Kuhntz then offers his
image free of restrictions on a clearinghouse for open culture like
Creativecommons.org. He's free to do that, because his "transformative
use" of the original image qualifies for fair use protection against a
copyright suit. Another artist downloads it, agreeing to abide by the
terms of the license. She decides it would look better if there were
seven puppies instead of one, so she clones them–and wham, gets hit
with a copyright infringement suit by the original artist. You can
imagine the same scenario taking place in other media–for example, if
an excerpted Philip Glass riff were re-sampled into a minimalist
composition that rivaled the original, or if a work of online art that
depended on random combinations of image and text from other pages
accidentally re-created something dangerously close to one of its
victims' Web pages. For digital culture, fair use is a porous category,
which makes open licenses no guarantee you won't be sued.

As Creative Commons consultant Wendy Seltzer has observed, these
practical obstacles don't necessarily mean the open license approach is
wrong, just that it's incomplete. Modest readjustments are not an
adequate solution to a legal framework that is out of touch with digital
reality. To complement open licenses, we need not a legal or illegal
intervention, but a meta-legal one.

THE DIGITAL SANCTUARY

The solution I'd suggest to the digital liability of open licenses is as
practical as it is radical: a "digital sanctuary." Digital objects are
like rabbits–they reproduce easily. It is this promiscuity that creates
practical problems for the commons approach. Let's say you take your pet
rabbit for a walk in a public commons. If it gives birth, the offspring
are still your property, and you can prosecute anyone who takes them
from you. But if your promiscuous bunny's offspring happen to hop their
way into a wildlife sanctuary, they could go from property to heritage–
at which point your exclusive claim on them could vanish.

The Internet could serve as such a sanctuary17 for digital creativity,
if our legal system were to treat any snippet of culture that found its
way online as communal heritage. The effect of this rule would be that
any form of streamable18 creativity, be it a text file, JPEG, or MP3, is
automatically copylefted. Streamable versions of fixed formats–such as
the MP3 of a live concert or Quicktime bootleg of a movie playing in
theaters–would be similarly protected, whether they were streamed by
the fixed-format's rights holder or by an unauthorized fan.

While this proposal would radically change the judicial understanding of
the Internet's role in stimulating innovation, it wouldn't change the
actual everyday use of the Internet very much at all. Although you'd
never know it by listening to Hilary Rosen and Jack Valenti, most
citizens treat the Internet as a sanctuary already, surfing clear of
online content that costs money.

In a global network, of course, enforcing open access–what Stanford
cyberlaw guru Lawrence Lessig has called "copyduty"–may be as difficult
as enforcing closed access. To this problem I propose a compromise.
Hollywood, the record labels, and anyone else who wants restrict access
to culture can try out innovative copy-protection schemes online, and
hope that Jon Johansen doesn't crack them–or more importantly that his
doing so doesn't cut into their profit margins. This "post at your own
risk" policy would mean that the circumvention of locked culture would
be legal, but not guaranteed. A pet owner may choose to walk her bunny
through the sanctuary with a leash–but if that bunny wriggles and hops
away, the owner has no legal recourse to getting it back. Should the
bunny emerge from the sanctuary and re-enter normal space, the owner can
again assert property rights–and the same would be true of digital
culture. Under this system, netizens could post endless remixes of The!
Phantom Menace online with impunity, but once they tried to distribute
them in movie theaters, George Lucas could sue them for infringement.

The digital sanctuary is not a wilderness, but a wildlife refuge–not
beyond the law, but protected by it. Legal paradigms like the protection
of privacy and the prohibition on dangerous speech, which protect the
public rather than rights holders, may still apply. We stamp out forest
fires when they threaten parks; maybe we should also stamp out computer
viruses that threaten the network. It's not entirely clear how to
enforce these protections, but it is important to note that the copy-
protection schemes proposed by Hollings aren't the way.

Of course, the media conglomerates and their content providers can
continue to make money off of the things that *can't* be streamed:
immersive projections in big theaters, live concerts, leather-bound
books you can read at the beach. Painters and sculptors would still have
a choice of open or closed licenses for the products of their labor–
they just couldn't enforce copyright over online digital reproductions
of their work. For their part, Internet artists determined to make a
buck could put digital leashes on their Web sites and hope for the
best.19 Or they could be grateful for what they have: a refuge from
property, poor in cash but rich in gifts.