Copyright, Copyleft and the Creative Anti-Commons
Copyright, Copyleft and the Creative Anti-Commons. A Genealogy of Authors’ Property Rights. Anna Nimus
The first part of the essay is historical, and deals with copyright and its anti-copyright opposition.
The second part, reproduced here, puts Copyleft into context.
The third part, is a critique of the Creative Commons.
The Copyleft Movement
"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" ?" (http://multitudes.samizdat.net/Copyright-Copyleft-and-the.html)
The Creative Commons movement
"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 begin_of_the_skype_highlighting end_of_the_skype_highlighting, 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." (http://multitudes.samizdat.net/Copyright-Copyleft-and-the.html)