My Lawyer is an Artist: Free Culture Licenses as Art Manifestos

My Lawyer is an Artist: Free Culture Licenses as Art Manifestos
Aymeric Mansoux
Originally published in ISEA2011 proceedings
--
Copyleft: This work is free, you can distribute and modify it under the terms
of the Free Art License. http://artlibre.org/licence/lal/en
--
Introduction
Most discussions around the influence of the free software philosophy on art
tend to revolve around the role of the artist in a networked community and her
or his relationship with so-called open source practices. Investigating why
some artists have been quickly attracted to the philosophy behind the free
software model and started to apply its principles to their creations is key in
understanding what a free, or open source, work of art can or cannot do as a
critical tool within culture. At the same time, avoiding a top down analysis of
this phenomenon, and instead taking a closer look at its root properties,
allows us to break apart the popular illusion of a global community of artists
using or writing free software. This is the reason why a very important element
to consider is the role that plays the license as a conscious artistic choice.

Choosing a license is the initial step that an artist interested in an
alternative to standard copyright is confronted with and this is why before
discussing the potentiality of a free work of art, we must first understand the
process that leads to this choice. Indeed, such a decision is often reduced to
a mandatory, practical, convenient, possibly fashionable step in order to
attach a "free" or "open" label to a work of art. It is in fact a crucial
stage. By doing so, the author allows her or his work to interface with a
system inside which it can be freely exchanged, modified and distributed. The
freedom of this work is not to be misunderstood with gratis and free of charge
access to the creation, it means that once such a freedom is granted to a work
of art, anyone is free to redistribute and modify it according to the rules
provided by its license. There is no turning back once this choice is made
public. The licensed work will then have a life of its own, an autonomy granted
by a specific freedom of use, not defined by its author, but by the license she
or he chose. Delegating such rights is not a light decision to make. Thus we
must ask ourselves why an artist would agree to bind her or his work to such an
important legal document. After all, works of art can already 'benefit' from
existing copyright laws, so adding another legal layer on top of this might
seem unnecessary bureaucracy, unless the added 'paper work' might in fact work
as a form of statement, possibly a manifesto. In this case we must ask
ourselves what kind of manifesto are we dealing with, what is its message? What
type of works does it generate, what are their purpose and aesthetic?

The GNU manifesto

In the history of the creation and distribution of manifestos the role of
printing and publishing is often forgotten or given a secondary role. But, what
would have become of the Futurist Manifesto without the support of the printing
press and the newspaper industry in France and the rest of Europe? Not much,
probably. So it is not without irony that one of the anecdotes often given to
illustrate the motivations of Richard Stallman to write the GNU Manifesto, the
founding text behind the free software movement, is tightly linked to the story
of a defective printer. Indeed, very often, the origin of the document starts
with a story about a problem Richard Stallman and some colleagues of his faced
when Xerox did not give away the driver source code of the printer they had
donated to MIT, preventing the hackers at the lab to modify and enhance it to
fit their specific needs. In this case, this particular printer model had the
tendency to jam and the lack of feedback from the machine when it was happening
made it hard for the users to know what was going on. [1] Beyond the inability
to print, and behind what seems to be a trivial anecdote, this event still
remains one of the best examples to illustrate the side effects proprietary
software can have in terms of user alienation. The programmers and engineers
that were using the printer could have fixed or found a workaround for the
jamming, and contributed the solution to the company and other users. But they
were denied the access to the source code of the software. Such a deadlock is
one of the reasons why the GNU manifesto was written. What is unique in this
manifesto, is the idea that software reuse and access should be enforced, not
only because it belongs to a long history of engineering practice, but also
because software has to be free.

Looking at the text itself, we can see that the tone and the writing style used
by Stallman make the GNU Manifesto closer to an art manifesto, than to yet
another programmer's rant or technical guideline. As a matter of fact, we can
read through the document and analyse it using the specific art manifesto
traits that Mary Ann Caws has isolated based on the study of art manifestos
produced during the twentieth century. [2] For instance Caws explains that "it
is a document of an ideology, crafted to convince and convert." This is
correct, the GNU manifesto starts with a personal story, turns it into a
generalisation including other programmers and eventually involving the reader
in the generalisation and explaining to her or him how to contribute right
away. Caws also characterises the tone of manifestos as a "loud genre", and it
is not making a stretch to see this feature in the all-capital recursive
acronym GNU and the way it is introduced to the reader. It is the first
headline of the manifesto and sets the self-referential tone for the rest of
the text, as well as embodying a permanent finger pointing to what it will
never be: "What's GNU? Gnu's Not Unix!." Furthermore, she reminds us that the
manifesto “does not defend the status quo but states its own agenda in its
collective concern", which is what Stallman does with the use of headlines to
announce the GNU road-map and intentions clearly: "Why I Must Write GNU," "Why
GNU Will Be Compatible with Unix," "How GNU Will Be Available," "Why Many Other
Programmers Want to Help," "How You Can Contribute," "Why All Computer Users
Will Benefit." the GNU Manifesto also instructs its audience on how to respond
to the document with the presence of a final section "Some Easily Rebutted
Objections to GNU's Goals" that lists and answers common issues that come to
mind when reading it. Last but not least, manifestos are often written within a
metaphorical framework that borrows its jargon from military lingo and for many
the GNU Manifesto is being perceived and presented as a weapon, essential in
the war against the main players of the proprietary software industry, such as
Microsoft. In fact many hackers saw in the GPL an effective tool in "the
perennial war against Microsoft." [3] Thus, when the copyleft principle, the
mechanism derived from the GNU manifesto, is introduced in the 1997 edition of
the Stanford Law Review, it is precisely described as a "weapon against
copyright" [4] and not just a 'workaround' or 'hack'.

From the manifesto to the license...

This particular concept of freedom, as it is expressed in the manifesto, is
focused on the usage and the users of software. It will eventually lead to the
maintenance by the Free Software Foundation (FSF) of a definition of free
software and the four freedoms that can ensure its existence. On top of that,
the GNU Manifesto is practically implemented with the GNU General Public
License (GPL), that provides the legal framework to enable its vision of
software freedom. It means every work that is defined by its author as free
software, must be distributed with the GPL. The license itself works as a
constant reference to the manifesto, by the way it is affecting the software
and its source code distribution. Every software distributed with the GPL
becomes the manifestation of GNU, and the license's preamble is nothing else
but an alternative text paraphrasing the GNU Manifesto. This preamble is not a
creative addition to the license, on the contrary the Frequently Asked
Questions (FAQ) of the FSF even insists that it is an integral part of the
license and cannot be omitted, thus making form and function coincide.

Even though the GPL was specifically targeting software, it does not take long
for some people to see this as a principle that could be adapted or used
literally in other forms of collaborative works. As early as 1997, copyleft is
mentioned as a valid framework for collaborative artworks in which artists
would pass "each work from one artist to another." [5] Of course, this is
suddenly brought to our attention not because of the collaboration itself, but
because of its sudden legal validity. Indeed the idea of passing works from one
artist to another and encouraging derivative works is nothing new. For
instance, back in the sixties, mail artists such as Ray Johnson even used the
term "copy-left" in their work, [6] and it was possible on some occasions to
spot the now very popular copyleft icon, an horizontally mirrored copyright
logo, marking a mail art publication. In this context copy-left was seen as a
symbol of "free-from-copyright relationships" with other artists in a way
that was "not bound to ideologies".[7] In a strange twist, the use of this term
is echoing years later, not without cynicism, in some reproductions of
Johnson's works which are now stamped "Copyright the estate of Ray Johnson."[8]

So why a sudden interest in such practices? Precisely because of the growing
development of intellectual property in the field of cultural production. At
the time, under the 1976 copyright act, the only recognised artistic
collaborative work was the joint work, in which it is required that all the
authors agree that all their contributions are meant to be merged into one,
flattened down, work. This made perfect sense in the context of the print based
copyright doctrine but was clearly not working for digital environments where
the romantic vision of the author is dissolved in the complex network of
branches, copies and processes inherent to networked collaboration. This
situation provided much headache to lawyers focused on the copyrighting of
digitally born works. One of these works is for instance Bonnie Mitchell's 1996
“ChainArt” project, in which her students and fellow artists were invited to
modify a digital image and pass it to someone else using a file server. In such
a project the whole process and its different iterations are the work itself,
not the final image at the end of the chain. The work exists as a collection of
derived, reused and remixed individual elements that cannot be flattened down
into one single 'joint work' and as a consequence, from a legal perspective,
could neither be protected nor credited properly under the limited copyright
regulations.[9] No surprise then that Heffan picked the Chain Art project as
an example of artistic work that could greatly benefit from the GPL and the use
of copyleft that can encourage "the creation of collaborative works by
strangers".[10]

...and back to the manifesto

Although this conclusion makes perfect sense legally, it clearly overlooks and
diminishes the artistic desire to reflect upon the nature of information in the
age of computer networks. Many artists adopted the GPL early on, not because of
their wish to collaborate with strangers, but instead to augment their work
with a statement derived from the free software ideology. For instance Mirko
Vidovic used the free software definition to develop the GNU Art project,[11]
in which suddenly, the GPL becomes a political tag, a set of meta data that
could be applied to any work of art. By choosing the GPL as a means of creation
and distribution, artists are aiming at implementing an apparatus similar to
the digital aesthetics that Critical Art Ensemble (CAE) had described "as a
process of copying […] that offers dominant culture minimal material for
recuperation by recycling the same images, actions, and sounds into radical
discourse".[12] The weapon against copyright becomes a flagship for the
recombining dreams of the digital resistance as envisioned by CAE. But by
directly reusing the GPL, projects such as GNU Art failed none the less to
really break through the position of Stallman that refuses to take part in
judging if whether or not works of art should be free.

This is why a few lawyers, Mélanie Clément-Fontaine, David Geraud, as well as
artists, Isabelle Vodjdani and Antoine Moreau, felt the need to make more
explicit the artistic context and motivations of a liberated work of art by
creating the Free Art License (FAL), equivalent to the popular free software
GNU public License and articulated specifically for the creation of free art.
[13] Suddenly, the license becomes an art manifesto. In the FAL the rules of
copyleft are exposed, they stand on their own and enable the artistic creation,
not for the sake of creating but as a means to produce singular and collective
works. What is seen as freedom is just a very specific definition as envisioned
in the GNU manifesto and that can only exist within the set of rules it
represents. Moved to an artistic context, the rules to define freedom become a
system to make art. In the same way that 'cent mille milliards de poèmes' was
the 1961 OuLiPo manifestation of creative rules, the free art license is also a
combinative manifesto, one that enables free art. It is not a simple adaptation
of the GPL to the French copyright law, it is a networked art manifesto that
operates within the legal fabric of culture.

Anyone who respects the rules of the FAL is allowed to play this game. Just
like the ludic aspect in OuLiPo's work, and its probable root from Queneau's
flirt with surrealism, artists who start to consciously use the GPL and the FAL
solely for its 'exquisite' properties might start a superficial relationship
with the creative process. Indeed, Raymond Queneau, co-founder of the OuLiPo
reminded us already that we should not stop at the process' aesthetics itself
because "simply constructing something well amounts to reducing art to play,
the novel to a chess game, the poem to a puzzle. Neither saying something nor
saying something well is enough, it is necessary that it be worth saying. But
what is worth saying? The answer cannot be avoided: what is useful."[14] In
other words and adapted to the FAL, the network aesthetics are not enough,
their existence must be contextualised and positioned to escape its fate of a
convenient technological and legal framework. This is why if the game aspect is
obvious in the collective works that surround the FAL, we must see beyond the
rules that are presented to us to perceive that such an artistic methodology
aims to be an answer to the issue perceived by Chon in the analysis of the
“ChainArt” project. Namely, to engage with the fluidity of information and try
to turn the clichéd attitude of artists towards their unique and immutable
contributions to art into a useful game. At the same time the emphasis is put
on the collective nature of production and not community work.

The main issue with the intention of the FAL is that unlike the digital
aesthetics modeled by CAE from Lautréamont's ideas,[15] the mechanism of a free
art, against the capitalisation of culture and for the free circulation of
ideas within the network can only work by making the machine responsible for
this very same capitalisation legitimate. While the mail art derivatives are
happening outside of any obvious legal regulations, the copyleft art is
literally hacking the system to reach a symbiosis and establish a kingdom
within the kingdom. As a consequence these political works are very different
from the artistic politics developed after the Russian revolution and World War
I. Here, the artist is not an agent of the revolution but the vector of an
'arevolution'. A copyleft art is in the end not so much a critical weapon but
instead a cornucopia that operates recursively and only within the frame of its
license. Artists that are engaging with it, thus turning the license in a
shared manifesto, cannot materialise an anti-culture, a counter culture, nor a
subculture, they must create their own from scratch. Instead of seeking
opposition and destruction of an enemy, they aim at founding and building.

Conclusion

If we look at 1897 Mallarmé's 'Un coup de dés jamais n'abolira le hasard', it
is possible to only see it as an interesting visual design experiment in
poetry. This approach misses the reason why this work exists in the first
place. By turning art into the gathering and composing, even painting of both
time and space within a text, it reached the apotheosis of parnassianism and
symbolism upon which modernism broke through. A similar issue of complex
lineage and contextual information surrounds a document such as the FAL and
leads to concurrent 'raisons d'être.' Indeed, the FAL is not just an 'excercice
de style,' it is the embodiment of several elements that are announcing
important changes in artistic practices: a call to turn legal rules into a
constrained art system, a reflection on the nature of collaboration and
authorship in the networked economy, a living archeology of the creative
process by bringing traceability and transparency, and ultimately, the mark of
an age of copyright and bureaucratic apotheosis that is pushing artists to
develop their practice within the administrative structure of society and embed
it in their creative process.

Unfortunately, and this is one of the reasons there is so much confusion and
misunderstanding about the use of such licenses by artists and theoreticians,
is that, with such a manifesto where form meets function, once the license is
used, it triggers a process of rationalisation that leads to a fragmentation of
the original ideology and intention into different, possibly contradictory,
elements:

* A toolkit for artists to hack their practice and free themselves from
consumerist workflows.

* A political statement against the transformation of the digital culture
into what CAE calls the "reproduction and distribution network for the ideology
of capital".

* A legal and technical framework to interface with the current system and
support existing copyright law practices.

* A lifestyle, and sometimes fashion statement.

In practice it is possible for an artist to only see one of these facets and
either ignore or not be aware of the others, making the license as manifesto
multidimensional, open to different interpretations, not unlike the medium it
was drafted in: the law.

--

[1] Sam Williams, Free as in Freedom: Richard Stallman's Crusade for Free
Software, ed. Sam Williams (Sebastopol: O'Reilly and Associates, Inc., 2002).

[2] Mary Ann Caws, Manifesto: A Century of Isms (Lincoln: University of
Nebraska Press, 2000).

[3] Ibid. 1, p. 13.

[4] Ira V. Heffan, "Copyleft: Licensing Collaborative Works in the Digital
Age," in Stanford Law Review, Vol. 49, No. 6 (Jul., 1997), pp. 1487-1521.

[5] Ibid.

[6] "From Mail Art to Net.art (studies in tactical media #3)", McKenzie Wark,
email on the nettime mailing list,
http://www.nettime.org/Lists-Archives/nettime-l-0210/msg00040.html.

[7] "RYOSUKE COHEN MAIL ART - ENGLISH", accessed May 13, 2011,
http://www.h5.dion.ne.jp/~cohen/info/ryosukec.htm.

[8] Ibid. 6.

[9] Margaret Chon, "New Wine Bursting from Old Bottles: Collaborative Internet
Art, Joint Works, and Entrepreneurship," in Oregon Law Review, Spring 1996.

[10] Ibid. 4.

[11] "GNUArt", accessed May 13, 2011, http://gnuart.org.

[12] Critical Art Ensemble, "Recombinant Theatre and Digital Resistance," in
TDR (1988-), Vol. 44, No. 4 (Winter, 2000), pp. 151-166.

[13] "Free Art License 1.3," accessed April 19, 2011,
http://artlibre.org/licence/lal/en.

[14] Constantin Toloudis, "The Impulse for the Ludic in the Poetics of Raymond
Queneau," in Twentieth Century Literature, Vol. 35, No. 2 (Summer, 1989), pp.
147-160.

[15] Ibid. 12.