In one of Henry David Thoreau's last essays,"Walking," he makes a plea for "absolute freedom and wildness in our lives -- in contrast to the merely civil --because man is an inhabitant and part and parcel of Nature rather than a member of society." The height of this freedom he suggests is Walking -- or, as he prefers to call it, sauntering -- off the beaten path. A true Walker, he feels, is willing to get lost in the woods and that society is made from two or more of these Walkers connecting and forming a network rather than by laws made through legislation or dictated by religion from above.
Things have changed. Not only is it increasingly more difficult to find the offramp from that beaten path but the means of connection have increased dramatically in ways that Thoreau wouldn't recognize. But his basic premise is still valuable. We create society (and culture) through confrontation with each other and joining either in combat or in collaboration. Just like the internet could be said to only exist when two computers connect we are a society only in relation to each other. You might say that Thoreau lived by himself in the cabin at Walden Pond in order to find the "source code" for society.
I'm not a lawyer, I'm an artist but for the past few years I've been casually mapping artistic practice using the Internet with the emerging legal and regulatory environment. The two areas might seem to some to be incongruous if not downright hostile to each other but after talking with lawyers and using the increasing resources of the net I've found similarities between artists and lawyers if only that both groups are engaged in creating forms, making sense and establishing protocols.
What I'd like to do this afternoon is give you a brief overview of some of the art projects I've found lately or have been involved with that seem to me to have legal ramifications to them -- whether by design or not -- that may influence the way we view the Internet in the future.
What I'm not doing is offering these as exemplary works of "Internet Art" since the critical apparatus for judging work is still in an emergent state, to say the least. Rather, I'm taking a cue from critic Leo Steinberg who suggested in his essay "Critique of Formalism" that when critics approach unfamiliar art practices
"they hold their criteria and taste in reserve. Since they were formed upon yesterday's art, he does not assume that they are ready-made for today. While he seeks to comprehend the objectives behind the new art produced, nothing is a priori excluded or judged irrelevant. Since he is not passing out grades, he suspends judgment until the work's intention has come into focus and his response to it is - in the literal sense of the word - sym pathetic; not necessarily to approve, but to feel along with it as with a thing that is like no other."This seems to me in keeping with the concept of "Common Law" where process is key rather than the regulatory actions that are so often called for today in dealing with international issues. Steinberg conceded his method could be slow and uncertain and it's certainly out of step with the accelerating speed of today's world. Yet the net itself developed to what we know now because of just this kind of process. Like Thoreau's "Walkers" forming and transforming society as they walk. Maybe that's where the "Vitual Museum" will be most effective.
Leo Steinberg, "Critique of Formalism," in "Other Criteria" (Texas.net Museum of Art), http://www.artchive.com/theory/steinbrg/steinbrg.htm.
First, I'll give a few examples of confrontational projects that deliberately use the current ambiguity of the law as a medium either in the form of digital appropriation or civil disobedience; Second I'll look at some that raise questions as a by-product of their method.
II. CONFRONTATION ON A LEVEL PLAYING FIELD
A "level playing field" for market competition is generally thought to be in the interest of the public while those with an advantage -- Bill Gates, for example -- see it as government interference and a hindrence to growth.
In the "marketplace of ideas" of Intellectual Property it's called "Fair Use" and allows for a certain amount of leeway between the rights of owners to control and profit from their creativity and the realization that creativity depends on access to the work of others.
Though it's always difficult to draw a distinct line between "quotation" and theft or "parody" and libel the Internet creates a whole new area of ambiguity in the meaning of Fair Use. Not only is copying extremely easy to do but the net also "levels the field" of distribution. Until this century in order to copy a book you needed a printing press and the resources to operate it and a distribution network to sell it. Each new technology -- the camera, tape and video recorders, photocopiers and desktop computers -- made this easier but it wasn't until the World Wide Web that suddenly multinational corporations were working with the same distribution network as the kid on a home computer or an artist in the studio.
What artists think of as media manipulation or appropriation has an established lineage, from esthetic jokesters like Marcel Duchamp to the post-modernism of Sherrie Levine or Jeff Koons. This same activity looks like sabotage or theft to corporations and as Koons himself has learned from his own copyright case the courts tend to agree.
IRATIONAL.ORG is the "home" domain for a group based in London that includes Heath Bunting and Rachel Baker and others who question the commercial authority system that has already taken root and been accepted on the net in only a few short years. Often this involves reproducing and diverting an established commercial site so that it no longer functions as it was designed but instead serves their own purpose, or, more than likely, becomes useless.
One such project involved the Sainsbury company and their "Reward" card for customers. (http://www.irational.org/tm/archived/sainsbury/). Using the simple tools provided by the web browser for downloading files plus some elementary programing Bunting, Baker and others recreated the Sainsbury catalog with their own logos and those of their friends (see picture) then rewrote the questions on the application form for the card. they did not hack into the Sainsbury site itself but hosted their version on the irational site. Unsuspecting customers who accessed the site through search engines rather than the direct Sainsbury URL were given no clue they had reached a fake site and proceeded to apply for the card.
Sainsbury was not amused, to say the least, and issued a cease and desist order through their attorneys. The resulting correspondence between irational and the lawyers is the most interesting part of the project now and is, if somewhat juvenile at first look, also quite funny and calls into question the right of corporations to "pirate" public space and demand protection while doing it. It is very much an update of the tradition of hoaxes of "official" correspondence perpetrated by artists but because of the medium much more effective.
The fake site is archived but still accessible, much to Sainsbury's annoyance. This brings up another question about archives and whether the evidence of infringement also constitutes and infringement when made available on-line. Legal action proved difficult as the perpetrators kept changing identity and location, a sport endemic to the net.
A subsequent project started last year and still in operation called 7-11 (http://www.ljudmila.org/7-11/) hosted by Vuk Cosic in Slovenia and involving some of the same people as Sainsbury has proven to be more lasting and, in many ways, significant. Cosic may be remembered as the person who downloaded the Documenta X site to his server before it was disconnected (http://www.ljudmila.org/~vuk/dx).
Taking the site of the ubiquitous convenience store they reformatted the Web site and added a mailing list to turn it into a convenience site for artists to communicate, experiment and stay connected. Again, unsuspecting web surfers were invited to communicate with a fake corporate representative or "hostess" named Keiko Suzuki (who was herself derived from a site in Japan). Complaints about bad service or questions about franchises were then posted to the list and answered by whomever took an interest in that particular problem.
Again, this use of simple methods and the blatent "borrowing" of a corporate identity was in one sense a mean joke on unsuspecting Web surfers but it also had a complexity built into it so that it not only mimicked the trademarked identity of a corporation but also the function of a 7-11 as a modern-day virtual "agora".
The reaction of the Southland Corporation, owners of the 7-11 chain, isn't made known on the site as was the case with Sainsbury. Changes to the Web site do reflect some sort of responsive action on the part of the owners. Though the opening menu remains it is set with a meta refresh tag to automatically change to a form for posting to the mailing list. Thus the infringment is still there, but doesn't remain on the viewer's screen long enough to be used and calls into question its status as a "fixed medium" that would seem to be required for a copyright violation.
When asked his opinion of the then new telegraph technology and its ability to enable him to communicate with someone in New Orleans from his home in New England Thoreau was reported to have been unimpressed and wondered what they would have to talk to each other about.
So it's doubtful if he would have appreciated the concept of "Electronic Civil Disobedience" manifested on the FloodNet site by artist Ricardo Dominguez and political therorist Stefan Wray, with an interface designed by Carmin Karasic and Java programming by Brett Stalbaum. The site is designed to allow supporters of the Zapatista rebels in Chiapas, Mexico to stage a "virtual sit-in" by closing down access to a selected symbolic Web site for a day. To many it may also be doubtful, what this possibly illegal action may have to do with issues of art.
Irregardless of one's feelings toward the Zapatista movement, there is a sense that this is a noteworthy event in what has been an on-going discussion spurred by the writings of the Critical Art Ensemble and Friedrich Kittler among many others as well as to the theme of the up-coming Ars Electronica Festival -- InfoWar. It could be seen as a political act done through art or, in Mathew Fuller's term for his WebStalker, "more than just art." (Mathew Fuller, "A Means of Mutation", http://www.backspace.org/iod.)
Dominguez stated in a recent New York Times interview that he considers it "a form of theater that indirectly increases solidarity among activists" He and Wray also said they don't think they are breaking any law. However a former head of the Justice Department's efforts to prosecute computer crime, told the Times that they are at risk of "violating a federal statute that makes it a crime to intentionally distribute a program, software code or command with the intent to cause damage to another's Web site" (Carl Kaplan, "For Their Civil Disobedience, the 'Sit-In' Is Virtual", New York Times Cybertimes, May 1, 1998, http://nytimes.com)
Anyone who knowingly participates in civil disobedience, electronic or not, should be aware that they risk breaking some law. It is, as Dominguez also said, "inherent in the practice of civil disobedience" and is often negotiated with police beforehand in a kind of management of risk.
It will be interesting to eventually see what the term "damage" is construed to mean and exactly what laws the methods planned will break. As it is those participating will have to act on faith. What FloodNet plans seems to be more of a disruption than the kind of damage intended to be done by software viruses and computer hackers. And disruption, interference, redirection are some of the more interesting subjects being investigated by artists these days, not to mention the promise of "push" technology and intelligent agents who are designed to interfere.
Political action, however unrelated to art it may seem, is also a catalyst for focus and change, which is one of the purposes of Civil Disobedience. It will be interesting to see how our reaction to this kind of activity will eventually reflect in the laws we pass and, more important, in the art we create.
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"Permission" is an attribute determined by the owner of a file and is a matter of coding. In UNIX the "chmod" command permits the owner of a file to "change the access mode " and set limitations on who can access, change and/or execute that document. The same is true for objects created in a multi-user online environment like a MOO.
The physicists at CERN who developed HTML and the Web wanted to put some order into their communications network. Hypertext made it easier to create multiple navigational paths and to read papers online. Documents were either open for all to access, closed to all but a select group or closed to all but the owner.
Ted Nelson's Xanadu project evolved this into a "permissions doctrine" where the copyright holder gives permission for republication with the provision that the document is obtained, and purchased, from its original source. This was not only to compensate the creator but also to guarantee the integrity of the document.
According to Nelson:
"The standard question has been, 'How do we prevent infringement?' If we re-frame the question as 'How can we allow re-use?', the solution may be simpler and more powerful than everyone thinks, with benefits for everyone."
(Theodor Nelson, "Transcopyright: Pre-Permission for Virtual Republishing", http://xanadu.com.au:8000/xanadu/transcopy.html)
Despite my previous examples, not every artist working with the Internet is out to break the law, some do it without knowing or because they take certain aspects of the way it works, like the setting of permissions, for granted.
We grant or withhold permission all the time in our daily lives -- it's what makes us autonomous. When I co-organized an exhibition at the MIT List Visual Arts Center last year with Remo Campopiano called PORT: Navigating Digital Culture this awareness that we had been granted the authority to grant or withhold permission was very much a part of our thinking about it since we would decided who could participate and how.
We were asked by the director of the List Center to do something about digital technology and the Internet and since we were most interested at that time in the possibilities of global networked environments we decided to use networks of people as much as possible both to create it and as the exhibition itself. Though we didn't announce it at the time one of our main criteria for being part of PORT was evidence of an understanding of both how these networks work and how to use them effectively and efficiently.
We sent out a call for participation through the Internet as well as by word of mouth and were surprised by the number of people who understood our admittedly vague premise. What resulted was eight weeks of telematic performace originating and accessed from around the world. It was an exciting and groundbreaking event for those involved but somewhat mistifying to those more casual visitors who were accustomed to the "read-only" atmophere of most galleries.
Most of the participants were well-versed in Internet culture and the concept of shareware and freeware and so there was a significant amount of what might legally be called "copyright infringement" going on. The only law that was inforced was one of scheduling -- every participant had a set two hours once a week to do somethine that would be exhibited in the gallery.
I began to notice that people who re-use existing material for their own work had different, idiosyncratic reasons for doing so. It was not simply a matter of lazyness or ethics.
PORT: Navigating Digital Culture
Marek Walczak, who is an architect who uses computer assisted design extensively, looked upon everything as possible building material -- even the logo for the exhibit, which he digitally reconstructed into a 3d environment and we used as the announcement. A more elaborate version of this idea became the core of his VRML project for the exhibition called MapDance (http://artnetweb.com/port/participants/dance.html) where visitors to the virtual world were given the ability to create their own out of other sites on the Web using a program that reconstructed the underlying HTML for the VRML world.
There are a number of different projects -- sometimes called Web Collages or Web Colliders -- on the Web who take this approach that is very much reminiscent of Robert Rauchenberg's "silkscreen collage" paintings for which he was accused at one point of copyright infringement.
I've since realized what Walczak was doing was building his own browser to use the data flow in a different way, much like the I/O/D Web Stalker. My worry isn't that he will be caught and punished but that excessive concern over something that is so integral to Internet culture will cause a "chilling effect" where artists refrain from doing their research for fear of breaking a law and stiffle the innovation copyright law is meant to protect. It may be beneficial to think of copyright as a subset of Fair Use rather than the other way around as we do now.
Most of our best known art institutions are the domain of art historians, and the discipline of "art history" has come into question. As academia moves slowly towards more interdisciplinary departments offering classes such as "visual culture" and "cultural studies". Art historians are afraid of losing privilege to -- among others -- anthropologists. It's less a matter of copyright than it is a territorial battle.
Now the contested field is widening.
A case in point is Nicholas Pioch's "WebMuseum," originally called "Le WebLouvre".
Pioch, a teacher at the Polytechnic Institute in Paris, is either condemned as a digital thief (usually by Americans) or applauded as an innovative and dedicated art lover. His site was constructed by using private photographs of paintings without any consent from the Louvre, which objected only to the original name, and it has grown to a global network of easily accessible art images. The Louvre has meanwhile opened their own website. Pioch has his own extensive copyright information page on the site with a particularly apt section devoted to U.S. lawyers.
In the U.S. there are a number of amateur art sites unconnected to institutions with one of the largest run by Mark Harden and called Mark Harden's Artchive (formerly called the texas.net Museum of Art). His FTP Archive for Fine Art Images is extensive but has no information given about copyright, or any information about Mr. Harden, for that matter. He also posts the images to an alt.binaries newsgroup and can be found as a contributor to the Pioch WebMuseum site.
Harden is some people's worst nightmare. Like the programmer for the U.S. military that he is during the day he saw a job that needed to be done and did it with expertise and pride. The odd thing isn't that he doesn't seem overly concerned with infringing copyright, but that he did a better job than the majority of museums.
But, then again, is Harden so much different than the enthusiastic amateurs who founded most American art museums -- except that he isn't wealthy. Some museums are are even starting to grasp the idea that these enthusiast from the outside can be beneficial rather than a threat.
Thoreau tells us that we cannot afford not to live in the present and it is in the present that law is continually made and remade as its value is tested by individual cases. The same is true for the museum, the home of the muses, daughters of memory. What they contain isn't Art but the possibility to make art still and in that sense every museum has always been a virtual museum, a museum of possibilities. It is a level playing field for culture and can only gain by using the Internet as a place of experimentation and testing, freedom and wildness rather than regulation and control.
This talk and revisions can be found on the Web: http://artnetweb.com/iola/journal/history/1998/salzburg/index.html