Artists and Legal Ambiguity on the Internet
Artist and Co-founder of artnetweb, New York
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 he regards man as 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. He feels that a true Walker 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 laws created by legislation or dictated by religion from above.
Things have changed. Not only is it increasingly more difficult to find the off-ramp from that beaten path, but the means of connection have increased dramatically in ways that Thoreau wouldn't recognize. Nevertheless, his basic premise is still valuable. We create society (and culture) through confrontation with each other and through joining either in combat or in collaboration. Just like the Internet could be said to exist only 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 that uses the Internet with the emerging legal and regulatory environment. To some people, the two areas might seem 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.
I'd like to give a brief overview of some of the art projects that I've found lately or have been involved with and that seem to have legal ramifications -- whether by design or not -- which may influence the way we view the Internet in the future.
What I don't want to do is to offer 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 -- sympathetic; not necessarily to approve, but to feel along with it as with a thing that is like no other."
To me, this seems in keeping with the concept of "Common Law" where the key is process rather than the regulatory actions that are so often called for when it comes to dealing with international issues today. Steinberg conceded that 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 it is now because of just this kind of process -- similar to Thoreau's "Walkers," forming and transforming society as they walk. Maybe that is the area where the "Virtual Museum" will be most effective.
First, I want to 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; secondly, I'll look at some projects that raise questions as a by-product of their method.
Confrontation on a Level Playing Field
A "level playing field" for market competition is generally thought to be in the interest of the public; those with an advantage -- Bill Gates, for example -- see it as government interference and a hindrance 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, you needed a printing press and the resources to operate it in order to copy a book, as well as 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 advent of the World Wide Web that multinational corporations were suddenly 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, ranging from aesthetic jokesters like Marcel Duchamp to the postmodernism 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 London-based group that includes Heath Bunting, 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. Their projects often involve 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. Using the simple tools that are provided by web browsers for downloading files plus some elementary programming, Bunting, Baker, and others recreated the Sainsbury catalog with their own logos and those of their friends, and 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 irational.org's site. Unsuspecting customers who accessed the site through search engines rather than the direct use of the Sainsbury URL were given no clue that 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, if somewhat juvenile at first look, also quite funny; it 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 the issue whether the evidence of infringement -- when made available on-line -- also constitutes an infringement. 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 is "7-11", hosted by Vuk Cosic in Slovenia. Involving some of the same people as the Sainsbury project, it 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.
The project's creators took the web site of the ubiquitous convenience store, reformatted it and added a mailing list in order 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 whoever took an interest in that particular problem.
Again, this use of simple methods and the blatant "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; it mimicked not only 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 it was in the Sainsbury case. 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 infringement 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 Thoreau was asked his opinion of the then new telegraph technology and its capacity to enable him to communicate with someone in New Orleans from his home in New England, he reportedly was unimpressed and wondered what they would have to talk about.
So it's doubtful if he would have appreciated the concept of "Electronic Civil Disobedience" manifested on the
"FloodNet" site created by artist Ricardo Dominguez and political theorist 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 web site of symbolic significance for a
day. To many people, 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 the on-going discussion spurred by the writings of, among others, the Critical Art Ensemble and Friedrich Kittler as well as in the context of the Ars Electronica Festival's theme -- InfoWar. It could be seen as a political act done through art or -- to use Matthew Fuller's term for his browser WebStalker -- "more than just art."
In a recent New York Times interview, Dominguez stated that he considers the project "a form of theater that indirectly increases solidarity among activists." He and Wray also said that 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)
Anyone who knowingly participates in civil disobedience, electronic or not, should be aware that they risk breaking some law. It is, as Dominguez said, "inherent in the practice of civil disobedience," and is often negotiated with police beforehand in a kind of risk management.
It will be interesting to eventually see what the term "damage" is construed to mean and exactly what laws the planned methods will break. As it is, the participants will have to act on faith. What "Flood Net" 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, and 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 be reflected in the laws we pass and, more important, in the art we create.
"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 on-line environment such as 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 on-line. 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 meant 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."
(Theodore Nelson, "Transcopyright: Pre-Permission for Virtual Republishing")
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.
In our daily lives, we grant or withhold permission all the time -- it's what makes us autonomous. When I co-organized, with Remo Campopiano, an exhibition called "PORT: Navigating Digital Culture" at the MIT List Visual Arts Center last year, the awareness that we had been granted the authority to grant or withhold permission was very much a part of our thinking about the project, since we had to decide who could participate and how.
We were asked by the director of the List Center to do an exhibition about digital technology and the Internet and since we were most interested in the possibilities of global networked environments at that time, we decided to use networks of people as much as possible both to create these environments and the exhibition itself.
Though we didn't announce it at the time, one of our main criteria for making selections for PORT was evidence of an understanding of both how these networks work and how they can be used 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 were eight weeks of telematic performance originating and accessed from around the world. It was an exciting and groundbreaking event for those involved, but somewhat mystifying to the more casual visitors who were accustomed to the "read-only" atmosphere of most galleries.
Most of the participants were well-versed in Internet culture and the concept of shareware and freeware, so that there was a significant amount of what might legally be called "copyright infringement" going on. The only law that was enforced was one of scheduling -- every participant had a set two-hour period once a week to do something that would be exhibited in the gallery.
I began to notice that people who re-used existing material for their own work had different, idiosyncratic reasons for doing so. It was not simply a matter of laziness or ethics.
Marek Walczak, who is an architect and 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 which we used as the announcement. A more elaborate version of this idea became the core of his VRML project for the exhibition, called "MapDance". Visitors to the virtual world were given the ability to create their own out of other sites on the Web by 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 that take this approach, which is very much reminiscent of Robert Rauschenberg's "silkscreen collage" paintings for which he, at one point, was accused of copyright infringement.
I've since realized that what Walczak was doing was building his own browser in order to use the data flow in a different way, much like I/O/D's WebStalker does. 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 have a "chilling effect," which will cause artists to refrain from doing their research for fear of breaking a law and stifle the innovation that 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 slowly moves 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 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 its own web site. 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. One of the largest is run by Mark Harden and called the "texas.net Museum of Art". His FTP Archive for Fine Art Images is extensive but includes no information on copyright, or 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 a programmer for the U.S. military, which is his day-time occupation, 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, Harden isn't much different from the enthusiastic amateurs who founded most American art museums -- except that he isn't wealthy. Some museums are even starting to grasp the idea that these enthusiasts 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 it contains isn't art but the possibility to make art 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.