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

Aymeric Mansoux

Introduction:

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 their relationship with so-called open source practices. However, one overlooked question, that is why some artists have been quickly attracted to the legal apparatus behind the free software model, is key in understanding the effect and interpretation of a free or open source work of art as a critical cultural practice. It is necessary here, to avoid a top down, all encompassing, and generalised analysis of the free culture phenomenon. We must instead take a closer look at its root properties, so as to allow us to break apart the popular illusion of a global community of artists using or writing free software, within an ever growing culture of sharing gathered around a vague idea of digital commons. This is the reason why a very important element to consider is the role that the license plays as a conscious artistic choice. Indeed, choosing a license is the initial step that an artist, interested in an alternative to standard copyright protection, is confronted with. Therefore this is the very reason why the first thing to do before discussing the potentiality of free works of art is to first understand the intention and process that leads to this choice. Even though such a decision is often reduced to a mandatory, practical, convenient, possibly tedious or 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 their work to interface with a system inside which their production can be freely exchanged, modified and distributed. In this particular case, the freedom attached to a free work of art 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. What is more, 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 that was chosen. Delegating such rights is not a light decision to make. Thus we must ask ourselves why an artist would agree to bind their work to such an important legal document. After all, works of art can already benefit, somehow, from existing copyright laws. Adding another legal layer on top of this might seem unnecessary bureaucracy. Unless, the added paper work might in fact work as a cultural comment, a form of artistic statement written as a contract, possibly a manifesto. If this is the case, what kind of manifesto and statements are we dealing with. What are they standing for? What are the effects of such contractual rules? What are their purposes and aesthetic consequences? Looking into such questions should give us enough clues on the nature and critical potential of free art.

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 Europe? Not much, probably. So it is not without irony that one of the anecdotes often given to illustrate the motivations of computer programmer Richard Stallman to write, in 1985, a manifesto(1) for his current GNU's Not UNIX (GNU) operating system, is tightly linked to the story of a defective printer. Very often, the origin of what would become the founding text behind the free software movement, is explained with a tale that narrates a problem that Stallman, and some colleagues of his, faced when Xerox did not give away the driver source code of the printer they had just donated to MIT. The absence of the program source therefore prevented the hackers at the lab to modify and enhance it to fit their specific needs, or simply fix annoyances and bugs. 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.(2) Beyond the inability to print more freely, and behind what seems to be a trivial episode, this event still remains one of the best examples to illustrate the side effects that closed source software can have in terms of user alienation. The programmers and engineers that were using the printer could have indeed improved the driver, or even found a workaround for the jamming, and then documented and contributed the fix to the company and other users. But they were denied the access to the source code of the software. It is in the context of such deadlocks that the GNU operating system and its manifesto emerged. What is unique in the latter is the idea that software reuse and access should be enforced simply because software has to be free. There is no other way around. From Stallman's perspective, the contrary does not make sense as it goes against the legacy of the sixties and seventies computer hardware and software user communities, in which access to blueprints was entirely part of the main distribution models and practices. The underlying appropriation mechanism of such an approach allowed for effciency and customisation, which, from a computer engineering perspective, directly translated to form a freedom embodied by the idea of technical autonomy and empowerment. The introduction of closed source proprietary software was a direct threat to this freedom.

Figure 1: GNU Head, drawing, Etienne Suvasa, FAL 1.3

Looking at the GNU Manifesto itself, we can see that the tone and the writing style used by Stallman stands out. And from reading his text, it becomes quite clear that we are not given yet another programmer's technical guideline or a simple public declaration of intentions. As a matter of fact while reading through the document, it becomes striking how the later could be associated to the lineage of art manifestos writing, more particularly in the way it is fearlessly and daringly structured, highly originative, and completely embedded with the type properties and limitations of the digital medium used for its most popular distribution, from the most simple character encoding of plain text files to the HyperText Markup Language (HTML) of Web pages. To explore this idea further, we can analyse the GNU Manifesto using the specific art manifesto traits that Mary Ann Caws has isolated, based on her exhaustive study of the ones produced during the twentieth century.(3) For instance, Caws explains that these are "document[s] of an ideology, crafted to convince and convert"(4), and yes, the GNU manifesto starts indeed with a personal story, turns it into a generalisation so that it can be appropriated by other programmers, and eventually involves the readers further by explaining them how to contribute right away. Caws also characterises the tone of manifestos as a "loud genre"(5), and it is not making a stretch to see this aspect in the all-capital recursive acronym GNU, and the way it is introduced to the reader. It is the first section, the title of the manifesto, and sets the self-referential tone for the rest of the text, as well as embodying a permanent irreverent reference to its software family: "What's GNU? Gnu's Not Unix!"(6) Furthermore, she reminds us that the art manifesto "does not defend the status quo but states its own agenda in its collective concern"(7), which is what Stallman does with the use of the following headlines to signpost the GNU road-map and intentions clearly: "Why I Must Write GNU"(8), "Why GNU Will Be Compatible with Unix"(9), "How GNU Will Be Available"(10), "Why Many Other Programmers Want to Help"(11), "How You Can Contribute"(12), "Why All Computer Users Will Benefit"(13). And just like the preemptive concerns found in some art manifestos, 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"(14), which lists and answers common issues that come to mind when reading this particular piece of writing. With such manifest qualities, one should not be surprised why artists got particularly sensible to this mode of address. Last but not least, art manifestos are often written within a metaphorical framework that borrows its jargon and terms from a militaristic social imaginary, 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, in the nineties, many hackers and free software supporters perceived the second version of the GNU General Public License (GNU GPL or GPL)(15), that is the binding instrument that provide the legal foundation of the GNU operating system, as an effective and re-usable tool in "the perennial war against Microsoft"(16). Thus, when the copyleft principle is introduced in an 1997 issue of the Stanford Law Review journal, and despite being a copyright based mechanism derived from the GNU manifesto that is specific to some but not all free software licenses, it is further mistaken as a "weapon against copyright [emphasis added]"(17), and not just a clever hack of copyright itself.

From the manifesto to the license . . .

This particular concept of freedom, as it is expressed in the manifesto, is focused on the users of software and its very usage. It will eventually lead to the maintenance, by the Free Software Foundation (FSF), of a definition of free software and the freedoms that can ensure its existence(18). As introduced above, the GNU Manifesto is practically implemented with the GNU GPL, which provides the legal framework to support Stallman's vision and ideas about software freedom. Practically speaking, it means that every work that is presented by its author as free software must be distributed with the GPL(19). 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 preamble is nothing else but an alternative text paraphrasing the 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(20), thus making form and function contractually coincide. Even though the GPL was specifically targeting software, it did not take long for some people to see an opportunity to literally use, then adapt, this license for other forms of cultural expressions, most notably in the context of this paper: art. Indeed, while the late nineties brought to life some experiments on the creation of generalised proto free culture licenses(21), this transposition first went through a direct use of the GPL for non-software creations. Most importantly, this came with an articulation of the motives and intentions in doing so. Michael Stutz in particular, whose in the mid nineties published his entire website including his clip art gallery under the GPL(22), and was, as early as 1994, the first to use the GPL outside the scope of software(23), explains that anyone deserves the freedom provided by the copyleft license, and that it represents a "resource for all artists and scientists who work with digital information."(24) In his short 1997 electronic essay "Applying Copyleft To Non-Software Information", whose copy today is preserved by the FSF, he explains that "certain restrictions of copyright - such as distribution and modification - are not very useful to 'cyberia,' the 'free, apolitical, democratic community' that constitutes the internetworked digital world."(25) He believes that the GPL answered very well to this issue for software matters, and notes that "it appears that the same License can be easily applied to non-software information."(26) The same year of the publication of this text, copyleft is more specifically mentioned as a valid framework for collaborative artworks in which artists would pass "each work from one artist to another"(27). Of course, this is suddenly brought to our attention not because of the collaboration itself, but because of the sudden legal approval given to certain practices whose origins are buried in the depth of art history. 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(28), 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 by mail artists as a symbol of "free-from-copyright relationships"(29) with other artists, in a way that was "not bound to ideologies"(30). In a very unfortunate and sad twist, the use of this term is echoing years later in some reproductions of Johnson's works, which are now stamped "Copyright the estate of Ray Johnson"(31).

Figure 2: copy-left, work in progress, misc. authors, compiled and distributed by Manfred Vänçi Stirnemann, 1985

But why a sudden interest in such practices? Precisely because of the growing development of intellectual property in the field of digital 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 understanding of authorship is challenged by the dense network of branches, copies and processes inherent to networked collaboration. What was already highlighted by mail-artists in the analogue domain becomes painfully visible and impossible to ignore in its digital alter-ego, and this situation naturally provided much headache to lawyers focused on the copyrighting of digitally born works. One of these works was for instance Bonnie Mitchell's 1992 ChainArt artwork, in which her students and fellow artists were invited to modify a digital image, and pass it to someone else via email and File Transfer Protocol (FTP) servers(32). Margaret Chon, in the article "New Wine Bursting From Old Bottles: Collaborative Internet Art, Joint Works, and Enterpreneurship", notes that in this 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, some would say remixed, individual elements that cannot be flattened down into one single joint work. According to Chon the legal outcome from this chained work is its impossible protection, or proper crediting under the limited copyright regulations(33). No surprise then that Ira V. Heffan, in his paper "Copyleft: Licensing Collaborative Works in the Digital Age" distinctively picks the ChainArt project as an ideal example of an artistic work that could greatly benefit from both the GPL and the creative use of its copyleft mechanism that would encourage "the creation of collaborative works by strangers"(34).

. . . and back to the manifesto

Although Heffan's conclusion is legally sound, it does miss an important point, as it clearly overlooks and diminishes, most likely involuntarily, the artistic desire to reffect upon the nature of information in the age of computer networks, reducing it to a mere desire to collaborate for the sake of collaborating, and to make a collage for the sole intent to put different things together without purpose or intention. In fact, many artists adopted the GPL early on, not because of their wish to collaborate with strangers or peers, something they were already very good at, but instead to augment their work with a statement derived from the free software ideology. For instance Mirko Vidovic used in 2000 the free software definition to develop the GNUArt project(35), a call to develop free art, in which suddenly the GPL becomes a political tag, a set of meta data that could be applied to any work of art. So by consciously choosing the GPL as a means of creation and distribution, such artists are aiming at implementing an apparatus that is in a way connected to the digital aesthetics that Critical Art Ensemble (CAE) ̧ a performance art and tactical media collective focussed on the resistance against authoritarian culture, had described the same year as "a process of copying that offers dominant culture minimal material for recuperation by recycling the same images, actions, and sounds into radical discourse."(36) In this context, another interpretation of free software suddenly emerges: the sound and wise copyright collaborative contract twist can also be turned into a performative flagship for the recombining dreams of the digital resistance, close to the one envisioned by the CAE collective. It is not a fortuitous link. Bearing the same name, Vidovic's father, Mirko Vidović, is a Croatian writer who was associated to the Movement of Independent Intellectuals in Yugoslavia, opposing Tito's regime in a quest for freedom of speech. Despite having easily obtained his French nationality by marriage in 1962, and exiled to France to pursue his literary work and studies, he is arrested in the late sixties during a visit to his birth place, in Western Bosnia. There, he will be trialled and imprisoned for an early publication of his book of poetry. Two years later, his sentence is aggrevated with his refusal to testify against members of the Croatian Spring, a Yugoslavian political movement in favour of democratic and economic reforms. In total, Vidović will spend more than five years in the Yugoslav Gulag camps, before his release and return to France toward the end of the seventies(37). With such a lineage, it is easy to perceive a particular sensibility towards any form of legal dictatorship, a sensibility that would be eventually embodied in the GNUArt project itself. Here, we can clearly see an extension, into the digital domain, of an engaged form of intellectual and cultural resistance. As such, the project is a crucial step to understanding the different paths of evolutionary transitions in the development of free culture. It is indeed the first and yet most articulate transposition of the FSF engineering freedom towards a politically driven artistic freedom, both rooted in a Popperian libertarian free speech discourse that opposes authoritarian entities, and the pragmatic desire to develop an autonomous and empowering practice, in which its participants can build upon each others' ideas and techniques by combining and cooperating within a common pool, a library, of projects and materials, let it be software or art. At the time, even though Stallman is troubled by the very principle of porting his software freedom to another cultural domain such as art, and even question the necessity and viability of such an idea(38), Pandora's box has been opened ̧and the FSF defined freedom finds its future abruptly multiplied in the coming forth of the free culture multiverse embryo. All of a sudden, other freedoms start to emerge to highlight similar parallels found in artistic freedom, such as the cultural context of art production and distribution. While Vidovic was the first to articulate this intention by coining the term art libre(39) and writing about the need for a Free Art License(40) in 1998, we have to wait a little bit more for the work of a few lawyers and artists, Mélanie Clément-Fontaine, David Geraud, Isabelle Vodjdani and Antoine Moreau, as well as participants of a mailing list dedicated to the topic of free art, who felt the need to make more explicit the artistic motivations of a liberated work of art by literally writing such a Free Art License (FAL)(41) instead of relying solely on the GPL. In the FAL, the copyleft principle is perceived as "la liberté contre le libéralisme"(42), freedom against liberalism. The resulting license is made to be an equivalent of the GPL, still it is articulated specifically for the creation of free art under the French jurisdiction, making the FAL explicitly and only valid within French Copyright law(43), le droit d'auteur, which, by mimicking the English copyleft alternative term, then sometimes gets renamed as la gauche d'auteur, so as to emphasize in a playful way the anti-liberal left politics present in the project.

Figure 3: Map showing some examples of reuse and appropriation of net art works within the framework of the Free Art License, Copyright Charlotte Bruge, 2003

It's probably with this project that the license reinforces the most its role as an art manifesto. The rules of copyleft are indeed exposed and put to the front as an attitude, giving name to the artists meetings, Copyleft Attitude, from which the FAL came forth. These rules stand on their own and provide a framework, for a creative process that is meant to inspire a collectivist approach to producing works, thus encouraging an artistic alternative to the gallery and contemporary art market diktat on artwork production and distribution. Moved to an artistic context, the rules to define software freedom become then not simply a critique but a constraint system to make art, making the FAL exactly inscribed into a far reaching legacy of constraint practices. More precisely, we can make a connection with the work from the Ouvroir de littérature potentielle (OuLiPo), a sixties-born group of writers and mathematicians focussed on the creation of literary structures, in which systems of constraints are used to promote and inspire creation.(44) The group dynamic itself is driven by rules, that, in the case of OuLiPo, define all the things the group is not. So in the same way that Cent mille milliards de poèmes(45) was the emblematic, 1961 OuLiPo call and manifestation of creative rules to encourage a practice of constraint writing, the launch of the FAL is a generalised manifesto for legally constraint art, yet one that paradoxically enables l' art libre, free art, and set the rules for the Copyleft Attitude community that will subsequently use the license to produce new works and recombine others. Here the collective practice is centrally dictated. Unlike with GNUArt that aimed to spread and test early on the idea of a free art practice, which subsequently might lead to a bottom-up emergence of decentralised collectives and cooperation, the FAL works as an artistic top-down gift to other artists, to invite them engage and participate in this game(46), therefore letting one wonders if Copyleft Attitude's most achieved collective artistic creation is in fact the license itself(47). Regardless, in the end, the essential point is that the FAL goes beyond the adaptation of the GPL to the French copyright law, it is a networked art manifesto that operates within the legal fabric of culture.

Zooming out from this project, and the collective nature of artistic collaboration and co-authorship, we can be tempted to generalise by saying that any artist who respects the rules of the FAL or the GPL is allowed to play such games. This is true from a contractual perspective, however there is also an aspect that might not be possible to translate to copyright laws and their rules, no matter how creatively appropriated they can be. Similar to the ludic aspect found in OuLiPo's works, and its probable root found in the generational connection between its co-founder, Raymond Queneau, and movements such as surrealism and Dada that saw le jeu as "a code word for rebellion"(48), artists who start to consciously use the GPL and the FAL solely for their exquisite properties are at the risk of overshadowing the universal nature of the free art intention with a particular, more self-contained, art practice. Indeed, Queneau advised already in his 1938 essay "Qu'est-ce que l'art?" that artists should not stop at the well execution of rules for the art's sake:

In other words, the network aesthetics and critique are not enough, their presence must be contextualised and positioned to escape the free art fate of a solely playful technological and legal framework. This is why, given that the ludic aspect is obvious in the collective works that surround the FAL or the cooperative practices found on the GNUArt project, their participants must also look beyond these rules that are presented to them, in order to communicate a more universal message that such methodologies aim at turning the clichéd attitude of artists towards their immutable contributions, as well as reflect and make a stand against a growing privatisation and control over culture. Yet, by exclusively relying on the licence, there is no warranty for these works to successfully carry and deliver this cultural critique to their audience. As the GPL states, the licensed work is provided "'AS IS' WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED"(50), and we can certainly transpose this software warranty clause to the very problem of reading the intention of free art. Consequently, an artist cannot fully move the critical discourse from the object of their creation to its legal interface. The license works in that sense as an amplifier, and to be heard, the work must therefore carry a signal that is not a flatline.(51) Thus the making of free art must be a useful game indeed, which is not reducing collective or cooperating practices to trivial and formal creative exercises. Next to that, free art comes with another string attached. Unlike the digital aesthetics modelled by CAE from Lautréamont's ideas(52), the legal mechanism behind art against an authoritarian capitalisation of culture and for the free circulation of ideas within the network, literally works by making legitimate the machine responsible for this very same authoritarian capitalisation. While the copy-left mail art and its derivatives were perceived by its actors to happen outside of any obvious legal regulations, the copyleft art is manipulating the legal system to reach a symbiosis, and is establishing, just like free software, 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. In the end, free art is not so much a critical weapon but instead a critical cornucopia that operates recursively, and only within the frame of its contractual terms. Isolated from illegitimate appropriations, artists that are producing free art, thus turning the license into a shared manifesto, cannot materialise an anti-culture, a counter culture, nor a subculture, without first creating their own cultural references from scratch. Instead of seeking direct opposition and destruction of an enemy, they aim at founding and building a safe haven of artistic freedom.

Conclusion

If we look at Mallarmé's 1897 work Un Coup de Dés Jamais N'Abolira Le Hasard(53), it is possible to only see it as a key visual design experiment in poetry. Throughout the twentieth century, it is the main aspect that has overshadowed other elements, and that has been reinforced by putting the emphasis on the particular typographic layout of the work. For instance, in Marcel Broodthaers' rendition of the poem(54), typesetting is replaced by the creation of different types of black stripes matching the text arrangement of Mallarmé's work. While it is true that Mallarmé had given precise instructions on the typesetting of his poem, to the extend that the text itself cannot be distinguished from its visual arrangement, it is important to keep in mind that reducing our view to this only aspect would prevent us from looking at the deeper cultural context and intention behind this work. Indeed, typography and graphic design put aside, by conceptually turning art into the gathering and composing, painting even, of both time and space within a text, this work brought the apotheosis of parnassianism and symbolism upon which modernism broke through(55). So it is not an overstatement to say that the technological apparatus necessary for the production of the poem, even if indeed it eventually anticipated and possibly accelerated a modernist interest in the visual design of textual elements, is in fact only a means to create the swan song of a nineteenth century literary scene engulfed in the mystical contemplation of art for art's sake. A parallel can be drawn here with the far reaching lineage and contextual information surrounding projects such as GNUArt and the FAL, which are today buried under the overwhelming all encompassing umbrella of free culture, and would make us think of them as mere prototypes of a globalist cultural cooperation mechanism, championed by the Creative Commons non-profit organisation. Actually, understanding both this lineage and context is essential to measure the diversity of intentions from which free culture emerged, and the subsequent elusive confrontations between the concurrent raisons d'être of the liberated cultural expressions it produces. So even if the rise of free art is not just initially an exercice de style, it is the embodiment of several elements that have been announcing important changes in artistic practices at the turn of the millennia, which are ultimately more crucial than the inflated vague notions of openness and commons in an artistic setting. Such important elements are: the call to turn legal and technological rules into a constrained art system; the reflection on the nature of collaboration and authorship in the networked economy; the living archaeology of the creative process by bringing traceability and transparency; and most importantly, the mark of an age of intellectual property and bureaucratic exaltation, which is pushing artists to develop their practice within the administrative structure of society, and further embed it in their creative process, even if, in a paradoxical manner, it is done to object the techno-legal apparatus of the former.

Unfortunately, and this is one of the reasons why there is so much confusion and misunderstanding about the use and existence of such practices, with such manifesto-like contracts where form meets function, once the license is used and the work published, it triggers a process of rationalisation that leads to the fragmentation of free art practices into different, and possibly contradictory, things, such as:

• A toolkit for artists to expand their practice and free themselves from consumerist workflows;
• A political statement against a shape shifting authoritarian entity;
• A novel creative legal and technical framework to interface with and support existing copyright law practices;
• A lifestyle, and sometimes fashionable statement to tag along the marketing of all things free and open.

In practice it is possible for an artist, and their audience, to cherry-pick or only see one of these properties, and either ignore or not be aware of the others, making free art a multidimensional, ambiguous object. In such position, the license as manifesto remains therefore open to different interpretations, not unlike the medium it was drafted in: the law.