Diatribe on Digital Culture, Freedom, and Mistaken Fields of Invisible Stuff

Incredulous–that is the only word for the situation unfolding itself. From practically any news source on any given day, a person can find a story about people being prosecuted for their dealings with artefacts of our own shared culture. They are prosecuted through laws which are perverted by or erected by business entities. In every instance the prosecuting groups make some headway toward bottleing-up our music, our artwork, our culture.

These are invisible bottles, little containers that companies think they can sell; and every bit of rhetoric they put forth, says that we should feel right about paying for these little bottles of culture. But that is not the way of these artefacts, it is not the way of human being! We commonly accept some sort of worldview in which we connect through culture we share, introduce, reinvent, through the lives we lead, and people we care about. These have to be available for us to experience freely. We have to consider that we cannot be the humans we are without the fluid, back-and-forth sharing that our ways facilitate–this fertilizes our culture and inspires expression. My concern is that we are losing our liberty to be this way because we let corporate entities, entities with a primary goal of making-money rather than concern for human being, to be a regulating force on culture. But they are not in any position to do so, it is an unbalanced position and one that should not exist. I wanted to do something to counter this situation so I wrote the Phy-d’eau–License of Intention for Liberty in Expression and Creativity (P-LILEC) and I wrote it from the position of an author with two things in mind.

First, as I said, I am distraught by the manner in which many businesses, in particular distributors of the arts, address accessibility to our shared reality, specifically the artefacts we introduce to it. This is significant from the viewpoint of people apprehending, enjoying, or otherwise obtaining any forms of art as well as the authors expressing these forms. I strongly believe that the art forms (in all manner of arts) we express are living manifestations of who and what we are as beings, I believe that these, once a part of our reality, irreversibly change it. They reciprocate life, whereby their existance is both affected by our shared human reality as much as it contributes to it. It’s just us, existing as humans and I do not think that we ought to create trade laws or other economic principles to instantiate bounds upon our liberty to express ourselves.

Second, because at the time of this writing many humans are deeply involved in the infancy of an age of what we call “information technology,” there is confusion among people attempting to adjust to and harness new possibilities for manifesting human expression. The Free Software Foundation and the Electronic Frontier Foundation attempt to address issues that include software availability, freedom of speech, and other matters that often grow from cyber-centric culture. Indeed, the FSF published the GNU General Public License (GNU GPL), which does an amazing job at encouraging and sustaining the free culture, ideology, and development methodology for an immense number of programmers. Application of the GPL has benefitted people all over the world without placing new and detrimental boundaries on human being. It also derails many of the short-sighted efforts of people who would introduce practices that would be a detriment to human liberty. Nevertheless, this license is designed for software and while there are a number of similar licenses and variations for other purposes, I have not yet found one that successfully addressed artistic expression and works in combination with cyber culture and information technology–hence the P-LILEC. Hold that thought for a moment.

Logic, which philosophers and mathematicians have practiced for thousands of years is a formalised method for communicating some types of human thinking. Some philosophers thought that eventually we would be able to make a formalised logic the language of science and that it would supplant other forms of communication. While that dream went unfulfilled in many ways, it has come to fruition in one unexpected way–computer programming.

The code a programmer writes is a specialised logic—adapted for computer technology. I believe that it is a mistake to categorize programmatic code itself as a piece of technology. It is also a mistake to categorize it as art in the same sense that we categorize a painting or poetry as art (I recognize it may be different if we refer to “art” as a skill in the sense of an artisan, but I am not using “art” with that meaning in this article). Through the advent of computing technology, we have been able to use our logic to allow machinery to facilitate many types of special new activities, which are peculiar to our use and application of the computing technology itself. We have the terms “information age,” “digital age,” and “cyber” (followed by any other word) and I would argue that these things all refer to the manner in which computing technology facilitates our activities through the electronic medium–the digital medium. I think that the program, created by a programmer, should be understood as something like a frozen specimen of disembodied, rational, human thinking. We recognize that the effort the programmer puts into creating this specimen involves creativity, and because it communicates some human thinking, we ought to consider it a manner of speech; it is also time to understand it on its own terms and with reference to thousands of years of inquiry and experimentation with logic. To really understand what programming is, I believe we must stop trying to categorize the program itself as technology or as an art form or as any other sorts of human activity that already occupy comfortably popular places in a little worldview of categories. The programmer is doing his or her own thing, toiling in the field of logic, and dealing with a particular type of human thinking. The programmer expresses something that manifests itself in conjunction with a specialized technology (our computational devices). The best way for us to understand this is to relax and finally let the category of “logic” enter our popular worldview as its own area, just as we consider “art” on its own, and requiring its own specialized types of thinking and activity. When we understand programming on its own rather than as a bastard of some other area, our attempts to address programming-related issues and computer technology are much more clear–we see that it is no more technology than is the performance of a ballerina.

But why am I discussing programming? Why technology?

I believe that the path currently being paved by the people distributing much of our arts, such as the recording industry or in a related area, the software industry, is dangerously askew of the paths that will benefit continued liberty in human expression. These industries, through their manipulation of corrupt governmental systems and flawed patent regulations, are implementing intricate systems of binding our culture and thereby controlling our being. In most cases I do not think this result is their goal, but their strategies are centered upon preserving industries that are no longer relevant in the same form that the industries were conceived or that were conceived upon the erroneous categorization of programming as technology. Of course, an irrelevant industry is one that will not generate money–it is one that will cease to exist. At least that is the threat facing groups such as the recording industry and the proprietary software industry.

Consider separately, the two industries I mentioned. First, the recording industry is doomed so long as it continues to practice business the way it has for much of its history. It has two options, it can either reinvent itself to harness current technologies to the benefit of its consumers and authors or it can erect so many new walls around the changes in our world that it is able to control how people apprehend its products (what I called “bottleing-up” culture earlier). The former option is beneficial toward promoting human culture and creating some form of an enduring business, while the latter option maintains the industry’s current business only. The latter option is detrimental to the inspiration and production of further creative endeavors. This latter option, while it may allow the industry to prevent people from using current technologies to circumvent the industry’s money-making operations, prevents the generative circulation of creative artefacts into our culture–it is ultimately an assault on liberty and the creative impulse. I will expand this idea but first let me say something about the problems of selling bottled-up culture, as that is where we start to see the detriments develop.

Because of our present technology, namely the fact that it provides anyone with an easy way to copy and distribute almost any type of work of art, a number of traditional methods of distribution and production are becoming irrelevant. There will eventually be much less of a demand for physical-packages of works (music compact discs for example). Record companies need to get over this fact and accept it. We live in constant change–our culture and our technology. Video rental store owners, pay attention to the cable and streaming media businesses. Once there were profitable businesses that delivered ice to peoples’ homes, then we got refrigerators.

Regardless of our technology, what does not change is that musicians still make music and people still want to listen to the music. It may not be the case that distributing this music on a CD is profitable anymore, nevertheless the recording companies can do many things to assist artists and provide services to the people that want access to these artists’ works. Things the companies can charge for and for which people are eager to pay. These things can be profitable. For example, I expect that as easy access to the arts through digital means continues to increase, there will be a greater demand for the live presence of the arts’ authors. Our digital means make it easy to get a cyber replica of just about anything. Eventually we crave and will crave live experiences. In other words, while it is simple to hear any song any time, the creative, living force behind the song cannot be duplicated. I believe there are increasing opportunites for companies to promote the live experience of attending events where the authors of creative works are present, performing in some manner. I think that many types of artists who intend to make a living from their work should not depend on the copying and distribution of the work for money, but rather will make the bulk of their income by constantly performing, taking part in live productions, or some other activity-related to their form of expression. This shifts the locus of making money to the real expression of authors as opposed to the sale of a commodity whose out-moded method of distribution is no longer a sustainable business. This business obviously exists now, we have concert promotors, we have dance, theatre, etc. I am not suggesting that this is in any way special to our present world. I am saying that we may find ourselves involved with the performance in some new ways, some ways that will involve our new technology, and the nature of live performances will undergo some exciting changes in frequency and type (for an excellent example, read/listen to this message from Einstürzende Neubauten’s Blixa Bargeld). It may be the case that this business is not as profitable as the old CD distribution business, c’est la vie. There is no doubt that inventive business people will be able to create and find other methods of making money. In fact, distribution of the arts will not disappear. What has really happened is that the medium for distribution changed. Instead of CDs or cassettes, the medium is electric. It is light. It is delivered through network cables. Recording industries, motion picture industries, and the like should be internet service providers, as that is the equivalent industry in our present era.

Someone could argue that all of this seems obvious, isn’t this exactly what is happening–media and technology companies are merging. Well, they are merging, combining efforts to reach consumers but they are attempting to do so with their old system of distribution. They will not admit that their business is based on a physical medium for delivering art content. They will not admit that sans this physical medium they have no business. The physical medium is becoming irrelevant to peoples’ apprehension of the content. Because of this, the companies are trying to shift the notion of what they actually provide (a physical container) to a claim of what they own (the song itself). The method they use to do this is to popularise a bogus concept known as “intellectual property.” In other words, the song once considered property, becomes something we are familiar with in the physical realm and we begin to feel the same about giving someone an electronic copy of the song as we do about giving them a physical CD. As soon as we feel this way about the song, the non-physical form of the song might as well be physical–it is now something that can be contained and of course the record company “owns” that container (by way of owning the “rights” as set forth in laws). For this to work at all everybody, consumers and authors, must buy-in to this concept, everybody must feel that the non-physical song is just as much a contained piece of property as the physical CD is. What is happening here is not a simple matter of supplying a good or a service, but rather a matter of altering and then controlling the way people think and behave. This is precisely how businesses are attempting to regulate culture, it is why I say that it binds our liberty, and this is just the beginning. This is a ludicrous situation! Let me explain a little more.

I said that we have erroneously been treating programs as though they were technology. Once we accepted this as the correct category for programming it opened the door to many abuses. We typically think of technology as a physical thing. We think of a hammer as a piece of technology and we talk about the advanced technology in the robotic assembly line. Here we have things that we can hold, we can patent them–they’re right there in the open, ready for anyone to touch and see that they perform amazing functions. By applying our knowledge of the world, we are able to invent nifty things in the industrial arena. Most businesses in the software industry formed their business around a mistake. Namely, that by considering programming as technology and hence able to be treated like we typically treat physical products, they could create a business model to sell the software just like a company that sells hammers. The glaring problem here is that this type of model denies the unique nature of programming, it doesn’t even begin to address the area of logic on its own unique terms. Unfortunately the shallow thinking that produced this business model is the template for the adjustments industries such as the recording industry are currently trying to make. The two are intertwined in their drive to convince the public that it is acceptable to think of the non-physical stuff (ideas, songs, methods of rational thought) as property.

The difficulty is that when we deal with our not-necessarily-physical world we deal with a slippery, ethereal thing that we cannot hold in our hands and that we cannot confine. It is an area much of the public is not comfortable dealing with in the same way as the physical. When we tell somebody an idea, sing them a song, explain our rational for spraying water on an out-of-control fire, the person we’ve told now has these invisible things in her mind, which she can recall any time. In communicating these things, neither party loses anything, the thought is duplicated in a way that no physical object can be duplicated, which is why one can steal a hammer but not an idea. Thinking is neither property nor technology. We may somehow address thinking with technology, we may apply thinking to technology, whatever it is we do, thinking is something that precedes the technology. Thinking seems inherent in human being. Furthermore, we never enjoy a ballerina’s performance and comment on the wonder of her technology. Perhaps we appreciate her technique but that is entirely different. Notice that just because the ballerina’s dance was illuminated via the technology of stage lighting, does not make the dance itself technology. The programmer’s specimen of disembodied human thinking is in our area of logic and because the programmer’s work happens to *do* something when combined with computational technology, does not make the program itself technology.

Here is a crucial point: our new medium, that electricity, that light, which courses through wires into our computers is not physical in a similar way to how our ideas are not physical. When I give someone a copy of a file from my computer (perhaps a song) I do not lose anything and neither does a record company. When companies call this activity “pirating” or “stealing” they make it clear they want to fool people into accepting that non-physical aspects of OUR culture can be bottled and owned as property.

Why do so many companies want laws and severe penalties for those that would copy things like music recordings? The answer is because they are confusing the perceived nature of these things and they have not or are unwilling to think about thinking. Unfortunately the recording industry (and many other industries involved in the arts but I am focusing on the recording industry as an example) consider the actual song their product, it is their property. The song as property is a delusional notion at best. These companies cannot actually sell the song, though they can sell copies of the song recorded on some physical medium. The consumer is really purchasing the medium on which the song is recorded and perhaps the service of getting the song into that medium, but not the song. I insist on this because once the song enters our world it becomes part of our world. Once I have heard the song, I can think of it, I can remember its notes or words and the record company can do nothing about this. If I want I can perform the song myself. Of course it will sound different and the activity of remembering the song is certainly different than actually listening to it, which is the reason I would buy the compact disc from the record company–so that I could listen to the song again as it was originally performed. I am able to do this precisely because the record company went to the effort of putting the song into a physical medium, which I could use in my CD player. The value to me is that the song is “physicalized” so-to-speak, and as are the characteristic of physical objects, if I were to take a CD from a music store, then I would have stolen it. Unlike an idea, the record company/store now has one less CD. Now then, if one is able to listen to the song without having that physical medium, why should one pay the record company for an instance of that song? The company needs to do absolutely nothing for one to listen to that song. Why would anyone pay money to someone who has done absolutely nothing in exchange for the payment (charities, gifts, etc. aside)? I see no reason and I see no business.

So long as companies treat ideas, treat programs, treat any non-physical thing as something that is exchanged physically they are missing the whole point of what these things are. Because they miss that point, they will be unable to create a sustainable business that provides any service or sells any product. That is, unless they manage to ejaculate enough propaganda to convince the entire public of the “reality” of owning ideas. That is, they could sell things, but not without installing intrusive and horrific laws that regulate what humans may and may not think. We must implement the machinery and methods of thought control portrayed in the most distressing dystopian science fiction in order to create the kind of economy; an economy in which people might not “own” their ideas and the ideas, now property of a company, could be taken from the person’s mind. Could a company be allowed to remove a chunk of logic from my thinking because I once worked for the company and saw it occur in a program? Could they remove the sound of the notes, the voice of the singer from my memory because I did not pay to listen to my friend’s copy of a recording? It’s ridiculous.

What do we do?

First, we take the time to think about it. We do not lazily accept propaganda that comes from companies attempting to make money in their out-moded, soon-to-be-failing, business models. We remember to promote each other’s creative endeavors by sharing them with others and we reciprocate with our own. We remember that that sharing activity is what nourishes our lives and culture–it is important and healthy to human being. Finally, and perhaps most importantly, we divorce the apprehension, expression, and creation of our cultural artefacts from a realm of financial goals. That is to say, we need to encourage freely sharing, manipulating, and distributing the art we make, without feeling that each experience or instance of this art requires remuneration. We can support basic ideas like a digital consumer bill of rights. I would go so far as to say that we engage in peaceful protest. For example, we should willfully share our music in spite of any draconian perversion of law the powers-that-be try to invoke against such activity.

I am not against making money from one’s creative endeavors. I think it is great if one can support oneself that way, I simply think that one should deal with that aspect in its own realm and on its own terms. For example, under care of the P-LILEC, people are essentially free to copy works, distribute them, and manipulate them. I believe this is in accord with our liberty to experience our shared world. The main stipulation takes place once money is addressed—it has the effect of divorcing the artistic expression from the realm of business—under the license everyone is at liberty to share their culture without cost requirements. However, if one wants to make money with the work, one can reproduce and sell the work or do whatever it is they’ve come up with that involves the work in a money-making project— SO LONG AS this is done through a specific, separate agreement with the author(s) of the work and of course cannot revoke the author’s or other’s liberty. Essentially, one may make money with the work, but not at the expense of human liberty. This stipulation guarantees that where there is a money-making venture to involve the work, the author must be included from the start and the venture must be undertaken in accord with his intentions (which under the P-LILEC, include continued free access to the work). There are many ways to embark on making money through a work that is also available at no cost. It is not at all a contradiction of itself and I have thought of a number of strategies to make money in this way. E-mail me if you want to discuss them.

I’ve just outlined a very basic and simple concept, which has deep ramifications. It might sound complex only because we have all too often allowed our practices and our use of other licenses to muddle together, or worse, not address expression and liberty as things to be dealt with separately from business. It is this lack of addressing or the muddling together of issues that launches many of the tensions we have between unbound culture and business. The beauty of the divorce is that when something is copied we have no reason to be up in arms because we are free to recognize that A) we have not lost anything, we have only increased the thing’s occurence in our world and B) authors of creative works are protected from missingout on the potential monetary-opportunities of their hard work, they are are protected from being used by a manipulative industry, and they are free to express themselves

knowing their expressions (licensed under care of the P-LILEC) may still perpetuate a culture of creativity.

Finally, I believe it is mainly this divorce and the fact that the P-LILEC is based on a small set of intentions (rather than strict usage rules) that makes it differ most from licenses like the Design Science License (DSL), Licence Art Libre, OpenContent License, or the GPL. I think that the GPL has made huge strides toward promoting continued freedom. It is however, written for programming. The GPL’s stipulation that use of GPL’d code requires making the code available to others under the same terms is incredibly useful, to the unique nature of programming! It could have had the seeds for divorcing the work from economic constraints, but I do not think it is the license’s author, Richard Stallman’s, intention to have such a divorce. I do not necessarily intend that statement as a criticism of the GPL.

I was enamoured with the DSL for quite a while. When I first read it, I thought that Michael Stutz (its author) had managed to take the principles in the GPL and apply them to a license for artistic expression. That seems to be its intention. Noble as it is, I now believe that that is the wrong approach. For one, it does not take into account that the GPL was written to apply to programming and so its features are not necessarily applicable to artwork. Just as confusing logic with technology caused problems, so it does when we confuse it with expressing art. I also thought the DSL was wonderful because it seems to encourage collaboration and freedom like the GPL does, but the way it addresses collaboration and freedom is also the same as the GPL. Simply, artists do not work in the same way that programmers do. It is not important for an artist to have the “source” of a creative work, alternatively it is useful, even necessary for a programmer to have the source to the program.

Furthermore by gaining a critical mass of people using the GPL, the free-software programming community is fomenting a type of economy that functions differently from the way traditional physical-product companies operate. While companies producing some physical product, compete at least in part by trying to create products with better features than their competitors, this does not work the same way for companies developing free software. The free-software development takes place on many levels and a company can essentially co-opt the advances that another company makes in a product. Such practice is acceptable and encouraged as one of the strengths of free software. The practice de-emphasizes to some degree, the product’s features as a selling point and emphasizes the ongoing service and working relationship between the company (or people) doing the programming and those purchasing the software. In other words, it seems that there is great opportunity to develop an economy in which people pay specifically for the service a company provides—for the labor to customize or create specific features in the software. Had people taken the time to understand the area of logic in its own terms, this is the way software companies should have sprouted up from the beginning. This practice seems feasible and appropriate to software development, however, it does not for the most part, make sense in the context of individual artistic expression. In most cases an artist that wants to derive income from his work would not employ himself at a company that produces art. It’s often anathema to the artistic expression, and such jobs are few and far between. Though I can understand how advertising companies, graphic arts agencies, and the like might use this type of working scenario to great advantage. In any case, it is one reason why I do not expect an artist has incentive to use the DSL but that a programmer, by using the GPL, does have much to gain.

The DSL’s requirement for source availability becomes an incredible burden to making one’s artistic expression available to the community. I would argue that it is fine to require this burden if it actually helped sustain our liberties but I don’t think it helps at all. The purpose of making software source code available is because once a program is compiled into the application that people use, a programmer can no longer make changes to the program. The programmer must have the source in order to be free to modify the program. With artistic expression the same is not true. For the most part, we do not compile things into forms that are unmodifiable without their sources. It is even odd to comprehend the source of the artistic work. For example, if a file is distributed as an .mp3 that was converted from a .wav recording, the DSL considers the .wav, the source. However, if this is a song it seems we might say that the source is actually the musical notation of the song. I can think of other nebulous examples but no clear way to really decide on the source. Creative expression in the arts is simply not equivalent to the programming process and does not have equivalent results. The artwork is the work and needs to be treated in its own way.

The DSL (like the GPL) does not divorce itself or the work it licenses from economic issues. While a company, say a recording company, could sell the work, it would have to make the sources of the work available for at least three years. From not only the standpoint of time but also the matter of shear technological availability, this type of requirement is so unwieldy and unrelated to anything required in artistic expression that I think it renders it almost pointless for the individual musician or music afficianado to attempt to share music electronically. In spite of the well-meaning and earnest work behind the DSL, I feel that it unintentionally increases the barriers for individuals sharing their creative expression with the community, if anything, it seems only a company with deep pockets would be capable of totally complying with the license’s requirements.

This is an era where we are making most of our art forms available through digital means, delivering through not-quite-physical media, and totally reconstructing ways in which we apprehend creative expression. The P-LILEC is based on intentions. It is a subtle alternative to the rules/requirements basis of most available licenses. I think it is a more organic, human way to deal with our work. It makes it clear that the author intends the work to be a living part of the world and it does this *from the perspective of what is natural to creative expression.* It does not allow companies to bottle-up accessibility to our cultural artefacts or to create artificial scarcity. It is easy to comply with the author’s intentions and it does not restrict any person’s liberty to think or be. Whether through commercial manipulation, legal “injustification,” or the requirements of a multitude of licensing schemes, we’ve gone crazy developing different ways to permit ourselves access to ourselves. While it is another form of license, I hope the P-LILEC can ease some of the problems.

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About the Author:

I am not a person who is extremely well-versed in legal matters (that is, IANAL). I am a writer and a musician. I am interested in thinking, creativity, and freedom of expression. I have been involved with computers since I was a child. I operated a computer bulletin board system (BBS) when those were de rigueur and the world wide web was not. I now operate a website devoted to exploring creativity (http://www.phydeau.org). I have (mostly by default) worked in the computer industry for the majority of my working life. I am very interested in culture and community as it is affects and is effected by cyber mediums. I am afraid of what is happening in our world, much of its conceptual beauty is being destroyed. I try to pay attention to our world–that is all.

-JC