[Upd-discuss] On the 'Creative Commons': A Critique of the Commons without Commonalty

[sandor]

I have thought along similar lines..

I think a stronger point could be made if an alternative is presented 
that recognizes the functionality of this construct in a nonsensically 
contract-oriented society - while furthering the stated interests.
Is a single, completely common, legally defensible, contract suggested?
Or, is the concept of contract and commons intractably antithetical? 
Laws are considered vulnerabilities and then dismissed as being 
functional.. I am left a bit vague of the exact intent. Perhaps the 
author(s) were themselves concerned with negative misunderstandings.. I 
am interested in where this thinking settles..

-sándor

Zapopan Martin Muela-Meza wrote:

>Subject: <nettime> On the 'Creative Commons': A Critique of the Commons
>without Commonalty
>Date: Thu, 30 Jun 2005 15:01:09 +0100
>From: David M. Berry <d.berry@sussex.ac.uk>
>Reply-To: David M. Berry <d.berry@sussex.ac.uk>
>To: NetTime <nettime-l@bbs.thing.net>
>
>
>On the 'Creative Commons': A Critique of the Commons without Commonalty
>- - David M. Berry & Giles Moss
>Free Software Magazine, No. 5, June 2005
>http://www.freesoftwaremagazine.com/current_issues/#issue_05
>http://www.libresociety.org/index.html
>
>Is the Creative Commons missing something?
>
>On the face of it, the Creative Commons project appears to be a
>success. It has generated interest in the issue of intellectual property
>and the erosion of the 'public domain', and it has contributed to
>re-thinking the role of the 'commons' in the 'information age'. It has
>provided institutional, practical and legal support for individuals and
>groups wishing to experiment and communicate with culture more freely, and
>a growing number of intellectual and artistic workers are now enrolling
>in the Creative Commons network and exercising the agency and freedom it
>has made available. Yet despite these efforts, questions remain about
>the Creative Commons project's aims and intentions and the vision of
>free culture that it offers. And these questions become all the more
>significant as the Creative Commons develops into a more influential
>and voluble 'representative' and public face for libre culture.
>
>We recognise the constructive nature of the work done by the Creative
>Commons and, in particular, its chief protagonist, Lawrence Lessig.
>Together they have generated interest in important issues that we hold
>dear. But here we wish to stand back for a while and subject some of
>the ideas of the Creative Commons project to interrogation and critique.
>We don't do this because we think that we have a better understanding of
>the actions of and motivations of individuals and groups involved in
>libre culture. In fact, without a great deal of symbolic violence, we
>think it would be impossible to faithfully represent libre culture in
>all its diversity. So rather than attempting to represent what libre
>culture is, an ill-fated and thankless task, we work on the basis of
>what it could become.  This isn't a question of mimesis, of
>Archimedean points, of hermeneutics.
>
>It's a question of thinking about libre culture in a more experimental
>and political way.
>
>We argue that the Creative Commons project on the whole fails to
>confront and look beyond the logic and power asymmetries of the
>present. It tends to conflate how the world is with what it could be, with
>that we might want to be. It's too of this time 96 it is too timely. We
>find an organisation with an ideology and worldview that agrees to readily
>with that of the global 'creative' and media industries. We find an
>organisation quick to accept the specious claims of neo-classical
>economics, with its myopic 'incentive' models of creativity and an
>instrumental view of culture as a resource.  Lawrence Lessig is always
>very keen to disassociate himself and the Creative Commons from the
>(diabolical) insinuation that he is (God forbid!) anti-market,
>anti-capitalist, or communist. Where we might benefit from critique
>and distance, the Creative Commons is too wary to advocate anything that
>might be negatively construed by the 'creative' industry. Where we
>would benefit from making space available for the political, the Creative
>Common's ideological stance has the effect of narrowing and obscuring
>political contestation, imagination and possibility.
>
>
>* * * * * * * * *
>
>
>Like others before him, Lawrence Lessig bemoans the loss of a realm of
>freely shared culture. He writes about the colonisation of the public
>domain brought about by extensions in intellectual property law and
>the closing down of the technical architecture of the Internet. He rightly
>identifies the way in which global media corporations have lobbied to
>extend the terms of copyright law so that they can continue to profit
>from their ownership of creative works. He also identifies the way in
>which private interests are simultaneously encoding and enrolling
>digital technologies in order to support their control of artistic and
>intellectual creativity. But whereas others who problematise these
>trends turn to the political, the legal professor's penchant is to
>turn to the field of law and lawyers. What follows is a technical attempt
>to (re-)introduce a commons by instituting a farrago of new legal
>licences in the existing system of exploitative copyright restrictions.
>This is the constructive moment of the so-called 'Creative' Commons.
>
>We'll return to this shortly. But first, before getting ahead of
>ourselves, we should recognise that the action that the Creative
>Commons project takes is already anticipated in how they represent social
>reality and define the 'problem' in hand. The way in which we
>construct a problem is always also to render certain beliefs and actions
>(and not others) obligatory and justified. And so, if anywhere, this is
>where we must look first.
>
>For us, Lessig's particular understanding of the world, and his desire
>to strike a balanced bargain between the public and private that
>follows from this, appear naive and outmoded in the age of late
>capitalism.
>Listen to the political economists. Capital is continually rendering
>culture and communication private, subject to property rights and the
>horror of commercial exploitation and beautification. When immaterial
>labour is hegemonic, the relationship codified in intellectual
>property between the 'public' and 'private', between labour and capital,
>becomes a crucial locus of power and profit. And it is quite natural that
>private interests would want to protect and extend this profit base at
>all costs. Their existence depends on it. If libre culture or the
>Creative Commons threatens this profit base in any way, wars of
>manoeuvre and position will ensue, where corporations and the state
>will set out either to crush or co-opt.
>
>The paramount claim of Lessig's prognosis about the fate of culture is
>that we will unable to create new culture when the resources of that
>culture are owned and controlled by a limited number of private
>corporations and individuals. As far as it goes, this argument has
>appeal. But it also comes packaged with a miserable, cramped view of
>culture. Culture is here viewed as a resource or, in Heidegger's
>terms, 'standing reserve'. Culture is valued only in terms of its
>worth for building something new. The significance, enchantment and
>meaning
>provided by context are all irrelevant to a productivist ontology that
>sees old culture merely as a resource for the 'original' and the
>'new'. Lessig's recent move to the catchphrase 'Remix Culture' seems to
>confirm this outlook. Where culture is only standing reserve it can be
>owned and controlled without ethical question. The view of culture
>presented here is entirely consistent with the creative industry's
>continual transformation of the flow of culture, communication and meaning
>into decontextualised information and property.
>
>This understanding of culture frames the Creative Common's overall
>approach to introducing a commons in the information age.  As a
>result, the Creative Commons network provides only a simulacrum of a
>commons. It is a commons without commonalty.  Under the name of the
>commons, we actually have a privatised, individuated and dispersed
>collection of objects and resources that subsist in a technical-legal
>space of confusing and differential legal restrictions, ownership rights
>and
>permissions. The Creative Commons network might enable sharing of
>culture goods and resources amongst possessive individuals and groups.
>But these goods are neither really shared in common, nor owned in
>common, nor accountable to the common itself. It is left to the whims
>of private individuals and groups to permit reuse. They pick and choose
>to draw on the commons and the freedoms and agency it confers when and
>where they like.
>
>We might say, following Gilles Deleuze, that the Creative Commons
>licensing model acts as a 'plan(e) of organisation'. It places a grid
>over culture, communication and creativity, dividing it and cutting it
>into discrete pieces, each of which have their own distinct licence,
>rights and permissions defined by the copyright holder who 'owns' the
>work. Lessig's attempt to make it easier to understand which creative
>works can, or cannot, be used for modification (due to copyright) has
>spawned a monster with a thousand heads. The complexity of licences
>and combinations of licences in works has expanded exponentially.
>
>This plane of organisation ensure that legal licences and lawyers
>remain key nodal and obligatory passage points within the Creative Commons
>network, and thereby constitute blockages in the flow of creativity.
>But what is happening is that the ethical practice of sharing
>communication and culture is being conflated with a legal regime that
>seeks
>bureaucratically to enforce the same result through comprehensively
>drafted and dense legalese. At least Richard Stallman and his
>ingenious GNU General Public License (GPL) is honest in claiming to be an
>ethical rather than purely legal force. The GNU GPL has tenacity not due
>to
>its legal form alone. The GPL is based on a network of ethical practices
>that continually (re-)produce its meaning and form. The commons is
>always more than a formal legal construct. The commons is based on
>commonalty.
>
>Very simply put, the commons has historically been understood as
>something shared in common. In pre-capitalist times the commons were
>referred to as 'Res Communes'. This included natural things that were
>used by all, such as air and water. This ancient concept of the
>commons can be traced through Roman law into the various European legal
>systems. Through migration and colonisation, it can also be found in the
>United State and other countries around the world. In the UK, there's
>still
>the concept of common lands, albeit a pale shadow of what went before. In
>the United States, the concept of public trust doctrine is an
>application of the ancient idea of the commons. To a certain extent
>the commons, as Res Communes, lies outside the property system. It is
>separate from both private (Res Privatae) and state (Res Publicae)
>ownership. Through copyright the Creative Commons attempts to
>construct a commons within the realm of private ownership (Res Privatae).
>The result is not, dare we say it, a commons at all. The commons are
>formed through commonalty and common rights, resistant to any mechanisms
>of
>privatisation, whether those of the Creative Commons or not. Without
>commonalty, without the common substrate through which singularities
>act, live and relate, there could be no commons at all.
>
>
>* * * * * * * * *
>
>
>The marketing and PR of the creative industries, their lobbying
>attempts and their lawyers, have not managed to persuade us that they are
>true friends of creativity. They don't convince us of their specious
>incentive claims nor of the idea that sharing knowledge, concepts and
>ideas is criminal. If anything, property is the corruption and the
>crime, an act of theft from the common substrate of creativity. But
>still global media corporations continue to work to transform the
>system - -- legally, technologically and culturally -- to facilitate their
>ownership and control of creativity. This is a social-factory of
>immaterial labour where all of life -- loving, thinking, feeling and
>sharing -- is subject to the corruption of privatisation and property.
>
>As we've already suggested, the commons is an ethical and not just a
>legal matter. We underscore the point. The commons rests on
>commonalty, on ethical practices that emerge rhizomatically through the
>actions, experiences and relations of decentralised individuals and
>groups,
>such as the free/libre and open-source movement. For this reason, libre
>culture is far more than just a protest movement. It is not only
>reactive; it is productive. It creates new forms of life through its
>practices. It creates new possibilities. Yet, in our view, there has
>to be a political dimension to libre culture as well.
>
>This expresses itself through political imagining, action and a
>broader struggle for true democracy. And, as such, it is important to
>recognise the damage that could be done to libre culture by those
>spokespeople who seek to depoliticise it. In the world in which we find
>ourselves, political awareness, resistance and struggle are essential in
>order to defend the idea and practice of a creative field of concepts and
>ideas that are free from ownership -- to stand up, that is, for the
>commons
>and commonalty. It is to the political struggle of libre culture and
>the commons that we finally turn.
>
>Where is the politics of libre culture to be found? The answer: at
>numerous levels. Political struggle will no doubt be orientated
>towards the nation state (as Maureen O'Sullivan argued in the last Free
>Software Magazine). For the time being at least, nation states are
>obligatory passage points that retain a privileged position in upholding
>and enforcing law. But it cannot remain there alone. The commonalty of
>creativity shows little regard for national boundaries and, of course,
>neither does the global reach of the profiteers from the creativity
>and media industry. Creativity is at once too small and too large.
>Political action and the struggle for true democracy will have to also be
>aimed simultaneously at local and global levels.
>
>For the latter, we might envisage a treaty obligation through measures
>such as preventing the commodification of human DNA and life itself.
>Or a UN protectorate to defend the sanctity of ideas and concepts. We
>might picture something akin to Bruno Latour's 'Parliament of Things', a
>space where not just the human is represented, but all of life has a
>defender, all of life has a voice.
>
>Law is a juridico-legal grid placed on social life. This grid is
>upheld and enforced by a network of states and other forces of governance
>and governmentality. Reliance on law and the state makes the legal
>licences of the Creative Commons (or other legal versions of the commons
>for that matter) vulnerable and precarious. We cannot be sure, as yet, how
>Creative Commons licences will stand up in legal practice. For they
>have not been properly tested. But there is one thing of which we can be
>relatively sure. In principle, we might all be equal in the eyes of
>law. In principle, the ladder of the law might not have a top or a bottom.
>But, in practice, economic power matters. We know that law and the
>state are not immune to economic persuasion, to lobbying, to favours and
>so
>forth. And, because of this, the commons remains subject to the threat
>and corruption of privatisation and commodification.
>
>We do not want to suggest by this that all legal and public rights,
>including the protection of the commons by the state or global
>institutions such as the UN, are worthless. This would be a perversion
>of our position. What we would stress is that such rights originate
>with the people through political struggle, not with legislators or legal
>professors setting them down on pieces of paper.
>
>And if these rights are to be maintained, if a commons is to be
>instantiated and protected, there is a need for political awareness,
>for political action, for democracy. Which is to say, any attempt to
>impair commonalty and common rights for concepts and ideas must meet
>resistance. We need political awareness and struggle, not lawyers
>exercising their legal vernacular and skills on complicated licences,
>court cases and precedents. We're sorry to say, however, that this
>does not appear to be a political imaginary (and political struggle) that
>the Creative Commons project shares or supports.
>
>
>
>- ----------------
>
>David Berry is a researcher at the University of Sussex, UK and a
>member of the research collective The Libre Society. He writes on issues
>surrounding intellectual property, immaterial labour, politics,
>open-source and copyleft. See
>http://www.libresociety.org .
>
>Giles Moss is a doctoral student of New College, University of Oxford.
>His research interests span the field of social theory, but he
>currently works on the intersections of technology, discourse, democratic
>practice and the concept of the 'political'.
>
>
>-
>------------------------------------------------------------------------
>
>
>
>Originally published in http://www.freesoftwaremagazine.com/
>
>-
>------------------------------------------------------------------------
>
>
>END
>
>----------------------------- v -------------------------------
>"Tiranos y autócratas han entendido siempre que el alfabetismo, 
>el conocimiento, los libros y los periódicos son un peligro 
>en potencia. Pueden inculcar ideas independientes e incluso
>de rebeldía en las cabezas de sus súbditos.
>----------------------------- v -------------------------------
>"Tyrants and autocrats have always understood that literacy, 
>learning, books and newspapers are potentially dangerous. 
>They can put independent and even rebelious ideas to the heads 
>of their subjects."
>----------------------------- v -------------------------------
>-- Sagan, Carl (1997). The Demon-Haunted World: Science as a Candle
>in the Dark : El mundo y sus demonios: La ciencia como una luz en la 
>oscuridad. México: Planeta, p. 390; New York: Ballantine Books, p. 362.
>
>
>		
>____________________________________________________
>Sell on Yahoo! Auctions – no fees. Bid on great items.  
>http://auctions.yahoo.com/
>_______________________________________________
>Upd-discuss mailing list
>Upd-discuss@lists.essential.org
>http://lists.essential.org/mailman/listinfo/upd-discuss
>
>
>
>  
>