Читать книгу The Gifting Logos - E. Johanna Hartelius - Страница 10

2

The Infrastructural Commons

While writing this chapter, I took my four-year-old son to see a theater production of the folktale Stone Soup.¹ A connoisseur even at his modest age, he loved the play. So the next time we went to the children’s library, I picked out The Real Story of Stone Soup, thinking it would be received with the same enthusiasm.² I was wrong. The boy who had loved the live performance wholly rejected the book, which prompted a conversation about what “version” means. In the spirit of an educator parent, I tried patiently to explain that a single story can be told in different ways. Some stories, I suggested, may not be owned by anyone in particular, but instead tinkered with and adapted to suit various needs. My son was having none of it. Nevertheless, through our discussions of narrative play and transcultural myth, something emerged: important questions about artistic interpretation, situatedness in particular places and times, ownership of the human drama, the transmission of privileged knowledge, and engagements between community insiders and outsiders.

Although not about fairytales or soup per se, this chapter explores the kind of experiential, inventive, communal practices that the legend’s culinarian stranger enacts, wherein to know is to make and to make is to gift. The man who comes to town possesses the knowledge not only to make soup, but to live a precarious life defined by the making of soup. His expertise is inextricable from his situatedness in the world, a condition that depends on the invention and delivery of a substantive gift; the man’s knowledge and experience—his gift to his ever-changing hosts—are soup. For my purposes, the soup corresponds roughly to what copyright law calls “expressive content”: music, photography, film and video, text, design, and imagery in digital form. This kind of content is the reification of what its producers experience and know within the context of their lives. The expressive content, for the purposes of this chapter, may be thought of as what I define in chapter 1 as “stuff.” As noted there, “stuff” is a handy term for digital cultural content, reflecting both ubiquity and a smudged line between what is material and immaterial. It refers at once to tangible things and symbolic currency. Further, it captures a performative dimension, as in the phrase “to strut one’s stuff.” In the digital commons, stuff is both the products and processes of invention that demand an integration of knowing and/as making and/as gifting.

My study of the gifting logos turns in this chapter to the Creative Commons, a nonprofit organization primarily associated with a suite of licenses that negotiates copyright.³ Challenging the legal and technical mechanisms of copyright, the Creative Commons licenses supply makers of digital artifacts with a structure for distributing their “stuff” beyond the “all rights reserved” default premise. A simple example is a musician who attaches a Creative Commons license to a song, making that song freely accessible to anyone who might want to listen to it, slice it up into beats and riffs, make new music, and license the new music likewise. Another is a graphic designer and software programmer seeking publicity and membership in a professional network that coheres around collaboratively produced content. Of primary interest to my analysis is the question: How is expertise rhetorically managed in this process? How is the interplay of knowledge and experience that happens in the making of cultural artifacts like text, code, and music accounted for by those who participate in the digital commons, specifically via the Creative Commons infrastructure? What is expertise in this infrastructure?

In response to these questions, I offer the notion of the gifting logos as expertise. To demonstrate how the gifting logos functions in the Creative Commons, I analyze a set of discourses: (1) the 2015 Creative Commons memorandum “The State of the Commons,” with appended data sheets; (2) The Power of Open, the Creative Commons’s self-published collection of success stories; (3) the history, vision statement, and general user instructions published on the organization’s website; and (4) three academic articles and two popular books authored by Creative Commons founder Lawrence Lessig during the initiative’s early stages.⁴ I argue that the production and circulation of cultural “stuff” is framed by the Creative Commons as expertise that subsumes gifting. I argue further that the Creative Commons texts construct an account of what knowing, making, and gifting are as one, and that, in their efforts to challenge traditions of expert ownership, they establish an alternate logic, or logos.

The first section of the chapter is an introduction to copyright history, theory, and policy. It provides a selective rather than chronological account of copyright, directing attention to certain theoretical assumptions and pivotal moments.⁵ In the analysis that follows, I begin by describing the Creative Commons licenses as the imposition of order on cultural invention and the individuation of creative efforts. Second, I discuss the management of value, a complicated notion in gifting theory, by distinguishing between the declarative and subjective conditions for gifts. Third, the discussion of value is followed by an analysis of how the Creative Commons conceptualizes both itself as a program and its participants’ inventions as gifts. I offer an interpretation of this duality of what gifting means in the Creative Commons infrastructure by analyzing assumptions about intentionality and digital action. Fourth, I examine how gifting and the notion of inheritance together complicate intent. Fifth, I examine how the gifting logos accounts for productive abundance, the massive quantity of digital cultural production. Sixth, I examine how copiousness may be thought of in relation to time and the rhetorical sensitivity to timing marked by the concept of kairos.

COPYRIGHT, “STUFF,” AND STRUCTURES OF CONTROL

Copyright codifies the idea that a person who creates a cultural artifact ought to be allowed to control that artifact’s public life, particularly the making of duplicate copies. The right to exercise such control is grounded either in the creator’s personal connection to the artifact or in the assumption that control, especially over profit, incentivizes creation. Expertise is a dimension of copyright, in other words, either because expertise is what characterizes the expert herself or because it has a certain market value. Since the 1990s the emergence of user-friendly digital technologies and the World Wide Web, enabling the global production, reproduction, and circulation of cultural content, has made copyright exceedingly complicated. These technocultural developments, and their fraught relationship to legal tradition, are duly noted in every treatment of copyright and digital culture. Such notations are merited and important but ought to be qualified with at least two comments. First, technological determinism as a perspective warrants critique, which I offer in chapter 1. Second, and more important as I proceed in this chapter, copyright was always complicated. The notion that a particular symbolic form can belong to a legally empowered individual is on some level preposterous. Hardly anyone would deny that knowledge and art are products of inspiration. As Boon, whom I cite in chapter 1, notes, imitation is integral not only to learning but to being human. How then could a person possibly put particular words or images in her or his pocket and claim to own them? Yet powerful legal institutions and cultural precepts, including labor, capital, originality, and personhood, reinforce copyright. This chapter must be read, in short, in the context of complexities that predate the internet.

As an exclusive commercial privilege, copyright was from the very beginning associated with the production of stuff. In Venice in 1469, the five-year printing privilege extended to the German printer Johannes von Speyer was not different in kind from the contracts extended by the Venetian authorities to other craftsmen. Like them, Speyer made and sold a material product. The exclusivity of the process by which the product was made ensured profit. Joanna Kostylo describes how “makers of soap, of gunpowder and saltpeter, of glass” petitioned for trade monopolies on “every imaginable subject, from devices for draining marshes to windmills and poisons, or culinary experiments such as special kinds of lasagna in an Apulian style and new types of dumplings filled with meat and fish.”⁶ Using the screw press, Speyer made text just as others made wine and olive oil. In the Speyer story of copyright origins, the text content itself is beside the point. Of far greater importance is the manufacturing technique that produces stuff, specifically text in Speyer’s case. When two hundred years later another entrepreneur named John Usher secured an ad hoc discretionary grant to publish the laws of the colony of Massachusetts, his relationship to the local authorities was similar to Speyer’s, insofar as he, too, sought primarily to make stuff for profit. Usher’s printing privilege was indistinguishable from those extended in Massachusetts to industrious men who made salt or operated ferries.⁷ Speyer and Usher in their own times manufactured text as a commercial object.

Origins and Regimes of Control

As copyright from the beginning was about the production of stuff, so were the ancien régimes of copyright about exercising institutional control. In the Venetian case, mercantile guilds of printers and booksellers served as a mechanism for oversight.⁸ The same structures that were put in place in the early sixteenth century to retain commercial advantages for Venice’s prosperity, preventing craftsmen’s individual entrepreneurship, effectively enabled state-sanctioned censorship.⁹ As copyright historian Mark Rose notes, the Venetian system was exported to several European countries, including England. There, a royal charter in 1557 authorized a guild of book binders and publishers called the Stationers’ Company to oversee published materials, moderating the circulation of anything that might be construed as “illicit, antigovernment publishing.”¹⁰ The powerful company’s “monopoly on the British book trade” was solidified a few years later with the Licensing Act of 1662, which made it illegal to publish any text without special permission.¹¹ This law also restricted the import of published materials and limited the number of active presses and printers. For five decades, the Stationers’ Company policed libel, sedition, heresy, and treason, managing the commercial as well as the ideological aspect of the British book industry.

The Stationers’ Company’s authority and usurpation of profits drew the ire not only of booksellers and printers excluded from the royal arrangement but also of authors. Not unlike in the twenty-first century, creators of cultural content resented the state and corporate powers that constrained them. Amid the late seventeenth century’s general prosperity and increased literacy, what Rose describes as an “emergent ideology of possessive individualism” prompted authors to critique the fundamental presumption of the Stationers’ Company.¹² Questions arose: What rights to the creative accomplishments of an especially gifted individual should a commercial guild have? To whom do ideas belong? Prominent literary figures made their case for the cause: in the polemic Areopagitica in 1644, English poet John Milton extolled the benefits of books and condemned the royal licensing system. To Milton, censorship, although it may prevent infectious material from corrupting the public mind, obstructs discovery and truth. Likewise, John Locke, a staunch critic of the Licensing Act, argued in Two Treatises of Government in 1690 that a person’s natural right to the property that results from his (or her) labor is inviolable. The social order’s first task, according to Locke, is to protect individual property. Notes Rose, “The representation of the author as a creator who is entitled to profit from his intellectual labor came into being through a blending of literary and legal discourses in the context of the contest over perpetual copyright.”¹³ The British Parliament did not renew the Licensing Act in 1694.

What happened next is the watershed moment in any historical account of copyright: In 1710 the Statute of Anne went into effect. The two most significant consequences of the statute, whose full title was “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned,” were that authors could be designated as the proprietors of their texts and that the privileges associated with such proprietorship, including those enjoyed by the Stationers’ Company, were time limited.¹⁴ The implications of the statute for the Stationers’ surveillance powers and their relationship to authors is the topic of some scholarly dispute. What appears to have been a definitive victory for authors and a recognition of individual author(ity) may have brought with it some unintended consequences. Prior to the passage of the statute, policing authors was an elaborate task that required cunning and guile. Jody Greene describes how Sir Robert L’Estrange, frustrated with the Stationers’ impotence and lack of commitment to penalizing authors, invented an intricate intelligence-gathering system that implicated not only those who wrote illicit books but also those who, when discovered in possession of them, refused to provide information about the author. The Statute of Anne, Greene argues, expedited almost universal regulation: “It did so not by inventing new means of tracking down authors but instead by encouraging authors, in effect, to give themselves up voluntarily.”¹⁵ When the statute was later used as a model for other copyright legislation, including in the United States, this precarity of authors’ rights remained.

Property and the US “Copyright Clause”

The significance of material property in the history of copyright—what I have discussed as a close relationship between exclusive rights to manufacture text and exclusive rights to produce stuff (such as windmills, dumplings, or salt)—is evident not only in certain colonial arrangements, including those that benefited John User of Massachusetts, but in the original language of the US Constitution. As an outcome of the Constitutional Convention’s deliberations in the summer of 1787, much of which centered on strategic protections of individual property, the so-called copyright clause connects copyrights with patents. Article 1, section 8 of the Constitution affirms that “Congress shall have Power [. . .] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries.” Not surprisingly, the exact meanings of “promote,” “progress,” “useful,” and “limited times” have given legislators heaps of trouble. The latter is especially vexing, and later in this chapter I discuss the continual extension of copyright terms throughout the twentieth century. Suffice it to note here that the language recommended by the Congressional Committee of Detail not only links science (including knowledge and inquiry generally) with useful arts, which in that time must be thought of as artisanal and craft based, but also contextualizes the protection of material property (such as land) alongside the protection of what would later be called “intellectual property.”¹⁶ When Congress acted on its constitutional authority by passing the 1790 Copyright Act, it protected individuals’ rights to such useful intellectual property as “maps, charts, and books.” Simply put, making stuff and knowing stuff are protected by the same constitutional clause, which emerged in a discussion of property as a source of power.¹⁷

During the politically and culturally formative years of the United States from 1790 to the Civil War, copyright was relatively small in scope. Many of the printed works that circulated did so without copyright. In some cases the texts were translations of English or French works, to which the 1790 act did not apply. Other texts were adaptations or abridged versions of a more well-known story or play, which were likewise permissible. Some authors simply did not seek copyright for their works since, as Meredith McGill notes, restrictions on the already difficult distribution of printed text were imprudent for authors wanting to reach a wide audience.¹⁸ In other words, copyright was subordinate to the goal of publicity. In her study of “reprinting” culture in the antebellum period, McGill argues that the circulation of unauthorized reprints stimulated a culture consistent with the nationally budding republicanism. She explains that a “belief in the inherent publicity of print and the political necessity of its wide dissemination [. . .] stressed the interests of the polity over the property rights of individuals.”¹⁹ This point sets the stage for my analysis in important ways, dissociating proper name authorship and ownership from the motives of a circulation network. In the context of decentralized production of print and a general commitment to public access (including a free press and public education), McGill suggests, the proprietary connection between authors and their works was secondary. The link between a text and its identified owner was less important that the impact that the text’s circulation might have on an emergent community with text at its center. Successful authors sought exposure more than exclusive rights.

In the twentieth century the link between authorship and private ownership became the center of copyright policy debates, particularly in efforts to establish appropriate time periods of privilege. A series of copyright laws gradually extended the reach and duration of copyright. In the original 1790 act, the term of recognized privilege was fourteen years, with a single renewal option for another fourteen years. The 1909 revision of this act doubled down, extending the term to twenty-eight years with the option to renew for an additional twenty-eight. The major revision in 1976 extended the term to cover the life of the author plus fifty years. Furthermore, that this act protected “unpublished works” meant that producers of content need not register their creations with a central agency. Any idea captured in fixed form is covered by copyright. This automatic proprietary status still applies. In 1998 the Sonny Bono Copyright Extension Act changed the length of time to be added to the author’s life from fifty years to seventy years. In the same year the Digital Millennium Copyright Act, inspired by the World Intellectual Property Organization, sanctioned so-called digital risk management tools that control access to copyrighted materials.²⁰ Criminalizing any attempt to circumvent such tools, Congress confirmed the legality of organized efforts to police copyright infringement using integrated digital mechanisms.²¹ A year later Eric Eldred, who had been publishing literary works from the public domain in an online library called Eldritch Press, filed a complaint contesting the constitutionality of the Sonny Bono Act. As a result of the Sonny Bono Act’s extension of copyright terms, Eldred’s press would not be able to publish anything more recent than 1923 until 2019.²² In 2003 the Supreme Court ruled against Eldred, confirming the constitutionality of the 1998 act. After this major statement regarding the Court’s interpretation of congressional authority to secure authors’ rights, a decade of intellectual property legislation followed that buttressed the legal ownership of text.

A Confluence of Developments

When studying on the one hand the legal regulation of copyright and, on the other, the idealism of digital activists like Eldred, one is prudent to consider three developments in confluence from the 1970s onward: first, the passing of laws and rendering of judgments that protect private ownership, the most important of which I have previously chronicled; second, the development of information infrastructure and technologies, including the end-to-end design of the internet, the popularization of the World Wide Web, and eventually low-entry platforms for creating content (including blogs and social media); and third, the commercial governance of software in the 1980s, resulting in a movement for open access.²³ The last of the three merits a bit of commentary here insofar as it served in the late 1990s as inspiration for Lessig and the Creative Commons team.

As a language that allows people to communicate with computers, source code can be either opaque or transparent. The reason to keep it opaque, or secret, is generally commercial; proprietary code may be thought of as a trade secret. Transparent code, or open code, means that anyone can peek inside the machine. The peeker can not only discover the code that operates a program but take parts of it, modify them, and use them for new purposes. Richard Stallman, a legendary coder at the Massachusetts Institute of Technology, founded in 1985 the Free Software Foundation, whose agenda was to advocate for open software.²⁴ The foundation developed the general public license (GPL) as a way to enable open code to remain open in multiple iterations. Simply put, use of a code covered by the license was required to be, reciprocally, open. If I peek into your code and turn it into something new for my own purposes, I have to render that new code open, just like yours. “Free” enters the picture as a consequence of the license’s insistence on openness in perpetuity. Open code is free insofar as it remains open.²⁵ And free does not mean “available at no cost.” Stallman’s much-quoted adage is helpful here: “Not free as in free beer, but free as in free speech.”²⁶ Of lasting importance within the digital commons, and for my purposes here, is that the GPL contained an ethic of use. Out of the open access software movement grew a public argument favoring free access not just to programming code but to cultural, artistic, and scientific content. This more general open access movement, in which the Creative Commons is a vocal participant, mobilizes concepts like “copyleft” and “free culture” politically.²⁷ The open access movement’s advocacy must be seen in light of the theory of authorship and creative invention that the movement endorses, as well as that theory’s historical competitors.²⁸

Copyright Conflicted: Two Models and Two Moments

Theories of copyright tend to be organized according to two models, both of which are grounded in assumptions about the author’s and the community’s claims to the material: the Anglo-American model and the French-European model. The former is utilitarian, prioritizing social instruments that ensure the greatest good for the greatest number of people. In this model, copyright incentivizes authors to create texts with economic rewards. As a result of these incentivized creations, the community as a whole advances. And when the specified copyright term runs out, the community advances by having access to the text directly. The second model relies on the ideal of individuals’ natural and moral rights (droit moral), which are thought to exceed the community’s right to text and culture, even as text and culture are generated in a shared environment of inspiration and influence.²⁹ A person has the right to benefit financially from her or his labor. Moreover, a person who writes words on paper imprints the writing with a sort of indelible essence; that connection between author and text cannot be violated by the assignment or denial of legal rights. To the utilitarian model, and the laws that codify it, this belief that texts are imbued with their artist’s personality, and that the connection renders certain rights onto the artist, is dismissible as “intuitive, unanalyzed feeling.”³⁰ The natural rights model and the utilitarian model, in short, reflect two different ways of thinking about authorship.

In scholarly exchanges about authorship, particularly those that center on the relationship between authors and texts, two disputes in twentieth-century intellectual history are rehearsed repeatedly. They demand inclusion here because their implications are especially pertinent to scholars of digital culture and technology, who are invested in both critical theory and the emergence of collaborative networks and fragmented artifacts. The first is the publication of Michel Foucault’s 1969 essay “What Is an Author?”³¹ In this essay Foucault argues that even though literary criticism and cultural theory generally may have accepted the “death of the author,” individual authors’ names still mark off “the edges of the text, revealing, or at least characterizing, its mode of being.”³² There is no understanding or theory of the text, what Foucault calls a “work,” that is free from “the millions of traces left by [the author] after his [sic] death.”³³ The “author function,” Foucault explains, saves readers and scholars from the intolerable condition of literary anonymity. Far more dispersed than the real writer himself or herself, the author function “operates in the scission” generated by the deconstruction of singular authorship.³⁴ Beyond literary and cultural assumptions, Foucault’s essay interrogates how power is appropriated and wielded discursively with or without the individual author(ity) of a name.³⁵ His writings on these processes of power became especially influential among poststructuralist scholars in the United States in the late 1970s, when authorship and ownership were emerging as at once political and technical matters.³⁶

The second momentous dispute is between Jacques Derrida and John Searle, debating the legitimacy of authorship as a convention of textual ownership. To Searle, authorship is an extension of the kind of intentional communication that a speaker effects when putting thoughts into words.³⁷ Words belong to their utterer insofar as they represent his or her intentions. Derrida insists, simply put, that no such alignment of words and intentions is possible, and that ownership marked by copyright is a fantasy. Searle and Derrida’s legendary kerfuffle is sometimes characterized as a historical engagement between French-German and American-English philosophical traditions.³⁸ It began in 1977 when Derrida’s essay “Signature, Event, Context” was first published in English in a volume of Glyph.³⁹ The second volume of the year featured an article by John Searle, in which he critiques what he considers to be Derrida’s misreadings of J. L. Austin’s linguistics. In his published reply, “Limited Inc abc.,” Derrida deconstructs his own as well as Searle’s status as owners of their words and texts. He notes, “the difficulty I encounter in naming the definite origin, the true person responsible for the Reply: not only because of the debts acknowledged by John R. Searle before even beginning to reply, but because of the entire, more or less anonymous tradition of a code, a heritage, a reservoir of arguments to which he and I are indebted.”⁴⁰ To illustrate that all writing exists in reference to other writing—that is, in quotation marks, or as a copyright violation—Derrida puts “copyright © 1977 by John R. Searle” first in quotation marks, then in another set of quotation marks, and then another.⁴¹ Copyright laws and theories notwithstanding, the text is always “separated at birth from the assistance of its father.”⁴² No use of language, no authorship, no relationship between a text and its author, Derrida insists, is free from the complications of contagion.