Manufactured and published by Seeland MediaMedia. N 2005 by Negativland. Some rights reserved.

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2 Seeland 025 Book/CD Art direction and packaging design by Sean Tejaratchi and Negativland. Manufactured and published by Seeland MediaMedia. N 2005 by Negativland. Some rights reserved. Worldwide distribution by Mordam Records, Sacramento, CA. Institutions interested in multiple copies of No Business can contact Mordam Records by phone at or visit For more information, to correspond with Negativland, or to purchase individual copies of No Business, go to Snail mail to Negativland goes to P.O. Box 1154, El Cerrito, CA Printed in the USA. First printing Portions of the essay Two Relationships to a Cultural Public Domain originally appeared in much different form as part of The Conference on the Public Domain, Duke University. The text, audio, and video in this work are licensed under the Creative Commons Sampling License, created by Negativland and Creative Commons. To view a copy of this alternative to existing copyrights, visit Many thanks to Professor James Boyle, Glenn Brown, Lee Buric, Thom Dimuzio, Louis Gonzalez, Kohel Haver, Robert Hinkley, Jon Leidecker, Dan Lynch, Tim Maloney, Carrie McClaren, Michelle Moore, Sean Tejaratchi, Siva Vaidhyanathan, and Jim White for their invaluable input and insights in helping make this project.

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5 PART ONE: FREE EXCHANGE in the DIGITAL DOMAIN Page 1 PART TWO: STICKY FINGERED HISTORY page 19 PART THREE: EXPANDING FAIR USE page 31 AFTERWORD page 39 APPENDIX HOW CORPORATE LAW INHIBITS SOCIAL RESPONSIBILITY page 43 SOME ESSENTIAL BOOKS, RESOURCES and IP ACTIVIST WEBSITES page 49

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8 This song is copyrighted in the U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin it without our permission will be mighty good friends of our n, cause we don t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that s all we wanted to do. Woody Guthrie TWO POSITIONS Any argument over what should or should not be considered a public domain for cultural works stems from one of two positions: POSITION Everything created by humans is work ONE that is done in order to gain income and which cannot continue to be done without that income. Therefore, all pieces of cultural work need to be compensated (usually on a per-unit basis) if we expect such work to continue. And therefore, to become a user of such work without providing compensation is to rob the creator of a rightful and necessary payment. This position the ethical and economic standard for cultural creation that we ve become accustomed to stems directly from our evolution through a pre-digital, hard-copy-based world in which the supply of anything made was necessarily physical and supply-limited in nature. The physical supply of anything made was controlled by the maker of that thing, and any units or copies of it were doled out exclusively by the maker. This condition quite naturally evoked and supported the above ethic in a material world that provided virtually no other options. 2

9 Position Digital technologies of reproduction TWO have dragged the above ethic into a world of new production realities; individual works are still being created, but once a digital copy of a work is released, it s up for reproducing grabs. Anyone on the receiving end (the audience) is capable of making their own indistinguishable copies ad infinitum and distributing them ad infinitum as well. And these individuals can do this at home, at little cost, using consumer technology available to most anyone. In other words, we have begun to allow the whole receiving end of cultural output to put themselves in charge of the reproduction and distribution of others cultural work if they so wish. This Internet-only condition of free public copying may diminish traditional, per-unit, creator compensation to some as yet unknown degree. As music makers, for example, we are no longer in charge of our own music once it actually leaves our hands in digitized form. We cannot control the further duplication and distribution of our music by those who receive it via digital media. This unexpected and perplexing reality has begun to encourage a different ethic with an unknown economic standard for digitized cultural work. Those who have always upheld Position One appear oblivious to this ethic, but, of course, it s really nothing new at all, emerging as it does from a very old ethic, one that every effort of private capitalism over the last century has sought to deflect, delay, and smother: the concept of public domain. The Death of Folk Art and the Birth of the Internet Computers and the Internet prompted the creation of Position Two, and out of them has come a renewed interest in the free and open exchange of cultural works of every kind. This new, digitally driven ethic of free exchange emerged so easily because the ideal of an unhindered, wide open, and free cultural exchange has always held a deep philosophical appeal for the receiving end of culture; and the receivers have now suddenly been given an effective technological tool to actually make 3

10 this happen. The lack of any need to pay for anything in this new domain of sharing only increases its popular appeal. But deep within these unfamiliar realizations about how reality is now working lies the conundrum of how to pay for cultural production. This is the one nagging residue of practicality from Position One that Position Two advocates do not yet have a good answer for within their otherwise appealing vision of uncontrolled grass roots exchange. But interestingly enough for our human brains, on the Internet we don t appear to have a viable choice. All digitized media, particularly on the Internet, has actually turned the world of traditional copyright controls upside down, putting the general public in a distribution driver s seat that simply did not exist before. In doing so, digitally reproduced media has opened up the public s imagination to what they would like to do with whatever forms of culture come their way. The audience can now bypass the creators control over the sales and distribution of their work. Once again in the history of human invention, new technology has thrown us and our society s prior values for a loop. In much earlier times (prior to the corporately driven modern era of hands-off, privately owned and copyrighted cultural material) the natural human approach to our own culture was to participate in it not only by absorbing it as an individual, but also by sharing and remaking it adding to it, removing from it, recombining it with other elements, reshaping it to our own tastes and then redistributing the adjusted results ourselves. Virtually the whole history of human culture, from singing around the fire to tool making and oil painting, consisted of copying from and altering the universal public domain in various re-imagined ways until copyright came along. Sue Me, Sue You Copyright in the twenty-first century has made true folk music, for instance, illegal and impossible in many parts of the world. In all modern industrialized societies, such music is extinct as a process. What s left are professional singer/ songwriters, each one required to be original, each one 4

11 required to be lyrically and melodically distinguished from all other music in order to remain legal. All this has resulted in the prohibition of any actually evolving folk process at all. Any kind of true folk music (apart from that which has already reached the legally defined public domain ) became impossible once copyright laws made it possible to sue direct reference copying out of existence. Along with these modern parameters on creativity came complete twists in human perception itself; for example, the very concept of copying (which actually got this species to where we are now) became a term of disrepute, something to be avoided, an uncreative act! So now, despite the fact that music is always chock full of copying (regardless of any laws), the industry continues under self-delusional standards of originality based on carefully delineated degrees of copycat provability. Acknowledging the strengths and realities of human nature (monkey see, monkey do) has become a disrespectable practice in commercialized culture, and thus the human cultural tradition of incremental evolution based on individual copying is now routinely crippled by private ownership. Each individual must make a legally defined leap from another s (phony) originality to his or her own (phony) originality. We wonder, would people across history agree with the copyright lawyers and content owners who think that this is a good thing for the evolution of human culture? As for the Internet, digital distribution does not remove the right to sue for copying or the unauthorized reusing of existing work, but it does remove a great deal of practicality in enforcing such legal mandates. These are crimes committed by countless individual citizens inside countless homes, and tracking this criminal multiplicity is so difficult that it just becomes expensively pointless. We are now discovering that the public s urge for a cultural public domain is making it difficult for copyright s relatively short-lived repression to continue as if nothing has happened. The success of Napster (over 70 million file-sharing users at its peak) and Kazaa (60 million users and growing) show that the public s desire to engage in cultural trading and reprocessing for their own purposes, free of charge, is anything but extinct. It seems that the general public, if given the opportunity, will always 5

12 take control of revising the destiny of those cultural products that enter their sphere of possession; with digital technology, they suddenly can and so they do. But this new opportunity has also awakened a new awareness of the economics of modern culture and the near total encompassing of the electronic arts by commercial interests: a condition which has now come to characterize our popular culture as a whole. These commercial interests have actually become the rulers of what s important and what s not in cultural material. Among other things, when private cultural income threatens to go out the window, some very different sorts of standards for popular worth start to emerge. Screams of Indignation Virtually all mainstream music is, at the moment, owned and controlled by five transnational corporate entities. These entities scream that free digital exchange will kill music if left to its own home-reproduction devices. Well, it could possibly kill their kind of expense laden music production, but they make the self-absorbed assumption that their productions are the only music that counts; and that is one of the reasons it is so appealing to subvert their economic grip on music by reproducing it and passing it on for free. Such a reaction, however, regardless of how justifiable it may be if focused, is actually vague at best and merely a general feeling about what all music is actually worth in a commercially compromised creative culture. This newly empowered free exchange attitude does not distinguish much between musical examples, and such economic subversion could extend itself to the small independent varieties of music as well: thus we have a potential support problem for all music, whether it s made in a corporate music factory at great expense or for very little in a home studio. One thing that may shake out of this situation in the long-term is that, if payment for any and all music significantly diminishes, all the home studios motivated for reasons other than profit will hang on and continue producing music much longer than the big, extravagant, corporate music factories will ever care to do. As economies of scale come into play, the 6

13 consolidation of the major record labels into fewer and fewer hands creates a gigantic economic infrastructure that they simply may not be able to sustain. If the mainstream music industry s worst case downloading disaster scenario ever comes true, the current music business may slowly implode under its own size and weight and break up into smaller companies with lower overheads. At any rate, music will not disappear under such conditions: people will keep making it whether they re paid or not. Music may, however, change in nature. The notion that one could run a business or have a career based on selling thousands of round pieces of plastic-coated aluminum is a relatively new one in human history and is not written in stone. The thousands of tunes now churned out yearly by the labels as formula bids for mass popularity may become less and less worth doing: such a shotgun approach dependent on the few artists in a thousand who hit to pay for it all is too expensive when free copies of those few hits can proliferate so easily. And music that is distributed only on-line may not provide much of a living either if it never escapes the Internet s freely exchangeable format. To suggest that all this will automatically be bad for music itself, however, is not that easy to assume. We have become so accustomed to equating something s quality and value with the income it earns that when this measurement is removed we hardly know what to think. Negativland, for example, has never earned a decent living off of music, yet we continue to make it. And we re probably not the only ones. Music made at a survival level of self-support will not necessarily be any worse than most of the professional music-factory formulas we re getting now which are supported by more careless and unproductive waste than you care to know about. The Other Half of the Glass It s been long apparent that the Net opens up the distribution of self-produced material as a significant alternative to the notorious corporate label intimidation that has ruled modern pop music production and distribution for so many years. How this independent potential will find economic support is not yet known. But 7

14 for a musician it potentially provides, at very low cost, what was always missing until now: self-distribution that can actually reach beyond one s own neighborhood. A single master is now all that s needed to be a potential worldwide distributor on the Net. When distributing music is no longer about manufacturing, literally anyone can play. The Net s unique ability to encourage self-control and self-ownership of one s own musical career by utterly bypassing the former only game in town corporate labels usurpation of control and ownership rights is not to be dismissed just because the resulting living may be smaller. (Keep in mind that of the 3 billion web pages on-line as of this writing, only about 30% of them represent commercial or corporate interests. The rest are simply there to share information, opinion, art, and ideas.) Self-ownership and self-distribution may be the future of music on the Net, which today is still full of corporate handwringing over economic collapse. The Net motto for the future may well be Get Small or Get Off. Optimistically, and perhaps naively, we would like to see the Net characterized in the end as a peoples medium, primarily designed by and for individuals, rather than yet another comfortable bed for the mass culture of corporate marketing (which has successfully taken over all other available mass mediums with their everything-is-only-there-to-sell philosophy). An Internet such as this, geared toward the interconnection of individuals, might inevitably become estranged from the copyright constraints that will go on ruling the material world. Could the Net become a simultaneously operating parallel universe in which everything within it is functionally in the public domain and open to anyone s reuse? If so, the off-line personal reuses of Net material would be unknowable just like they are now; but we might decide that any transference whatsoever of material off-line would constitute the loss of its Net public domain status. This idea does not assume that creators wouldn t have any avenues left for garnering individual incomes in such a digitized public domain where copyright is void by default but they might be rather modest incomes, and mostly such avenues are yet to be invented. For the time being, though, there are still persistent and expensive efforts on the part of corporate producers of cultural content to somehow maintain the Position One 8

15 economic standard for digitized media (per-unit payment) within the new Position Two functioning reality (free exchange by default). With sparkling dollar signs in their eyes, the music factories dream of charging for those millions of unauthorized downloads that are now happening and of making such unauthorized downloading a felony crime. But we ve seen practically none of these efforts placing tolls on and passing new laws against this infinite and virtually expense-free supply in the digital domain work very well. And there is not much hope that free exchange on the Internet will ever be eliminated entirely because, no matter how many very smart encrypters, digital security specialists, lobbyists, lawyers, and lawsuits the private producers employ, the world will always find a way around it. There will always be someone else out there who is just as clever and who is, by nature, opposed to a privately controlled culture of limited supply on the Net. Perhaps there will never be a way to make huge amounts of money from digital content on the Internet. Locks are an anachronism in that realm. Given enough time, all private exclusivity codes will be cracked by the vast and alternatively motivated population at large. Why are they doing this? The Position Two ethic. How will we pay for cultural production? Nobody knows. Meanwhile, all this has landed us in an era in which the traditional business of culture is in the impossible position of seeing its customer base as criminally dangerous to their business. This paranoia stems from the essence of capitalist logic: charging is good, free is bad. And not just bad, impossible! But in the realm of the Internet, cultural materials text, images, and audio are all constantly moved around by an on-line audience, operating under the assumption that free is good and charging is bad. On-line users express this notion because, for the first time in their lives, they actually can. And they see how the Internet can apparently go on and on this way, that the essence of western civilization is perhaps not so threatened by it, and that perhaps it even adds something worthwhile to it. Significantly, we are not yet aware of a single off-line individual or company that The Consumer as Criminal 9

16 has gone out of business purely because of anything that s happening with on-line file-sharing.* The Internet was never designed as a commercially structured medium for selling digital data. It was designed as a medium for a free, open, and decentralized exchange of information and materials. This tenacious, foundational nature of the technology and software is proving extremely difficult to convert into various forms of toll taking. (Only cultural content as apparently irresistible and indispensable as pornography has succeeded in making a profit there from non-physical material.) On-line digital music stores will be modestly successful, but large-scale file-sharing will also continue. Lately, P2P file-sharing is moving more and more into newsgroups, and with new generations of file-sharing software being developed that are ever more decentralized, anonymous, and untraceable no matter how many lawsuits the Recording Industry Association of America launches against P2P companies or individual consumers, it won t be stopped. So far, all forms of paid advertising (a major way that cultural content traditionally supports itself) that we see on the Net seem to be largely ineffectual, not to mention unwanted. Few people want to click through those banners. The pop-up ads are infuriating. The The Criminal as Consumer * It should be pointed out that, in addition to file-sharing, the drop in CD sales seen over the last few years can be attributed to the following: an economy in recession; CDs being grossly overpriced; blockbuster DVDs selling for much less than CDs; video games, DVDs and web surfing taking up much more of people s free time and entertainment dollars; the widespread shift in the mainstream music biz away from releasing good albums and focusing only on hit singles; and the end of a decade long spike in CD sales as many people have finished replacing their old vinyl collection with CDs. Also, in the years that the major labels have claimed lost sales from file-sharing, they were actually releasing less full length CDs and less singles than in previous years, creating the appearance of less sales when they simply had less product to sell. Their per-unit profit remained pretty much the same. And finally, the consolidation and homogenization of radio under Clear Channel has led to a lot less singles getting air play on radio, and thus less variety of music to promote and sell. Taken together, all of these factors have contributed to the drop in CD sales. 10

17 Net is just a whole different kind of perceptual place, suggesting a new attitude among its users who change their usual media expectations upon entering. It s a worldwide space that somehow suggests and encourages personal direction and individualized participation more than any other medium that has ever been available to us. No matter how flawed and imperfect, the Net allows us to seek something more specific to us as individuals. Aside from communication, the Net is used like a universal library: one walks inside and searches for something. And just as in a library, we like our experience to be unencumbered by the influence of commercially motivated hype, ads, or content over our personal choices. The Net seems to prefer unmodified individual expression and priorities rather than homogenized and generic corporate intrusions, which automatically appear anachronistic and even more annoying than usual in this new personalized arena. It hasn t been so easy to just turn the Internet into television or a shopping mall. Logos, promotions, branding, and selling things we now accept as characterizing our corporate culture in all other media and in the off-line material world do not yet get the same free pass within Internet activity. There still appears to be some kind of choice there; an inherent flexibility to make of it what we will; a choice which no longer strikes us as possible in the commercially locked-up world of one-way mass media. It is surprising to see how oblivious corporate commerce is to their own appearance of disregard toward the nature of the Net. They are now looking at the Net as a new and lucrative nut to be cracked, using the same methods they ve used to tackle every other new medium that has ever appeared. They ignore the basic design of Net technology (it s ability to facilitate spreading and sharing, and it s opposition to one-way, top down methods of selling and communicating), and they are hard at work lobbying their representatives in Congress to make new laws and to legally change the basic design of the software and the hardware into something they can work with. Failure after failure has not made much of a dent in their assumption that the Net, too, can and someday will be turned into another medium for commercial placement and the large scale selling of digital-only products. The RIAA s attack on Napster (and, by default, their attack on the 70 million music fans who used Napster) was the first of many alienating public relations 11

18 disasters for the music industry. More recently, the RIAA has compounded this bad PR by its aggressive legal pursuit of individual file-sharers. They are still looking at the Internet as the biggest mall of all and as a whole new frontier for indefinite economic growth. The vast majority of users, however, hardly seem interested in having more malls at all; on the contrary, the Internet still represents a very new expression of public domain ethics and culturally interactive procedures, a place where cost and content are not necessarily bound together. This is a way of thinking that has been denied to us in all other forms of mass media, all of which succumbed to commercial domination and sponsored purposes a long time ago. Art Over Profit? Music on the Net is presently engaged in a series of overlapping contradictions fighting for survival and predominance. It seems to be evolving (or devolving, if you prefer) towards a dual life: on the one hand, continuing in its present status as private property, copyrighted and supplycontrolled in the material world, and available from officially sanctioned real world and on-line music stores; on the other hand, existing as an underground virtual vapor service of P2P file-sharing music which has escaped any need for a physical format as it is moved from one place to another. Many assume that allowing cultural material to live such a dual existence all copyrighted in the material official world and a free-for-all of all-for-free on the Net is not a plausible option. They assume this would be a form of competition that the material world could not economically sustain: no one is going to pay for something here that they can get for free over there. But actually, if you look at what experience has shown so far, you ll notice that this dualism is exactly what is happening. One can download practically any music for free somewhere on the Net, while real world and on-line music stores continue to sell lots of music both as individual songs and entire CDs as downloads. There are many factors at work in this paradoxical situation, which may be more than a temporary situation even as download quality and ease of use catches up to mass-produced CDs. 12

19 The Net has several aspects to it that make it an ideal public domain for all that enters it: it s accessible worldwide; the amount of material found there is inestimable (as is the growing population of users who access it); and it s an unprecedented participatory phenomenon with which we have no previous marketing familiarity. The key to the paradox of simultaneously illegal downloads, continuing CD sales, and legal download sales may be found in the unparalleled scale of the Net itself. Most music buyers will very likely always find a certain preference for hassle-free, glitch-free (in other words, computer-free) audio perfection, along with the relevant packaging which official CDs or their legal on-line successors will always provide. But everyone s music budget is forever limited to what is most important to them. They purchase music they are sure they ll like, sure they want to add to a permanent collection. Music obtained through P2P, on the other hand, has all the aura and charm of disposable music. It s a way to sample unknown works with no obligation to buy, a way to try out or collect a whole lot of music one would never ordinarily buy, and a place where a great deal of unknown music is easily checked out and deleted without losing any investment. Every free download whim definitely does not represent a lost sale, and, in fact, the literally inconsumable plethora of available free music on the Net can and does create sales in the material world by initiating awareness of music one would never discover in a CD store. Free digitized music still appears to be excellent advertising, and the mainstream music industry has repeatedly shot itself in the foot with its aggressive moves to stop it. Whatever percent of salable music is supplanted by free downloads, those downloads still produce enough sales of permanent, legally purchased music (discovered through disposable digital sampling) that it all balances out, keeping music sales at a still significant level. The number of free music downloads going on (now in the billions) really scares the mainstream recording industry; but they seem to forget the scale of practicality involved. They only need to sell a tiny fraction of that amount to become sinfully rich anyway. Rather than rushing in fear to reconstitute the Internet, we need patience, as there is still much to learn about its many unpredictable effects on the outside world. 13

20 For commercial interests, however, this dualistic reality is unthinkable. They remain deep in the habit of assuming that exclusive and protected ownership is the only guarantee of private profit. The Net hasn t supported that habit much yet, and still these business interests seem incapable of noticing the Net s innovative suggestion that their assumption may not, in fact, be true at all. They seem to ignore all the ways the Internet increasingly informs and interacts with the whole outside world of copyrighted experiences that the cultural industries are profiting from now. Paradoxes of Practicality Even more difficult for commerce to swallow is the ultimate realization that any alternative to preserving the Net as a virtual public domain, by default, may be bound to fail anyway. All it takes to subvert copyright constraints on-line is for one individual to purchase access to a work (on or off the Net): from that point on, it is potentially up for grabs by anyone else on the Net for nothing. The basic functionality of the Internet was beautifully designed to promote and facilitate copying, sharing, and spreading, and unless its basic nature is significantly altered (efforts are underway as we write), this medium will always be inclined to perform these functions well. As paranoia grows among the corporate owners of culture and content, the Net becomes all the more fascinating to the vast majority of commercially unaffiliated users precisely because it just sits there a profound enigma in the midst of a society firmly entrenched in private commercial formulas for success. How can this commercially unworkable anomaly be accommodated? The psychic and societal shifts that these paradoxes of practicality may eventually produce reach far beyond the arts: they question the value of intellectual property ownership itself, which has been turned into a revitalized debate for many since the Internet appeared. Every other previous mass medium has been oneway in nature and designed for passive spectatorship and sponge-like absorption. Mass mediums value their audiences primarily as target consumers representing demographic statistics upon which they can sell advertising. Their 14

PEW INTERNET PROJECT DATA MEMO. BY: Director Lee Rainie and Research Specialist Mary Madden (202-296-0019)

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