Toward a Copyright-Free Zone?

Historical Essay

by Rick Prelinger, 2004

Originally published in The Political Edge


Photo: D.S. Black

In the spirit of Weegee, the 1930s crime photographer, my friend Bill sleeps days and works the streets by night. Once a still photographer, now a video shooter, he monitors San Francisco police and fire radio and races to the scene of shootings, fires, and serious accidents. Other people’s bad luck could be his good fortune; if he gets striking footage and beats the others to the TV stations, he’ll get a sale. But most of his nights are spent waiting for something to happen.

It was just such a night a few months back. There had been a tragic shooting in the Western Addition and Bill was waiting for the body to be carried out (the “removal,” as TV news assignment editors offhandedly call it). Biding his time, he idly panned his camera past a group of neighborhood bystanders waiting for the same reason. Suddenly the group erupted in protest. “Don’t shoot us,” they said. “No cameras. Copyright notice! Copyright notice!”

Their law was all wrong, but they certainly knew the C-word. Most of us do now. In the first years of the twenty-first century, copyright’s gone mainstream. What happened? How did copyright quit being a specialized field for lawyers and a tiny group of people reprinting public domain works, and become an issue of mass concern?

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One of many copyright violating images posted on San Francisco walls during the 2010s. This is in 2019.

Photo: Chris Carlsson

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2018, Democracy Wall

Photo: Chris Carlsson

One sure way to polarize people and motivate their intense interest is first to give them the ability to do something, whether it’s smoking, late-night dancing, posting digital pictures of national scandals online, or downloading music, and then threaten them with fines and arrest for doing it. That’s just what’s happened around copyright. The Internet has given all of us the ability to produce, distribute, and share cultural and intellectual creations as never before, something quite threatening to a number of media companies who’d like to control the publishing process as they once did. New creative and distributive tools are challenging old-fashioned businesses to come up with new business models, but rather than innovating they enlist the services of the state to crack down on innovation. And when seniors and twelve-year-olds alike receive threatening letters from the RIAA, that’s the kind of repression that makes news and breeds resistance.

As with the social revolutions of the 1960s and 1970s, San Francisco has become a key center in a geography of resistance to ruling ideas about the control of culture. Creators, scholars, activists, and geeks are critiquing copyright and associated issues from many different angles, and together they’re propagating new and infectious ideas and projects that have already changed the way we interact with our cultures. This movement has heroes, but not real leaders; it’s a diverse group moving in the same general direction. We define ourselves in space (San Francisco in opposition to New York and Los Angeles) and in time (your generational cohort generally determines what side you’re on in the copyright wars).

As Lawrence Lessig puts it in his 2004 book Free Culture, “the battles that now rage regarding life on-line have fundamentally affected ‘people who aren’t online.’” Neither the information economy nor the cultural industries are controlled from San Francisco, but San Franciscans are resisting centralized cultural control and advancing a new vision of culture that’s not based on virtual locks, fences, and gates. Like-minded on many issues, disagreeing on others, this group hews neither to classically progressive positions nor to Wired magazine-style techno-libertarianism. But reformists, radicals, and abolitionists all agree that current “intellectual property” laws and distribution practices need to evolve so that free speech and fair use can prevail over centralized control. And many believe that changing the way that culture is distributed can open the way to reconsidering how property is distributed.

Living where politics is just as much (if not more) about daily life than it is about elections, where artists and activists collaborate and switch roles, and where not everyone’s been scared away from thinking in utopian terms, San Franciscans have a long record of challenging dominant thought on copyright and what lawyers like to call “intellectual property.” San Francisco filmmakers, artists, writers, and musicians revel in a long-flourishing tradition of artistic appropriation, sampling, collage, and détournement. While some still believe in the myth of the lone creator, this town is where the idea of “one big remix” has legs. Collage and related practices continually resurface in new genres and generations, addressing not just bits of pieces of recycled content, but also questions of copyright, technology, and power.

It would take a whole book to credit even some of the people and groups who’ve worked with appropriation and collage in San Francisco, but here are just a few.

In text, the “language poets,” who evolved as a group starting in the 1970s, frequently use recycled text, combining formalist concerns about language and poetics with an interest in power and how it’s propagated and sustained through language. Many in this group, like Ron Silliman, Lyn Hejinian, Steve Benson, and Carla Harryman resided in San Francisco, and now live in ubiquity via the Internet.

San Francisco’s a center of found-footage filmmaking, a town where archaeological sensibilities, a dose of Dada, and a healthy disregard for copyright have given birth to some of the great works of cut-up and recycled cinema, including those of Bruce Conner, Craig Baldwin, and many others. Recycled cinema may be a passing fad elsewhere, but it’s got legs in San Francisco, where no Dumpster containing old film is ignored for long and where archives such as Stephen Parr’s Oddball Film and Video/San Francisco Media Archive and my own online collection at the Internet Archive give footage to artists and independents without charge.

In recent years the lowering costs of video production have made it possible for community-based and activist producers, many working collectively, to critique corporate and official media while freely appropriating its imagery. Whispered Media’s We Interrupt This Empire (2003) shows San Francisco’s response to the U.S. bombing and invasion of Iraq, using newly shot material, network TV coverage, feature film clips, and the sounds of police radio transmissions. Appropriated footage is used transformatively, forcing dominant media into confrontation with the critique that it generally does its best to escape. The Fellowship of the Ring of Free Trade (2002) and The Lord of the Rings: The Twin Towers (2004), two delightful examples of illegal art, are pseudonymously-created short films that use “revised” subtitles and skillful editing to prove that the blockbuster Lord of the Rings epics are in fact antiauthoritarian and antiglobalist parables. And recent outdoor screenings in Dolores Park associated with antiwar demonstrations have been multi-course feasts of appropriated imagery, propagating the idea that mass media images gain new value when remixed against their original intentions.

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Eclair Bandersnatch, prolific stencil artist seen often on the sidewalks of San Francisco, put this around in 2018.

Photo: Chris Carlsson

Disrespect for advertising, especially the outdoor variety, has long been a proud San Francisco tradition. From “Forest Dispenser” stickers on vending machines filled with ad-swollen newspapers to “updated” and “corrected” billboards along the Central Freeway, artists have done their best to associate corporate trademarks and ad campaigns with the less visible activities of the corporations they promote. The implication here for “intellectual property” law is that trademarks aren’t sacrosanct, and appear in public subject to the same processes of commentary and critique as other speech.

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Repeated tensions around the corporate sponsorship of Gay Pride celebrations led to this intervention in 2013.

Photo: Chris Carlsson

San Francisco musicians and composers not only have historically played leading roles in working with found and appropriated material, but in engaging copyright laws as well. Negativland, a band from San Francisco and the Pacific Northwest, defended its fair use rights in a proceeding whose twists, turns, and lengthy duration make it one of the all-time great legal pranks. Countless DJs, hip-hop, electronic, and experimental musicians here (not to mention radio artists and activists) have explored the infinite permutations of remixing and sampling.

What ties together all these artists and activists who work in different genres is the acceptance that creation is a synthetic process, that the seeds of new work fall out of old, that culture doesn’t form in isolation, and that performing and distributing work don’t necessarily constitute billable events.

Assisting artists and geeks alike is a growing community of lawyers who seek to enable, rather than inhibit, an undammed cultural stream. Organizations like the Electronic Frontier Foundation, a San Francisco public-interest group dedicated to extending constitutional free-speech and fair-use rights online, work to defend and assert the rights of consumers and creators when these rights are threatened by aggressive rightsholders and agencies of government. EFF has also directly addressed issues of political empowerment and modernization, involving itself actively in the recent exposure of computerized voting machines and their disenfranchising potential. The Berkeley Center for Law and Technology (at UC Berkeley) and the Center for Internet and Society at Stanford function both as think tanks and as legal resources for people breaking new ground. Both centers have contributed time and talent to recent court challenges of overlong and overbroad copyright laws.

Stanford Law School also hosts Creative Commons, a new initiative that’s affected over four million works in its first eighteen months of existence. Conceived by Eric Eldred, plaintiff in Eldred v. Ashcroft, a Supreme Court challenge to the Sonny Bono Copyright Term Extension Act, and chaired by legal scholar and San Francisco resident Lawrence Lessig, CC uses existing copyright law to give creators the opportunity to okay reuse of their work in advance. My new feature film, for instance, bears a CC license permitting anyone to reuse it freely for noncommercial purposes with attribution. Those wishing to copy or redistribute it within these limits don’t have to ask special permission, and the online version of the film will show up in Web searches for films that have been cleared for reuse. CC is also working on realizing an idea that’s been on many minds for several years—an “intellectual property preserve,” resembling a national park for culture. Also known as an “IP conservancy,” such an entity would contain donated cultural content and treat it as a shared, public resource, free for all to share and use. This model recalls the English common grazing lands before their enclosure by the oligarchy, and points to the possibility of adjusting the balance between private and public property.

San Francisco also hosts a community of archivists dedicated not simply to preserving past culture but also to making it available in new contexts. Pressure for archival access has influenced many archivists to reconsider the tenets of their profession, and San Francisco’s Internet Archive, a nonprofit “Internet library” located in the Presidio, has played a leading role in expanding the definition of what archival access is and might be. Founder Brewster Kahle says that the Internet now gives us the ability to collect and preserve the world’s cultural information and make it available to everyone at all times at miniscule cost. The archive collects Web pages and makes this ephemeral digital content available on the current Web through its Wayback Machine; hosts over 10,000 live music shows by consenting performers; makes the Prelinger Collection of almost 2,000 archival films available for free downloading, viewing, and reuse; and is involved in a project to digitize one million books and make them available online for free. Kahle, myself, and our organizations have also sought to reform copyright law via the courts—we recently filed Kahle/Prelinger v. Ashcroft, in which we assert that the practice of automatically renewing copyrights is unconstitutional. What unifies these activities is a sense that archivists must assert themselves to overcome obstacles to collecting and disseminating historical documents, whether they’re paper, film, or digital, and that copyright law requires immediate reform if people are to have the ability to access and quote from these documents.

The Internet Archive was founded in 1996 to preserve ephemeral digital content on the net. But lately its functions have expanded: it’s now a massive distributor of free and public domain music, movies, and books, and its activities point the way to a robust alternative economy of culture. The “model of plenty,” as Lawrence Lessig puts it, a model based on gifting, sharing, and diverse nonfinancial rewards, now competes with the classic “model of scarcity.” Enabled by the latest computer technology, the archive walks in the footprints of San Francisco’s many utopians, imagining a world where culture and capital are no longer tightly bundled.

It’s not simply artists that are focusing on alternative economies of creation. While most programmers labor in highly commercialized environments for financial gain, they often spend time creating free and open-source software as well. Open-source software is released to the world under a license that stipulates, among other conditions, that not only the original software code but any new code using it must remain available for free distribution. In other words, the free character of the original code “infects” new code that’s written, thus building a body of free code available to all. Free code, such as the Linux operating system and the Mozilla Web browser, constitutes a “commons” that’s not owned or controlled by large corporations, and whose development isn’t crippled for business reasons. The open-source and free software movements hark back to more traditional ways of creating socially useful goods and services; it’s a remapping of the traditional gift economy into an efficient practice for sharing tools and ideas, granting attribution and fame, and enabling innovation without money changing hands. Though people all over the world develop and improve open-source and free software, there’s a nexus of energy in San Francisco, and many of the most active contributors and theoreticians of the movements live here.

A growing community networking movement also contributes to realizing a “model of plenty” in San Francisco. The members of this movement seek to build a regional network infrastructure that isn’t controlled by large telecom corporations. Using inexpensive wireless technology, they’re building a free network on which they hope free culture will thrive. Anyone exploring the wireless networks in their neighborhood are increasingly likely to discover an SFLan node, to which they can hook up for free broadband Internet service. SFLan’s self-description reads, “In many ways this is a return to the way the Internet used to be: You own your equipment, I own my equipment, and we connect to each other. Hence, we do not have to ask a large corporation what we can do with our network. If this works, we would like to spread this technology near and far.”

Just as community wireless activists seek to establish parallel networks not under corporate control, bloggers seek to establish (and arguably already have built) a parallel mediasphere in which shared convictions, virtuosity of expression, and the esteem of one’s peers govern what makes the news, rather than the decisions of highly paid editors and publishers. Though blogging isn’t inherently about appropriation or reworking copyright, bloggers quote, recontextualize, slice and dice, comment and criticize up to and well beyond the narrow limits of fair use. A favorite indoor sport of the Bay Area, blogging is still young and disruptive, likely to pose a new set of challenges to conservative copyright law.

Brewster Kahle often jokes that “the Presidio should be a copyright-free zone.” By this he doesn’t mean that pirates should occupy the former army post, but rather that progress grows out of process. “We need areas to experiment,” he says, “where the good ideas can be replicated, and where we can spend time going through and rejecting bad ones.” He is, in other words, calling for a laboratory-type approach to issues of copyright and “intellectual property,” where debate, the exchange of ideas and theories, and radically new practices all contribute to shaping a new and fairer consensus on the distribution of culture. If this is occurring anywhere today, it is in San Francisco.

If, as Lawrence Lessig says, online battles spread to the offline world, then the copyright wars have only just begun. In San Francisco, where we have a history of thinking about these issues earlier and more incisively than many others do, we can influence national consciousness on culture and copyright. More fundamentally: If, as many believe, reconsidering the ways we distribute culture can lead us to reconsidering how we distribute property, San Franciscans are again leading with a utopian wedge. Let us be a zone where a rich cultural commons and many models of plenty rule.

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published originally in The Political Edge ed. Chris Carlsson (City Lights Foundation: 2004)