<nettime> Thoreau,Walking

[murph the surf <murph@interport.net>]

Text of a talk given at the "Virtual Museums on the Internet" symposium
during a panel on Legal Aspects in Salzburg, Austria, 8 May 1998.

This is an excerpt of a larger project I've been working on over the years
having to do with Thoreau's concept of "Wildness" and his attempt to work
with the source code of society. I was positioned between two lawyers on
the panel and sought to provide an alternative view from their more
traditional stands on copyright. It is a work in progress.

Robbin Murphy
murph@artnetweb.com




THOREAU, WALKING
ART AND THE LEGAL AMBIGUITY OF THE INTERNET
Robbin Murphy

Virtual Museums on the Internet
Salzburg, Austria
May 8, 1998



INTRODUCTION

In one of Henry David Thoreau's last essays,"Walking,"  he makes a plea for
"absolute freedom and wildness in our lives -- in contrast to the merely
civil --because man is an inhabitant and part and parcel of Nature rather
than a member of society."  The height of this freedom he suggests is
Walking -- or, as he prefers to call it, sauntering -- off the beaten path.
A true Walker, he feels, is willing to get lost in the woods and that
society is made from two or more of these Walkers connecting and forming a
network rather than by laws made through legislation or dictated by
religion from above.

Things have changed. Not only is it increasingly more difficult to find the
offramp from that beaten path but the means of connection have increased
dramatically in ways that Thoreau wouldn't recognize. But his basic premise
is still valuable. We create society (and culture) through confrontation
with each other and joining either in combat or in collaboration. Just like
the internet could be said to only exist when two computers connect we are
a society only in relation to each other. You might say that Thoreau lived
by himself in the cabin at Walden Pond in order to find the "source code"
for society.

I'm not a lawyer, I'm an artist  but for the past few years I've been
casually mapping artistic practice using the Internet with the emerging
legal and regulatory environment.  The two areas might seem to some to be
incongruous if not downright hostile to each other but after talking with
lawyers and using the increasing resources of the net I've found
similarities between artists and lawyers if only that both groups are
engaged in creating forms, making sense and establishing protocols.

What  I'd like to do this afternoon is give you a brief overview of some of
the art projects I've found lately or have been involved with that seem to
me to have legal ramifications to them -- whether by design or not -- that
may influence the way we view the Internet in the future.

What I'm not doing is offering these as exemplary works of "Internet Art"
since the critical apparatus for judging work is still in an emergent
state, to say the least. Rather, I'm taking a cue from critic Leo Steinberg
who suggested in his essay "Critique of Formalism" that when critics
approach unfamiliar art practices

"they hold their criteria and taste in reserve. Since they were formed upon
yesterday's art, he does not assume that they are ready-made for today.
While he seeks to comprehend the objectives behind the new art produced,
nothing is a priori excluded or judged irrelevant. Since he is not passing
out grades, he suspends judgment until the work's intention has come into
focus and his response to it is - in the literal sense of the word - sym
pathetic; not necessarily to approve, but to feel along with it as with a
thing that is like no other."

Leo Steinberg, "Critique of Formalism," in "Other Criteria" (Texas.net
Museum of Art),
http://lonestar.texas.net/~mharden/theory/steinbrg/steinbrg.htm.

This seems to me in keeping with the concept of "Common Law" where process
is key rather than the regulatory actions that are so often called for
today in dealing with international issues. Steinberg conceded his method
could be slow and uncertain and it's certainly out of step with the
accelerating speed of today's world. Yet the net itself developed to what
we know now because of just this kind of process. Like Thoreau's "Walkers"
forming and transforming society as they walk.  Maybe that's where the
"Vitual Museum" will be most effective.


First, I'll give a few examples of confrontational projects that
deliberately use the current ambiguity of the law as a medium either in the
form of digital appropriation or civil disobedience; Second  I'll look at
some that raise questions as a by-product of their method.



CONFRONTATION ON A LEVEL PLAYING FIELD

A "level playing field" for market competition is generally thought to be
in the interest of the public while those with an advantage -- Bill Gates,
for example --  see it as government interference and a hindrence to
growth.

In the "marketplace of ideas"  of Intellectual Property it's called "Fair
Use" and allows for a certain amount of leeway between the rights of owners
to control and profit from their creativity and the realization that
creativity depends on access to the work of others.

Though it's always difficult to draw a distinct line between "quotation"
and theft or "parody" and libel  the Internet creates a whole new area of
ambiguity in the meaning of Fair Use. Not only is copying extremely easy
to do but the net also "levels the field" of distribution. Until this
century in order to copy a book you needed a printing press and the
resources to operate it and a distribution network to sell it. Each new
technology -- the camera, tape and video recorders, photocopiers and
desktop computers -- made this easier but it wasn't until the World Wide
Web that suddenly multinational corporations were working with the same
distribution network as the kid on a home computer or an artist in the
studio.

What artists think of as media manipulation or appropriation has an
established lineage, from esthetic jokesters like Marcel Duchamp to the
post-modernism of Sherrie Levine or Jeff Koons. This same activity looks
like sabotage or theft to corporations and as Koons himself has learned
from his own copyright case the courts tend to agree.

IRATIONAL.ORG is the "home" domain for a group based in London that
includes Heath Bunting and Rachel Baker and others who question the
commercial authority system that has already taken root and been accepted
on the net in only a few short years. Often this involves reproducing and
diverting an established commercial site so that it no longer functions as
it was designed but instead serves their own purpose, or, more than likely,
becomes useless.

One such project involved the Sainsbury company and their "Reward" card for
customers. (http://www.irational.org/tm/archived/sainsbury/). Using the
simple tools provided by the web browser for downloading files plus some
elementary programing Bunting, Baker and others recreated the Sainsbury
catalog with their own logos and those of their friends (see picture) then
rewrote the questions on the application form for the card. they did not
hack into the Sainsbury site itself but hosted their version on the
irational site. Unsuspecting customers who accessed the site through search
engines rather than the direct Sainsbury URL were given no clue they had
reached a fake site and proceeded to apply for the card.

Sainsbury was not amused, to say the least, and issued a cease and desist
order through their attorneys. The resulting correspondence between
irational and the lawyers is the most interesting part of the project now
and is, if somewhat juvenile at first look, also quite funny and calls into
question the right of corporations to "pirate" public space and demand
protection while doing it. It is very much an update of the tradition of
hoaxes of "official" correspondence perpetrated by artists but because of
the medium much more effective.

The fake site is archived but still accessible, much to Sainsbury's
annoyance. This brings up another question about archives and whether the
evidence of infringement also constitutes and infringement when made
available on-line. Legal action proved difficult as the perpetrators kept
changing identity and location, a sport endemic to the net.

A subsequent project started last year and still in operation called 7-11
(http://www.ljudmila.org/7-11/) hosted by Vuk Cosic in Slovenia and
involving some of the same people as Sainsbury has proven to be more
lasting and, in many ways, significant. Cosic may be remembered as the
person who downloaded the Documenta X site to his server before it was
disconnected (http://www.ljudmila.org/~vuk/dx).

Taking the site of the ubiquitous convenience store they reformatted the
Web site and added a mailing list to turn it into a convenience site for
artists to communicate, experiment and stay connected. Again, unsuspecting
web surfers were invited to communicate with a fake corporate
representative or "hostess" named Keiko Suzuki (who was herself derived
from a site in Japan). Complaints about bad service or questions about
franchises were then posted to the list and answered by whomever took an
interest in that particular problem.

Again, this use of simple methods and the blatent "borrowing" of a
corporate identity was in one sense  a mean joke on unsuspecting Web
surfers but it also had a complexity built into it so that it not only
mimicked the trademarked identity of a corporation but also the function of
a 7-11 as a modern-day virtual "agora".

The reaction of the Southland Corporation, owners of the 7-11 chain, isn't
made known on the site as was the case with Sainsbury.  Changes to the Web
site do reflect some sort of responsive action on the part of the owners.
Though the opening menu remains it is set with a meta refresh tag to
automatically change to a form for posting to the mailing list. Thus the
infringment is still there, but doesn't remain on the viewer's screen long
enough to be used and calls into question its status as a "fixed medium"
that would seem to be required for a copyright violation.


FLOOD NET
(http://www.thing.net/~rdom/zapsTactical/zaps.html)

When asked his opinion of the then new telegraph technology and its ability
to enable him to communicate with someone in New Orleans from his home in
New England Thoreau was reported to have been unimpressed and  wondered
what they would have to talk to each other about.

So it's doubtful if he would have appreciated the concept of  "Electronic
Civil Disobedience" manifested on the Flood Net site by artist Ricardo
Dominguez and political therorist Stefan Wray. The site is designed to
allow supporters of the Zapatista rebels in Chiapas, Mexico to stage a
"virtual sit-in" by closing down access to a selected symbolic Web site for
a day. To many it may also be doubtful, what this possibly illegal action
may have to do with issues of art.

Irregardless of one's feelings toward the Zapatista movement, there is a
sense that this is a noteworthy event in what has been an on-going
discussion spurred by the writings of the Critical Art Ensemble and
Friedrich Kittler among many others as well as to the theme of the
up-coming Ars Electronica Festival -- InfoWar. It could be seen as a
political act done through art or, in Mathew Fuller's term for his
WebStalker, "more than just art." (Mathew Fuller, "A Means of Mutation",
http://www.backspace.org/iod.)

Dominguez stated in a recent New York Times interview that he considers it
"a form of theater that indirectly increases solidarity among activists"
He and Wray also said they don't think they are breaking any law. However a
former head of the Justice Department's efforts to prosecute computer
crime, told the Times that they are at risk of "violating a federal statute
that makes it a crime to intentionally distribute a program, software code
or command with the intent to cause damage to another's Web site" (Carl
Kaplan, "For Their Civil Disobedience, the 'Sit-In' Is Virtual", New York
Times Cybertimes, May 1, 1998, http://nytimes.com)

Anyone who knowingly participates in civil disobedience, electronic or not,
should be aware that they risk breaking some law. It is, as Dominguez also
said, "inherent in the practice of civil disobedience" and is often
negotiated with police beforehand in a kind of management of risk.

It will be interesting to eventually see what the term "damage" is
construed to mean and exactly what laws the methods planned will break. As
it is those participating will have to act on faith. What Flood Net plans
seems to be more of a disruption than the kind of damage intended to be
done by software viruses and computer hackers. And disruption,
interference, redirection are some of the more interesting subjects being
investigated by artists these days, not to mention the promise of "push"
technology and intelligent agents who are designed to interfere.

Political action, however unrelated to art it may seem, is also a catalyst
for focus and change, which is one of the purposes of Civil Disobedience.
It will be interesting to see how our reaction to this kind of activity
will eventually reflect in the laws we pass and, more important, in the art
we create.



PERMISSIONS

"Permission" is an attribute determined by the owner of a file and is a
matter of coding. In UNIX the "chmod" command permits the owner of a file
to "change the access mode " and set limitations on who can access, change
and/or execute that document. The same is true for objects created in a
multi-user online environment like a MOO.

The physicists at CERN who developed HTML and the Web wanted to put some
order into their communications network. Hypertext made it easier to create
multiple navigational paths and to read papers online. Documents were
either open for all to access, closed to all but a select group or closed
to all but the owner.

Ted Nelson's Xanadu project evolved this into a "permissions doctrine"
where the copyright holder gives permission for republication with the
provision that the document is obtained, and purchased, from its original
source. This was not only to compensate the creator but also to guarantee
the integrity of the document.

According to Nelson:
"The standard question has been, 'How do we prevent infringement?' If we
re-frame the question as 'How can we allow re-use?', the solution may be
simpler and more powerful than everyone thinks, with benefits for
everyone."

(Theodor Nelson, "Transcopyright: Pre-Permission for Virtual Republishing",
http://xanadu.com.au:8000/xanadu/transcopy.html)



Despite my previous examples, not every artist working with the Internet is
out to break the law, some do it without knowing or because they take
certain aspects of the way it works, like the setting of permissions, for
granted.

PORT: Navigating Digital Culture
http://artnetweb.com/port

We grant or withhold permission all the time in our daily lives -- it's
what makes us autonomous. When I co-organized an exhibition at the MIT List
Visual Arts Center last year with Remo Campopiano called PORT: Navigating
Digital Culture this awareness that we had been granted the authority to
grant or withhold permission was very much a part of our thinking about it
since we would decided who could participate and how.

We were asked by the director of the List Center to do something about
digital technology and the Internet and since we were most interested at
that time in the possibilities of global networked environments we decided
to use networks of people as much as possible both to create it and as the
exhibition itself. Though we didn't announce it at the time one of our main
criteria for being part of PORT was evidence of an understanding of both
how these networks work and how to use them effectively and efficiently.

We sent out a call for participation through the Internet as well as by
word of mouth and were surprised by the number of people who understood our
admittedly vague premise. What resulted was eight weeks of telematic
performace originating and accessed from around the world. It was an
exciting and groundbreaking event for those involved but somewhat
mistifying to those more casual visitors who were accustomed to the
"read-only" atmophere of most galleries.

Most of the participants were well-versed in Internet culture and the
concept of shareware and freeware and so there was a significant amount of
what might legally be called "copyright infringement" going on. The only
law that was inforced was one of scheduling -- every participant had a set
two hours once a week to do somethine that would be exhibited in the
gallery.

I began to notice that people who re-use existing material for their own
work had different, idiosyncratic reasons for doing so. It was not simply a
matter of lazyness or ethics.

Marek Walczak, who is an architect and uses computer assisted design
extensively,  looked upon everything as possible building material -- even
the logo for the exhibit, which he digitally reconstructed into a 3d
environment and we used as the announcement. A more elaborate version of
this idea became the core of his VRML project for the exhibition called
MapDance (http://artnetweb.com/port/participants/dance.html) where visitors
to the virtual world were given the ability to create their own out of
other sites on the Web using a program that reconstructed the underlying
HTML for the VRML world.

There are a number of different projects -- sometimes called Web Collages
or Web Colliders -- on the Web who take this approach that is very much
reminiscent of Robert Rauchenberg's "silkscreen collage" paintings for
which he was accused at one point of copyright infringement.

I've since realized what Walczak was doing was building his own browser to
use the data flow in a different way, much like the I/O/D Web Stalker. My
worry isn't that he will be caught and punished but that excessive concern
over something that is so integral to Internet culture will cause a
"chilling effect" where artists refrain from doing their research for fear
of breaking a law and stiffle the innovation copyright law is meant to
protect. It may be beneficial to think of copyright as a subset of Fair Use
rather than the other way around as we do now.

TEXAS.NET MUSEUM OF ART
Mark Harden
http://lonestar.texas.net/~mharden

Most of our best known art institutions are the domain of art historians,
and the discipline of "art history" has come into question. As academia
moves slowly towards more interdisciplinary departments offering classes
such as "visual culture" and "cultural studies". Art historians are afraid
of losing privilege to -- among others -- anthropologists. It's less a
matter of copyright than it is a territorial battle.

Now the contested field is widening.

A case in point is Nicholas Pioch's "WebMuseum," originally called "Le
WebLouvre".

Pioch, a teacher at the Polytechnic Institute in Paris, is either condemned
as a digital thief (usually by Americans) or applauded as an innovative and
dedicated art lover. His site was constructed by using private photographs
of paintings without any consent from the Louvre, which objected only to
the original name, and it has grown to a global network of easily
accessible art images. The Louvre has meanwhile opened their own website.
Pioch has his own extensive copyright information page on the site with a
particularly apt section devoted to U.S. lawyers.

In the U.S. there are a number of amateur art sites unconnected to
institutions with one of the largest run by Mark Harden and called the
texas.net Museum of Art. His FTP Archive for Fine Art Images is extensive
but has no information given about copyright, or any information about Mr.
Harden, for that matter. He also posts the images to an alt.binaries
newsgroup and can be found as a contributor to the Pioch WebMuseum site.

Harden is some people's worst nightmare. Like the programmer for the U.S.
military that he is during the day he saw a job that needed to be done and
did it with expertise and pride. The odd thing isn't that he doesn't seem
overly concerned with infringing copyright, but that he did a better job
than the majority of museums.

But, then again, is Harden so much different than the enthusiastic amateurs
who founded most American art museums -- except that he isn't wealthy. Some
museums are are even starting to grasp the idea that these enthusiast from
the outside can be beneficial rather than a threat.




CONCLUSION

Thoreau tells us that we cannot afford not to live in the present and it is
in the present that law is continually made and remade as its value is
tested by individual cases. The same is true for the museum, the home of
the muses, daughters of memory. What they contain isn't Art but the
possibility to make art still and in that sense every museum has always
been a virtual museum, a museum of possibilities. It is a level playing
field for culture and can only gain by using the Internet as a place of
experimentation and testing, freedom and wildness rather than regulation
and control.
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