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Direct Payments from Users to Producers as an Alternative to Intellectual Property Rights.Commons, Criminalization, Genral Intellect and the Politics of Technology and Culture

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Historically the need for copyright and patent laws has been postulated as necessary in order to ensure the flow of revenue back to the producer, so that the production of culture or science can ber perpetuated. These laws consitute downstream constraints on the ways in which works can be used and inventions employed. These laws, derived from a theory of creativity determined by the figure of the desocialised individual of capitalist property relations, have always functioned as a fetter on creativity. This impediment has simply been rendered more manifest in the context of digitalisation and the ubiquitous networks.

I We propose the withdrawal of the law from the creative realm. In order to finance the production of independent culture we propose instead a system of user to producer direct allocation of funds. This is already occurring in discrete areas of the web in a voluntary manner. In order to increase the kitty, we propose a non-voluntary tax, or a tax credit, usable only for the purpose of funding cultural production. Distribution of funds would be left almost entirely in the hands of the users. 'Almost entirely' becuase we would set aside a portion (20%) for the funding of local cultural venues, workshops and studios, the tools or equipment necessary for creative activity.

A small component (somewhere under 5%) would be allocated on a lottery-like, basis, so as to introduce some randomness into the process.

The majority of the monies would go directly to artists/cultural producers; in exchange all works immediately enter into the public domain, or, wjilst awaiting copyright abolition, fall under a GPL-style copyleft license.

Media studies have found that the distributio of revenues in the culture industries follows a pattern often referred to as the Zipf curve, whereby a small number of very successful artists receive the lion's share of the money, whereas the overwhelming majority toil without any significant remuneration. The nature of preference formation in the capitalist market - integrated vertical media conglomerates, public relations and marketing schemes etc - determines this outcome.

The subversive quality of our proposal is that it breaks the relationship between consumption and remuneration at the user-end. We suspect that a system such as ours would produce positive effects: - the installation of a direct non-alienated relationship between the 'artists' and 'audiences'

- a questioning of the competence of the state to make decisions over the use of the people's dead-labour (money, taxes) - a massive expansion of the number of people able to earn a sustainable living in cultural work - a cultivation of local and marginalised culture - make available works as primary matter to be trasformed, recombined and generally used to produce other works - the jettisoning of any justification for the introduction of technologies of control and privacy intrusion (such as Digital Rights Management) - the halting of the process of criminalisation of users as embodied in the No Electronic Theft Act 1997 and the Digital Millenium Copyright Act 1998 - remove the abiding influence of patronage by commercial and authoritarian institutions (music companies, Arts Councils, broadcasters) - end the cycle whereby media conglomerates ownership of the past provides the revenue to control the nature of what is produced, distributed and 'popular' in the present and consequenty proising them control over the future. -provide collective social and cultural space reversing the trend towards privatisation and gated life - evidence of the feasibility of self-management

II

Commons, General Intellect, Mass Intellectuality Recent years have witnessed the adoption of the commons argument by many particpants in the intellectual property discussion. This concept's popularity arises as a response to a widely held belief that IP laws have expanded to such a degree as to constitute an 'anti-commons' and impede innovation. The adoption of this argument by 'enlightened' capitalists, some US 'libertarians' and a section of the liberal intelligentsia should push us to critically evaluate the potential consequences of a real-world adoption of the commons as policy. In short, if - as some proponents argue - a new commons is the predicate for the next wave of capitalist innovation and development, should social radicals feel at ease with this? Innovation holds a priveliged position in this discourse and yet is treated in an entirely uncritical way, ignoring what the consequnces of innovation on the distribution of work, money. Our new liberal allies come from exactly exactly the vantage point that welcomed enclosure and all its ruinous consequences back in the days where there was a commons in land. Food for thought.

Parallel to the comons discussion, a debate has been taking place amongst the Italian autonomists on immaterial labour, new forms and modes of production and what they call the 'general intellect'. This idea is drawn from Marx's 'Fragment on Machines', where he identifies the declining importance of living labour proportionate to the advancement of technology, which comes to embody the skills and social knowledge formerly drawn from workers hands and minds. The crux of this is that capitalist value production becomes progressively separated from living labour. Given that the left parties and trade union organisations have always constituted their claims for redistribution on the basis of a moral entitlement founded upon work and exploitation, if Marx's General Intellect provides a persuasive description of modern postfordist societies, the it becomes apparent that their politcal strategies are, basically, fucked. (But we knew that already!)

Capital requires a diffuse and flexible 'mass intellectuality' so as to grease production and generate innovation, but also to consume advertising and participate in the stock-market euphoria. The centrality of knowledge, language and communication to modern social reproduction places unprecedented potential power in the hands of workers, paradoxically at a time where the disassembling of social welfare and labour-guarantees subjects huge numbers of people to constant precarity. The shackles of copyright and patent laws can be obstacles - or rather one capitalist's rent-reaping machine is anothers impediment - bringing some Italian theorists to talk of the 'communist tendecy of capital' - another phrase that requires caution and scepticism, surely?

We propose a re-examination of the idea of the commons and the general intellect in the light of its strategic political possibilities and subversive potential. Against the new enclosures and for a commons that can be a base to transform social relations, rather than another slice of primary matter for the perpetuation of capitalism and the petrification that is its trademark.

III Criminalisation is the inseperable partner of enclosure. E.P. Thompson documented the hundreds of capital offenses introduced commensurate with the Enclosure Acts of the eighteenth century, inaugurating the age described by Peter Linebaugh as the '...organized death of living labour and the oppression of the living by dead labour (the punishment of capital)."

In the 1990s, criminal punishments hitherto reserved for commercial 'pirates' were extended to threaten individual users, copying for private purposes. The No Electronic Theft Act of 1997 abolished the requirement of financial motivation as a predicate for the bringing of a criminal prosecution in the US. The following year the Digital Millenium Copyright Act introduced criminal penalties for the 'circumvention' of digital right management systems. In addition numerous pieces of legislation have criminalised unauthorised intrusion etc.

The shift to a targetting of users points to the fear felt by media conglomerates at the power of collective processes such as file-sharing, and p2p processes more generally - unless they can control the conditions of these networks deployment.

Historically criminalisation and enclosure of land - by removing the means of sustenance from the peasantry - also had the effect of producing a labour force to fuel urban industrial development. In this sense we can talk of the 'positive' and constitiutive force of criminalisation for capital.Furthermore users must be prevented from having access to a large stock of primary matter of other creative works, in order to sabotage the emergence of a 'prod-user' mass (appropriatiosit and recombinant), which would pose a threat to the current controllers of the culture industry in terms both of financial competition and cultural autonomy or self-determination.

In the digital arena, the fuction of criminal law is to shut down anti-establishment hacking repressively, integrate the sanctions of the hacking community disposed to working as security experts into the labour force, and generate a passive audience of consumers denied restricted by the fear of law and deterred by hard/soft-wired technological protections. In short, the purpose is 'to create a market'.

Happily, this strategem has so far proved unsuccessful. The right to 'Fair Use' of copyrighted works has been a central pole of the resistance in the digital sphere, such that many people now understand intellectual property expansion as a self-interested appropriation by the media business, entailing a usurpation of users' traditional rights.When one considers the short period in which file-sharing has been a mass phenomenon, this sense of 'customary right' is amazing, and bears out E.P. Thompson's argument of another period that : " indeed some `customs' were of recent invention, and were in truth claims to new `rights'."

This section of the talk will consider the function of criminal law in the digital networks for the production of compliant subjects, attempt a realistic evaluation of the thrat of prosecution, and consider strategies for collective self-defense.

IV Prod-users of the world unite!