These debates about the bounds of fair use will always be important, but they obscure a very unfair dynamic that is squeezing artists — and turning the web into a battleground between humans and machines. The trouble is that in many cases today, there’s no human artist, writer, or editor creating what we see on the web. Some algorithm assembled the photos and it’s enjoying a nice little loophole. The machines sail on past the rules about copyright because the law lets those companies blame any infringement on the chaos of the internet. It’s a system that’s tilting the tables against any of the human artists who write, edit, or illustrate.
The automated machines have me and the photographers beat. Aggregators — whether listmakers, search engines, online curation boards, content farms, and other sites — can scrape them from the web and claim that posting these images is fair use. (BuzzFeed claims that what it does is “transformative,” allowing them to call their lists a new creation.)
We already know these companies make a profit on the ads. But what we don’t know is that the algorithms they use are acting less and less like a card catalog for the web and more and more like an author. In other words, the machine isn’t just a dumb hunk of silicon: It’s a living creator. It’s less like a dull machine and more like a fully functional, content-producing Terminator.
Looking at what these machine-authors are doing, you might call it remixing or your might call it plagiarism. I guess it depends on what is being fed into the machine and perhaps how close the human oversight is. But it would be a mistake to think that remixing or plagiarizing is all machines are good for. John Brownlee describes the role of computers in avant garde music composition:
A grad student pursuing his doctorate in composition at Harvard University, Oberholtzer applies the techniques of electronic music to compose works meant to be played by human orchestras. Instead of just stringing note after note, Oberholtzer uses a series of custom tools to translate a nebulous musical intention into a human-readable score. He does this by trying to define in words what the finished piece will sound like.
“When I want to capture some new music concept or idea, I’ll usually write a tool first, then think about it a lot and work it into a piece,” says Oberholtzer. “These tools are kind of like meta-instruments, and I can even write tools on top of tools, giving me a wider palette.”
For Oberholtzer, this seems like a perfectly natural way to write music. “All art is a kind of curatorship. You work through all these possibilities mentally, and then in the end, you try to reproduce the one you’ve decided upon. There’s no difference for me. My computer isn’t writing my music for me. It’s just handling the version control.”
Peter Wayner in the first quote above saw an Intellectual Property Terminator because Google et al were crawling and remixing the web without benefiting the original artist. But this composer demonstrates that involving machines with art isn’t always about an insidious corporate IP grab. Imagine what could be accomplished if the idea of machines collaborating in art were brought to a larger scale while still remaining un-corporate, with the direct oversight of artists?
It’s already happening. The documentary CLOUDS (not released yet, preview below) takes a look at artists who are using code to make art, and in some cases sharing code in order to create stuff they couldn’t create working in isolation.
Imagine that. Invent a cool new art tool? Put it on GitHub and watch your friends make it better.
As transformative as people talk about the internet being for artists/creatives, I feel like we’re at the beginning. Most of the energy has been poured into new distribution mechanisms for existing forms: ebooks with faux page-turn animations, videos and pictures that strive for a lean-back theater or museum experience. We have barely begun to scratch the surface of the unique opportunities enabled by computing and networks.