Artists and Hackers

Lawyers and Hackers

You’re listening to Artists and Hackers, A Podcast On Art, Code and Community. We talk to programmers, artists, poets, musicians, botmakers, educators, students and designers in an effort to critically look at both online art-making and the history of technology and the internet. We’re interested in where we’ve been and speculative ideas on the future.

In this season of the podcast we’re working with the Engelberg Center on Innovation Law and Policy at NYU Law. In addition to our usual crop of artists and programmers we’re adding in legal scholars to help us unpack some of the thorny issues for those working in art and code as they unleash their work into the world. We’ll also talk to communities aiming to alter the context of how their cultural work is presented. Who can remix? What does the law have to do with cultural appropriation? How are artists hacking copyright? Those are a few of the area we’ll get into.

I think it’s fair to say that most artists and probably many programmers would be happy to stay as far away from lawyers as possible. But the Engelberg Center is is unique. They have people researching and making recommendations about the right to repair movement, working with indigineous and cultural communities to protect their cultural heritage, and folks that look at the limits of current law where it regards artificial intelligence and surveillance.

So To kick off the season I thought it would be helpful to talk to Michael Weinberg, the Director of the Engelberg Center, to get an overview of the center and some of the areas that I thought our listeners would be interested in.

I asked about some of the areas we’ll be covering in future episodes such as open source, creative commons, public domain, fair use and some of the ways that artists have attempted to hack our laws around copyright.

In past episodes we talked about open source, a term originally used for software source code that is shared by its creator and made available for modification and sharing new versions.

Open source software is now ubiquitous, and powers much of the technology we use today. And Artists and creators became interested in open source as a way to share their own work, to allow others to remix their artwork, modify and share it further.

And now the borders between artists, programmers and other categories are falling away - artists have become toolbuilders as well. I spoke with Michael about the evolution of open source and other areas where creators embrace or push against the rules of copyright.

Lee Tusman
It’s such a huge part of the culture of programming and certainly in art and code, and so I wanted to start out by asking you what open source means to you?

Michael Weinberg
To be a little bit lawyerly about it I think it really depends on the context because there’s certainly a world where open source means openly licensed and creative expression or works that includes software and a huge range of other things that are. Licensed in a way that not only allow other people to build on them and to use them but encourage them to do so but I actually think that’s a really narrow view of open source I Think more broadly open source is really about creating as part of an ongoing community. Dialogue and knowing that you are drawing from that community and the work of so many others before you and that you are intentionally contributing back to that community in the hopes that other people in the community will build on what you have been doing.

Lee
In my experience. There’s many folks coming from an like an artistic or cultural background. Maybe they start learning to code or or they’re quite advanced in it. They’re making software or hardware that’s used by a wider community and in open source. The. Culture and very much what you were speaking about is on sharing and making resources available to others but there can also be a tension point in protecting culture or preventing someone with different values from using code or cultural commons for example and I’m curious if this is something you come across in your work and how you’re considering this recently.

Michael The tension is when you put something out into the world and invite other people to use it, you invite other people to use it who may not be exactly like you . who may not share your values and so one of the challenges with open source is coming to terms with that and deciding what you want to do about that and I think in the earliest days of, what you might think of as the formal open source movement, there was a real push towards saying ‘look when you put something out in the world in an open Way, you’re inviting people to use it and you need to be willing to accept the fact that there are going to be people who use it in ways that you don’t love and hope that on balance. More people use it in a way that you like than in a way you don’t like.’ But I think that there has been a new wave of interest in revisiting that assumption and that structure and trying to understand if there are ways to work Within. An open framework at least an open framework broadly defined in a way that does bring some of the values questions into the discussion and maybe even put them close to the front of the discussion.

Lee
One of the things that interests me is as artists and cultural practitioners and theorists and others get involved in maybe this broader community and movement and are creating these alternative things like for example, the anti-capitalist software license. I’m curious how that kind of goes back and gets reflected in law.

Michael I think that this is one of the challenges when you think about open source and licensing and ethics because if you think about open source licenses as a legal document then you very quickly get into this conversation of definitions. And how you define what is ethically okay, what is ethically not okay. Obviously that is a debate that philosophers and theologians and all sorts of people have had for millennia and so it can be hard to reduce those ideas to an easy to understand legal license.

The important thing to recognize is the legal lens isn’t the only lens you can use to think about these things because. Especially in open source the licenses act on 1 level kind of a legal level. But also they act as a signal. They act on a cultural level to say hey I’m putting this out into the world and here are my expectations. Those expectations may or may not be legally enforceable in the way that I believe them to be. But at a minimum I’m going to use this license structure to communicate something to you the user about what I the creator would like to have this this work be used, and how it would be used and so yeah I think it really depends on how closely you want to think about these licenses as legal licenses and how much do you want to think about them as cultural statements and they can create all sorts of problems when people are actually thinking about one way and and but want to think about it in the other way but I think the the kind of honest way to think about it is as these licenses.

Lee
So Michael mentioned the Anti-capitalist Software License. So I thought now would be a good time to speak to artists and programmers, the very people that created that license. We interviewed Ramsey Nasser in our first episode of the podcast. Together with Everest Pipkin, they created the Anti-Capitalist Software License. Ramsey is a computer scientist, a game designer, and an educator. I caught up with Ramsey online to ask him a few questions.

Lee
I just wanted to start to ask you? What is a software license for?

Ramsey Nasser
A software license, and I’m not a lawyer, I happen to be the son of a lawyer and an an intellectual property lawyer of all things. So I’m gonna, I think, bring shame upon my family by getting some of this stuff wrong. But a software license is an agreement basically that is attached to software that outlines how it can be used and who can use it and under what conditions.

Lee
So we’ve had software license for a really long time and in particular, we’ve had free and open source software licenses. What’s wrong with those that you felt the need to create the anti-capitalist software license with Everest?

Ramsey
Yeah, so um, a couple of things and I’ve been in the open source world for a very long time. I’m actually speaking to you off of a linux desktop that I lovingly maintain. So it’s a world that’s been a big part of my life and I’m very fond of it. I think it’s done very good things. What brought me into thinking about the sort of limitations of the worldview of open source licenses is the sort of the observation that you know we had open source for like you said for many many years and yet we’ve had billionaire tech companies rise up not sort of and not even in spite of open source software, I think building on open source software. That’s the sort of peculiar observation right? This movement that to me was pitched as you know liberatory and emancipatory and designed to like put everyone on the same level is producing pharaohs effectively. So that’s the sort of beginnings of my questionings I think of like open source as it’s currently defined and the licenses as they are currently available and that sort of inquiry led me towards the ACSL.

The free software movement enables us to build a world where Microsoft. Share is more of its source code which we’re seeing it do right and Amazon shares more of its source code. Ah it can’t move us towards a world where things like Microsoft can’t exist ah people like Jeff Bezos can’t exist that that’s a non goal of the free software movement and the open source movement. Um. Which increasingly I think as we face you know, income and like wealth disparity and climate collapse I I it it is my political belief that we need to be actively dismantling capitalism and the open source movement just does not do that I think a lot of people think it does I did for a very long time. It. It tends to get pitched that way but at the. The bottom line is it’s ah it’s a worldview of people should share source code and that’s about it. So in terms of intentionality the ACSL is sort of born out of a desire to attach a license to software that we put onto the world that expresses a different worldview. with more what I think more complete politics around capitalism.

Lee
Okay I think there’d be a lot of artists and other kinds of cultural workers out there that are really turned off by some of our legal kind of quibbling or discussion here and are probably you know maybe I wrong but are probably thinking like hey you know like artist is Punk Rock. It’s D I y I want to do my thing and. And maybe not worry about all this um and and then some people even choose something like you know I don’t want to have ah a legal um system in place. Um, you know I don’t want to have to think about this. Can you say a little about what happens by default I make some artwork I make a piece of music I put it out there in the world. Um, what if if if I make no choice if I don’t actually say hey this is you know this is copyrighted or this is public domain or this is creative Commons. What actually happens and and governs how my work can be used.

Michael
Yeah, this is a great question sort of you know if you if you want to step away and say I don’t want to deal with any of this I just want to put it out in the world what happens? And so assuming the thing that we’re talking about is in the category of works that are protectable by copyright and that’s basically anything that’s going to be anything that you think that an artist. would make. So those works are you can think of them as being born closed by default the moment they spring into the world. They are automatically protected by copyright now. There are reasons that you might want to register that copyright. And there are reasons that you might want to put a little copyright notice on them. But none of those are requirements to be protected by copyright if you make it if it exists in the world. It’s automatically protected by copyright for your entire life plus 70 years after your death and anyone who wants to make copies of that work and there are all sorts of ways to think of copies. They need your permission to make those copies or a reason not to need your permission like fair use and so if you do nothing then your work is fully protected by copyright. And anyone who wants to make use of it is probably going to have to start by asking you for permission and that may be totally fine with you right? If that’s what you want to do? That’s what you want to do. But if you want other people to engage with your work and maybe build on it or remix it or kind of you know, incorporate into what they are doing. If you do nothing else but put it out into the world. You are creating a kind of you’re putting a little little little time bomb in there.** Some point in the future someone else might might come in or or have the rights to your work or or maybe 40 years after you’re dead somebody comes along and says oh there’s still 30 years of copyright protection on this I want to sue you for it or and this is kind of more likely someone’s going to want to use your work. And either not be able to get in touch with you or be afraid to reach out or whatever it is and say well if I don’t have permission to use it I’m just going to move on to something else I’m not going to use this work because I need I know I need permission to do it either through a copyright license like a creative commons license or something else. And so the default state will will be that your work is used less than it would be if you took that a tiny extra little step and put a license that said not only am I inviting you to use this work under whatever terms I’m putting it out under. But also I’m giving you legal protection. If you do do that and making you a legal promise that I’m not going to kind of appear ten years later and sue you.

Lee
Now, let’s say I’m totally on board with this and I’m an artist and I actually I don’t want any restrictions for people that might want to use my work. Maybe I believe that all cultural you know produced work and artwork and you know works in general should be freely reusable remixable, interpretable, you know any way you could use something or consume something and engage with it and and try to change something all of that should be allowed. So um, My understanding is you’d want to say okay this is in the public domain anyone may use this can you say a little bit more about what the public domain is and how one might dedicate your your work to the public domain and and if there are any restrictions on that?

Michael Yeah, so exactly. So the public domain is the cultural space where no one has ownership over it so those are things that maybe someone has actively dedicated to the public domain or where the copyright protection has expired. So. You know a greek statue from two thousand years ago there’s no copyright protection on it. Anyone can use it to do whatever they want from a copyright standpoint at least and it’s it’s totally free for the pickings and you can you know same with ah a Shakespeare play same with ah anything in the Us. Was basically produced before 1925? Um, if you create something today then as we as we talked about if you create something today then it is born closed. It is not in the public domain by default and it won’t be in the public domain until 70 years after your death. And so you have take an active step to dedicate your work to the public domain fortunately creative commons has come up with this great tool. It’s like 1 of their licenses. Although technically, it’s a public domain dedication. It’s called cc zero and so you can attach the cc zero. Ah. Dedication to your work the same way you would use use it as a license and you are saying I know that when I created this work. It was born closed and it’s going to be protected for my life plus 70 years but I hereby dedicate this to the public domain and waive all of my rights and ability to control. From this day forward.

Lee
All right? So one of the strange things that’s happening is artists and software writers, programmers and other people are making tools that are used to make artwork. Let’s say I make a tool, maybe I make some new kind of digital painting software, or I write a machine learning library that others can use to generate poetry or plays or dances. What are some of the structures around what I can kind of specify in terms of who uses that software to make artwork. If I make this tool to make digital paintings do I own the digital paintings that other artists that use my software make? Is there any restrictions on the work that they make or that I can even say about what they make with my software?

Michael
First off owning the copyright in a tool does not necessarily or automatically give you ownership in the things that are made with the tool. If I type something in Microsoft Word, if I write a book in Microsoft word, Microsoft does not own my book. Now we’re using podcast recording software to record this interview. The company that makes the software to record the interview does not own a copyright in the podcast. And so…or the or the company that makes the editing software you use to edit everything together and and remove all of my ums and stammers does not own the output, the thing that you create with the tools. Now that distinction can feel like it breaks down a little bit when you have some of these, especially some of these machine learning-based tools that feel like instead of a person using the tool to create a work it’s kind of the tool doing all of the work itself and there isn’t really a person involved. There’s a little bit of debate, I mean there’s a little bit of debate in legal world as to what should happen in that case. I think the best answer and the answer that has been the case up until now and probably will continue to be the case for the foreseeable future is that you need a person to have a copyright. And so if it is actually true that just a robot made whatever the work is, that’s great. The work exists in the world but the robot doesn’t own the copyright. And this is actually very similar to a case that was high profile or at least high profile in copyright legal nerd world a couple years ago where it was called the “monkey selfie case” and it was a situation where there was a picture that went viral on the internet and the story of the picture was that some monkeys had stolen a photographer’s camera out of his bag and taken a bunch of pictures of themselves because they were… or they’d come up to a camera because they were seeing their reflection in the lens and they were kind of fascinated with it and so they were they were taking pictures of themselves basically. And so it went viral. The pictures were very cute. And then the photographer tried to assert copyright over the pictures. And the court, and ultimately this is the copyright office, has put this in their big book of copyright rules, it’s called the Compendium of Copyright. The monkeys took the picture, but monkeys aren’t people and so monkeys can’t have copyright. And so it feels like monkeys taking selfies is very different from an elaborate AI machine learning algorithm generating art. But I think the principle was the same which is you need a person involved in order to be able to have a copyright in the first place. And there are lots of good reasons for that. One of which is if you want to use that photograph or the image or whatever it was generated, you need a license from somebody. And you know a monkey can’t give you a license, can’t enter into a licensing agreement. A robot can’t enter into a licensing agreement. So there just needs to be a person for the system to work at all.

Lee
What about the person that wrote the robot software or um, you know I I guess I’m I’m trying to push at the limits here I’m trying to figure out where does that end and the robot begins.

Michael
Yeah, right? I mean this is a good question right? And I think it it becomes a little bit of a fact specific question. If the person who wrote the software is really the driving Creative force behind the output Then you can probably argue that the person who wrote the software is sort of working all the way through the process if you can really draw a straight line between the person who wrote the software and the output then maybe there’s an argument for that. But in that case, the the software isn’t really a tool in the sense that you know a word processor is a tool right? It’s It’s more kind of part of the work that they are doing and it’s a tool being manipulated by the creator as as she’s creating it Potentially if the creator if someone creates a tool and then someone else comes along and uses the tool to achieve some sort of creative output. In that case, it probably is the case that that person who’s using the tool is providing the creative Spark and so maybe they’re the person who should own the copyright and you can you can make up hypotheticals that really kind of finally, that draw really fine distinctions here and those hypotheticals will probably pop up in reality over the next couple years. But I think you still get to a situation where the fundamental question is who is the person who is ultimately responsible for the creative spark behind this specific work. When you’re making these decisions, try and empower the good users and not spend a lot of time trying to limit the bad faith users. Think about who you want to be using this and how you want them to be using it and put in place the licensing structure that allows them to do it.

Lee
Keeping Michael’s words here in mind, I got in touch with some of the team behind the ml5.js library, which describes itself as a tool to make friendly machine learning for the web, a neighborly approach to creating and exploring artificial intelligence in the browser. I talked online to two of the organizers, who both got involved through their connection to NYU’s ITP graduate program, and their connection to Daniel Shiffman, a member of the Processing Foundation and a professor in the university.*

Joey Lee
My name is Joey Lee and I am currently a senior software engineer at the New York Times

Ashley Jane Lewis
My name is Ashley Jane Lewis. I’m a new media artist a creative technologist and currently I’m also managing a design art and technology incubator in Toronto.

Lee
Can you tell me what ml5.js is?

Joey ml5 is a software and it is also a community of people who are interested in machine learning on the web. Cristobal Valenzuela who was a student at ITP back between like 2007 and 2019 I think was when he was a student. He had this idea like what if we could create a wrapper around the tensorflow.js API and make it super easy to load pre-trained machine learning models and use them in the context of creative coding. We basically went from a situation where it was really hard to do any of this kind of computer vision stuff. And then ml5 made that really easy to do in the browser with p5.js and so was this exciting moment where Google Tensorflow.js came out. Organically it grew into this really cool software project and then this really cool community. And it became this project where we could ask and poke at these social questions, especially given the context. The pandemic was happening, the BLM protests were happening. It was just like a lot of things.

Ashley
But Joey missing that Joey’s a big part of this. Which was Joey’s influence. Because there was way before the pandemic like 2018, 2019, before we’d even really known that this was a looming thing that would shift the way we work, Joey was bringing forward concerns about the ways in which we were perhaps leaving like holes available for harm to take place. Like bringing up issues that had been submitted and comments that he was finding online. And this was also tied to, I mean I’m not really familiar with how ITP is at this particular moment in time, but at the time there were you know issues around trying to have space to discuss potential harm and machine learning and computational systems in that educational context. These were things that I was talking about in the classroom setting and Joey was talking about as ‘hey should we be thinking about how we’re keeping people safe.’ Keeping an eye on how people feel in the community. I would say that we probably would have gotten there anyways because of the way the pandemic happened and it became keeping people safe, a very important concern. But way before this it was also a thing we began doing in terms of considering what our responsibility is as people who maintain this software. That was something that was…Joey, you should credit yourself for bringing forward and putting some pressure into the system to try to encourage us to have a different headspace around what we do as maintainers.

Joey
I mean I think what we’re talking about is where we were landing historically was this time when we went from the techno kids at the candy store, everything is great. Everything is awesome. Peak techno positivism, to a moment in which we started to look more critically on what it is that we were doing. What we were making as technologists, software developers, designers over the last ten years, we’re we’re in this zone where books like data feminism were coming out, the Age of Surveillance Capitalism. Black software. Algorithms Of Repression. You look like a thing and I love you.

Ashley
The algorithms of oppression.

Joey I think all of this literature was coming out. All these books, all this kind of scholarship was basically coming out and I think it was a signal of the times. That we’re no longer in this moment when everything is great. As artists and designers our skill is our imagination and a lot of that has to do with what can we imagine using things for, and I think in this world in which we only imagine positive uses of things, and yes you can kind of infinitely build stuff, and just hope for the best. It became clear that it’s time to use our imagination to also try to predict ways in which things aren’t going to be used well and sort of bake that into what we hope our things are used for and to enforce our vision for these things and the the way they work in the world.

Ashley
If your software does not have parameters around how you keep people of color safe, it’s not for people of color if your software doesn’t have parameters of how you keep queer people safe, especially in a machine learning context that is so interested in identifying body types and body structures, then your software is not for people who are queer. And so when you start to ask these questions of who is this for? Who are we centering? The answer as you whittle it down becomes like, oops, we might be making software for white straight people. Whoops! And I don’t think anybody really loves that as an idea. But because we’re not super accustomed to asking those kinds of questions, sometimes we do those things without a lot of intention, without a lot of conscious measuring of what we’re actually doing, and so that question came up a lot as we were trying to set an intention. I asked that question of the group a lot when we were setting this intention of trying to design this new perspective, this new outlook on how we create and maintain a community. Because by the very nature of not doing those things, we are designing a very very safe, very comfortable community for the majority.

Joey
We have basically a code of conduct and a license and they are living together and each sort of inform one another and maybe the meat of it is that the code of conduct is really something that is meant to evolve and change over time.

Ashley
I think one cool thing to note is that we approached a group of people who were doing mindful justice oriented work in other technological spaces and we asked them to review our documents as well.

Joey
I might add Lee that probably the way that I would frame it is that we were a group of really caring socially-oriented people and the thing that we were bound together was this commitment to our values, which is that we want to center a group of people that historically is not centered in software because we can.

Lee
That was Joey Lee and Ashley Jane Lewis, two of the organizers behind the ml5.js library, a software tool and community built around creating what they call friendly machine learning for the web, aimed at artists, creative coders and students. Joey and Ashley do things like making bug fixes to the software, as well as serving on the teams that created a code of conduct and their ml5.js software license.

I was interested in talking with them as well as the creators of the Anti-Capitalist Software License because we’re at a current moment in time where lots of creators, programmers or otherwise, are concerned about their place in the world - whether that’s seeing how artists contribute to processes of gentrification, to how someone might make an art-making tool, or a cool new online community, and find that their software or their platform ends up hurting the kinds of people they had been interested in empowering.

These are thorny issues, and open source software has been around for a long time, several decades now, but the desire to square our ethical concerns and how to spell out who may use our work and how it may be used, that seems to have heated up in the past few years. As an example, the federated social media platform called Mastodon has grown in the past few years. It now has a few million users, we’re on there at artistsandhackers@post.lurk.org - and it’s an incredible alternative to things like Twitter. For example, there’s no advertisements, it’s just a simple chronological timeline, there’s no celebrities posting, there isn’t a deluge of instant news and angry reaction cycles. But you may also be aware that the code is open source and has been used by everything from Donald Trump’s own social media platform to various alt-right social media platforms. The folks behind the Anti-Capitalist Software License, the ml5.js team, and many other software creators are wrestling with just these issues - how to square one’s ethics with what we put out into the world for others to use?

In our upcoming episodes, we’ll be looking more into these topics. We’ll speak to remix artists, members of Maori communities looking to inform the world about their cultural work when it’s been appropriated, and we’ll look at people creating in this new world of software and art tools, especially at the ways creators are sharing and bringing new art online and out into the wider world.

Thanks to our guests Michael Weinberg, Director of the Engelberg Center for Innovation and Policy at NYU Law. To Ramsey Nasser, co-creator of the Anti-capitalist Software License, and Ashley Jane Lewis and Joey Lee, members of the team behind ml5.js.

This season of the podcast is produced with the Engelberg Center for Innovation Law and Policy at NYU Law.

My name is Lee Tusman. Our audio producer is Max Ludlow. Coordination and design by Caleb Stone.

Our music on today’s episode comes from the Free Music Archive.

Eurorack Sesh by Russell Butler

Ambient by Kirk Osamayo

Ampex by Bio Unit.

Sedative by Anemoia

Kyrie Eleison by Timo Versemann.

We also featured audio excerpts from Citizen DJ by Brian Foo, a project he conducted as Innovator in Residence Program at the Library of Congress.

You can find more episodes, full transcripts, and links to find out about our guests and topics on our website artistsandhackers.org You can find us on instagram at artistandhackers, twitter at artistshacking and mastodon at artistsandhackers at post.lurk.org You can always write to us on our website, and please leave us feedback wherever you get your podcast.

Thanks for listening.