On ®TMark, or, The Limits of Intellectual Property Hacktivism

On ®TMark, or, The Limits of Intellectual Property Hacktivism

2003-09-12

Caren Irr on ®TMark.com.

If the Internet initially seemed to promise access to a utopian mode of social relations outside the watchful eye of the state, then this offer now seems to have been revoked. The commercialization of the World Wide Web, for example, has involved the transfer of a whole social apparatus - advertising, brand-naming, security, and so on - from the non-virtual spheres. In this context, Stanford Law School professor (and consultant in the Microsoft anti-trust case) Lawrence Lessig, for one, has argued that the “code” of cybernetic technologies can and does support the code of law. The Web, as Lessig describes it, is increasingly subject to social control, in part because the modes of discussion surrounding cybernetic technologies have developed poor mechanisms for deciding questions of principle. Problems of governance have not, for Lessig, been adequately resolved by non-state entities such as the Internet Corporation for Assigned Names and Numbers (ICANN). In the absence of effective self-regulation, then, the Web attracts external efforts to “zone” it in fashions analogous to the zoning of non-virtual urban spaces.

One example of such zoning is the federal criminal statute proposed in 2000 by practicing attorneys Bruce Braun, Dane Drobny, and Douglas Gessner. Designed to prevent the solicitation of commercial terrorism over the Internet, this proposed statute extends the logic of existing anti-terrorist legislation from the protection of human life to the protection of commercial property. Braun, Drobny, and Gessner argue that the Internet provides unprecedented opportunity for anti-corporate terrorist conspiracies, conspiracies that often go unprosecuted because their organizers are few and geographically dispersed, while the actions themselves rely on a level of technical expertise that law enforcement and criminal prevention units rarely attain. As a remedy, the proposed statute aims to punish “individuals on the fringes of society” who solicit actions that are potentially damaging to commercial property (185). Internet Service Providers and other commercial entities would not be liable; only the individual author(s) would be held responsible, and only active renunciation of anti-commercial content would provide an allowable defense, if this proposal became law. The authors explicitly reject First Amendment protections of free speech and the specific protections currently allowed for satires. Policing expression on the Internet in the interests of the protection of virtual and non-virtual commercial property is their highest priority.

Whether or not this model statute is adopted its basic terms indicate that prominent observers consider civil liberties and the interests of property owners as being opposed in the case of the Internet. This opposition makes it seem likely that - whatever the Internet’s status as an example of utopian social relations may be - its status as an increasingly powerful vehicle for expressive communication ensures it will be carefully monitored for the transmission of ideas about property that conform to the dominant norms. Despite important victories for freedom of speech on the Internet (such as the overturning of the Communications Decency Act), the medium is increasingly subject to various local forms of censorship of content, and these restrictions on what can be communicated have consequences for how communication can happen. The policing of content can also have consequences for formal innovations, as cases such as the 2 Live Crew suit have demonstrated.

Overall, in this essay, I argue that dominant modes of property relations increasingly organize the Internet in both content and form. The medium’s promising utopia of anonymous travel in a boundless and non-corporeal imagination now reveals itself as a persistent but very local Romantic ideology. As I attempt to outline below, this utopian imaginary may reflect the emergence of new forms of labor characteristic of late capitalist societies, but it ultimately does not compensate for or release participants from the circuits of capitalist appropriation. In fact, some argue that a new “immaterial” labor of the sort driving the Internet is the main source of profit for a new formation of capitalism. This new medium then triggers a new form of expropriation, reproducing and enhancing dominant relations of property. Renovated forms of dominant social relations are thus, as a corrollary, reproduced by the new medium.

This reterritorializing dynamic is particularly evident in the case of ®TMark, an artist and activist group whose projects are repeatedly cited in Braun, Drobny, and Gessner’s proposed anti-terrorism statute. ®TMark’s projects elucidate the contradictions generated by attempts to use corporate informatics against corporate logic, and I examine their effects below. Before turning to ®TMark, however, I want to extend the frame of discussion somewhat to include questions of critical theory. If it is the case that concepts of the Internet have shifted from those associated with a utopian outer space to those recalling a socially interior space that reproduces dominant property relations in particular, how might we conceptualize and explain that turn? To answer this question, one will want to draw on political economy, while also moving beyond the usual political economist’s focus on the concentration of ownership to inquire about the origins of ownership itself. To ask what property does to the Internet, it is useful, I want to suggest, to synthesize a Frankfurt-School-style ideology critique with attention to ontological changes in the forms of labor affiliated with globalization.

Web critiques from a Frankfurt School perspective have, to date, been rare, but, in Adorno’s writings on television, he offers media theorists some powerful and multi-dimensional proposals that might be usefully translated from the dominant medium of the 1950s to that of the 1990s. In “Prologue to Television,” in particular, Adorno initially describes the emergent electronic medium of his era from the point of view of the audience; he conceives of television as a machine for standardizing the social unconscious. Television, for Adorno, works by integrating, harmonizing, and fundamentally falsifying the viewers’ perceptions of their social worlds. The medium encourages a regression in both psychologic and historical terms, because its message finally is to “become what you are” (Adorno 55).

What “we are,” for Adorno: alienated, possessive individuals. “That awkward `intimacy’ of television,” he writes “…satisfies not only an avidity that allows no place for anything intellectual unless it is transformed into property but, moreover, obscures the real alienation between people and between people and things” (Adorno 53). One of the major effects of television as a hieroglyphic medium then is that it reduces social life to the affirmation of property relations, and it does so effectively because it operates under the cover of its own supposed confinement within the leisurely pleasures of the private and domestic sphere.

As a hyper-individualized and increasingly commercial medium, the Internet may well perpetuate the ideological effects Adorno outlined for television’s consumers. However, more prominent than Frankfurt-School-style critique of the cybernetic media in terms of consumption have been analyses focused on production and circulation. Political economists have done excellent work documenting the concentration of ownership in the telecommunications industries and evaluating problems of access and the consequences of limited access for the democratic public sphere. The works of Manuel Castells, Ron Bettig, Vincent Mosco, and Armand Mattelart, for example, clearly describe the continuity of practices in this arena with other monopolistic private industries. Political economists have predicted the development of an information gap that will accentuate already existing global and domestic disparities.

By contrast, an emphasis on novelty characterizes approaches to the problem of production vis-à-vis the Internet. One of the most interesting theses is the Italian autonomists’ account of “immaterial labor.” The work of Lazzarato, Virno, Hardt and Negri, as well as Dyer-Witheford, treats informatic production as the paradigm for a range of labors driving the global economy; they describe immaterial labor not as production of immaterial or virtual products, but rather as the labor involved in affect, attitude, culture, and value. The workers’ necessary self-valorization and forms of life, for autonomists, require this kind of labor, and characteristic of the latest phase of global capitalism is profitable appropriation of this labor. The so-called service economy, for instance, commodifies the affective labor involved in the reproduction of the labor force. Taking this process one step further, in the case of informatics, capitalism appropriates reproduction not only of the physical body of the laborer but also reproduction within the organization of the labor process. That is, capitalism not only appropriates the labors of love involved in creating websites; it also aims to commodify the channels of affect themselves - particularly the affective connections or associations made between otherwise unrelated bits of information. The network itself becomes a source of value with informatic capitalism. By establishing an open-ended, “learning” network on the Web, then, architects of informatic capitalism provide a means for surfers’ own affective desires and interests to expand the terrain of the system. The affect thus appropriated is produced by immaterial labor.

Accompanying and preceding this new appropriation of labor, for autonomists, is the potential for a new kind of politics. Since the culture of the workers is now the terrain of profit, it is also (and primarily) a site of resistance. To move from the spontaneous resistance of biopower (as Hardt and Negri use the concept) to more organized activities of the multitude will involve, however, understanding the circuit of social relations linking this new labor to older forms of concentrated ownership and ideological containment. In particular, we need to look more closely at the relationship between micro-scale appropriations of affect and macro-scale property relations. This is the terrain of intellectual property - property in “intangibles,” such as copyright, patent and industrial designs. In analyses of cybernetics, many questions about authors’ investments in monopolistic concepts of intellectual property have been raised. It is not uncommon for discussions to begin with the assumption that authors benefit from conservation of monopolistic ownership and that authors’ rights can and should normally trump the rights of users of intellectual property (Sell, Power and Ideas).

It is to a counter-strain of Web practice and theory more critical of current intellectual property protectionism, however, that ®TMark belongs. Their polemics aim to disassociate the affective labor involved in the production of informatic texts from dominant corporate practices of ownership, but this project generates difficulties along the form/content axis. Proprietary forms prove very difficult to dissolve, no matter how malleable the content or unowned “idea” may be. In fact, this form/content division is essential to intellectual property law, and the ®TMark activists’ acceptance of this division and rerouting of their projects towards critiques away from form and towards corporate content seem ultimately to affirm the structure if not the spirit of corporate and private property relations.

An anonymous web-based organization with no apparent geographical location, ®TMark has acquired what public identity it has largely from descriptions offered by media commentators. Industry Standard calls it “digital agitprop”; The Guardian says it is “a hysterically funny but surprisingly effective … media prank” (Rushkoff 15); the New York Times in various articles labels it a group of “cultural saboteurs,” “a shadowy anti-corporate organization based in California,” and a “contemporary cybercrusade” (Strauss E3; Lyell 3; Quart G10). Although some commentary (notably Mark Amerika’s excellent independent essay “Writing as Hacktivism: An Intervening Satire”) draws attention to the group’s status as cultural producers, the media generally represent ®TMark as political pranksters or innocuous saboteurs. In other words, the media have focused on ®TMark’s anti-corporate content.

At rtmark.com, the group provides its own statement of goals, a rhetorically complex statement fusing and confusing the claims of activism and art. In answer to the FAQ “What is ®TMark, anyhow?,” for instance, we find the following definitions:

“®TMark is a brokerage that benefits from ‘limited liability’ just like any other corporation; using this principle ®TMark supports the sabotage (informative alteration) of corporate products, from dolls and children’s learning tools to electronic action games, by channelling [sic] funds from investors to workers for specific projects grouped into ‘mutual funds.’

“So ®TMark is just a corporation?
®TMark is indeed just a corporation, and benefits from corporate protections, but unlike other corporations, its ‘bottom line’ is to improve culture, rather than its own pocketbook; it seeks cultural profit, not financial” (rtmark.com/faq.html).

With links to pages describing their own projects and a Swiftian proposal to extend human rights legislation to corporations, ®TMark announces itself as a parody that attempts to divert the means of social reproduction to other ends. ®TMark takes advantage of on-line anonymity and a double blind technique (similar to mutual fund investing) to unite persons with political goals and money with persons who have the technical expertise and nerve to experiment with sabotage. In the process, the organization itself retains extremely limited liability; like a mutual fund investment firm, it is not responsible if an investor loses money or an independent sub-contractor goes to jail. The irony of this strategy, of course, is that the very tools designed to protect corporate owners from the social consequences of their actions might also make them vulnerable if activists incorporate themselves.

The goals articulated by some of ®TMark’s participants seem, however, to drift from this corporate parody. Building on the theme of “cultural [vs. financial] profit,” another of the organization’s web pages asserts that it “will never promote a project that is likely to result in physical harm to humans” and urges despairing student-aged viewers to “remember that laws should defend human people, not corporate people” (rtmark.com/faq.html). That is, in addition to parodic legalism, ®TMark uses a humanist vocabulary that strongly insists on differences in kind between biological entities and social fictions. A prime example of a “problematic” social fiction is the “physical property” whose “destruction” ®TMark identifies as “likely to get one branded a terrorist”; protection of “physical property,” is not a priority for ®TMark because it views the boundary between legality and illegality as “shifting,” as something that “can change with the times and laws” (rtmark.com/faq.html). Underlying parody, then, is a social construction theory of law and a universalist account of what constitutes properly “human” concerns.

The opposition between a presumably non-proprietary humanity, invested in culture, and a “shifting” and inhuman corporate impersonation takes shape for ®TMark in “projects.” The latter rather quickly bury the more earnest humanist vocabulary and return to a considerably more ironic and postmodern objectivist vocabulary dedicated to parodying corporate practices. In fact, most of the intellectual work of the organization’s projects seems devoted to appreciating and mimicking the cleverness of corporate strategy. For instance, in convincing potential investors to support the “mutual fund model,” ®TMark argues that “An investment in ®TMark is an investment in culture,” “An investment in ®TMark is an investment in people,” “An investment in ®TMark is like an investment in art…but better,” and “An investment in ®TMark is its own ®TMark project” (rtmark.com/investment.html; ellipses in original). That is, ®TMark’s own promotional material appropriates the rhetorical strategies of contemporary financial brochures (notably, the repetitive, declarative, depersonalized yet disturbingly cheerful tone and the obvious logical twist at the conclusion). The corporate pseudo-cleverness in question is the flatness that naturalizes the entire project of investing, and it is this tone - as much as the project of investing - that ®TMark ironizes. Justifying this fixation on the word, poet and NPR commentator Andrei Codrescu (one of the few individuals to associate himself publicly with ®TMark) asserted “`Companies have been stealing from poets for a long time’… `so it seemed natural to steal back the language’ ” (quoted in Teague, Corporate Punishment 1).

Taking this project of “stealing” literally, the “Intellectual Property Fund” portion of the ®TMark agenda describes a series of actions for which dollars and workers are currently required. Managed by Negativland (the musical group famously sued by U2), the Intellectual Property fund is devoted to copyright and trademark issues. Past projects include production of a CD featuring music from Hollywood films reused without consent, as well as distribution of another (more highly publicized) CD entitled Deconstructing Beck. A joint venture with Illegal Art (a group more centrally concerned with sound technologies and affiliated with - or perhaps identical to - the sampling moguls, The Tape Beetles), the Beck CD draws attention to the irony of exclusively copyrighting the work of an artist (Beck) whose technique relies on generous samplings of other artists’ work. “`Copyright laws are too restrictive, and they’re counterintuitive,’” the ®TMark press release quotes an Illegal Art affiliate as asserting (rtmark.com/deconstructingbeck.html). “Stealing back the language” of the corporation here means converting the social form of existing artworks into the explicit content of an ®TMark project. In Deconstructing Beck, the ®TMark saboteurs make a new pirated CD to foreground the logic of official, legal appropriations; replicating and exaggerating existing proprietary forms, they alter the messages of the original works, accentuating their intuitive meta-commentaries.

Other projects in the Intellectual Property fund also focus on manipulations of content, though often with less subtlety. Several proposals involve altering existing cultural products in order to foreground their ideological message. For example, participants might “Plant enticing pornographic videotapes in porn stores everywhere, with models such as (a super-well-hung) Ronald MacDonald, (a dementedly horny) Barbie, etc.” or alter a computer war-game so that it “unexpectedly and shockingly convey[s] the connection of commercial video game technology to actual war” (rtmark.com/fundintel.html). Whether by exposé or inversion, these projects are less concerned with drawing attention to the uneasy situation of intellectual property within property relations as a whole, and more concerned with the conformist social effects of consuming and circulating specific works of intellectual property.

Despite the clear interest that ®TMark as an organization has in asking fundamental questions about intellectual property and “physical property,” this second type of project seems to be its most characteristic output. Its most famous efforts include swapping voice boxes in GI Joe and Barbie dolls, to draw attention to the gender stereotypes each toy reproduced, and diverting web surfers with sites closely resembling those of G. W. Bush, Rudy Giuliani, and the WTO. The latter group of mirror sites exploit the first-come, first-serve quality of domain name ownership, but they use the sites not to undermine the qualities of ownership, so much as to parody the dead language of the candidates and international organizations. In other words, these projects turn corporate ossification of social life into the content of web-circulated critiques.

For this reason, in the end, ®TMark seems divided against itself. Its humanist goals (multiplying cultural profit and protecting ” human people”) conflict to a certain extent with tactics that require a perpetuation, however ironic, of the corporate project of naturalizing property relations. The contradiction, as I see it, is not so much that ®TMark’s projects are unrecognizable as satire - too deeply encoded to be legible to regular folks, as sincere politicos sometimes complain of their artful allies. After all, sympathetic readers of the ®TMark projects do generally manage to identify the underlying humanist principles. The San Francisco Bay Guardian’s David Cassel, like a number of commentators, places ®TMark in the context of other ethical cyber-activists, such as the anti-globalization demonstrators, and the pro-Zapatista Electronic Disturbance Theater. (Cassel, Hacktivism) And, similarly, Mark Amerika sees ®TMark and related projects as celebrations of the “artist or hactivist collective as a disembodied `intelligentsia.’” (Amerika, Writing) ®TMark’s ethical projects are legible.

Rather, the problem, as I see it, is that in insisting so strongly on the necessary link between humanist ethics and an appropriation aesthetic, and thereby downplaying some of the contradictions between the concepts of “human” and “property” that are included in their ethical project, the ®TMark agenda in effect leaves in place the intellectual property relations on which it poaches. It leaves the critique of property as part of its “content” and in the end minimizes its effect on the terrain that seems to concern its participants most - the language and images that constitute this pre-owned corporate culture. By focusing on content, ®TMark reproduces the social form of critiques of property - and even possibly furthers the appropriation of immaterial labor.

Of course, this may well be a currently insurpassable situational irony, and it does not mean ®TMark’s projects are without effect. After all, even articulating a minimally anti-property stance has inspired a definite and defensive response on the part of power. And, this response is specifically designed to prevent any spillover from content to the form of intellectual property. Braun, Drobny, and Gessner’s model statute openly aims to regulate the relationship between articulation of political principles and action, defining “solicitation” to action (and the accompanying standard of “imminent threat”) very broadly. Any suggestion that specific corporate properties might have ill effects could instigate and thus constitute, for Braun, Drobny, and Gessner, terrorism. We find similarly broad claims for the imminent effects of ®TMark’s speech-acts from more sympathetic institutions of power. Including the ®TMark website in its 2000 Biennial, the Whitney Museum of American Art also describes the organization in terms of a relationship between goals and tactics ; ®TMark is “diametrically opposed to the corporate world it imitates.” Although ®TMark organizers apparently made every effort to avoid legitimating the market in celebrity - auctioning off their artists’ tickets to gala events, for instance (see “Whitney Biennial “), the contradiction thus makes ®TMark absorbable and displayable in a context devoted to the protection of cultural work as alienable intellectual property, the museum.

One further structural irony of intellectual property hacktivism is that the more initially successful (i.e., highly publicized) the activists’ projects are, the more closely the name “®TMark” is associated with this particular contradictory relationship between ethical humanism and ironic corporatism. That is, in the current context of cultural reproduction, artistic or activist success breeds trademarking. “®TMark” becomes the trademark for a particular kind of speech-act, despite the organization’s ideological resistance to the concept and practice of trademark and copyright in cultural production. Because the speech-acts in question are social, their significance and effect are not solely determined by their authors. And, because the speech-acts in question concern intellectual property, a significant part of their social recoding has involved efforts to remake ®TMark’s activities into an occasion for a confirmation of property relations as currently constituted.

Are these social recodings inevitable? What in the ®TMark story might be uniquely due to the organizers’ Internet-based anonymity? To what extent do these artists’ activist projects teach us about contradictions specific to the social “fringe”? How broadly might a human rights discourse transform questions of property if it were rigorously applied? Is property, including intellectual property and/or intellectual property in Internet creations, a human right? These are only a few of the socially consequential questions that cannot be answered here. There is a great deal left to explore and explain and experience concerning intellectual property and the containment of the Internet, and I fully expect that the emerging answers to these questions will exceed and replace any residual confidence that copyright always is and ought to be an individual author’s quasi-monopolistic right.

Nonetheless, in the new world of informatic activism, one conclusion seems obvious: Adorno may not have been too pessimistic in forecasting ways that an image-based medium encounters limits in its own self-theorizing. When describing the Net, we may need to be especially vigilant about reproducing in our utopian moments some of the monopolistic tendencies of meat-space. And if Adorno is right, then activists in such a medium may well need to resist the comforting and totalizing urge to “become what you are,” when they might inhabit instead the uncomfortably contradictory prospect of becoming what they/you are not. As “authors” of anonymous actions, hacktivists perhaps still have the opportunity to direct their immaterial labor towards making or re-inventing new forms of non-proprietary and utopian social relations.

Works Cited

Adorno, Theodor. “Prologue to Television” in Critical Models: Interventions and Catchwords. Ed. Henry W. Pickford. (New York: Columbia, 1998): 49-57.

Amerika, Mark. “Writing as Hacktivism: An Intervening Satire,” amerika on-line #15 September 2, 2000. www.heise.de/tp/english/inhalt/kolu/3485/1.html.

Bettig, Ronald V. Copyrighting Culture: The Political Economy of Intellectual Property (New York: Westview, 1997).

Braun, Bruce, Dane Drobny, and Douglas C. Gessner. “A Proposed Federal Criminal Statute Addressing the Solicitation of Commercial Terrorism through the Internet.” Harvard Journal on Legislation 37 (Winter 2000): 159-185.

Cassel, David. “Hacktivism!: Taking it off the streets, protesters are acting up online” sfbg.com April 12, 2000 www.sfbg.com/SFLife/34/28/lead.html.

Castells, Manuel. The Network Society (New York: Blackwell, 1996).

Dyer-Witheford, Nick. Cyber-Marx: Cycles and Circuits of Struggle in High-Technology Capitalism (Urbana: Illinois, 1999).

Hardt, Michael and Antonio Negri. Empire (Cambridge: Harvard, 2000).

Lazzarato, Maurizio. “Immaterial Labor” in Radical Thought in Italy. Eds., Paolo Virno and Michael Hardt. (Minneapolis: Minnesota, 1996): 133-150.

Lessig, Lawrence. “Reading the Constitution in Cyberspace,” Emory Law Journal 45 (Summer 1996): 869-910.

Lyall, Sarah. “Shirkers Unite! Tomorrow is Your Day,” New York Times (April 5, 1998): 3, 9.

Mattelart, Armand. Networking the World. Translated by Liz Carey-Libbrecht and James A. Cohen. (Minneapolis: Minnesota, 2000).

Mosco, Vincent. “Political Economy” in Unspun: Key Concepts for Understanding the World Wide Web. Ed. Thomas Swiss. (New York: NYU Press, 2000): 51-65.

“The Power Brokers,” Industry Standard (February 3, 2000). Quart, Alissa. “Cultural Sabotage Waged in Cyberspace,” New York Times (August 17, 2000): G10.

®TMark. October 2000. rtmark.com

Rushkoff, Douglas. “Second Sight: Falling Short of the Mark,” The Guardian (April 15, 1999): 15.

Sell, Susan. Power and Ideas: North-South Politics of Intellectual Property and Antitrust (Albany: State University of New York Press, December, 1997).

Strauss, Neil. “The Pop Life; Tweaking Beck with Piracy,” New York Times (May 6, 1998): E3.

Teague, Matthew. “Corporate Punishment,” Times-Picayune (October 12, 2000): LIVING 1.

“Whitney Biennial artist tickets and status for sale on ebay.” March 9, 2000. www.nettime.org/nettime.w3archive/200003/msg00074.html

Whitney Museum of American Art. October 8, 2001. www.whitney.org/exhibition/2kb/internet.html