Michael Connor opened the conversation in this session with a few relevant examples from Rhizome’s own practice. Established in 1999, Rhizome’s online archive of net art, the ArtBase, was created with careful consideration for artists’ wishes for the archiving of their work. The ArtBase provided options to create records of artworks without collecting original files from the artists. These artworks were referred to as linked objects and their records linked to the artist’s own copy of the work. Often, these links would break in a few years’ time, or at the very least, lead to very different content (as shown in this example by Annie Abrahams). In other cases, even when the artist had shared their original work files, these files remained dependent on various external (and copyrighted) software components in order to look (or even work) in the way the artist intended. This revealed a necessity for the emulation of complete software environments for the accurate presentation of such artworks (e.g. Alexei Shulgin’s Form Art in Rhizome’s Net Art Anthology), opening further copyright concerns. Connor also raised the question of obtaining consent from users in cases where a work of art includes interactions from the public. Even if the artist provides consent for the archiving of their work, the recorded interactions of members of the public are oftentimes archived without their express permission (as in the archive of Amalia Ulman’s instagram performance, Excellences and Perfections).
To provide a legal perspective on these issues, the second speaker in the panel, Bruce Goldner, partner at Skadden and head of its Intellectual Property and Technology Group, explained the core principles of copyright law in the US. He also covered the various permissible applications of fair use—the major exception to copyright owner’s rights. In most cases, the two determining factors for fair use are whether the derivative work is intended for commercial or non-commercial use, and whether the derivative work is transformative. To illustrate this point, he provided the example of the controversial case of Patrick Cariou vs Richard Prince, in which the appropriation of Cariou’s artworks by Richard Prince was deemed transformative. Goldner pointed out that the case was an example of one of the furthest points that fair use provisions can be extended.
Jack Cushman, attorney, programmer, and a developer of Perma.cc, talked about link rot in legal records and the necessity of providing reliable access to online documents via web archives. He pointed to a 2014 link rot study from Harvard Law School that showed seventy percent of the links in law review journals have changed and fifty percent of the links in Supreme Court decisions have also changed. This staggering variance results in inconclusive law records and missing connections in what Cushman referred to as the “tapestry” of the law, meaning a new approach was necessary, not only for keeping legal records, but for authoring them. To this end, Perma.cc, built by Harvard Library Innovation Lab, offers to keep a permanent copy of a link in a legal library, just like paper records are kept. Using a technology similar to Webrecorder, Perma.cc is a free tool with a high rate of adoption among American law school libraries and state and federal courts. Cushman concluded his presentation by emphasizing the importance of putting archiving tools in the hands of authors and embedding the archiving process as part of the authoring process.
Amanda Levendowski, a teaching fellow with NYU’s Technology Law and Policy Clinic, returned to the question of contextual integrity initially raised by Connor. Her presentation focused on photography as a point of contest. She shared multiple examples of cases where the original work of the creator was protected by copyright law, but the rights of the people depicted in the images were less clear. Questions of authorship, intimacy, and invasion of privacy arose, as emphasized in the work of Arne Svenson in his series The Neighbors, as well as Napalm Girl, a devastating and influential image of 9-year old Phan Thi Kim Phúc running from an accidental attack on her village by the South Korean Air Force—a situation in which she was unable to offer consent. The tension around issues of consent, and the context of how and where a work is distributed, is exacerbated by the numerous recent cases of revenge porn, or leaked images of nude celebrities. Such cases bear further implications for where the lines of copyright laws are drawn, the context of internet archiving, and image sharing.
The questions following the presentations focused on controversies around contextual integrity and fair use. A further point discussed by the panelists addressed the lack of clearly established social norms within the spheres of technology, the market, or the law when it comes to navigating the public-private nature of online communications. Platforms like Facebook or Twitter might be the new virtual “town squares,” but they are still a long way from taking responsibility for digital social memory.
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