First, an update on the events. On May 11, 2004, Steve Kurtz, co-founder of the Critical Art Ensemble (CAE), found his wife and collaborator, Hope Kurtz, unconscious in her bed. He called the emergency services, who diagnosed a cardiac arrest. She had died in her sleep. Following standard procedure, the police were called to investigate the circumstances of the death. But here is where »standard procedure« ends. Entering the house, the police encountered what they perceived as suspicious material, namely, the bio-technical equipment that the CAE had used for its most recent work on »contestational biology«. The police, not knowing what to make of it, immediately thought of »terrorism« and called the FBI and the Joint Terrorism Task Force (Department of Defense). In full force they arrived at the scene, sealed off the house, conducted an extensive search, and confiscated all the equipment, computers and working materials they could find, as well as the dead body. All on the suspicion of terrorism. Kurtz was detained for 24 hours – illegally, as it turned out. For a few more days, he was unable to return to his home, which was still treated as a »health hazard«.

In early June, Kurtz and seven artists, members or collaborators of CAE, were subpoenaed to appear before a grand jury. In the American judicial system, a grand jury decides whether to allow the state prosecutor to open formal proceedings in a case. The charges concerned bio-terrorism, a category defined in the 1989 Anti-Terrorism Act and expanded by the USA PATRIOT Act, passed in the immediate aftermath of 9/11. At the latest, things should have stopped here. There is simply no way that the standard, and rather basic, equipment found in Kurtz's house, nor any of the activities of CAE, can be construed as relating to bio-terrorism. But the machinery was already in full swing and two weeks later, the grand jury allowed Kurtz to be charged. Yet the charges had morphed. Rather than bio-terrorism, the charges now pertained to the illegal possession of a $256 sample of Serratia marcescens, a quite harmless and common bacterium, in the past used in high school experiments for its bright red color. On July 8, Kurtz and Dr. Robert Ferrell, Professor of Genetics at the University of Pittsburgh, who had provided the sample, were officially indicted. Because they had used the Internet to buy the sample, and the postal mail to ship it, they were charged with »wire fraud« and »mail fraud«, which significantly aggravates the gravity of the offense. If convicted, they face up to 20 years in prison. In the meantime, more subpoenas were issued, among others to Autonomedia, the independent publisher of all of CAE's books.

As Claire Pentecost, spokesperson for the CAE defense Funds, explained during a presentation at Vienna's Public Netbase, the trial is at a standstill right now. Its scheduling will be released later in October and hearings are expected to begin next spring. Until then, the legal costs of each defendant may have reached close to $100,000.

What are we to make of this case? Is the state going after critical artists who had explored the edge of legality for years? After all, CAE had called for »electronic civil disobedience« since the mid-1990s. Or is it an investigation run amok, with a prosecutor trying to save face after his initial case of terrorism collapsed? We don't know; probably both. However, most striking is not simply the ease with which one can fall under the suspicion of terrorism these days. On this account, this turn of events – relatives being imprisoned in Guantanamo or in solitary confinement in the US (and Europe) – was harmless. If Kurtz were an Arab or Muslim, he might have been classified as an »enemy combatant« and lost all his civil rights. Less spectacular, but much more insidious, are the new charges. These do not concern the physical nature of the bacteria, which are not a legally controlled substance. Rather, they concern their status as intellectual property (IP). They reveal the increasing role of intellectual property in science and the way this undermines not just basic scientific principles of openness and collaboration, but more generally restricts the flow of information and knowledge throughout society at large.

Scientists working with organisms require for their research samples that are as pure as possible. Such samples can be bought from commercial companies who provide this raw material in standardized quality. The standardization is important for the experiment to be controlled and repeatable. These days, however, this is no longer a case of a simple purchase. Rather, in order to obtain samples, even harmless ones like the one Ferrell gave to Kurtz, one has to sign a license, called a Material Transfer Agreement (MTA). This license regulates what the scientist is allowed to do with the sample. For example, standard MTAs expressively prohibit sharing the material with anyone outside one's own lab. This, however, is precisely what Ferrel did when he gave to sample to Kurtz, whom he had known and respected for years. It is also standard academic practice. Research, like art, is an open and collaborative process which works best when people can communicate easily and freely. In the life sciences, this communication includes the sharing of samples. Of course, there are regulations about the safety of this sharing. None of them was breached. What was breached was the intellectual property claim of the company who had created the sample and had sold it to Ferrel, under an MTA, of course.

What we have here is a clash of two cultures. One is the open culture of science, the other is the closed culture of property. In recent years, the realm of IP has been expanded significantly. Ever more information, and the material that embodies it, can be owned on the basis of copyright and patent law. Information that is privately owned can be used by third parties only with permission of the owners. This has important negative consequences. First, clearing ownership rights makes standard processes complicated and expensive. As such, it restricts the range of people and institutions who can participate in them. Second, it gives the owners control over the »downstream« use of that information. In effect, it allows them to control the future development of science and culture. Last but not least, it creates a situation in which it becomes almost impossible to continue with normal practices and get things done efficiently without violating some intellectual property provisions along the way. Sharing materials worth $256 is entirely within the bounds of academic practice; indeed, it is how research is done in the real world. However, in the hands of an over-eager prosecutor, this ethically unquestionable behavior becomes an offense that can threaten an entire career. It is this kind of uncertainty that is, whether intended or not, the main message of the CAE case. Don't arouse suspicion, because if you are a scientist or an artist, chances are you are violating some intellectual property provision. And even if these »violations« are too petty to matter, it will cost you a fortune to prove it.

Links:
CAE Defense Fund: http://www.caedefensefund.org
Official CAE Website: http://www.critical-art.net
Video Stream of the presentation by Brian Holmes and Claire Pentecost (Vienna, 15.09.2004)
http://www.t0.or.at/t0/caedefense/deutsch

Felix Stalder is a researcher and lecturer in media economy at the Academy of Art and Design (HGKZ) in Zurich.

 

 

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