Part 22 (1/2)
On December 15, 2002, in San Francisco, a charitable organization called Creative Commons was launched. (Full disclosure: I have been a proud board member of Creative Commons since its creation.) Creative Commons was the brainchild of Larry Lessig, Hal Abelson, and Eric Eldred. All the works I have just described--and this book itself--are under Creative Commons licenses. The authors and creators of those works have chosen to share it with the world, with you, under generous terms, while reserving certain rights for themselves. They may have allowed you to copy it, but not to alter it--to make derivative works. Or they may have allowed you to use it as you wish, so long as you do so noncommercially. Or they may have given you complete freedom, provided only that you attribute them as the owner of the work. There are a few simple choices and a limited menu of permutations.
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What makes these licenses unusual is that they can be read by two groups that normal licenses exclude--human beings (rather than just lawyers) and computers. The textbooks, photos, films, and songs have a tasteful little emblem on them marked with a ”cc” which, if you click on it, links to a ”Commons Deed,” a simple one-page explanation of the freedoms you have. There are even icons--a dollar with a slash through it, for example--that make things even clearer. Better still, the reason the search engines could find this material is that the licenses also ”tell” search engines exactly what freedoms have been given.
Simple ”metadata” (a fancy word for tags that computers can read) mark the material with its particular level of freedoms.
This is not digital rights management. The license will not try to control your computer, install itself on your hard drive, or break your TV. It is just an expression of the terms under which the author has chosen to release the work. That means that if you search Google or Flickr for ”works I am free to share, even commercially,” you know you can go into business selling those textbooks, or printing those photos on mugs and T-s.h.i.+rts, so long as you give the author attribution. If you search for ”show me works I can build on,” you know you are allowed to make what copyright lawyers call ”derivative works.”
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The idea behind Creative Commons was simple. As I pointed out in the first chapter, copyright adheres automatically on ”fixation.” As soon as you lift the pen from the paper, click the shutter, or save the file, the work is copyrighted. No formalities. No need even to use the little symbol (C). Once copyrighted, the work is protected by the full might of the legal system. And the legal system's default setting is that ”all rights are reserved” to the author, which means effectively that anyone but the author is forbidden to copy, adapt, or publicly perform the work. This might have been a fine rule for a world in which there were high barriers to publication. The material that was not published was theoretically under an ”all rights reserved” regime, but who cared? It was practically inaccessible anyway. After the development of the World Wide Web, all that had changed. Suddenly people and inst.i.tutions, millions upon millions of them, were putting content online--blogs, photo sites, videologs, podcasts, course materials. It was all just up there.
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But what could you do with it? You could read it, or look at it, or play it presumably--otherwise why had the author put it up?
But could you copy it? Put it on your own site? Include it in a manual used by the whole school district? E-mail it to someone?
Translate it into your own language? Quote beyond the boundaries of fair use? Adapt for your own purposes? Take the song and use it for your video? Of course, if you really wanted the work a lot, you could try to contact the author--not always easy. And one by one, we could all contact each other and ask for particular types of permissions for use. If the use was large enough or widespread enough, perhaps we would even think that an individual contract was necessary. Lawyers could be hired and terms hashed out.
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All this would be fine if the author wished to retain all the rights that copyright gives and grant them only individually, for pay, with lawyers in the room. But what about the authors, the millions upon millions of writers, and photographers and musicians, and filmmakers and bloggers and scholars, who very much want to share their work? The Cora Beth Bridges of the world are never going to write individual letters to the Colin Mutchlers of the world asking for permission to make a derivative work out of ”My Life.” The person who translated my articles into Spanish or Mandarin, or the people who repost them on their Web sites, or include them in their anthologies might have asked permission if I had not granted it in advance. I doubt though that I would have been contacted by the very talented person who took images from a comic book about fair use that I co-wrote and mashed them up with words from a book by Larry Lessig, and some really nice music from someone none of us had ever met. Without some easy way to give permission in advance, and to do so in a way that human beings and computers, as well as lawyers, can understand, those collaborations will never happen, though all the parties would be delighted if they did. These are losses from ”failed sharing”--every bit as real as losses from unauthorized copying, but much less in the public eye.
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Creative Commons was conceived as a private ”hack” to produce a more fine-tuned copyright structure, to replace ”all rights reserved” with ”some rights reserved” for those who wished to do so. It tried to do for culture what the General Public License had done for software. It made use of the same technologies that had created the issue: the technologies that made fixation of expressive content and its distribution to the world something that people, as well as large concentrations of capital, could do. As a result, it was able to attract a surprising range of support--Jack Valenti of the Motion Picture a.s.sociation of America and Hillary Rosen of the Recording Industry a.s.sociation of America, as well as John Perry Barlow of the Grateful Dead, whose att.i.tude toward intellectual property was distinctly less favorable. Why could they all agree? These licenses were not a choice forced on anyone. The author was choosing what to share and under what terms. But that sharing created something different, something new. It was more than a series of isolated actions. The result was the creation of a global ”commons” of material that was open to all, provided they adhered to the terms of the licenses. Suddenly it was possible to think of creating a work entirely out of Creative Commons-licensed content--text, photos, movies, music. Your coursebook on music theory, or your doc.u.mentary on the New York skyline, could combine your own original material with high-quality text, ill.u.s.trations, photos, video, and music created by strangers.
One could imagine entire fields--of open educational content or of open music--in which creators could work without keeping one eye nervously on legal threats or permissions.
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From one perspective, Creative Commons looks like a simple device for enabling exercise of authorial control, remarkable only for the extremely large number of authors making that choice and the simplicity with which they can do so. From another, it can be seen as re-creating, by private choice and automated licenses, the world of creativity before law had permeated to the finest, most atomic level of science and culture--the world of folk music or 1950s jazz, of jokes and slang and recipes, of Ray Charles's ”rewording” of gospel songs, or of Isaac Newton describing himself as ”standing on the shoulders of giants” (and not having to pay them royalties).
Remember, that is not a world without intellectual property. The cookbook might be copyrighted even if the recipe was not. Folk music makes it to the popular scene and is sold as a copyrighted product. The jazz musician ”freezes” a particular version of the improvisation on a communally shared set of musical motifs, records it, and sometimes even claims owners.h.i.+p of it. Newton himself was famously touchy about precedence and attribution, even if not about legal owners.h.i.+p of his ideas. But it is a world in which creativity and innovation proceed on the basis of an extremely large ”commons” of material into which it was never imagined that property rights could permeate.
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For many of us, Creative Commons was conceived of as a second- best solution created by private agreement because the best solution could not be obtained through public law. The best solution would be a return of the formality requirement--a requirement that one at least write the words ”James Boyle copyright 2008,” for example, in order to get more than 100 years of legal protection backed by ”strict liability” and federal criminal law. Those who did not wish to have the legal monopoly could omit the phrase and the work would pa.s.s into the public domain, with a period of time during which the author could claim copyright retrospectively if the phrase was omitted by accident. The default position would become freedom and the dead weight losses caused by giving legal monopolies to those who had not asked for them, and did not want them, would disappear. To return to the words of Justice Brandeis that I quoted at the beginning of the book: 12
The general rule of law is, that the n.o.blest of human productions--knowledge, truths ascertained, conceptions, and ideas--become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain cla.s.ses of cases where public policy has seemed to demand it.
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Brandeis echoes the Jeffersonian preference for a norm of freedom, with narrowly constrained exceptions only when necessary. That preference means that the commons of which I spoke is a relatively large one--property rights are the exception, not the norm. Of course, many of those who use Creative Commons licenses might disagree with that policy preference and with every idea in this book. They may wors.h.i.+p the DMCA or just want a way to get their song or their article out there while retaining some measure of control. That does not matter. The licenses are agnostic. Like a land trust which has a local pro-growth industrialist and a local environmentalist on its board, they permit us to come to a restricted agreement on goals (”make sure this s.p.a.ce is available to the public”) even when underlying ideologies differ. They do this using those most conservative of tools--property rights and licenses. And yet, if our vision of property is ”sole and despotic dominion,” these licenses have created something very different--a commons has been made out of private and exclusive rights.
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My point here is that Creative Commons licenses or the tools of free and open source software--to which I will turn in a moment--represent something more than merely a second-best solution to a poorly chosen rule. They represent a visible example of a type of creativity, of innovation, which has been around for a very long time, but which has reached new salience on the Internet--distributed creativity based around a shared commons of material.
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FREE AND OPEN SOURCE SOFTWARE 16
In 2007, Clay s.h.i.+rky, an incisive commentator on networked culture, gave a speech which anyone but a Net aficionado might have found simultaneously romantic and impenetrable. He started by telling the story of a s.h.i.+nto shrine that has been painstakingly rebuilt to exactly the same plan many times over its 1,300-year life--and which was denied certification as a historic building as a result. s.h.i.+rky's point? What was remarkable was not the building. It was a community that would continue to build and rebuild the thing for more than a millennium.
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From there, s.h.i.+rky s.h.i.+fted to a discussion of his attempt to get AT&T to adopt the high-level programming language Perl--which is released as free and open source software under the General Public License. From its initial creation by Larry Wall in 1987, Perl has been adapted, modified, and developed by an extraordinary range of talented programmers, becoming more powerful and flexible in the process. As s.h.i.+rky recounts the story, when the AT&T representatives asked ”where do you get your support?” s.h.i.+rky responded, ” 'we get our support from a community'--which to them sounded a bit like 'we get our Thursdays from a banana.' ” s.h.i.+rky concluded the speech thus: 18
We have always loved one another. We're human. It's something we're good at. But up until recently, the radius and half-life of that affection has been quite limited. With love alone, you can plan a birthday party. Add coordinating tools and you can write an operating system. In the past, we would do little things for love, but big things required money. Now we can do big things for love.1
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There are a few people out there for whom ”operating systems”