path: root/data/samples/wrapped/en/viral_spiral.david_bollier.sst

% SiSU 4.0

@title: Viral Spiral
 :subtitle: How the Commoners Built a Digital Republic of Their Own
 :language: US

@creator:
 :author: Bollier, David

@date:
 :published: 2008

@rights:
 :copyright: © 2008 by David Bollier All rights reserved. No part of this book may be reproduced, in any form, without written permission from the publisher. The author has made an online version of the book available under a Creative Commons Attribution-NonCommercial license. It can be accessed at http://www.viralspiral.cc and http://www.onthecommons.org. Requests for permission to reproduce selections from this book should be mailed to: Permissions Department, The New Press, 38 Greene Street, New York, NY 10013. Published in the United States by The New Press, New York, 2008 Distributed by W. W. Norton & Company, Inc., New York ISBN 978-1-59558-396-3 (hc.) CIP data available The New Press was established in 1990 as a not-for-profit alternative to the large, commercial publishing houses currently dominating the book publishing industry. The New Press operates in the public interest rather than for private gain, and is committed to publishing, in innovative ways, works of educational, cultural, and community value that are often deemed insufficiently profitable. www.thenewpress.com A Caravan book. For more information, visit www.caravanbooks.org.
 :license: Creative Commons Attribution-NonCommercial license.

@classify:
 :topic_register: SiSU markup sample:book:discourse;networks;Internet:social aspects|copyright|intellectual property;intellectual property:patents|public domain;intellectual property:copyright:creative commons;society:information society;copyright:creative commons|public domain|licenses;patents;book:subject:information society|information networks|society|copyright|creative commons|patents|culture;open source software:social aspects;software:free software|GPL|open source;license:GPL;programming;democracy;democratization;creative commons;public domain:copyright law (U.S.);free culture;culture

@identifier:
 :oclc: 227016731

@links:
 { Viral Spiral }http://viralspiral.cc/
 { David Bollier }http://www.bollier.org/
 { David Bollier @ Wikipedia }http://en.wikipedia.org/wiki/David_Bollier
 { Viral Spiral @ Amazon.com }http://www.amazon.com/Viral-Spiral-Commoners-Digital-Republic/dp/1595583963
 { Viral Spiral @ Barnes & Noble }http://search.barnesandnoble.com/booksearch/isbnInquiry.asp?isbn=1595583963

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 :home_button_text: {Viral Spiral}http://viralspiral.cc/; {David Bollier}http://www.bollier.org/
 :footer: {Viral Spiral}http://viralspiral.cc/; {David Bollier}http://www.bollier.org/

:A~ @title @author

1~attribution Attribution~#

To Norman Lear, dear friend and intrepid explorer of the frontiers of
democratic practice -#

1~acknowledgments ACKNOWLEDGMENTS

In this book, as with any book, dozens of barely visible means of support
conspired to help me. It has been hard work, but any author with sufficient
honesty and self-awareness realizes the extent to which he or she is a lens
that refracts the experiences, insights, and writings of others. It is a
pleasure to pay tribute to those who have been helpful to me.

I am grateful to Larry Lessig, a singular visionary in developing the commons
as a new paradigm, for helping to make this book possible. He submitted to
several interviews, facilitated my research within the Creative Commons
community, and, despite our shared involvements in various projects over the
years, scrupulously respected my independence. It is also a pleasure to thank
the Rockefeller Foundation for generously helping to cover my research,
reporting, and travel expenses.

I interviewed or consulted with more than one hundred people in the course of
writing this book. I want to thank each of them for carving out some time to
speak with me and openly sharing their thoughts. The Creative Commons and
iCommons staff were particularly helpful in making time for me, pointing me
toward useful documents and Web sites and sharing their expertise. I must
single out Glenn Otis Brown, Mia Garlick, Joichi Ito, Heather Ford, Tomislav
Medak, Ronaldo Lemos, and Hal Abelson for their special assistance.

Since writing a book resembles parachuting into a forest and then trying to
find one’s way out, I was pleased to have many friends who recommended some
useful paths to follow. After reading some or all of my manuscript, the
following friends and colleagues offered many invaluable suggestions and
criticisms: Charles Schweik, Elliot E. Maxwell, John Seely Brown, Emily Levine,
Peter Suber, Julie Ristau, Jay Walljasper, Jonathan Rowe, Kathryn Milun, Laurie
Racine, and Gigi Sohn. It hardly requires saying that none of these astute
readers bears any responsibility for the choices that I ultimately made.

For the past seven years, the Tomales Bay Institute, recently renamed On the
Commons, has nurtured my thinking and commitment to the commons. (On the
Commons has no formal affiliation to the Creative Commons world, but it
enthusiastically shares its commitments to the commons.) I am grateful to my
colleagues Peter Barnes, Harriet Barlow, and Julie Ristau for their unflagging
support of my book over the past three years, even when it impinged on my other
responsibilities.

In the early stages of this book, Elaine Pagels was unusually generous in
offering her help, and my conversations with Nick Bromell helped pry loose some
important insights used in my conclusion. Cherry Alvarado was of extraordinary
help to me as she transcribed scores of interviews with unfailing good humor
and precision. I also wish to thank Andrew Ryder for resourceful assistance in
the early stages of my research.

I have dedicated this book to my dear friend and mentor Norman Lear. The zeal,
imagination, and grace that he brings to the simple imperatives of citizenship
have been more instructive and inspirational than he perhaps realizes. He has
also been of incalculable support to me in my headstrong explorations of the
commons.

Finally, at the end of the day, when I emerge from my writer’s lair or return
from yet another research and reporting trip, it is Ellen and my sons Sam and
Tom who indulge my absences, mental and physical, and reacquaint me with the
things that matter most. I could not wish for more. David Bollier Amherst,
Massachusetts May 1, 2008

1~introduction INTRODUCTION

It started with that great leap forward in human history the Internet, which
gave rise to free software in the 1980s and then the World Wide Web in the
early 1990s. The shockingly open Internet, fortified by these tools, began
empowering a brash new culture of rank amateurs — you and me. And this began to
reverse the fierce tide of twentieth-century media. Ordinary people went
online, if only to escape the incessant blare of television and radio, the
intrusive ads and the narrow spectrum of expression. People started to discover
their own voices . . . and their own capabilities . . . and one another.
={ free software +2 }

As the commoners began to take charge of their lives, they discovered anew that
traditional markets, governments, and laws were often not serving their needs
very well. And so some pioneers had the audacity to invent an infrastructure to
host new alternatives: free and open-source software. Private licenses to
enable sharing and bypass the oppressive complications of copyright law. A
crazy quilt of Web applications. And new types of companies that thrive on
servicing social communities on open platforms.

At the dawn of the twenty-first century, the commoners began to make some
headway. More people were shifting their attention away from commercial media
to homegrown genres — listservs, Web sites, chat rooms, instant messaging, and
later, blogs, podcasts, and wikis. A swirling mass of artists, legal scholars,
techies, activists, and even scientists and businesses began to create their
own online commons. They self-organized themselves into a loosely coordinated
movement dedicated to “free culture.”

The viral spiral was under way.

Viral spiral? /{Viral}/, a term borrowed from medical science, refers to the
way in which new ideas and innovations on the Internet can proliferate with
astonishing speed. A video clip, a blog post, an advertisement released on the
Internet tumbles into other people’s consciousness in unexpected ways and
becomes the raw feedstock for new creativity and culture. This is one reason
the Internet is so powerful — it virally propagates creativity. A novel idea
that is openly released in the networked environment can often find its way to
a distant person or improbable project that can really benefit from it. This
recombinative capacity — efficiently coordinated through search engines, Web
logs, informal social networks, and other means— radically accelerates the
process of innovation. It enlivens democratic culture by hosting egalitarian
encounters among strangers and voluntary associations of citizens. Alexis de
Tocqueville would be proud.

The /{spiral}/ of /{viral spiral}/ refers to the way in which the innovation of
one Internet cohort rapidly becomes a platform used by later generations to
build their own follow-on innovations. It is a corkscrew paradigm of change:
/{viral}/ networking feeds an upward /{spiral}/ of innovation. The cutting-edge
thread achieves one twist of change, positioning a later thread to leverage
another twist, which leverages yet another. Place these spirals in the context
of an open Internet, where they can sweep across vast domains of life and
catalyze new principles of order and social practice, and you begin to get a
sense of the transformative power of viral spirals.

The term /{viral spiral}/ is apt, additionally, because it suggests a process
of change that is anything but clean, direct, and mechanical. In the networked
environment, there is rarely a direct cause-andeffect. Things happen in messy,
irregular, indeterminate, serendipitous ways. Life on the Internet does not
take place on a stable Cartesian grid — orderly, timeless, universal — but on a
constantly pulsating, dynamic, and labyrinthine /{web}/ of finely
interconnected threads radiating through countless nodes. Here the context is
as rich and generative as any individual, /{Viral spiral}/ calls attention to
the holistic and historical dynamics of life on the Web, which has a very
different metaphysical feel than the world of twentieth-century media.

The viral spiral began with free software (code that is free to use, not code
at no cost) and later produced the Web. Once these open platforms had
sufficiently matured, tech wizards realized that software’s great promise is
not as a stand-alone tool on PCs, but as a social platform for Web-based
sharing and collaboration. The commoners could then begin to imagine: How might
these tools be used to overcome the arbitrary and confusing limitations of
copyright law? One answer, the Creative Commons (CC) licenses, a free set of
public licenses for sharing content, helped mitigate the legal risks of sharing
of works under copyright law. This innovation, in turn, helped unleash a
massive wave of follow-on innovations.
={ free software ;
   Creative Commons (CC) licenses
}

Web 2.0 applications flourished, many of them relying upon sharing made legal
through CC licenses. By avoiding the costly overhead of centralized production
and marketing, and tapping into the social vitality of a commons, Web 2.0
platforms have enabled ordinary people to share photos (Flickr), favorite
browser bookmarks (del.icio.us), favorite news stories (Digg, Reddit), and
homemade videos (YouTube). They let people access user-created archives
(Wikipedia, Internet Archive, Ourmedia.org), collaborate in news gathering
(OhmyNews, Assignment Zero), participate in immersive communities (Second
Life), and build open-business models (Magnatune, Revver, Jamendo).
={ web 2.0 :
     applications
}

This book seeks to trace the long arc of change wrought by a kaleidoscopic
swarm of commoners besieged by oppressive copyright laws, empowered by digital
technologies, and possessed of a vision for a more open, democratic society.
Their movement has been fired by the rhetoric of freedom and actualized by
digital technologies connected by the Internet. These systems have made it
extremely cheap and easy for ordinary people to copy and share things, and to
collaborate and organize. They have democratized creativity on a global scale,
challenging the legitimacy and power of all sorts of centralized, hierarchical
institutions.

This larger story has rarely been told in its larger scope. It is at base a
story of visionary individuals determined to protect the shared code, content,
and social community that they have collectively generated. Richard Stallman
pioneered the development of free software; Lawrence Lessig waged challenges
against excessive copyright protection and led the development of the Creative
Commons licenses; citizen-archivist Eric Eldred fought to preserve his online
body of public-domain literature and the community that grew up around it.
These are simply the better-known leaders of a movement that has attracted
thousands of commoners who are building legally defensible commons into which
to pour their creative energies and live their lives.
={ free software ;
   commoners :
     concept of +5 ;
   commons :
     concept of +1
}

The commons — a hazy concept to many people — is a new paradigm for creating
value and organizing a community of shared interest. It is a vehicle by which
new sorts of self-organized publics can gather together and exercise new types
of citizenship. The commons can even serve as a viable alternative to markets
that have grown stodgy, manipulative, and coercive. A commons arises whenever a
given community decides that it wishes to manage a resource in a collective
manner, with special regard for equitable access, use, and sustainability. The
commons is a means by which individuals can band together with like-minded
souls and express a sovereignty of their own.

Self-styled commoners can now be found in dozens of nations around the world.
They are locally rooted but internationally aware citizens of the Internet.
They don’t just tolerate diversity (ethnic, cultural, aesthetic, intellectual),
they celebrate it. Although commoners may have their personal affinities — free
software, open-access publishing, remix music, or countless others — they tend
to see themselves as part of a larger movement. They share an enthusiasm for
innovation and change that burbles up from the bottom, and are known to roll
their eyes at the thick-headedness of the mainstream media, which always seem
to be a few steps behind.
={ free software }

If there is an element of self-congratulatory elitism at times, it stems from
the freedom of commoners to negotiate their own rules and the pleasure of
outmaneuvering conventional institutions. The commoners know how to plug into
the specialized Web sites and practitioner communities that can provide
just-in-time, highly specialized expertise. As Herbert Simon, the
computer-oriented social scientist, once put it, “The meaning of ‘knowing’
today has shifted from being able to remember and repeat information to being
able to find and use it.” ~{Cited by John Seely Brown, former chief scientist,
Xerox Palo Alto Research Center, at Open Educational Resources conference,
Houston, Texas, March 29, 2007.}~ Commoners realize that this other way of
being, outside hierarchical institutions, in the open space where viral spirals
of innovation are free to materialize, is an important source of their
insurgent power.
={ Herbert, Simon }

It is perilous to generalize about a movement that has so many disparate parts
pushing and pulling and innovating in so many different directions at once. Yet
it is safe to say that the commoners— a digital embodiment of /{e pluribus
unum}/ — share a common goal. They wish to transcend the limitations of
copyright law in order to build their own online communities. It’s not as if
the commoners are necessarily hostile to copyright law, markets, or centralized
institutions. Indeed, many of them work for large corporations and
universities; many rely on copyright to earn a livelihood; many are
entrepreneurs.
={ commoners :
     goal
}

Yet the people who are inventing new commons have some deeper aspirations and
allegiances. They glimpse the liberating potential of the Internet, and they
worry about the totalizing inclinations of large corporations and the state,
especially their tendency to standardize and coerce behavior. They object as
well to processes that are not transparent. They dislike the impediments to
direct access and participation, the limitations of credentialed expertise and
arbitrary curbs on people’s freedom.

One of the first major gatherings of international commoners occurred in June
2006, when several hundred people from fifty nations converged on Rio de
Janeiro, Brazil, for the iCommons Summit. The people of this multinational,
eclectic vanguard blend the sophistication of the establishment in matters of
power and politics with the bravado and playfulness of Beat poets. There were
indie musicians who can deconstruct the terms of a record company licensing
agreement with Talmudic precision. There were Web designers who understand the
political implications of arcane rules made by the World Wide Web Consortium, a
technical standards body. The lawyers and law professors who discourse about
Section 114 of the Copyright Act are likely to groove on the remix career of
Danger Mouse and the appropriationist antics of Negativland, a sound-collage
band. James Boyle and Jennifer Jenkins, two law scholars at Duke Law School,
even published a superhero comic book, /{Down by Law!}/, which demystifies the
vagaries of the “fair use doctrine” through a filmmaker character resembling
video game heroine Lara Croft.~{Keith Aoki, James Boyle, Jennifer Jenkins,
/{Down by Law!}/ at http://www.duke.edu/cspd/comics. }~ (Fair use is a
provision of copyright law that makes it legal to excerpt portions of a
copyrighted work for noncommercial, educational, and personal purposes.)
={ commoners :
     gatherings of
}

2~ The Rise of Socially Created Value
={ socially created value +5 }

The salience of electronic commerce has, at times, obscured an important fact —
that the commons is one of the most potent forces driving innovation in our
time. Individuals working with one another via social networks are a growing
force in our economy and society. This phenomenon has many manifestations, and
goes by many names — “peer production,” “social production,” “smart mobs,” the
“wisdom of crowds,” “crowdsourcing,” and “the commons.”~{“Social production”
and “peer production” are associated with the work of Yale law professor Yochai
Benkler, especially in his 2006 book, /{The Wealth of Networks}/. “Smart mobs”
is a coinage of Howard Rheingold, author of a 2003 book by the same
name.“Crowdsourcing” is the name of a blog run by Jeff Howe and the title of a
June 2006 /{Wired}/ article on the topic.“Wisdom of crowds” is a term coined by
James Surowiecki and used as the title of his 2004 book.}~ The basic point is
that /{socially created value}/ is increasingly competing with conventional
markets, as GNU/Linux has famously shown. Through an open, accessible commons,
one can efficiently tap into the “wisdom of the crowd,” nurture
experimentation, accelerate innovation, and foster new forms of democratic
practice.
={ commons :
     sources of new ideas, as +1
}

This is why so many ordinary people — without necessarily having degrees,
institutional affiliations, or wealth — are embarking upon projects that, in
big and small ways, are building a new order of culture and commerce. It is an
emerging universe of economic, social, and cultural activity animated by
self-directed amateurs, citizens, artists, entrepreneurs, and irregulars.

Hugh McGuire, a Montreal-based writer and Web designer, is one. In 2005, he
started LibriVox, a digital library of free public-domain audio books that are
read and recorded by volunteers. More than ten thousand people a day visit the
Web site to download audio files of Twain, Kafka, Shakespeare, Dostoyevsky, and
others, in nearly a dozen languages.~{ http://www.librivox.org. }~ The Faulkes
Telescope Project in Australia lets high school students connect with other
students, and with professional astronomers, to scan the skies with robotic,
online telescopes.~{ http://faulkes-telescope.com. }~ In a similar type of
learning commons, the Bugscope project in the United States enables students to
operate a scanning electronic microscope in real time, using a simple Web
browser on a classroom computer connected to the Internet.~{
http://bugscope.beckman.uiuc.edu. }~
={ Bugscope ;
   LibriVox ;
   McGuire, Hugh ;
   Faulkes Telescope Project
}

Thousands of individual authors, musicians, and filmmakers are using Web tools
and Creative Commons licenses to transform markets for creative works — or,
more accurately, to blend the market and commons into integrated hybrids. A
nonprofit humanitarian group dedicated to doing reconstructive surgery for
children in poor countries, Interplast, produced an Oscar-winning film, /{A
Story of Healing}/, in 1997. Ten years later, it released the film under a
Creative Commons license as a way to publicize Interplast’s work while
retaining ownership of the film: a benefit for both film buffs and
Interplast.~{ http://www.interplast.org and
http://creativecommons.org/press-releases/2007/04/%E2%80%9Ca-story-of-healing%E2%80%9D-becomes-first-acad
emy-award%C2%AE-winning-film-released-under-a-creative-commons-li cense. }~
={ Interplast }

Scoopt, a Glasgow, Scotland–based photography agency, acts as a broker to help
bloggers and amateurs sell newsworthy photos and videos to the commercial
media.~{ http://www.scoopt.com. }~ The Boston band Two Ton Shoe released its
music on the Web for free to market its concerts. Out of the blue, a South
Korean record label called one day to say it loved the band and could it come
over to Seoul, all expenses paid, to perform four concerts? Each one sold
out.~{ http://www.twotonshoe.com/news.html. }~ Boing Boing blogger and
cyber-activist Cory Doctorow released his 2003 science-fiction novel, /{Down
and Out in the Magic Kingdom}/, under a CC license, reaping a whirlwind of
worldwide exposure.~{ See Doctorow’s preface to the second release of the book,
February 12, 2004, Tor Books. See also his blog Craphound.com, September 9,
2006, at http://www.craphound.com/?=p=1681. }~
={ Doctorow, Cory ;
   Scoopt
}

2~ The Commoners Build a Digital Republic of Their Own
={ commons :
     achievement of +11
}

The profusion of commons on the Internet may appear to be a spontaneous and
natural development. In fact, it is a hard-won achievement. An infrastructure
of software, legal rights, practical expertise, and social ethics had to be
imagined, built, and defended. In a sense, the commoners had to invent
themselves as commoners. They had to learn to recognize their own distinct
interests — in how to control their creative works, how to organize their
communities, and how to engage with market players without being co-opted. They
have, in fact, invented a new sort of democratic polity within the edifice of
the conventional nation-state.

The commoners differ from most of their corporate brethren in their enthusiasm
for sharing. They prefer to freely distribute their writing, music, and videos.
As a general rule, they don’t like to encase their work in airtight bubbles of
property rights reinforced by technological locks. They envision cyberspace
more as a peaceable, sociable kingdom than as a take-no-prisoners market. They
honor the individual while respecting community norms. They are enthusiastic
about sharing while respecting the utility of markets. Idealistic yet
pragmatic, they share a commitment to open platforms, social cooperation, and
elemental human freedoms.
={ commoners :
     sharing by +1
}

It is all very well to spout such lofty goals. But how to actualize them? That
is the story that the following pages recount. It has been the work of a
generation, some visionary leaders, and countless individuals to articulate a
loosely shared vision, build the infrastructure, and develop the social
practices and norms. This project has not been animated by a grand political
ideology, but rather is the result of countless initiatives, grand and
incremental, of an extended global family of hackers, lawyers, bloggers,
artists, and other supporters of free culture.
={ commons :
     political implications of +3
}

And yet, despite its focus on culture and its aversion to conventional
politics, the growth of this movement is starting to have political
implications. In an influential 2003 essay, James F. Moore announced the
arrival of “an emerging second superpower.”~{ James F. Moore, “The Second
Superpower Rears its Beautiful Head,” March 31, 2003, available at
http://cyber.law.harvard.edu/people/jmoore/secondsuperpower.html. }~ It was not
a nation, but the coalescence of people from around the world who were
asserting common values, and forming new public identities, via online
networks. The people of this emerging “superpower,” Moore said, are concerned
with improving the environment, public health, human rights, and social
development. He cited as early examples the international campaign to ban land
mines and the Seattle protests against the World Trade Organization in 1999.
The power and legitimacy of this “second superpower” do not derive from the
constitutional framework of a nation-state, but from its ability to capture and
project people’s everyday feelings, social values, and creativity onto the
world stage. Never in history has the individual had such cheap, unfettered
access to global audiences, big and small.
={ Moore, James }

The awakening superpower described in /{Viral Spiral}/ is not a conventional
political or ideological movement that focuses on legislation and a clutch of
“issues.” While commoners do not dismiss these activities as unimportant, most
are focused on the freedom of their peer communities to create, communicate,
and share. When defending these freedoms requires wading into conventional
politics and law, they are prepared to go there. But otherwise, the commoners
are more intent on building a kind of parallel social order, inscribed within
the regnant political economy but animated by their own values. Even now, the
political/cultural sensibilities of this order are only vaguely understood by
governments, politicians, and corporate leaders. The idea of “freedom without
anarchy, control without government, consensus without power” — as Lawrence
Lessig put it in 1999~{ Lawrence Lessig, /{Code and Other Laws of Cyberspace}/
(New York: Basic Books, 1999), p. 4. }~ —is just too counterintuitive for the
conventionally minded to take seriously.
={ commoners :
     sharing by +1 ;
   Lessig, Lawrence +2
}

Very early on, the commoners identified copyright law as a major impediment to
their vision of a “sharing economy.” It is not that they revile copyright law
as such; indeed, many commoners defend the importance of copyright law to
creative endeavor. The problem, they insist, is that large corporations with
vast inventories of copyrighted works — film studios, record labels, book
publishers, software companies — have used their political power unfairly to
extend the scope and term of copyright privileges. A limited monopoly granted
by the U.S. Constitution has morphed into an expansive, near-perpetual
monopoly, enforced by intrusive technologies and draconian penalties.
={ copyright law :
     sharing economy vs. +3
}

The resulting curbs on citizen freedom, as large entertainment and media
corporations gain legal privileges at the expense of the public, is a
complicated issue that I return to in chapter 2. But it is worth noting briefly
why copyright law has been particularly harmful to the commons in the digital
age. When Congress enacted a major revision of U.S. copyright law in 1976, it
eliminated a longstanding requirement that works had to be formally registered
in order to receive copyright protection.~{ The effect of the elimination of
formal registration in copyright law is cogently discussed by Lessig in /{Free
Culture}/ (New York: Penguin, 2004), pp. 170–73, and pp. 248–53. }~ Under the
new law, /{everything}/ became automatically copyrighted upon creation. This
meant that all information and artistic work created after 1978 (when the law
took effect) has been born into an invisible envelope of property rights. It
sounds appealing to eliminate bureaucratic formalities like registration. But
the shift to automatic copyright has meant that every digital scribble is born
with a © branded on its side. /{Culture = private property}/.
={ Copyright Act (1976) ;
   copyright law :
     automatic +1 | revision of (1976) +1 | and property rights +1 ;
   property rights, and copyright law
}

The various industries that rely on copyrights have welcomed this development
because it helps them portray their ownership rights as all-encompassing. They
can cast the public’s right to use works without permission or payment —
traditionally guaranteed under the fair use doctrine and the public domain — as
exceptions to the general rule of absolute property rights. “What could be
wrong with enclosing works in ever-stronger packages of property rights?” the
music and film industries argue. “That’s how new economic wealth is created.”
The media oligopolies that control most of television, film, music, and news
gathering naturally want to protect their commercial content. It is the fruit
of a vast system of fixed investment — equipment, high-priced stars, lawyers,
distribution channels, advertising, etc. — and copyright law is an important
tool for protecting that value.

The Internet has profoundly disrupted this model of market production, however.
The Internet is a distributed media system of low-cost capital (your personal
computer) strung together with inexpensive transmission and software. Instead
of being run by a centralized corporation that relies upon professionals and
experts above all else, the Internet is a noncommercial infrastructure that
empowers amateurs, citizens, and ordinary individuals in all their quirky,
authentic variety. The mass media have long regarded people as a commodifiable
audience to be sold to advertisers in tidy demographic units.
={ Internet :
     empowerment by +2
}

Now, thanks to the Internet, “the people formerly known as the audience” (in
Jay Rosen’s wonderful phrase) are morphing into a differentiated organism of
flesh-and-blood, idiosyncratic individuals, as if awakening from a spell. Newly
empowered to speak as they wish, in their own distinctive, personal voices to a
global public of whoever cares to listen, people are creating their own
transnational tribes. They are reclaiming culture from the tyranny of
mass-media economics and national boundaries. In Lessig’s words, Internet users
are overthrowing the “read only” culture that characterized the “weirdly
totalitarian” communications of the twentieth century. In its place they are
installing the “read/write” culture that invites everyone to be a creator, as
well as a consumer and sharer, of culture.~{ Lawrence Lessig, “The Read-Write
Society,” delivered at the Wizards of OS4 conference in Berlin, Germany, on
September 5, 2006. Available at
http://www.wizards-of-os.org/programm/panels/authorship_amp_culture/keynote_the_read_write_society/the_read_write_society.html.
}~ A new online citizenry is arising, one that regards its socially negotiated
rules and norms as at least as legitimate as those established by conventional
law.
={ Rosen, Jay }

Two profoundly incommensurate media systems are locked in a struggle for
survival or supremacy, depending upon your perspective or, perhaps, mutual
accommodation. For the moment, we live in a confusing interregnum — a
transition that pits the dwindling power and often desperate strategies of
Centralized Media against the callow, experimental vigor of Internet-based
media. This much is clear, however: a world organized around centralized
control, strict intellectual property rights, and hierarchies of credentialed
experts is under siege. A radically different order of society based on open
access, decentralized creativity, collaborative intelligence, and cheap and
easy sharing is ascendant. Or to put it more precisely, we are stumbling into a
strange hybrid order that combines both worlds — mass media and online networks
— on terms that have yet to be negotiated.

2~ The Rise of the Commoners
={ commoners :
     rise of +21
}

But who shall do the negotiating? Who will set forth a compelling alternative
to centralized media, and build it? That task has fallen to a loosely
coordinated global federation of digital tribes — the free software and
open-source hackers, the Wikipedians, the bloggers and citizen-journalists, the
remix musicians and filmmakers, the avant-garde artists and political
dissidents, the educators and scientists, and many others. It is a spontaneous
folk-tech conspiracy that belongs to everyone and no one.

As we will see in chapter 1, Richard Stallman, the legendary hacker, played an
indispensable first-mover role by creating a sovereign domain from which to
negotiate with commercial players: free software. The software commons and
later digital commons inspired by it owe an incalculable debt to Stallman’s
ingenious legal innovation, the General Public License, or GPL, launched in
1989. The GPL is a license for authorizing anyone to use a copyrighted software
program so long as any copies or derivative versions are also made available on
the same terms. This fairly simple license enables programmers to contribute
code to a common pool without fear that someone might privatize and destroy the
commons.
={ General Public License (GPL) }

As the computer revolution continued through the 1980s and the Internet went
wide in the 1990s, the antisocial, antidemocratic implications of copyright law
in networked spaces became more evident. As we will see in chapter 2, a growing
community of progressive legal scholars blew the whistle on some nasty
developments in copyright law that were shrinking the public’s fair use rights
and the public domain. Scholars such as James Boyle, Pamela Samuelson, Jessica
Litman, Yochai Benkler, Lawrence Lessig, Jonathan Zittrain, and Peter Jaszi
provided invaluable legal analyses about the imperiled democratic polity of
cyberspace.
={ Lessig, Lawrence +2 }

By the late 1990s, this legal scholarship was in full flower, Internet usage
was soaring, and the free software movement produced its first significant free
operating system, GNU/Linux. The commoners were ready to take practical action.
Lessig, then a professor at Harvard Law School, engineered a major
constitutional test case, /{Eldred v. Reno}/ (later /{Eldred v. Ashcroft}/), to
try to strike down a twentyyear extension of copyright terms — a case that
reached the U.S. Supreme Court in 2002. At the same time, Lessig and a number
of his colleagues, including MIT computer scientist Hal Abelson, Duke law
professor James Boyle, and Villanova law professor Michael W. Carroll, came
together to explore innovative ways to protect the public domain. It was a rare
moment in history in which an ad hoc salon of brilliant, civic-minded thinkers
from diverse fields of endeavor found one another, gave themselves the freedom
to dream big thoughts, and embarked upon practical plans to make them real.
={ GNU/Linux ;
   Linux :
     see also GNU/Linux ;
   Eldred v. Reno/Eldred v. Ashcroft
}

The immediate upshot of their legal and techno ingenuity, as we will see in
chapters 3 and 4, was the drafting of the Creative Commons licenses and the
organization that would promote them. The purpose of these free, standardized
public licenses was, and is, to get beyond the binary choice imposed by
copyright law. Why must a work be considered either a chunk of privately owned
property or a kind of nonproperty completely open to anyone without constraint
(“in the public domain”)? The CC licenses overcome this stifling either/or
logic by articulating a new middle ground of ownership that sanctions sharing
and collaboration under specified terms. To stress its difference from
copyright law, which declares “All Rights Reserved,” the Creative Commons
licenses bear the tagline “Some Rights Reserved.”
={ Creative Commons (CC) licenses +2 :
     copyright law, and +2 ;
   Copyright law :
     CC licenses +2
}

Like free software, the CC licenses paradoxically rely upon copyright law to
legally protect the commons. The licenses use the rights of ownership granted
by copyright law not to exclude others, but to invite them to share. The
licenses recognize authors’ interests in owning and controlling their work —
but they also recognize that new creativity owes many social and
intergenerational debts. Creativity is not something that emanates solely from
the mind of the “romantic author,” as copyright mythology has it; it also
derives from artistic communities and previous generations of authors and
artists. The CC licenses provide a legal means to allow works to circulate so
that people can create something new. /{Share, reuse, and remix, legally}/, as
Creative Commons puts it.

After the licenses were introduced in December 2002, they proliferated
throughout the Internet and dozens of nations as if by spontaneous combustion.
It turns out that the licenses have been more than a legal fix for the
limitations of copyright law. They are a powerful form of social signaling. The
licenses have proven to be a flag for commoners to advertise their identities
as members of a culturally insurgent sharing economy — an aesthetic/political
underground, one might say. Attaching the CC logo to one’s blog, video, MP3
file, or laptop case became a way to proclaim one’s support for free culture.
Suddenly, all sorts of participatory projects could be seen as elements of a
larger movement. By 2007, authors had applied one or more of six CC licenses to
90 million works, by one conservative estimate, or more than 220 million works
by another estimate. Collectively, CC-licensed works constitute a class of
cultural works that are “born free” to be legally shared and reused with few
impediments.

A great deal of the Creative Commons story revolves around its founder, the
cerebral yet passionate Larry Lessig, a constitutional law professor at Harvard
in the mid-1990s until a move to Stanford Law School in 2000. As a scholar with
a sophisticated grasp of digital technologies, Lessig was one of the first to
recognize that as computers became the infrastructure for society, software
code was acquiring the force of law. His 1999 classic, /{Code and Other Laws of
Cyberspace}/, is renowned for offering a deep theoretical framework for
understanding how politics, law, technology, and social norms shape the
character of cyberspace — and in turn, any society.
={ Lessig, Lawrence :
     Code and Other Laws of Cyberspace
}

In popularizing this message, it didn’t hurt that Lessig, an experienced
classroom lecturer, is a poised and spellbinding performer. On the tech and
copyright circuit, in fact, he has become something of a rock star. With his
expansive forehead and wire glasses, Lessig looks every bit the professor he
is. Yet in his signature black jeans and sport jacket, delivering punchy
one-liners punctuated by arresting visuals projected on a big screen behind
him, Lessig makes a powerful impression. He’s a geek-chic techie, intellectual,
legal activist, and showman all rolled into one.

From the beginning, Lessig and his colleagues wondered, How far can the sharing
ethic be engineered? Just how far can the idea of free culture extend? As it
turns out, quite far. At first, of course, the free culture project was applied
mostly to Web-based text and music. But as we see in chapters 5 through 12, the
technologies and ethic of free culture have rapidly taken root in many creative
sectors of society — video, music, books, science, education — and even
business and international arts and culture.

!{/{Remix culture.}/}! Thanks to digital technologies, musicians can sample
verbatim snippets of other musicians’ work in their own works, producing
“remixes” that blend sounds from a number of copyrighted songs. It’s all
patently illegal, of course, unless you’re wealthy enough to pay for the rights
to use a sample. But that hasn’t stopped artists.
={ music :
     remixes +2 ;
   remix works +2
}

In fact, the underground remix scene has become so robust that even established
artists feel obliged to engage with it to bolster their street cred. With a
wink and a nudge from record labels, major rap stars like Jay-Z and Eminem have
released instrumental tracks of their records in the hope and expectation that
remix /{auteurs}/ will recycle the tracks. Record labels have quietly relied on
mixtapes— personalized compilations of tracks — to gain exposure and
credibility.~{ See, e.g., Joanna Demers, /{Steal This Music: How Intellectual
Property Law Affects Musical Creativity}/ (Athens: University of Georgia Press,
2006); Kelefa Sanneh, “Mixtapes Mix in Marketing,” New York Times, July 20,
2006. }~ To help an illegal social art go legit, many artists are using
Creative Commons licenses and public-domain sound clips to build a legal body
of remix works.

In the video world, too, the remix impulse has found expression in its own form
of derivative creativity, the mashup. From underground remakes of /{Star Wars}/
films to parodies of celebrities, citizenamateurs are taking original video
clips and mixing them with other images, pop music tracks, and their own
narrations. When Alaska senator Ted Stevens compared the Internet to a “series
of tubes,” video clips of his rambling speech were mashed up and set to a
techno dance beat. Beyond this playful subculture, serious filmmakers are using
CC licenses on their works to develop innovative distribution systems that
attract large audiences and earn money. Machinima animations — a filmmaking
technique that uses computer game action sequences, shot with in-game cameras
and then edited together — are pioneering a new market niche, in part through
their free distribution under a CC license.
={ Machinima animations ;
   Stevens, Ted
}

!{/{Open business.}/}! One of the most surprising recent developments has been
the rise of “open business” models. Unlike traditional businesses that depend
upon proprietary technology or content, a new breed of businesses see lucrative
opportunities in exploiting open, participatory networks. The pioneer in this
strategy was IBM, which in 2000 embraced GNU/Linux, the open-source computer
operating system, as the centerpiece of its service and consulting business.~{
Steve Lohr, “IBM to Give Free Access to 500 Patents, /{New York Times}/, July
11, 2005. See also Steven Weber, /{The Success of Open Source Software}/
(Cambridge, Mass.: Harvard University Press, 2004), pp. 202–3. See also Pamela
Samuelson, “IBM’s Pragmatic Embrace of Open Source,” /{Communications of the
ACM}/ 49, no. 21 (October 2006). }~ Dozens of small, Internet-based companies
are now exploiting open networks to build more flexible, sustainable
enterprises.
={ GNU/Linux :
     IBM, and ;
   IBM :
     GNU/Linux, and ;
   open business models +1
}

The key insight about many open-platform businesses is that they no longer look
to copyright or patent law as tools to assert market control. Their goal is not
to exclude others, but to amass large communities. Open businesses understand
that exclusive property rights can stifle the value creation that comes with
mass participation, and so they strive to find ways to “honor the commons”
while making money in socially acceptable forms of advertising, subscriptions,
or consulting services. The brave new economics of “peer production” is
enabling forward-thinking businesses to use social collaboration among
thousands, or even millions, of people to create social communities that are
the foundation for significant profits. /{BusinessWeek}/ heralded this
development in a major cover story in 2005, “The Power of Us,” and called
sharing “the net’s next disruption.”~{ Robert D. Hof, “The Power of Us: Mass
Collaboration on the Internet Is Shaking Up Business,” /{BusinessWeek}/, June
20, 2005, pp. 73–82. }~

!{/{Science}/}! as a commons. The world of scientific research has long
depended on open sharing and collaboration. But increasingly, copyrights,
patents, and university rules are limiting the flow of scientific knowledge.
The resulting gridlock of rights in knowledge is impeding new discoveries and
innovation. Because of copyright restrictions and software incompatibilities,
scientists studying genetics, proteins, and marine biology often cannot access
databases containing vital research. Or they cannot easily share physical
samples of lab samples. When the maker of Golden Rice, a vitamin-enhanced
bioengineered rice, tried to distribute its seeds to millions of people in poor
countries, it first had to get permissions from seventy patent holders and
obtain six Material Transfer Agreements (which govern the sharing of biomedical
research substances).~{ Interview with John Wilbanks, “Science Commons Makes
Sharing Easier,” /{Open Access Now}/, December 20, 2004, available at
http://www.biomedcentral.com/openaccess/archive/?page=features&issue=23. }~
={ Wilbanks, John +1 ;
   Science Commons :
     CC Commons spinoff, and +1
}

The problem of acquiring, organizing, and sharing scientific knowledge is
becoming more acute, paradoxically enough, as more scientific disciplines
become dependent on computers and the networked sharing of data. To help deal
with some of these issues, the Creative Commons in 2005 launched a new project
known as the Science Commons to try to redesign the information infrastructure
for scientific research. The basic idea is to “break down barriers to sharing
that are hindering innovation in the sciences,” says John Wilbanks, executive
director of Science Commons. Working with the National Academy of Sciences and
other research bodies, Wilbanks is collaborating with astronomers,
archaeologists, microbiologists, and medical researchers to develop better ways
to make vast scientific literatures more computer-friendly, and databases
technically compatible, so that they can be searched, organized, and used more
effectively.

!{/{Open education and learning.}/}! A new class of knowledge commons is poised
to join free and open-source software, the Creative Commons and Wikipedia as a
coherent social movement. The new groundswell goes by the awkward name “Open
Educational Resources,” or OER.~{ See, e.g., Daniel E. Atkins, John Seely
Brown, and Allen L. Hammond, “A Review of the Open Educational Resources (OER)
Movement: Achievements, Challenges and New Opportunities,” February 2007,
available at http://www.oerderves.org/?p=23. }~ One of the earlier pioneers of
the movement was the Massachusetts Institute of Technology which has put
virtually all of its course materials on the Web, for free, through its
OpenCourseWare initiative. The practice has now spread to scores of colleges
and universities around the world, and inspired a broader set of OER
initiatives: digital repositories for articles, reports, and data; open-access
scholarly journals that bypass expensive commercial publishers; and
collaborative Web sites for developing teaching materials. There are wikis for
students and scholars working together, sites to share multimedia
presentations, and much more.
={ education :
     OER movement +1 ;
   pen Educational Resources (OER) movement +1 ;
   Wikipedia :
     social movement, as +1 ;
   Creative Commons (CC) :
     social movement, as +1
}

The OER movement has particular importance for people who want to learn but
don’t have the money or resources — scholars in developing countries, students
struggling to pay for their educations, people in remote or rural locations,
people with specialized learning needs. OER is based on the proposition that it
will not only be cheaper or perhaps free if teachers and students can share
their materials through the Web, it will also enable more effective types of
learning. So the OER movement is dedicated to making learning tools cheaper and
more accessible. The revolutionary idea behind OER is to transform traditional
education — teachers imparting information to passive students — into a more
learnerdriven process facilitated by teachers. Self-directed, socially driven
learning supplants formal, hierarchical modes of teaching.

!{/{The international sharing economy.}/}! Shortly after the first CC licenses
were released in 2002, dozens of exceptionally capable volunteers — from Japan,
Finland, Brazil, South Africa, and other countries — came knocking on the door
of CC. How can we adapt the American CC licenses to our respective national
legal systems? they asked. This unexpected turn prompted the Creative Commons
to inaugurate Creative Commons International, based in Berlin, Germany, to
supervise the complicated task of “porting” the U.S. licenses to other legal
jurisdictions. To date, CC affiliates in fortyseven nations have adapted the
U.S. licenses to their legal systems, and another seventeen have porting
projects under way.
={ Creative Commons International +1 }

The volunteers include avant-garde artists in Croatia, free software
programmers in the Netherlands, South Korean judges, Italian law professors,
South African musicians, Malaysian citizenjournalists, Bulgarian filmmakers,
and Taiwanese songwriters. The passionate international licensing movement has
even been embraced by the Brazilian government, which has proclaimed itself the
first Free Culture Nation. As usage of the licenses spreads, they are
effectively becoming the default international legal structure of the sharing
economy.

2~ A New Type of Emergent Democracy?

Peter Suber, a leading champion of open-access scholarly publishing, once
explained to me why a disparate, rambunctious crowd of commoners spread around
the globe might wish to work together to do something about their plight.
“People are taking back their culture,” Peter said. “People who have not been
served by the current law have quietly endured it until they saw that they
didn’t have to.”~{ Interview with Peter Suber, June 28, 2006. }~ The Creative
Commons has become both a symbol and a tool for people to reclaim creativity
and culture from the mass-media leviathans. The licenses and the organization
have become instruments to advance a participatory, sharing economy and
culture.
={ Suber, Peter }

How far can it go? Will it significantly affect conventional politics and
government? Can it bring market forces and social needs into a more positive
alignment?

This book is about the struggle to imagine this new world and push it as far as
it can go. It is, in one sense, a history, but “history” suggests that the
story is over and done. The truth is that the commons movement is tremendously
robust and expansive right now. The early history about free software, the
public domain, and the Creative Commons is simply a necessary foundation for
understanding the propulsive logic of what is happening.

The story told in these pages is not entirely new; it has been told in
fragments and through the restless lens of journalism. But it has not been told
in its larger conceptual and historical sweep. That’s partly because most of
its players are usually seen in isolation from one another, and not put in the
context of the larger open-platform revolution. It’s also because the free
culture movement, nothwithstanding its vigor, is generally eclipsed by the
bigmoney corporate developments that are ostensibly more important. But that is
precisely the problem: conventional economics does not understand the actual
significance of open platforms and the commons. We need to understand what the
online commons represent: a powerful sociotechnological paradigm that is
reordering some basic dynamics of creative practice, culture, politics, and
everyday life.

I am no bystander in this story, it must be said, but a commoner who has
grappled with the quandaries of copyright law and the public domain for nearly
twenty years. In 2001, after co-founding Public Knowledge, a Washington
advocacy group to defend the public’s stake in copyright and Internet policies,
I went on to write books on the market enclosure of myriad commons and on the
absurd expansions of copyright and trademark law. Over the course of this work,
I discovered how a commons analysis can help us understand the digital
revolution. It can help us see that it is not just about technological
innovation, but about social and legal innovations. Reading Elinor Ostrom and
Yochai Benkler, in particular — two leading theorists of the commons — I came
to realize that social communities, and not just markets, must be recognized as
powerful vehicles for creating value. I realized that many basic assumptions
about property rights, as embedded in copyright law and neoclassical economics,
fail to take account of the generative power of online communities.
={ Public Knowledge }

How then shall we create the commons and protect it? That question lies at the
core of this book and the history of the commoners in cyberspace. I am mostly
interested in exploring how the Creative Commons has galvanized a variety of
interrelated crusades to build a digital republic of, by, and for the
commoners. One reason why a small licensing project has grown into a powerful
global brand is that, at a time of mass-media dominance and political
stalemate, free culture offers an idealistic alternative vision. Something you
can do. A movement in which everyone can play some useful role. The free
culture movement stands for reclaiming culture by making it yourself and for
reviving democracy by starting in your own digital backyard. CC stands for
personal authenticity and diversity in a world of stale, mass-marketed product.
It stands for good fun and the joys of sharing.

Put the CC logo on your blog or music CD or video, and you too can belong to a
movement that slyly sticks it to Big Media without getting into an ugly brawl.
Don’t get mad, the CC community seems to whisper. Just affiliate with a growing
virtual nation of creative renegades. Transcend a rigged game by migrating to a
commons of your own making. Build therefore your own world, in the manner of
Henry David Thoreau — then imagine its embrace by many others. Imagine it
radiating into conventional politics with a refreshing ethic of open
accountability and earned rewards, a contempt for coercive business practices
and governmental abuses, and an insistence upon transparency, participation,
and the consent of the governed. You may be an entrepreneur who just wants to
build a profitable business, or a scientist who just wants to find better ways
to research Huntington’s disease. The commons has some solutions in these
areas, too. This big-tent movement is unabashedly ecumenical.

This is the vision now exploding around the world anyway. The recurring
question in its earliest days, and now, remains — How can we build it out?
/{Can}/ it be built out? And how far? For the commoners, just asking the
question is halfway to answering it.

:B~ PART I

:C~ Harbingers of the Sharing Economy

1~intro_i [Intro] -#

The rise of the sharing economy had its roots among the renegades living on the
periphery of mainstream culture. At the time, they were largely invisible to
one another. They had few ways of making common cause and no shared language
for even naming the forces that troubled them. It was the 1990s, after all, a
time of alluring mercantile fantasies about the limitless possibilities of the
laissez-faire “information superhighway.” Even for those who could pierce the
mystifications, the new technologies were so new, powerful, and perplexing that
it was difficult to understand their full implications.

The renegades, while sharing a vision of technological progress, were disturbed
by many on-the-ground realities. A small network of hackers, for example, was
enraged to learn that software was becoming a closed, proprietary product.
Companies could prohibit interested individuals from tinkering with their own,
legally purchased software. On both creative and political grounds, this
development was odious to Richard Stallman, a brilliant programmer who soon
hatched a dream of building a protected kingdom of “free software,” the subject
of chapter 1.
={ software :
     proprietary ;
   Stallman, Richard
}

Meanwhile, a loose community of legal scholars and tech activists was becoming
alarmed by the antisocial, anti-democratic tendencies of copyright law and
digital technology. Scholars such as Lawrence Lessig, James Boyle, and Hal
Abelson began to realize that copyright law and software code were acquiring
unsuspected powers to redesign our political and social order. They also began
to understand the ways in which the public domain is not a wasteland, as
conventional minds had long supposed, but a highly generative zone of culture.
This intellectual journey is described in chapter 2.
={ Abelson, Hal ;
   Boyle, James ;
   Lessig, Lawrence +1
}

Finally, it was becoming painfully apparent to yet another amorphous band of
renegades — artists, musicians, writers, scientists, educators, citizens — that
copyright law and technological controls were artificially restricting their
creative freedoms. With scant public attention, the music, film, and publishing
industries were using their clout to protect their archaic business models at
the expense of innovation and the commons. This onslaught ultimately provoked
one exemplary commoner, Eric Eldred, to team up with legal scholar Lawrence
Lessig to mount an unprecedented constitutional challenge to copyright law, the
focus of chapter 3.

None of these surges of innovative dissent was well funded or particularly
promising. For the most part, they were improvisational experiments undertaken
by public-spirited individuals determined to vindicate their visions for a
better society. With the benefit of hindsight, we can now see that while many
of these initiatives were only partially successful, each was indispensable to
the larger, later task of imagining and building a digital republic to secure
basic human freedoms, the subject of Part II.

1~ 1 IN THE BEGINNING WAS FREE SOFTWARE
={ Stallman, Richard +34 ;
   General Public License (GPL) +1
}

/{Richard Stallman's mythic struggle to protect the commons of code set the
viral spiral in motion.}/

The struggle to imagine and invent the software commons, which later set in
motion a viral spiral now known as free culture, began with Richard Stallman, a
brilliant, eccentric MIT computer programmer. Stallman’s history as a hacker
and legal innovator has by now become the stuff of legend. As one of the first
people to confront the deep tensions between proprietary control and the public
domain in software development, Stallman has achieved that rare pinnacle in the
high-tech world, the status of celebrity geek. Besides his programming prowess,
he is renowned for devising the GNU General Public License, more commonly known
as the GPL, an ingenious legal mechanism to protect shared software code.
={ free culture +33 }

Stallman — or RMS, as he likes to be called — has become an iconic figure in
the history of free culture in part because he showed courageous leadership in
protecting the commons well before anyone else realized that there was even a
serious problem. He was a lone voice in the wilderness for at least ten years
before the Internet became a mass medium, and so has earned enormous
credibility as a leader on matters of free culture. He has also been reviled by
some as an autocratic zealot with bad manners and strident rhetoric.

It is perhaps fitting that Stallman could be mistaken for an Old Testament
prophet. He is a shaggy, intense, and fiercely stubborn guy. On his Web site,
visitors can find a gag photo of him posed as Saint IGNUcius, with his hand
raised in mock genuflection and his head encircled by a gold aureole (held in
place by two admiring acoyltes). He has been known to deliver lectures
barefoot, sleep on the couch in a borrowed office for weeks at a time, and
excoriate admirers for using taboo phrases like “intellectual property” and
“copyright protection.” Stallman explains that “intellectual property”
incorrectly conflates three distinct bodies of law — copyright, patent, and
trademark — and emphasizes individual property rights over public rights.
“Copyright protection” is misleading, he says, because it implies a positive,
necessary act of /{defending}/ something rather than an acquisitive, aggressive
act of a monopolist. Stallman considers /{content}/ to be a disparaging word,
better replaced by “works of authorship.” He has even made a list of fourteen
words that he urges people to avoid because of their politically misleading
valences.~{ Joshua Gray, editor, /{Free Software Free Society: Selected Essays
of Richard M. Stallman}/ (Boston: GNU Press, 2002), pp. 190–91. }~
={ authorship ;
   intellectual property
}

Even though Stallman frequently speaks to august academic and scientific
gatherings, and meets with the heads of state in developing countries, he
resembles a defiant hippie, Yet for his visionary role in developing free
software and the free software philosophy, Stallman is treated as if he were a
head of state . . . which, in a way, he is. His story has irresistible
mythological resonances — the hero’s journey through hardship and scorn, later
vindicated by triumph and acclaim. But for many, including his most ardent
admirers, Stallman’s stubborn idealism can also be supremely maddening.
={ free software }

His first encounter with the creeping ethic of proprietary control, in the late
1970s, is an oft-told part of his story. The Xerox Corporation had donated an
experimental laser printer to the MIT Artificial Intelligence Lab, where
Stallman was then a graduate student. The printer was constantly jamming,
causing frustration and wasting everyone’s time. Stallman wanted to devise a
software fix but he discovered that the source code was proprietary. Determined
to find out who was responsible and force them to fix it, he tracked down a
computer scientist at Carnegie Mellon University who had supposedly written the
code — but the professor refused to help him; he had signed a nondisclosure
agreement with Xerox prohibiting him from sharing the code.
={ Xerox Corporation +1 ;
   software :
     proprietary +1
}

Stallman considered Xerox’s lockup of code a profound moral offense that
violated the integrity of the hacker community. (Among practitioners,
/{hacker}/ is a term of respect for an ingenious, resourceful programmer, not
an accusation of criminality.) Not only did it prevent people from fixing their
own equipment and software, the nondisclosure agreement flouted the Golden
Rule. It prohibited sharing with one’s neighbor. The proprietary ethic was not
just immoral, by Stallman’s lights, but a barrier to developing great software.
={ hackers :
     use of term
}

By the late 1970s, he had developed a breakthrough text editor, Emacs, in
collaboration with a large community of programmers. “Everybody and his brother
was writing his own collection of redefined screen-editor commands, a command
for everything he typically liked to do,” Stallman wrote. “People would pass
them around and improve them, making them more powerful and more general. The
collections of redefinitions gradually became system programs in their own
right.”~{ Sam Williams, /{Free as in Freedom: Richard Stallman’s Crusade for
Free Software}/ (Sebastopol, CA: O’Reilly & Associates 2002), pp. 76–88. }~
Emacs was one of the first software projects to demonstrate the feasibility of
large-scale software collaboration and the deep well of innovative ideas that
it could yield. Emacs enabled programmers to add new features with great ease,
and to constantly upgrade and customize the program with the latest
improvements. The Emacs experiment demonstrated that /{sharing}/ and
/{interoperability}/ are vital principles for a flourishing online commons.
={ Emacs +2 ;
   Stallman, Richard :
     Emacs, and +2
}

Two problems quickly emerged, however. If people did not communicate their
innovations back to the group, divergent streams of incompatible code would
produce a Tower of Babel effect. Second, if the code and its derivations were
not shared with everyone, the usefulness of the program would slowly decline.
The flow of innovation would dissipate.

To solve these problems, Stallman invented a user contract that he called the
“Emacs Commune.” It declared to all users that Emacs was “distributed on a
basis of communal sharing, which means that all improvements must be given back
to me to be incorporated and distributed.” He enforced the provisions of the
contract with an iron hand. As Stallman biographer Sam Williams writes, when
the administrators for the MIT Laboratory for Computer Science instituted a new
password system — which Stallman considered an antisocial power grab — he
“initiated a software ‘strike,’ refusing to send lab members the latest version
of Emacs until they rejected the security system on the lab’s computers. The
move did little to improve Stallman’s growing reputation as an extremist, but
it got the point across: commune members were expected to speak up for basic
hacker values.”
={ Williams, Sam }

Stallman was groping for a way to sustain the hacker ethic of community and
sharing in the face of new types of top-down control. Some programmers were
beginning to install code that would turn off access to a program unless money
was paid. Others were copyrighting programs that had been developed by the
community of programmers. Bill Gates, as an undergraduate at Harvard in the
late 1970s, was nearly expelled for using publicly funded labs to create
commercial software. He was forced to put his code into the public domain,
whereupon he left the university to found an obscure Albuquerque company called
Micro-Soft.
={ authorship :
     community access ;
   Gates, Bill ;
   hackers :
     use of term +5
}

Software was simply becoming too lucrative for it to remain a shared resource —
an attitude that enraged Stallman. He was determined to preserve the integrity
of what we would now call the software commons. It was an immense challenge
because copyright law makes no provisions for community ownership of creative
work beyond “joint authorship” among named individuals. Stallman wanted to
devise a way to ensure that all the talent and innovation created by commoners
would /{stay}/ in the commons. The idea that an outsider — a university
administrator, software entrepreneur, or large company — could intrude upon a
hacker community and take its work was an appalling injustice to Stallman.
={ authorship :
     joint ;
   copyright law :
     community authorship vs. ;
   commons :
     copyright law vs.
}

Yet this was precisely what was happening to the hacker community at MIT’s AI
Lab in the early 1980s. It was slowly disintegrating as one programmer after
another trooped off to join commercial software ventures; the software itself
was becoming annexed into the marketplace. Software for personal computers,
which was just then appearing on the market, was sold as a proprietary product.
This meant that the source code — the deep design architecture of the program
that operated everything — was inaccessible.~{ Steven Levy, /{Hackers: Heroes
of the Computer Revolution}/ (New York: Delta, 1993), pp. 425, 427. }~ Perhaps
most disturbing to Stallman at the time was that the leading mainframe
operating system, Unix, was locking up its source code. Unix had been developed
by AT&T with generous federal funding, and had been generally available for
free within academic computing circles. At the time, most mainframe software
was given away to encourage buyers to purchase the computer hardware. But when
the Department of Justice broke up AT&T in 1984 to spur competition, it also
enabled AT&T to enter other lines of business. Naturally, the company was eager
to maximize its profits, so in 1985 it began to charge a licensing fee for
Unix.
={ AT&T ;
   Unix ;
   software :
     source code for
}

Stallman grieved at the disintegration of the hacker community at the AI Lab as
closed software programs inexorably became the norm. As he wrote at the time:

_1 The people remaining at the lab were the professors, students, and
non-hacker researchers, who did not know how to maintain the system, or the
hardware, or want to know. Machines began to break and never be fixed;
sometimes they just got thrown out. Needed changes in software could not be
made. The non-hackers reacted to this by turning to commercial systems,
bringing with them fascism and license agreements. I used to wander through the
lab, through the rooms so empty at night where they used to be full, and think,
“Oh my poor AI lab! You are dying and I can’t save you.”

Stallman compared himself to Ishi, “the last survivor of a dead [Native
American] culture. And I don’t really belong in the world anymore. And in some
ways I feel I ought to be dead.”

Stallman decided to leave MIT — why stay? — but with a brash plan: to develop a
free software operating system that would be compatible with Unix. It would be
his brave, determined effort to preserve the hacker ethic. He dubbed his
initiative the GNU Project, with “GNU” standing for “GNU’s Not Unix” — a
recursive hacker’s pun. He also started, in 1985, the Free Software Foundation
to help develop GNU software projects and distribute them for free to anyone.
(The foundation now occupies a fifth-floor office on a narrow commercial street
in downtown Boston.)
={ Unix ;
   free software ;
   Free Software Foundation ;
   GNU Project +3 ;
   Stallman, Richard :
     free software, and | GNU Project, and +3
}

The Emacs Commune experience had taught Stallman about the limits of informal
social norms in protecting the software commons. It also revealed the
difficulties of being the central coordinator of all code changes. This time,
in developing a set of software programs for his GNU Project, Stallman came up
with a better idea — a legally enforceable license. The goal was to ensure that
people could have free access to all derivative works and share and reuse
software. The licensing rights were based on the rights of ownership conferred
by copyright law.
={ Emacs ;
   Stallman, Richard :
     Emacs, and ;
   authorship :
     community access ;
   copyright law :
     community authorship vs. +2 | licensing rights +2
}

Stallman called his license the GNU General Public License, or GPL. He
puckishly referred to it as “copyleft,” and illustrated it with a reverse
copyright symbol (a backward c in a circle). Just as programmers pride
themselves on coming up with ingenious hacks to solve a software problem, so
the GPL is regarded as a world-class hack around copyright law. Copyright law
has no provisions for protecting works developed by a large community of
creators. Nor does it offer a way to prevent works from being made proprietary.
Indeed, that’s the point of copyright law — to create private property rights.
={ software :
     proprietary ;
   copyright law :
     property rights, and ;
   General Public License (GPL) +14 ;
   property rights, and copyright law ;
   Stallman, Richard :
     GPL, and +14
}

The GPL bypasses these structural limitations of copyright law by carving out a
new zone of collective ownership. A work licensed under the GPL permits users
to run any program, copy it, modify it, and distribute it in any modified form.
The only limitation is that any derivative work must also be licensed under the
GPL. This provision of the GPL means that the license is /{automatically}/
applied to any derivative work, and to any derivative of a derivative, and so
on — hence its viral nature.~[* Stallman told me he considers it “a common
calumny to compare the GNU GPL to a virus. That is not only insulting (I have a
virus infection in my throat right now and it is no fun), it is also
inaccurate, because the GPL does not spread like a virus. It spreads like a
spider plant: if you cut off a piece and plant it over here, it grows over
here.]~ The GPL ensures that the value created by a given group of commoners
shall stay within the commons. To guarantee the viral power of the license,
users of GPL’d works cannot modify the licensing terms. No one has to pay to
use a GPL’d work — but as a condition for using it, people are legally obliged
to license any derivative versions under the GPL. In this way, a GPL’d work is
born and forever protected as “shareable.”
={ collective ownership ;
   General Public License (GPL) :
     viral nature of ;
   software :
     user freedoms ;
   Stallman, Richard :
     freedom, and
}

Version 1.0 of the GPL was first published in 1989. It was significant, writes
Sam Williams, because it “demonstrated the intellectual similarity between
legal code and software code. Implicit within the GPL’s preamble was a profound
message: instead of viewing copyright law with suspicion, hackers should view
it as yet another system begging to be hacked.”~{ Williams, /{Free as in
Freedom}/, p. 127. }~ The GPL also served to articulate, as a matter of law,
the value of collaborative work. A universe of code that might previously have
been regarded as part of the “public domain” — subject to free and unrestricted
access — could now be seen in a subtly different light.
={ authorship :
     community access ;
   Williams, Sam ;
   public domain :
     GPL, and
}


A GPL’d work is not part of the public domain, because the public domain has no
rules constraining how a work may be used. Works in the public domain are open
to anyone. The GPL is similar, but with one very important restriction: no
private appropriation is allowed. Any follow-on uses must remain free for
others to use (a provision that some property rights libertarians regard as
“coercive”). Works in the public domain, by contrast, are vulnerable to
privatization because someone need only add a smidgen of “originality” to the
work and she would own a copyright in the resulting work. A GPL’d work and its
derivatives stay free forever — because anyone who tries to privatize a GPL’d
work is infringing on the license.

For Stallman, the GPL became the symbol and tool for enacting his distinct
political vision of “freedom.” The license rests on four kinds of freedoms for
users of software (which he lists using computer protocols):
={ software :
     user freedoms +4 ;
   Stallman, Richard :
     freedom, and +5
}

_1 Freedom 0: The freedom to run the program for any purpose;

_1 Freedom 1: The freedom to study how the program works, and to adapt it to
your needs. (Access to the source code is a precondition for this);
={ authorship :
     community access
}

_1 Freedom 2: The freedom to redistribute copies so you can help your neighbor;
and

_1 Freedom 3: The freedom to improve the program, and release your improvements
to the public, so that the whole community benefits. (Access to the source code
is a precondition for this.)
={ authorship :
     community access
}

Stallman has become an evangelist for the idea of freedom embodied in all the
GNU programs. He refuses to use any software programs that are not “free,” and
he has refused to allow his appearances to be Webcast if the software being
used was not “free.” “If I am to be an honest advocate for free software,” said
Stallman, “I can hardly go around giving speeches, then put pressure on people
to use nonfree software. I’d be undermining my own cause. And if I don’t show
that I take my principles seriously, I can’t expect anybody else to take them
seriously.”~{ Stallman at MIT forum, “Copyright and Globalization in the Age of
Computer Networks,” April 19, 2001, available at
http://media-in-transition.mit.edu/forums/copyright/transcript.html. }~
={ Stallman, Richard :
     free software, and +2
}

Stallman has no problems with people making money off software. He just wants
to guarantee that a person can legally use, copy, modify, and distribute the
source code. There is thus an important distinction between software that is
commercial (possibly free) and software that is proprietary (never free).
Stallman tries to explain the distinction in a catchphrase that has become
something of a mantra in free software circles: /{“free as in ‘free speech,’
not as in ‘free beer.’”}/ The point is that code must be freely accessible, not
that it should be free of charge. (This is why “freeware” is not the same as
free software. Freeware may be free of charge, but it does not necessarily make
its source code accessible.)
={ freeware vs. free software ;
   software :
     proprietary | source code for
}

Eben Moglen, a professor of law at Columbia University and general counsel for
the Free Software Foundation since 1994, calls the provisions of the GPL
“elegant and simple. They respond to the proposition that when the marginal
cost of goods is zero, any nonzero cost of barbed wire is too high. That’s a
fact about the twentyfirst century, and everybody had better get used to it.
Yet as you know, there are enormous cultural enterprises profoundly committed
to the proposition that more and more barbed wire is necessary. And their basic
strategy is to get that barbed wire paid for by the public everywhere.”~{ Eben
Moglen, “Freeing the Mind: Free Software and the Death of Proprietary Culture,”
June 29, 2003, available at
http://emoglen.law/columbia.edu/publications/maine-speech.html. }~
={ Moglen, Eben ;
   Free Software Foundation
}

The GPL truly was something new under the sun: a legally enforceable tool to
vouchsafe a commons of software code. The license is based on copyright law yet
it cleverly turns copyright law against itself, limiting its reach and carving
out a legally protected zone to build and protect the public domain. In the
larger scheme of things, the GPL was an outgrowth of the “gift economy” ethic
that has governed academic life for centuries and computer science for decades.
What made the GPL different from these (abridgeable) social norms was its legal
enforceability.
={ gift economy ;
   Internet :
     gift economy of +1 ;
   General Public License (GPL) :
     legal enforceability of
}

The GPL might well have remained an interesting but arcane curiosity of the
software world but for two related developments: the rise of the Internet in
the 1990s and software’s growing role as core infrastructure in modern society.
As the computer and Internet revolutions have transformed countless aspects of
daily life, it has become evident that software is not just another product.
Its design architecture is seminally important to our civic freedoms and
democratic culture. Or as Lawrence Lessig famously put it in his 1999 book
/{Code}/, “code is law.” Software can affect how a business can function, how
information is organized and presented, and how individuals can think, connect
with one another, and collaborate. Code invisibly structures people’s
relationships, and thus serves as a kind of digital constitutional order. As an
economic force, software has become as critical as steel or transportation in
previous eras: a building block for the basic activities of the economy,
businesses, households, and personal life.
={ Lessig, Lawrence :
     Code and Other Laws of Cyberspace ;
   code :
     as law ;
   free culture :
     Internet, of the +2 ;
   law :
     code as ;
   Internet :
     rise of ;
   software :
     core infrastructure, as
}

Stallman’s atavistic zeal to preserve the hacker community, embodied in the
GPL, did not immediately inspire others. In fact, most of the tech world was
focused on how to convert software into a marketable product. Initially, the
GPL functioned like a spore lying dormant, waiting until a more hospitable
climate could activate its full potential. Outside of the tech world, few
people knew about the GPL, or cared.~[* The GPL is not the only software
license around, of course, although it was, and remains, the most demanding in
terms of protecting the commons of code. Other popular open-source licenses
include the MIT, BSD, and Apache licenses, but each of these permit, but do not
require, that the source code of derivative works also be freely available. The
GPL, however, became the license used for Linux, a quirk of history that has
had far-reaching implications.]~ And even most techies were oblivious to the
political implications of free software.
={ hackers :
     community of
}

Working under the banner of the Free Software Foundation, Stallman continued
through the 1980s and 1990s to write a wide number of programs needed to build
a completely free operating system. But just as Lennon’s music was better after
finding McCartney, Stallman’s free software needed to find Linus Torvalds’s
kernel for a Unix-like operating system. (A kernel is the core element of an
operating system that controls how the various applications and utilities that
comprise the system will run.)
={ Free Software Foundation ;
   Torvalds, Linus +1 ;
   Unix +1
}

In 1991, Torvalds was a twenty-one-year-old computer science student at the
University of Helsinki, in Finland. Frustrated by the expense and complexity of
Unix, and its inability to work on personal computers, Torvalds set out to
build a Unix-like operating system on his IBM AT, which had a 33-megahertz
processor and four megabytes of memory. Torvalds released a primitive version
of his program to an online newsgroup and was astonished when a hundred hackers
responded within a few months to offer suggestions and additions. Over the next
few years, hundreds of additional programmers joined the project, which he
named “Linux” by combining his first name, “Linus,” with “Unix.” The first
official release of his program came in 1994.~{ One useful history of Torvalds
and Linux is Glyn Moody, /{Rebel Code: Inside Linux and the Open Source
Revolution}/ (Cambridge, MA: Perseus, 2001). }~
={ hackers :
     community of +3 ;
   Linux :
     development of +7
}

The Linux kernel, when combined with the GNU programs developed by Stallman and
his free software colleagues, constituted a complete computer operating system
— an astonishing and unexpected achievement. Even wizened computer scientists
could hardly believe that something as complex as an operating system could be
developed by thousands of strangers dispersed around the globe, cooperating via
the Internet. Everyone assumed that a software program had to be organized by a
fairly small group of leaders actively supervising the work of subordinates
through a hierarchical authority system — that is, by a single corporation. Yet
here was a virtual community of hackers, with no payroll or corporate
structure, coming together in a loose, voluntary, quasi-egalitarian way, led by
leaders who had earned the trust and respect of some highly talented
programmers.

The real innovation of Linux, writes Eric S. Raymond, a leading analyst of the
technology, was “not technical, but sociological”:
={ Linux :
     sociological effect of +1
}

_1 Linux was rather casually hacked on by huge numbers of volunteers
coordinating only through the Internet. Quality was maintained not by rigid
standards or autocracy but by the naively simple strategy of releasing every
week and getting feedback from hundreds of users within days, creating a sort
of rapid Darwinian selection on the mutations introduced by developers. To the
amazement of almost everyone, this worked quite well.~{ Eric S. Raymond, “A
Brief History of Hackerdom,”
http://www.catb.org/~est/writings/cathedral-bazaar/hacker-history/ar01s06.html.
}~

The Free Software Foundation had a nominal project to develop a kernel, but it
was not progressing very quickly. The Linux kernel, while primitive, “was
running and ready for experimentation,” writes Steven Weber in his book /{The
Success of Open Source}/: “Its crude functionality was interesting enough to
make people believe that it could, with work, evolve into something important.
That promise was critical and drove the broader development process from early
on.”~{ Steven Weber, /{The Success of Open Source}/ (Cambridge, MA: Harvard
University Press, 2004), p. 100. }~
={ Weber, Steven :
     The Success of Open Source ;
   Free Software Foundation
}

There were other powerful forces driving the development of Linux. Throughout
the 1990s, Microsoft continued to leverage its monopoly grip over the operating
system of personal computers, eventually attracting the attention of the U.S.
Department of Justice, which filed an antitrust lawsuit against the company.
Software competitors such as Hewlett-Packard, Sun Microsystems, and IBM found
that rallying behind an open-source alternative — one that was legally
protected against being taken private by anyone else— offered a terrific way to
compete against Microsoft.
={ Hewlett-Packard ;
   IBM :
     open source, and ;
   Microsoft :
     antitrust lawsuit against | competition against +2
}

Meanwhile, the once-free Unix software program was becoming a fragmented mess.
So many different versions of Unix were being sold that users were frustrated
by the proliferation of incompatible proprietary versions. In the words of a
Sun Microsystems executive at the time, users were unhappy with the
“duplication of effort around different implementations, leading to high
prices; poor compatibility; and worst of all, slower development as each
separate Unix vendor had to solve the same kinds of problems independently.
Unix has become stagnant. . . .”~{ Williams, /{Free as in Freedom}/, p. 100.}~
={ Unix +1 ;
   Sun Microsystems
}

Given these problems, there was great appeal in a Unix-like operating system
with freely available source code. Linux helped address the fragmentation of
Unix implementations and the difficulties of competing against the Microsoft
monopoly. Knowing that Linux was GPL’d, hackers, academics, and software
companies could all contribute to its development without fear that someone
might take it private, squander their contributions, or use it in hostile ways.
A commons of software code offered a highly pragmatic solution to a market
dysfunction.
={ General Public License (GPL) :
     Linux, and ;
   GNU/Linux +5 ;
   Linux :
     GPL, and
}

Stallman’s GNU Project and Torvalds’s Linux software were clearly synergistic,
but they represented very different styles. The GNU Project was a slower, more
centrally run project compared to the “release early and often” developmental
approach used by the Linux community. In addition, Stallman and Torvalds had
temperamental and leadership differences. Stallman has tended to be more
overbearing and directive than Torvalds, who does not bring a political
analysis to the table and is said to be more tolerant of diverse talents.~{
Torvalds included a brief essay, “Linux kernel management style,” dated October
10, 2004, in the files of the Linux source code, with the annotation, “Wisdom
passed down the ages on clay tablets.” It was included as an epilogue in the
book /{Open Life: The Philosophy of Open Source}/, by Henrik Ingo, and is
available at http://www.openlife.cc/node/43. }~
={ Torvalds, Linus ;
   GNU Project ;
   Stallman, Richard :
     GNU Project, and
}

So despite their natural affinities, the Free Software Community and the Linux
community never found their way to a grand merger. Stallman has applauded
Linux’s success, but he has also resented the eclipse of GNU programs used in
the operating system by the Linux name. This prompted Stallman to rechristen
the program “GNU/Linux,” a formulation that many people now choose to honor.

Yet many hackers, annoyed at Stallman’s political crusades and crusty personal
style, committed their own linguistic raid by renaming “free software” as “open
source software,” with a twist. As GNU/Linux became more widely used in the
1990s, and more corporations began to seriously consider using it, the word
/{free}/ in “free software” was increasingly seen as a problem. The “free as in
free speech, not as in free beer” slogan never quite dispelled popular
misconceptions about the intended sense of the word /{free}/. Corporate
information technology (IT) managers were highly wary about putting
mission-critical corporate systems in the hands of software that could be had
for /{free}/. Imagine telling the boss that you put the company’s fate in the
hands of a program you downloaded from the Internet for free!
={ free software :
     open source software, as +6 ;
   software :
     open source +6 ;
   free software :
     uses of term +6
}

Many corporate executives clearly recognized the practical value of free
software; they just had no interest in joining Stallman’s ideological crusade
or being publicly associated with him. They did not necessarily want to become
champions of the “four freedoms” or the political vision implicit in free
software. They simply wanted code that works well. As Eric Raymond wrote: “It
seemed clear to us in retrospect that the term ‘free software’ had done our
movement tremendous damage over the years. Part of this stemmed from the
well-known ‘free speech/free beer’ ambiguity. Most of it came from something
worse — the strong association of the term ‘free software’ with hostility to
intellectual property rights, communism, and other ideas hardly likely to
endear themselves to an MIS [management information systems] manager.”~{ Eric
S. Raymond, “The Revenge of the Hackers,” in Chris DiBona, Sam Ockman, and Mark
Stone, eds., /{Open Sources: Voices from the Open Source Revolution}/
(Sebastopol, CA: O’Reilly & Associates, 1999), p. 212. }~
={ Stallman, Richard :
     free software, and +5 ;
   Raymond, Eric S.
}

One response to this issue was the rebranding of free software as “open-source”
software. A number of leading free software programmers, most notably Bruce
Perens, launched an initiative to set forth a consensus definition of software
that would be called “opensource.” At the time, Perens was deeply involved with
a community of hackers in developing a version of Linux known as the Debian
GNU/Linux distribution. Perens and other leading hackers not only wanted to
shed the off-putting political dimensions of “free software,” they wanted to
help people deal with the confusing proliferation of licenses. A lot of
software claimed to be free, but who could really tell what that meant when the
terms were so complicated and legalistic?
={ Debian GNU/Linux distribution ;
   Perens, Bruce
}

The Open Source Initiative, begun in 1998, helped solve this problem by
enumerating criteria that it considered significant in judging a program to be
“open.”~{ http://www.opensource.org. }~ Its criteria, drawn from the Debian
community, helped standardize and stabilize the definition of open-source
software. Unlike the GPL, permissive software licenses such as BSD and MIT
/{allow}/ a program to be freely copied, modified, and distributed but don’t
/{require}/ it. A programmer can choose to make a proprietary derivative
without violating the license.
={ Open Source Initiative +2 }

The Open Source Initiative has focused more on the practical, technical merits
of software than on the moral or political concerns that have consumed
Stallman. Free software, as Stallman conceived it, is about building a cohesive
moral community of programmers dedicated to “freedom.” The backers of
open-source software are not necessarily hostile to those ideals but are more
interested in building reliable, marketable software and improving business
performance. As Elliot Maxwell described the free software/open source schism:
={ Maxwell, Elliot +1 }

_1 [S]upporters of the Open Source Initiative were willing to acknowledge a
role for proprietary software and unwilling to ban any link between open-source
software and proprietary software. Richard Stallman aptly characterized the
differences: “We disagree on the basic principles but agree more or less on the
practical recommendations. So we can and do work together on many specific
projects.”~{ Elliot Maxwell, citing Wikipedia entry on “Open Source Movement,”
in “Open Standards Open Source and Open Innovation,” in /{Innovations:
Technology, Governance, Globalization}/ 1, no. 3 (Summer 2006), p. 134, note
56. }~

The philosophical rift between free software and open-source software amounts
to a “friendly schism,” a set of divergent approaches that has been bridged in
some respects by language.~{ Richard Stallman has outlined his problems with
the “open source” definition of software development in an essay, “Why ‘Open
Source’ Misses the Point of Free Software,”
http://www.gnu.org/philosophy/open-source-misses-thepoint.html. }~ Observers
often use the acronym FOSS to refer to both free software and open-source
software, or sometimes FLOSS — the L stands for the French word /{libre}/,
which avoids the double meaning of the English word /{free}/. Whatever term is
used, free and open-source software has become a critical tool for making
online marketplaces more competitive, and for creating open, accessible spaces
for experimentation. In his classic essay, “The Cathedral and the Bazaar,” Eric
Raymond explains how the licenses help elicit important noneconomic, personal
energies:
={ FOSS/FLOSS +3 ;
   free software :
     FOSS/FLOSS +3 ;
   Raymond, Eric S. +1 ;
   Linux :
     sociological effect of +1
}


_1 The Linux world behaves in many respects like a free market or an ecology, a
collection of selfish agents attempting to maximize utility which in the
process produces a selfcorrecting spontaneous order more elaborate and
efficient than any amount of central planning could have achieved. . . . The
utility function Linux hackers are maximizing is not classically economic, but
is the intangible of their own ego satisfaction and reputation among other
hackers.~{ Eric Raymond, “The Cathedral and the Bazaar,” available at
http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ar01s11.html.
}~

It turns out that an accessible collaborative process, FOSS, can elicit
passions and creativity that entrenched markets often cannot. In this respect,
FOSS is more than a type of freely usable software; it reunites two vectors of
human behavior that economists have long considered separate, and points to the
need for new, more integrated theories of economic and social behavior.
={ free software :
     economic effects of +1
}

FOSS represents a new breed of “social production,” one that draws upon social
energies that neoclassical economists have long discounted or ignored. It
mobilizes the personal passions and moral idealism of individuals, going beyond
the overt economic incentives that economists consider indispensable to wealth
creation. The eighteenth-century economist Adam Smith would be pleased. He
realized, in his 1776 book /{The Wealth of Nations}/, that people are naturally
given to “truck, barter and exchange” — but he also recognized, in his earlier
/{The Theory of Moral Sentiments}/, written in 1759, that people are motivated
by deep impulses of human sympathy and morality. Neoclassical economists have
long segregated these as two divergent classes of human behavior, regarding
altruism and social sympathies as subordinate to the rational,
utility-maximizing, selfserving behavior. FOSS embodies a new synthesis — and a
challenge to economists to rethink their crude model of human behavior, /{Homo
economicus}/. Free software may have started as mere software, but it has
become an existence proof that individual and collective goals, and the
marketplace and the commons, are not such distinct arenas.~{ I am grateful to
Nicholas Gruen for this insight, taken from his essay “Geeks Bearing Gifts:
Open Source Software and Its Enemies,” in /{Policy}/ 21, no. 2 (Winter 2005),
pp. 39–48. }~ They are tightly intertwined, but in ways we do not fully
understand. This is a golden thread that will reappear in later chapters.
={ Smith, Adam :
     The Theory of Moral Sentiments ;
   social production +6
}

Red Hat, a company founded in 1993 by Robert Young, was the first to recognize
the potential of selling a custom version (or “distribution”) of GNU/Linux as a
branded product, along with technical support. A few years later, IBM became
one of the first large corporations to recognize the social realities of
GNU/Linux and its larger strategic and competitive implications in the
networked environment. In 1998 IBM presciently saw that the new software
development ecosystem was becoming far too variegated and robust for any single
company to dominate. It understood that its proprietary mainframe software
could not dominate the burgeoning, diversified Internet-driven marketplace, and
so the company adopted the open-source Apache Web server program in its new
line of WebSphere business software.
={ Red Hat ;
   Young, Robert ;
   GNU/Linux :
     IBM, and +1 | Red Hat, and ;
   IBM :
     GNU/Linux, and +1 ;
   Apache Web server ;
   open source software :
     functions of +2
}

It was a daring move that began to bring the corporate and open-source worlds
closer together. Two years later, in 2000, IBM announced that it would spend $1
billion to help develop GNU/Linux for its customer base. IBM shrewdly realized
that its customers wanted to slash costs, overcome system incompatibilities,
and avoid expensive technology “lock-ins” to single vendors. GNU/Linux filled
this need well. IBM also realized that GNU/Linux could help it compete against
Microsoft. By assigning its property rights to the commons, IBM could eliminate
expensive property rights litigation, entice other companies to help it improve
the code (they could be confident that IBM could not take the code private),
and unleash a worldwide torrent of creative energy focused on GNU/Linux. Way
ahead of the curve, IBM decided to reposition itself for the emerging networked
marketplace by making money through tech service and support, rather than
through proprietary software alone.~{ Andrew Leonard, “How Big Blue Fell for
Linux,” Salon.com, September 12, 2000, available at
http://www.salon.com/tech/fsp/2000/09/12/chapter_7_part_one.print.html. The
competitive logic behind IBM’s moves are explored in Pamela Samuelson, “IBM’s
Pragmatic Embrace of Open Source,” /{Communications of the ACM}/ 49, no. 21
(October 2006), and Robert P. Merges, “A New Dynamism in the Public Domain,”
/{University of Chicago Law Review}/ 71, no. 183 (Winter 2004). }~
={ Microsoft :
     competition against
}

It was not long before other large tech companies realized the benefits of
going open source. Amazon and eBay both saw that they could not affordably
expand their large computer infrastructures without converting to GNU/Linux.
GNU/Linux is now used in everything from Motorola cell phones to NASA
supercomputers to laptop computers. In 2005, /{BusinessWeek}/ magazine wrote,
“Linux may bring about the greatest power shift in the computer industry since
the birth of the PC, because it lets companies replace expensive proprietary
systems with cheap commodity servers.”~{ Steve Hamm, “Linux Inc.,”
/{BusinessWeek}/, January 31, 2005. }~ As many as one-third of the programmers
working on open-source projects are corporate employees, according to a 2002
survey.~{ Cited by Elliot Maxwell in “Open Standards Open Source and Open
Innovation,” note 80, Berlecon Research, /{Free/Libre Open Source Software:
Survey and Study — Firms’ Open Source Activities: Motivations and Policy
Implications}/, FLOSS Final Report, Part 2, at
www.berlecon.de/studien/downloads/200207FLOSS _Activities.pdf. }~
={ Amazon ;
   eBay
}

With faster computing speeds and cost savings of 50 percent or more on hardware
and 20 percent on software, GNU/Linux has demonstrated the value proposition of
the commons. Open source demonstrated that it can be cheaper and more
efficacious to collaborate in the production of a shared resource based on
common standards than to strictly buy and own it as private property.
={ commons :
     value proposition of ;
   value :
     creation of +1 :
     see also Great Value Shift
}

But how does open source work without a conventional market apparatus? The past
few years have seen a proliferation of sociological and economic theories about
how open-source communities create value. One formulation, by Rishab Ghosh,
compares free software development to a “cooking pot,” in which you can give a
little to the pot yet take a lot — with no one else being the poorer. “Value”
is not measured economically at the point of transaction, as in a market, but
in the nonmonetary /{flow}/ of value that a project elicits (via volunteers)
and generates (through shared software).~{ Rishab Aiyer Ghosh, “Cooking Pot
Markets and Balanced Value Flows,” in Rishab Aiyer Ghosh, ed., /{CODE:
Collaborative Ownership and the Digital Economy}/ (Cambridge, MA: MIT Press,
2005), pp. 153–68. }~ Another important formulation, which we will revisit
later, comes from Harvard law professor Yochai Benkler, who has written that
the Internet makes it cheap and easy to access expertise anywhere on the
network, rendering conventional forms of corporate organization costly and
cumbersome for many functions. Communities based on social trust and
reciprocity are capable of mobilizing creativity and commitment in ways that
market incentives often cannot — and this can have profound economic
implications.~{ See, e.g., Benkler, “Coase’s Penguin, or Linux and the Nature
of the Firm,” /{Yale Law Journal}/ 112, no. 369 (2002); Benkler, “ ‘Sharing
Nicely’: On Shareable Goods and the Emergence of Sharing as a Modality of
Economic Production,” Yale Law Journal 114, no. 273 (2004).}~ Benkler’s
analysis helps explain how a global corps of volunteers could create an
operating system that, in many respects, outperforms software created by a
well-paid army of Microsoft employees.
={ Benkler, Yochai :
     open networks, on ;
   FOSS/FLOSS ;
   free software :
     FOSS/FLOSS ;
   Ghosh, Rishab ;
   open source software :
     economic implications of | uses of term +4
}

A funny thing happened to free and open-source software as it matured. It
became hip. It acquired a cultural cachet that extends well beyond the
cloistered precincts of computing. “Open source” has become a universal
signifier for any activity that is participatory, collaborative, democratic,
and accountable. Innovators within filmmaking, politics, education, biological
research, and drug development, among other fields, have embraced the term to
describe their own attempts to transform hidebound, hierarchical systems into
open, accessible, and distributed meritocracies. Open source has become so much
of a cultural meme — a self-replicating symbol and idea — that when the Bikram
yoga franchise sought to shut down unlicensed uses of its yoga techniques,
dissident yoga teachers organized themselves into a nonprofit that they called
Open Source Yoga Unity. To tweak the supremacy of Coca-Cola and Pepsi, culture
jammers even developed nonproprietary recipes for a cola drink and beer called
“open source cola” and “open source beer.”~{ Open Source Yoga Unity,
http://www.yogaunity.org; open-source cola,
http://alfredo.octavio.net/soft_drink_formula.pdf; open-source beer, Vores OI
(Danish for “Our Beer”), http://en.wikipedia.org/wiki/Vores_%C3%981. See also
http://freebeer.org/blog and http://www.project21.ch/freebeer. }~
={ free software :
     uses of term +5
}

Stallman’s radical acts of dissent in the 1980s, regarded with bemusement and
incredulity at the time, have become, twenty-five years later, a widely
embraced ideal. Small-/{d}/ democrats everywhere invoke open source to lambaste
closed and corrupt political systems and to express their aspirations for
political transcendence. People invoke open source to express a vision of life
free from overcommercialization and corporate manipulation. The term enables
one to champion bracing democratic ideals without seeming naïve or flaky
because, after all, free software is solid stuff. Moreover, despite its image
as the software of choice for granola-loving hippies, free and open-source
software is entirely compatible with the commercial marketplace. How suspect
can open source be when it has been embraced by the likes of IBM,
Hewlett-Packard, and Sun Microsystems?
={ Stallman, Richard :
     influence of | free software, and +4 ;
   Hewlett-Packard ;
   IBM :
     open source, and ;
   Sun Microsystems
}

The appeal of “openness” has become so great that it is sometimes difficult to
recognize that /{limits}/ on openness are not only necessary but desirable. The
dark side of openness is the spam that clogs the Internet, the ability to
commit fraud and identity theft, and the opportunities for disturbed adults to
prey sexually upon children. Still, the virtues of an open environment are
undeniable; what is more difficult is negotiating the proper levels of openness
for a given realm of online life.
={ openness :
     limitations of
}

Nearly twenty years after the introduction of the GPL, free software has
expanded phenomenally. It has given rise to countless FOSS software
applications, many of which are major viral hits such as Thunderbird (e-mail),
Firefox (Web browser), Ubuntu (desktop GNU/Linux), and Asterisk (Internet
telephony). FOSS has set in motion, directly or indirectly, some powerful viral
spirals such as the Creative Commons licenses, the iCommons/free culture
movement, the Science Commons project, the open educational resource movement,
and a new breed of open-business ventures, Yet Richard Stallman sees little
connection between these various “open” movements and free software; he regards
“open” projects as too vaguely defined to guarantee that their work is truly
“free” in the free software sense of the term. “Openness and freedom are not
the same thing,” said Stallman, who takes pains to differentiate free software
from open-source software, emphasizing the political freedoms that lie at the
heart of the former.~{ Interview with Richard Stallman, January 21, 2008. }~
={ FOSS/FLOSS ;
   free software :
     FOSS/FLOSS | expansion of ;
   Stallman, Richard :
     influence of | freedom, and
}

Any revolution is not just about new tools and social practices, however. It is
also about developing new ways of understanding the world. People must begin to
/{see}/ things in a new perspective and /{talk}/ with a new vocabulary. In the
1990s, as Disney, Time Warner, Viacom, and other media giants realized how
disruptive the Internet might be, the public was generally oblivious that it
might have a direct stake in the outcome of Internet and copyright policy
battles. Big Media was flexing its muscles to institute all sorts of
self-serving, protectionist fixes — copy-protection technologies, broader
copyright privileges, one-sided software and Web licenses, and much more — and
most public-interest groups and civic organizations were nowhere to be seen.

Fortunately, a small but fierce and keenly intelligent corps of progressive
copyright scholars were beginning to discover one another in the 1990s. Just as
the hacker community had had to recognize the enclosure of its commons of
software code, and embrace the GPL and other licenses as defensive remedies, so
progressive copyright scholars and tech activists were grappling with how to
defend against a related set of enclosures, The relentless expansion of
copyright law was eroding huge swaths of the public domain and fair use
doctrine. Tackling this problem required asking a question that few in the
legal or political establishments considered worth anyone’s time — namely,
What’s so valuable about the public domain, anyway?

1~ 2 THE DISCOVERY OF THE PUBLIC DOMAIN
={ public domain +93 }

/{How a band of irregulars demonstrated that the public domain is enormously
valuable after all.}/

For decades, the public domain was regarded as something of a wasteland, a
place where old books, faded posters, loopy music from the early twentieth
century, and boring government reports go to die. It was a dump on the
outskirts of respectable culture. If anything in the public domain had any
value, someone would sell it for money. Or so goes the customary conception of
the public domain.

Jack Valenti, the longtime head of the Motion Picture Association of America,
once put it this way: “A public domain work is an orphan. No one is responsible
for its life. But everyone exploits its use, until that time certain when it
becomes soiled and haggard, barren of its previous virtues. Who, then, will
invest the funds to renovate and nourish its future life when no one owns
it?”~{ Jack Valenti, “A Plea for Keeping Alive the U.S. Film Industry’s
Competitive Energy, ” testimony on behalf of the Motion Picture Association of
America to extend the term of copyright protection, Senate Judiciary Committee,
September 20, 1995, at http://instructors.cwrl.utexas.edu/~martin/Valenti.pdf.
}~ (Valenti was arguing that longer copyright terms would give film studios the
incentive to digitize old celluloid films that would otherwise enter the public
domain and physically disintegrate.)
={ Valenti, Jack }

One of the great, unexplained mysteries of copyright law is how a raffish
beggar grew up to be King Midas. How did a virtually ignored realm of culture —
little studied and undertheorized— become a subject of intense scholarly
interest and great practical importance to commoners and businesses alike? How
did the actual value of the public domain become known? The idea that the
public domain might be valuable in its own right — and therefore be worth
protecting — was a fringe idea in the 1990s and before. So how did a
transformation of legal and cultural meaning occur?
={ public domain :
     emergence of +4 | copyright law, and +3
}

Unlike Richard Stallman’s crusade to create a sustainable public domain of
code,~[* Free software constitutes a “sustainable public domain” because the
General Public License protects the code and its derivatives from private
appropriation yet otherwise makes the code free for anyone to use. The public
domain, by contrast, is vulnerable to private appropriation in practice if a
company has sufficient market power (e.g., Disney’s appropriation of fairy
tales) or if it uses the public domain to make derivative works and then
copyrights them (e.g., vendors who mix government data with proprietary
enhancements).]~ the discovery of the public domain for cultural works was not
led by a single protagonist or group. It emerged over time through a loose
network of legal scholars, techies, activists, and some businesses, who were
increasingly concerned about worrisome expansions of copyright and patent law.
Slowly, a conversation that was occurring in a variety of academic and tech
communities began to intensify, and then coalesce into a more coherent story.
={ copyright law :
     expansion of
}

Scholarship about copyright law is not exactly gripping stuff. But it has
played an important role in the viral spiral. Before anyone could begin to
imagine how an online commons could be structured and protected, someone needed
to explain how intellectual property law had become “uncontrolled to the point
of recklessness” — as law professor David Lange put it in 1981, well before the
proprietarian explosion of the late 1980s and 1990s.
={ Lange, David ;
   copyright law :
     scholarship about
}

Fortunately, a new breed of public-spirited professors was reaching a critical
mass just as the Internet was becoming culturally important. These professors,
collaborating with programmers and activists, were among the first to
understand the ways in which copyright law, historically an arcane backwater of
law, was starting to pose serious threats to democracy-loving citizens and
Internet users. The full complexity of this legal literature over the past
generation cannot be unpacked here, but it is important to understand how
progressive copyright scholarship played a critical role in identifying
dangerous trends in law and technology — and in constructing a new narrative
for what copyright law should be.

This legal scholarship reconceptualized the public domain— then a vague notion
of nonproperty — and developed it into an affirmative theory. It gave the
public domain sharper definition and empirical grounding. Thinkers like Yochai
Benkler (Harvard Law School), Lawrence Lessig (Stanford Law), and James Boyle
(Duke Law) developed bracing new theories that recognize the power of social
communities, and not just the individual, in the creative process. Others, such
as Julie Cohen (Georgetown Law Center) and Pamela Samuelson (Boalt Hall), have
respectively explored the need to develop a new social theory of creative
practice~{ Julie E. Cohen, “Copyright, Commodification and Culture: Locating
the Public Domain,” in Lucie Guibaut and P. Bernt Hugenholtz eds. /{The Future
of the Public Domain: Identifying the Commons in Information Law}/ (The
Netherlands: Kluwer Law International, 2006), pp. 121–66. }~ and the
theoretical challenges of “mapping” the public domain.~{ Pamela Samuelson,
“Challenges in Mapping the Public Domain,” in Guibault and Hugenholtz, eds.
/{The Future of the Public Domain}/, pp. 7–26. }~ All of this thinking, mostly
confined to scholarly workshops, law reviews, and tech journals, served as a
vital platform for imagining the commons in general and the Creative Commons in
particular.
={ Boyle, James ;
   Cohen, Julie ;
   Lessig, Lawrence ;
   Samuelson, Pamela
}

2~ The Elusive Quest for “Balance”
={ copyright law :
     balance of public and private rights +19 | public domain vs. +19 ;
   public domain :
     copyright law, and +19
}

Historically, copyright has been regarded as a “bargain” between the public and
authors. The public gives authors a set of monopoly rights to help them sell
their works and earn rewards for their hard work. In return, the public gets
the marketable output of creators— books, films, music — and certain rights of
free access and use. The primary justification of copyright law is not to
protect the fortunes of authors; it is to promote new creative works and
innovation. By giving authors a property right in their works — and so helping
them to sell those works in the marketplace — copyright law aims to promote the
“progress of human knowledge.”
={ property rights :
     copyright law, and ;
   copyright law :
     property rights, and
}

That’s the author’s side of the bargain. The public’s stake is to have certain
limited rights to use copyrighted works. Under the “fair use” doctrine (or
“fair dealing” in some countries), people are entitled to excerpt copyrighted
works for noncommercial purposes such as journalism, scholarship, reviews, and
personal use. People are also entitled to resell the physical copies of
copyrighted works such as books and videos. (This right is granted under the
“first sale doctrine,” which enables libraries and DVD rental stores to exist.)
The public also has the right to use copyrighted works for free after the term
of a copyright has expired — that is, after a work has “entered the public
domain.” This general scheme is said to establish a balance in copyright law
between the private rights of authors and the needs of the public and future
authors.
={ copyright law :
     fair use doctrine, and | first sale doctrine, and ;
   fair use doctrine :
     copyright law, and ;
   first sale doctrine
}

This “balance” has been more rhetorical than real, however. For decades,
critics have complained that the public’s side of the copyright bargain is
being abridged. Content industries have steadily expanded their rights under
copyright law at the expense of the public’s modest access rights.

What is notable about the long history of seeking “balance” in copyright law is
the singular failure of critics to make much headway (until recently) in
redressing the problem. The public’s interests in copyright law — and those of
authors’ — have never been given that much attention or respect. From the
authors of eighteenth-century England, whose formal rights were in practice
controlled by booksellers, to the rhythm-and-blues singers of the 1940s whose
music was exploited for a pittance by record labels, to academics whose
copyrights must often be ceded to commercial journals, authors have generally
gotten the short end of the stick. No surprise here. Business practices and
copyright policy have usually been crafted by the wealthiest, most politically
connected players: book publishers, film studios, record labels, broadcasters,
cable operators, news organizations. The public’s lack of organized political
power was reflected in its lack of a coherent language for even describing its
own interests in copyright law.

For most of the twentieth century, the forging of copyright law was essentially
an insider contest among various copyright-dependent industries for market
advantage. Congress hosted a process to oversee the squabbling and negotiation,
and nudged the players now and again. This is what happened in the fifteen-year
run-up to congressional enactment of the Copyright Act of 1976, for example.
For the most part, Congress has preferred to ratify the compromises that
industry players hammer out among themselves. The unorganized public has been
treated as an ignorant bystander.
={ Copyright Act (1976) +3 ;
   copyright law :
     revision of (1976) +3
}

Naturally, this has strengthened the hand of commercial interests. Copyright
disputes could be argued within a congenial intellectual framework and closely
managed by a priesthood of lawyer-experts, industry lobbyists, and friendly
politicians. The interests of citizens and consumers, blessedly absent from
most debates, could be safely bracketed as marginal.

But letting industries negotiate their own solutions has its own problems, as
Professor Jessica Litman has pointed out: “Each time we rely on current
stakeholders to agree on a statutory scheme, they produce a scheme designed to
protect themselves against the rest of us. Its rigidity leads to its breakdown;
the statute’s drafters have incorporated too few general principles to guide
courts in effecting repairs.”~{ Jessica Litman, /{Digital Copyright}/ (Amherst,
NY: Prometheus, 2000), p. 62. }~ By letting the affected industries negotiate a
series of fact specific solutions, each reflecting that moment in history,
Congress has in effect let copyright law become an agglomeration of complex and
irregular political compromises — or, as some might say, a philosophically
incoherent mess.
={ copyright law :
     expansion of +8 ;
   Litman, Jessica
}

Perhaps because it is so attentive to its industry benefactors, Congress has
generally regarded the fair use doctrine and the public domain as a sideshow.
Under the Copyright Act of 1976, for example, fair use is set forth only as an
affirmative defense to accusations of copyright infringement, not as an
affirmative right. Moreover, fair use is defined by four general statutory
guidelines, which courts have proceeded to interpret in wildly inconsistent
ways. In real life, Lawrence Lessig has quipped, fair use amounts to “the right
to hire a lawyer.”
={ Lessig, Lawrence :
     fair use, on ;
   copyright use :
     fair use doctrine, and ;
   fair use doctrine :
     copyright law, and
}

Congress has shown a similarly low regard for the public domain. After
extending the term of copyright law eleven times since 1961, the copyright
monopoly now lasts for an author’s lifetime plus seventy years (ninety-five
years for corporations). For Congress, writes Professor Tyler Ochoa, “allowing
works to enter the public domain was something to be condemned, or at least
only grudgingly tolerated, rather than something to be celebrated.”~{ Tyler
Ochoa, “Origins and Meanings of the Public Domain,” /{Dayton Law Review}/ 28,
no. 215 (2002). }~ Congress’s most hostile act toward the public domain — and
to the public’s rights of access — was the elimination of the registration
requirement for copyright protection.~{ Lawrence Lessig explains the impact of
eliminating the copyright registration requirement in Lessig, /{Free Culture}/
(New York: Penguin, 2004), pp. 222–23. }~ Since 1978, copyright holders have
not had to formally register their works in order to receive protection. Doodle
on a scratch pad, record your guitar strumming, and it’s automatically
copyrighted.
={ copyright law :
     automatic +1 ;
   Ochoa, Tyler
}

Sounds great . . . but this provision had especially nasty consequences once
the digital revolution kicked into high gear in the 1990s, because every
digital byte was born, by default, as a form of property. Automatic copyright
protection dramatically reversed the previous default, where most everything
was born in the public domain and was free to use unless registered. Today,
anyone wishing to reuse a work legally has to get permission and possibly pay a
fee. To make matters worse, since there is no longer a central registry of who
owns what copyrighted works, it is often impossible to locate the copyright
holder. Such books, films, and images are known as “orphan works.”
={ copyright law :
     "orphan works"
}

Thirty years ago, the idea of throwing a net of copyright over all information
and culture was not alarming in the least. As Jessica Litman recalled, “When I
started teaching in 1984, we were at what was about to be the crest of a
high-protectionist wave. That is, if you looked at the scholarship being
written then, people were writing about how we should expand copyright
protection, not only to cover useful articles and fashions and semiconductor
chips and computer programs, but also recombinant DNA. The Chicago School of
scholarship was beginning to be quite influential. People were reconceiving
copyright in Chicago Law and Economics terms, and things like fair use were
seen to be ‘free riding.’ ”~{ Interview with Jessica Litman, November 16, 2006.
}~
={ Litman, Jessica +1 }

Yet the effects of this protectionist surge, at least for the short term, were
muted for a number of reasons. First, corporate lobbying on copyright issues
was extremely low-key. “I started going to congressional hearings in 1986,”
said Litman, “and no one was there. There were no members of Congress; there
was no press. The witnesses would come and they’d talk, and staffers would take
notes. And that would be it.”~{ Ibid. }~ The big-ticket lobbying — receptions,
slick reports, legislative junkets, private movie screenings with Jack Valenti
— did not really begin to kick in until the late 1980s and early 1990s, when
trade associations for every conceivable faction stepped up their Washington
advocacy. When the Internet’s commercial implications became clear in the
mid-1990s, copyright-dependent industries ratcheted up their campaign
contributions and lobbying to another level entirely.
={ Valenti, Jack }

The protectionist surge in copyright law in the 1980s was mitigated by two
stalwart public servants: Representative Robert Kastenmeier of Wisconsin, the
chair of the House judiciary subcommittee that oversaw copyright legislation,
and Dorothy Schrader, the longtime general counsel of the U.S. Copyright
Office. Both considered it their job to protect the public from grasping
copyright industries. When Kastenmeier lost his reelection bid in 1990 and
Schrader retired in 1994, the film, music, broadcast, cable, and publishing
industries would henceforth have staunch allies— sometimes their former
lawyer-lobbyists — in key congressional staff positions and copyright policy
jobs. Government officials no longer saw their jobs as protecting consumers
from overbearing, revenuehungry media industries, but as helping copyright
owners chase down and prosecute “pirates.” Copyright law was recast as a form
of industrial policy — a way to retain American jobs and improve the U.S.
balance of trade — not as an instrument that affects social equity, consumer
rights, and democratic values.
={ Kastenmeier, Robert ;
   Schrader, Dorothy ;
   piracy
}

Ironically, the mercantilist view of copyright was gaining ground at precisely
the time when the public’s stake in copyright law was growing. An explosion of
consumer electronics in the 1980s was giving the public new reasons to care
about their fair use rights and the public domain. The introduction of the
videocassette recorder, the proliferation of cable television, personal
computers, software and electronics devices, and then the introduction of the
Web in 1993 all invited people to control their own creative and cultural
lives. The new media meant that the baroque encrustations of copyright law that
had accumulated over decades were now starting to interfere with people’s daily
activities.
={ fair use doctrine :
     copyright law, and +1 ;
   copyright law :
     fair use doctrine, and +1 | mercantilist view of +2
}

Yet rather than negotiate a new copyright bargain to take account of the
public’s needs and interests, copyright industries stepped up their demands on
Congress to ram through even stronger copyright, trademark, and patent
privileges for themselves. Their basic goal was, and generally remains, a more
perfect control over all downstream uses of works. Content industries generally
do not concede that there is any presumptive “free use zone” of culture,
notwithstanding the existence of the fair use doctrine. Works that citizens may
regard as fair-use entitlements industry often regards as chunks of information
that no one has yet figured out how to turn into marketable property.

Most content industries, then and now, do not see any “imbalance” in copyright
law; they prefer to talk in different terms entirely. They liken copyrighted
works to personal property or real estate, as in “and you wouldn’t steal a CD
or use my house without permission, would you?” A copyrighted work is
analogized to a finite physical object, But the essential point about works in
the digital age is that they can’t be “used up” in the same way that physical
objects can. They are “nondepletable” and “nonrival,” as economists put it. A
digital work can be reproduced and shared for virtually nothing, without
depriving another person of it.
={ property rights :
     copyright law, and +1 ;
   copyright law :
     property rights, and
}

Nonetheless, a new narrative was being launched — copyrighted works as
property. The idea of copyright law reflecting a policy bargain between the
public and authors/corporations was being supplanted by a new story that casts
copyright as property that is nearly absolute in scope and virtually perpetual
in term. In hindsight, for those scholars who cared enough to see, a
disquieting number of federal court cases were strengthening the hand of
copyright holders at the expense of the public. James Boyle, in a much-cited
essay, called this the “second enclosure movement” — the first one, of course,
being the English enclosure movement of common lands in medieval times and into
the nineteenth century.~{ James Boyle, “The Second Enclosure Movement and the
Construction of the Public Domain,” /{Law and Contemporary Problems}/ 66
(Winter–Spring 2003), pp. 33–74, at
http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+33+
(WinterSpring+2003). }~
={ Boyle, James :
     enclosure movement, on ;
   commons :
     enclosure of +1 ;
   enclosure movement +1 ;
   copyright law :
     enclosure movement, and +1
}

Enclosure took many forms. Copyright scholar Peter Jaszi recalls, “Sometime in
the mid-1980s, the professoriate started getting worried about software
copyright.”~{ Interview with Peter Jaszi, October 17, 2007. }~ It feared that
copyrights for software would squelch competition and prevent others from using
existing code to innovate. This battle was lost, however. Several years later,
the battle entered round two as copyright scholars and programmers sought to
protect reverse-engineering as fair use. This time, they won.~{ /{Sega
Enterprises v. Accolade}/, 977 F.2d 1510 (9th Cir. 1993). }~
={ Jaszi, Peter ;
   fair use doctrine :
     reverse engineering, and ;
   software :
     copyright of ;
   copyright law :
     digital age, in
}

Then, in 1985, the U.S. Supreme Court ruled that it was not fair use for the
/{Nation}/ magazine to excerpt three hundred words from President Ford’s
200,000-word memoir. The /{Nation}/ had acquired a copy of Ford’s book before
its publication and published an article of highlights, including a handful of
quotations. The material, derived from Ford’s official duties as president, was
of obvious value to the democratic process. But by a 6-3 margin the Court held
that the /{Nation}/ had violated Ford’s copyright.~{ /{Harper & Row v. Nation
Enterprises}/, 471 U.S. 539 (1985). }~ The proprietary tilt of copyright law
only intensified in the following years. Companies claimed copyrights for all
sorts of dubious forms of “originality” — the page numbers of federal court
decisions, the names and numbers in telephone directories, and facts compiled
in databases.
={ Ford, Gerald R. ;
   Nation (magazine)
}

2~ The Great Expansion of Intellectual Property
={ intellectual property :
     protection of +14 ;
   copyright law :
     expansion of +14
}

These expansions of proprietary control in the 1980s proved to be a prelude to
much more aggressive expansions of copyright, patent, and trademark law in the
1990s. Congress and the courts were granting property rights to all sorts of
things that had previously been considered unowned or unownable. The Supreme
Court had opened this door in 1980 when it recognized the patentability of a
genetically modified bacterium. This led to ethically and economically dubious
patents for genes and life-forms. Then businesses began to win patents for
“business methods” — ideas and theoretical systems — that would otherwise be in
the public domain. Mathematical algorithms, if embedded in software, could now
be owned. Amazon.com’s patent on “one-click shopping” on its Web site became
the symbol of this trend. Boat manufacturers won a special /{sui generis}/ (“in
a class by itself ”) form of protection for the design of boat hulls in 1998.
Celebrities and talent agencies prevailed upon state legislatures to extend the
scope of ownership of celebrity names and likenesses, which had long been
considered in the public domain.
={ Amazon ;
   copyright law :
     proprietary rights ;
   software :
     copyright of +1 ;
   software :
     copyright of +1 ;
   property rights :
     copyright law, and
}

Companies developed still other strategies to assert greater proprietary
control over works. Software companies began to rely upon mass-market licenses
— often referred to as “shrink wrap” contracts and “click-through” Web
agreements — to expand their rights at the expense of consumers and the public
domain. Various computer companies sought to enact a model state law that, in
Samuelson’s words, would “give themselves more rights than intellectual
property law would do and avoid the burdens of public interest limitations.”~{
Samuelson, “Digital Information, Digital Networks, and the Public Domain,” p.
92. }~ Consumers could in effect be forced to surrender their fair use rights,
the right to criticize the product or their right to sue, because of a
“contract” they ostensibly agreed to.
={ Samuelson, Pamela ;
   copyright law :
     fair use doctrine, and ;
   fair use doctrine :
     copyright law, and
}

Trademarks, originally designed to help people identify brands and prevent
fraud in the marketplace, acquired a new power in 1995 — the ability to control
public meanings. For years, large corporations had wanted to extend the scope
of their trademark protection to include “dilution” — a fuzzy concept that
would prohibit the use of a trademark without permission, even for legitimate
public commentary or parody, if it “dilutes” the recognized public associations
and meanings of a trademark. For a decade or more, Kastenmeier had prevented
antidilution legislation from moving forward. After Kastenmeier left Congress,
the trademark lobby succeeded in getting Congress to enact the legislation.
This made it much easier for Mattel to threaten people who did parodies of
Barbie dolls. The /{Village Voice}/ could more credibly threaten the /{Cape Cod
Voice}/ for trademark infringement. Wal-Mart could prevent others from using
“its” smiley-face logo (itself taken from the cultural commons).~{ See, e.g.,
David Bollier, /{Brand Name Bullies: The Quest to Own and Control Culture}/
(New York: Wiley, 2005).}~
={ Kastenmeier, Robert ;
   trademarks :
     dilution of
}

The election of Bill Clinton as president in 1992 gave content industries new
opportunities to expand their copyright privileges. The Clinton administration
launched a major policy effort to build what it called the National Information
Infrastructure (NII), more commonly known as the Information Superhighway.
Today, of course, we call it the Internet. A task force of industry
heavyweights was convened to determine what policies should be adopted to help
build the NII.~{ Jessica Litman has an excellent historical account of the NII
campaign in her book /{Digital Copyright}/ (Amherst, NY: Prometheus, 2000). }~
Vice President Al Gore cast himself as a visionary futurist and laid out
astonishing scenarios for what the NII could deliver: access to every book in
the Library of Congress, the ability of doctors to share medical information
online, new strides against inequality as everyone goes online.
={ Clinton, Bill ;
   Gore, Al ;
   Information Superhighway +6 ;
   Internet :
     rise of +1 ;
   National Information Infrastructure (NII) +6
}

The NII project was a classic case of incumbent industries trying to protect
their profit centers. Executives and lobbyists associated with broadcasting,
film, and music were being asked how to structure the Information Superhighway.
Predictably, they came up with fantasies of digital television with five
hundred channels, programs to sell products, and self-serving scenarios of even
stronger copyright protection and penalties. Few had any inkling of the
transformative power of open networks or the power of the sharing economy — and
if they did, the possibilities certainly were not appealing to them.

One part of the NII campaign was a working group on intellectual property
headed by Bruce Lehman, a former congressional staffer, lobbyist for the
software industry, and commissioner of patents and trademarks. The Lehman panel
spent two years developing a sweeping set of copyright policies for the
Information Superhighway. When the panel’s report was released in September
1995, anyone who cared about open culture and democracy was livid. The White
Paper, as it was called, recommended a virtual elimination of fair use rights
in digital content and broader rights over any copyrighted transmissions. It
called for the elimination of first-sale rights for digitally transmitted
documents (which would prevent the sharing of digital files) and endorsed
digital rights management systems for digital works (in order to monitor and
prosecute illegal sharing). The White Paper even sought to reinterpret existing
law so that transient copies in the random-access memory of computers would be
considered illegal unless they had a license — essentially outlawing Web
browsing without a license. With visions of Soviet-style indoctrination, the
document also recommended an ambitious public education program to teach
Americans to properly respect copyright laws.
={ Lehman, Bruce ;
   White Paper [on copyright] +4 ;
   Clinton administration :
     White Paper +4 ;
   first sale doctrine ;
   copyright :
     first sale, and | fair use doctrine, and ;
   fair use doctrine :
     copyright law, and +1 | White Paper vs. +5
}

Litman wrote a revealing history of the misbegotten NII project in her book
/{Digital Copyright}/. Her chapter title “Copyright Lawyers Set Out to Colonize
Cyberspace” says it all.~{ Litman, /{Digital Copyright}/, pp. 89–100. }~
Samuelson alerted the readers of /{Wired}/ about the outrageous proposals of
the White Paper in her devastating January 1996 article “The Copyright Grab.”~{
Pamela Samuelson, “The Copyright Grab,” /{Wired}/, January 1996. }~ If the NII
proposals are enacted, warned Samuelson, “your traditional user rights to
browse, share or make private noncommercial copies of copyrighted works will be
rescinded. Not only that, your online service provider will be forced to snoop
through your files, ready to cut you off and turn you in if it finds any
unlicensed material there. The White Paper regards digital technology as so
threatening to the future of the publishing industry that the public must be
stripped of all the rights copyright law has long recognized — including the
rights of privacy. Vice President Al Gore has promised that the National
Information Infrastructure will dramatically enhance public access to
information; now we find out that it will be available only on a pay-per-use
basis.”~{ Ibid. }~
={ Litman, Jessica ;
   Samuelson, Pamela ;
   Gore, Al
}

The White Paper was not just an effort by Old Media to domesticate or eliminate
the freedoms emerging on the Information Superhighway; it sought to set the
stage for the internationalization of strict copyright norms, so that
American-style copyright law would prevail around the world. To counter this
effort, American University law professor Peter Jaszi convened a group of law
professors, library organizations, and computer and consumer electronics
makers, who promptly organized themselves as the Digital Future Coalition
(DFC), the first broad-based coalition in support of the public’s stake in
copyright law.
={ Jaszi, Peter ;
   Digital Future Coalition (DFC) +1 ;
   copyright law :
     international
}

The DFC attacked the White Paper as a copyright-maximalist nightmare and sought
to rally civil liberties groups, Internet service providers, and electronics
manufacturers. With modest industry support, the DFC was largely responsible
for slowing progress on legislation that would have enacted Lehman’s proposals.
As domestic opposition grew, Lehman shrewdly decided to push for a new global
copyright treaty that would embody similar principles. In the end, however, the
World Intellectual Property Organization demurred.
={ Lehman, Bruce ;
   World Intellectual Property Organization
}

By that time, however, the terms of debate had been set, and there was serious
congressional momentum to adopt some variant of the White Paper agenda. The
ultimate result, enacted in October 1998, was the Digital Millennium Copyright
Act (DMCA), the crowning achievement of the copyright-maximalist decade. It
contained dozens of highly specific provisos and qualifications to satisfy
every special pleader. The law in effect authorized companies to eliminate the
public’s fair use rights in digital content by putting a “digital lock” around
the content, however weak. Circumventing the lock, providing the software to do
so, or even telling someone how to do so became a criminal offense.
={ copyright :
     fair use doctrine, and +1 ;
   fair use doctrine :
     copyright law, and +1 ;
   Digital Millennium Copyright Act (DMCA) [1998] +4 ;
   copyright law :
     DMCA +4
}

The DMCA has been roundly denounced by software programmers, music fans, and
Internet users for prohibiting them from making personal copies, fair use
excerpts, and doing reverse engineering on software, even with legally
purchased products. Using digital rights management systems sanctioned by the
DMCA, for example, many CDs and DVDs are now coded with geographic codes that
prevent consumers from operating them on devices on other continents. DVDs may
contain code to prevent them from running on Linux-based computers. Digital
journals may “expire” after a given period of time, wiping out library holdings
unless another payment is made. Digital textbooks may go blank at the end of
the school year, preventing their reuse or resale.

Critics also argue that the DMCA gives large corporations a powerful legal tool
to thwart competition and interoperability. Some companies programmed garage
door openers and printer cartridges so that the systems would not accept
generic replacements (until a federal court found this behavior
anticompetitive). Naturally, this sort of behavior, which the DMCA facilitates,
lets companies avoid open competition on open platforms with smaller companies
and entrepreneurs. It also gives companies a legal pretext for bullying Web
site owners into taking down copyrighted materials that may in fact be legal to
use.

In her excellent history of the political run-up to the DMCA, Litman notes,
“There is no overarching vision of the public interest animating the Digital
Millennium Copyright Act. None. Instead, what we have is what a variety of
different private parties were able to extract from each other in the course of
an incredibly complicated four-year multiparty negotiation.”~{ Litman,
/{Digital Copyright}/, pp. 144–45. }~ The DMCA represents a new frontier of
proprietarian control — the sanctioning of technological locks that can
unilaterally override the copyright bargain. Companies asked themselves, Why
rely on copyrights alone when technology can embed even stricter controls into
the very design of products?
={ Litman, Jessica }

The year 1998 was an especially bad year for the public domain. Besides
enacting the trademark dilution bill and DMCA, the Walt Disney Company and
other large media corporations succeeded in their six-year campaign to enact
the Sonny Bono Copyright Term Extension Act.~{ See Wikipedia entry for the
Copyright Term Extension Act, at
http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act. See also
/{Eldred v. Ashcroft}/, 537 U.S. 186 (2003), F. 3d 849 (2001). }~ The
legislation, named after the late House legislator and former husband of the
singer Cher, retroactively extended the terms of existing copyrights by twenty
years. As we will see in chapter 3, this law became the improbable catalyst for
a new commons movement.
={ trademarks :
     dilution of ;
   Walt Disney Company ;
   Copyright Term Extension Act
}

2~ Confronting the Proprietarian Juggernaut
={ copyright law :
     property rights, and +13 ;
   property rights :
     copyright law, and +13
}

If there was ever a need for independent scholarship on copyright law and
activism to challenge the new excesses, this was such a time. Fred von Lohmann,
senior staff attorney for the Electronic Frontier Foundation in San Francisco,
recalls, “Peggy Radin taught the first cyber-law class at Stanford Law School
in 1995, and I was her research assistant. And at the end of that semester, I
had read everything that had ever been written about the intersection of the
Internet and the law — not just in the legal literature, but in almost all the
literature. It filled about two boxes, and that was it. That was all there
was.”~{ Interview with Fred von Lohmann, March 20, 2006. }~
={ Lohmann, Fred von ;
   Radin, Margaret Jane
}

In about a dozen years, those two boxes of literature have grown into many
shelves and countless filing cabinets of case law and commentary. Much of the
legal scholarship was the fruit of a new generation of copyright professors who
rose to the challenge of the time. An earlier generation of copyright scholars
— Melville Nimmer, Alan Latman, Paul Goldstein — were highly respected titans,
but they also enjoyed busy consulting practices with the various creative
industries that they wrote about. Protecting the public domain was not their
foremost concern.
={ Goldstein, Paul ;
   Latman, Alan ;
   Nimmer, Melville
}

By the 1980s, as law schools become more like graduate schools and less like
professional schools, copyright commentary began to get more scholarly and
independent of the industries it studied. People like Pamela Samuelson, Peter
Jaszi, Jerome H. Reichman, Jessica Litman, L. Ray Patterson, and Wendy Gordon
were among this cohort, who were soon joined in the 1990s by a new wave of
thinkers such as James Boyle, Lawrence Lessig, Julie Cohen, Niva Elkin-Koren,
and Yochai Benkler. Still others, such as Rosemary Coombe and Keith Aoki,
approached copyright issues from cross-cultural and globalization perspectives.
These scholars were frankly hostile to the large copyright industries, and
greatly concerned with how the law was harming democracy, science, culture, and
consumers.
={ Litman, Jessica ;
   Samuelson, Pamela ;
   Jaszi, Peter ;
   Benkler, Yochai ;
   Boyle, James ;
   Cohen, Julie ;
   Coombe, Rosemary ;
   Elkin-Koren, Niva ;
   Gordon, Wendy ;
   Lessig, Lawrence ;
   Patterson, L. Ray ;
   Reichman, Jerome H. ;
   Aoki, Keith
}

A number of activist voices were also coming forward at this time to challenge
the proprietarian juggernaut. As the Internet became a popular medium, ordinary
people began to realize that the new copyright laws were curtailing their
creative freedoms and free speech rights. The obscure complexities of copyright
law started to become a far more public and political issue. The pioneering
activist organization was the Electronic Frontier Foundation. EFF was founded
in 1990 by tech entrepreneur Mitch Kapor, the famed inventor of the Lotus 1-2-3
spreadsheet in the 1980s; John Perry Barlow, Grateful Dead lyricist and hacker;
and John Gilmore, a leading privacy/cryptography activist and free software
entrepreneur.
={ Barlow, John Perry +4 ;
   Gilmore, John ;
   Kapor, Mitch ;
   Electronic Frontier Foundation (EFF)
}

The organization was oriented to hackers and cyberlibertarians, who
increasingly realized that they needed an organized presence to defend citizen
freedoms in cyberspace. (Barlow adapted the term /{cyberspace}/ from
science-fiction writer William Gibson in 1990 and applied it to the
then-unnamed cultural life on the Internet.) Initially, the EFF was concerned
with hacker freedom, individual privacy, and Internet censorship. It later went
through some growing pains as it moved offices, changed directors, and sought
to develop a strategic focus for its advocacy and litigation. In more recent
years, EFF, now based in San Francisco, has become the leading litigator of
copyright, trademark, and Internet free expression issues. It also has more
than ten thousand members and spirited outreach programs to the press and
public.
={ Gibson, William ;
   cyberspace :
     use of term
}

John Perry Barlow was an important visionary and populizer of the time. His
March 1994 article “The Economy of Ideas” is one of the most prophetic yet
accessible accounts of how the Internet was changing the economics of
information. He astutely realized that information is not a “product” like most
physical property, but rather a social experience or form of life unto itself.
“Information is a verb, not a noun,” he wrote. “Freed of its containers,
information obviously is not a thing. In fact, it is something that happens in
the field of interaction between minds or objects or other pieces of
information. . . . Sharks are said to die of suffocation if they stop swimming,
and the same is nearly true of information.”~{22. John Perry Barlow, “The
Economy of Ideas,” /{Wired}/, March 1994, at
http://www.wired.com/wired/archive/2.03/economy.ideas.html. }~

Instead of the sober polemics of law professors, Barlow — a retired Wyoming
cattle rancher who improbably doubled as a tech intellectual and rock hipster —
spiced his analysis of information with colorful metaphors and poetic
aphorisms. Comparing information to DNA helices, Barlow wrote, “Information
replicates into the cracks of possibility, always seeking new opportunities for
/{Lebensraum}/.” Digital information, he said, “is a continuing process more
like the metaphorphosing tales of prehistory than anything that will fit in
shrink-wrap.”

Since hyperbole is an occupational reflex among cyberjournalists, Barlow’s
/{Wired}/ piece bore the obligatory subtitle, “Everything you know about
intellectual property is wrong.” Yet reading Barlow more than a decade later
confirms that, posturing aside, he /{was}/ on to the big story of our time:
“Notions of property, value, ownership and the nature of wealth itself are
changing more fundamentally than at any time since the Sumerians first poked
cuneiform into wet clay and called it stored grain. Only a very few people are
aware of the enormity of this shift, and fewer of them are lawyers or public
officials.”~{ Ibid. }~

With a nod to Professor Samuelson, Barlow was prescient enough to compare the
vulnerability of indigenous peoples to the coming dispossession of Internet
communities: “Western countries may legally appropriate the music, designs and
biomedical lore of aboriginal people without compensation to their tribes of
origins since those tribes are not an ‘author’ or ‘investors.’ But soon most
information will be generated collaboratively by the cyber-tribal
hunter-gatherers of cyberspace. Our arrogant legal dismissal of the rights of
‘primitives’ will soon return to haunt us.”
={ Samuelson, Pamela }

No account of cyberactivism in the 1990s is complete without mention of James
Love, a feisty advocate with a brilliant strategic mind and an extraordinary
ability to open up broad new policy fronts. For example, Love, as director of
the Ralph Nader–founded Consumer Project on Technology, worked with tech
activist Carl Malamud to force the U.S. Securities and Exchange Commission to
put its EDGAR database of corporate filings online in 1994, at a time when the
SEC was planning to give the data to private vendors to sell. By prevailing at
the SEC, Love and Malamud set an important precedent that government agencies
should post their information on the Internet for free. A few years later, in
1997, Love convened a conference to assess Microsoft’s troubling monopoly
power, an event that emboldened the Department of Justice to launch its
antitrust lawsuit against the company. Love later played a key role in
persuading an Indian drugmaker to sell generic HIV/AIDS drugs to South Africa,
putting Big Pharma on the defensive for its callous patent and trade policies
and exorbitant drug prices. Love’s timely gambit in 1996 to organize broader
advocacy for the public domain failed, however. He co-founded the Union for the
Public Domain, with a board that included Richard Stallman, but the project
never developed a political following or raised much money.
={ Love, James ;
   EDGAR database ;
   Malamud, Carl ;
   Microsoft :
     antitrust lawsuit against
}

The American Library Association was the largest and bestfunded advocate on
copyright issues in the 1990s, but its collaborations with other Washington
allies tended to be modest, and its grassroots mobilization disappointing.
Libraries are respected in the public mind precisely because they are stable,
apolitical civic institutions — that is, not activists. Despite its valuable
presence on copyright and Internet policy issues, the library lobby was
temperamentally disinclined to get too far ahead of the curve.
={ American Library Association ;
   libraries
}

By the end of the decade, a muscular, dissenting discourse about copyright law
was starting to take shape. On one side was a complicated body of
industry-crafted copyright law that claimed imperial powers to regulate more
and more aspects of daily life — your Web site, your music CDs, your electronic
devices, your computer practices. On the other side were ordinary people who
loved how the Internet and digital devices were empowering them to be creators
and publishers in their own right. They just wanted to indulge their natural
human urge to share, tinker, reuse, and transform culture.
={ copyright law :
     expansion of
}

The dissent of the progressive copyright scholars and activists, though
pungent, was hardly insurrectionist. These critics were reformers, not bomb
throwers. Most objected to the overreaching scope and draconian enforcement of
copyright law, not to its philosophical foundations. They generally argued that
the problem wasn’t copyright law per se, but the misapplication and
overextension of its core principles.

2~ A New Story About the Public Domain
={ copyright law :
     public domain vs. +15 ;
   public domain :
     copyright law, and +15 | emergence of +21
}

One of the most notable outgrowths of all this activity was the development of
a new story about the public domain. Scholars took a range of legal doctrines
that were scattered among the sprawling oeuvre of copyright law and
consolidated them under one banner, /{the public domain}/. The new framing
helped give the public’s rights in cultural works a new moral standing and
intellectual clarity.

Even though copyright law has existed for three centuries, the term “public
domain” did not surface in a U.S. Supreme Court decision until 1896. The public
domain was first mentioned in U.S. copyright law in 1909, and while it
occasionally merited passing reference or discussion in later decades, the
concept was not the subject of a significant law review article until 1981.
That article was “Recognizing the Public Domain,” by Professor David Lange.~{
David Lange, “Recognizing the Public Domain,” /{Law and Contemporary Problems}/
44 (Autumn 1981). }~ “David’s article was an absolutely lovely piece that sunk
without a trace,” recalls Jessica Litman. “When a bunch of us discovered
[Lange’s article] in the late 1980s, it had been neither cited nor excerpted
nor reprinted nor anything — because nobody was looking for a defense of the
public domain. People were looking for arguments for extending copyright
protection. David was ahead of his time.”

The main reason that the public domain was ignored was that it was generally
regarded as a nullity. “Public domain in the fields of literature, drama, music
and art is the other side of the coin of copyright,” wrote M. William
Krasilovsky in 1967.~{ M. William Krasilovsky, “Observations on the Public
Domain,” /{Bulletin of the Copyright Society}/ 14, no. 205 (1967). }~ “It is
best defined in negative terms.” Edward Samuels wrote that the public domain
“is simply whatever remains after all methods of protection are taken into
account.”~{ Edward Samuels, “The Public Domain in Copyright Law,” /{Journal of
the Copyright Society}/ 41, no. 137 (1993), p. 138. }~

Lange himself acknowledged this conventional wisdom when he wrote that the
public domain “amounts to a dark star in the constellation of intellectual
property.” He took issue with this history, however, and insisted upon the
affirmative value of the public domain. Lange dredged up a number of “publicity
rights” cases and commentary to shed light on the problem: Bela Lugosi’s widow
and son claimed that they, not Universal Pictures, should own the rights to the
character Dracula. Representatives of the deceased Marx Brothers sought to stop
a Broadway production spoofing 1930s musicals from using the Marx Brothers’
characters. DC Comics, owner of a trademark in the Superman character, sued to
prevent a group of Chicago college students from calling their newspaper /{The
Daily Planet}/. And so on.
={ DC Comics ;
   Lugosi, Bela ;
   Marx Brothers +1
}

From such examples, Lange drove home a commonsense lesson about the derivative
nature of creativity: we all depend on others to generate “new” works. Groucho,
Chico, and Harpo Marx couldn’t “invent” their stage personas until, in classic
vaudevillian tradition, they had adapted jokes and shtick from their peers. “In
time,” Groucho wrote in his memoirs, “if [a comedian] was any good, he would
emerge from the routine character he had started with and evolve into a
distinct personality of his own. This has been my experience and also that of
my brothers, and I believe this has been true of most of the other comedians.”

To which Lange added, “Of course, what Groucho is saying in this passage is
that although he and his brothers began as borrowers they ended as inventors. .
. . It is a central failing in the contemporary intellectual property
literature and case law that that lesson, so widely acknowledged, is so
imperfectly understood.”~{ Lange, “Recognizing the Public Domain,” p. 162. }~

In example after example, Lange made the point that “as access to the public
domain is choked, or even closed off altogether, the public loses too: loses
the rich heritage of its culture, the rich presence of new works derived from
that culture, and the rich promise of works to come.” Lange warned that “courts
must dispel” the “impression of insubstantiality” from which the public domain
suffers. Nothing will be resolved, he warned, “until the courts have come to
see the public domain not merely as an unexplored abstraction but as a field of
individual rights as important as any of the new property rights.”

2~ What Is “Authorship”?
={ authorship +13 ;
   copyright law :
     authorship, and +13 | originality, and +13
}

Besides honoring the public domain, copyright reformers sought to develop a
second, more subversive narrative. They questioned the very idea of individual
“authorship” and “originality,” two central pillars of copyright law, The
standard moral justification for granting authors exclusive rights in their
works is the personal originality that they supposedly show in creating new
works. But can “originality” and “authorship” be so neatly determined? What of
the role of past generations and creative communities in enabling the creation
of new works? Don’t we all, in the words of Isaac Newton, stand on the
shoulders of giants?
={ Newton, Isaac }

The idea that sharing, collaboration, and adaptation may actually be important
to creativity, and not merely incidental, was a somewhat daring theme in the
early 1990s, if only because it had little recognition in copyright
scholarship. While this line of analysis preceded the Internet, the arrival of
the World Wide Web changed the debate dramatically. Suddenly there was a
powerful, real-life platform for /{collective}/ authorship. Within fifteen
years, sharing and collaboration has become a standard creative practice, as
seen in Wikipedia, remix music, video mashups, machinima films, Google map
mashups, social networking, and much else.
={ orld Wide Web :
     collective authorship, and ;
   authorship :
     collective
}

Of course, in the early 1990s, the promise of online networks was only dimly
understood. But for Jessica Litman, the tightening noose of proprietary control
had troubling implications for fair use and the ability of people to create and
share culture: “Copyright law was no longer as open and porous as it had been,
so I felt compelled to try to defend the open spaces that nobody was paying
attention to.” Litman published a major article on the public domain in 1990,
instigating a fresh round of interest in it and establishing lines of analysis
that continue to this day.~{ Jessica Litman, “The Public Domain,” /{Emory Law
Journal}/ 39, no. 965 (Fall 1990). }~
={ Litman, Jessica ;
   copyright law :
     fair use doctrine, and ;
   fair use doctrine :
     copyright law, and
}

She made the then-startling claim, for example, that “the very act of
authorship in /{any}/ medium is more akin to translation and recombination than
it is to creating Aphrodite from the foam of the sea. Composers recombine
sounds they have heard before; playwrights base their characters on bits and
pieces drawn from real human beings and other playwrights’ characters. . . .
This is not parasitism; it is the essence of authorship. And, in the absence of
a vigorous public domain, much of it would be illegal.” Litman argued that the
public domain is immensely important because all authors depend upon it for
their raw material, Shrink the public domain and you impoverish the creative
process.

The problem, said Litman, is that copyright law contains a structural
contradiction that no one wants to acknowledge. The law requires “originality”
in order for a work to be protected — but it cannot truly determine what is
“original.” If authors could assert that their works were entirely original,
and courts conscientiously enforced this notion, copyright law would soon
collapse. Everyone would be claiming property rights in material that had
origins elsewhere. Shakespeare’s estate might claim that Leonard Bernstein’s
/{West Side Story}/ violates its rights in /{Romeo and Juliet}/; Beethoven
would prevent the Bee Gees from using the opening chords of his Fifth Symphony.

When one person’s copyright claims appear to threaten another person’s ability
to create, the courts have historically invoked the public domain in order to
set limits on the scope of copyright protection. In this backhanded way, the
public domain helps copyright law escape from its own contradictions and
ensures that basic creative elements remain available to all. As Litman
explained:

_1 Because we have a public domain, we can permit authors to avoid the harsh
light of a genuine search for provenance, and thus maintain the illusion that
their works are indeed their own creations. We can tolerate the grant of
overbroad and overlapping deeds through the expedient assumption that each
author took her raw material from the commons, rather than from the property
named in prior deeds.~{ Litman, “The Public Domain,” p. 1012. }~

In effect, copyright law sets up a sleight of hand: it invites authors to
plunder the commons with the assurance that their borrowings will be politely
ignored — but then it declares the resulting work of authorship “original” and
condemns any further follow-on uses as “piracy.” This roughly describes the
early creative strategy of the Walt Disney Company, which built an empire by
rummaging through the public domain of fairy tales and folklore, adding its own
creative flourishes, and then claiming sole ownership in the resulting
characters and stories.
={ authorship +3 ;
   Walt Disney Company
}

As Litman unpacked the realities of “authorship,” she showed how the idea of
“originality” serves as a useful fiction. Any author must draw upon aspects of
culture and recombine them without ever being able to identify the specific
antecedents, she pointed out. Judges, for their part, can never really make a
rigorous factual determination about what is “original” and what is taken from
the public domain. In reality, said Litman, authorship amounts to “a
combination of absorption, astigmatism and amnesia.” The public domain is vague
and shifting precisely because it must constantly disguise the actual limits of
individual “originality.”

English professor Martha Woodmansee and law professor Peter Jaszi helped expose
many of the half-truths about “authorship” and “originality.” Their 1994
anthology of essays, /{The Construction of Authorship}/, showed how social
context is an indispensable element of “authorship,” one that copyright law
essentially ignores.~{ Martha Woodmansee and Peter Jaszi, eds., /{The
Construction of Authorship: Textual Appropriation in Law and Literature}/
(Durham, NC: Duke University Press, 1994). }~ Thus, even though indigenous
cultures collectively create stories, music, and designs, and folk cultures
generate works in a collaborative fashion, copyright law simply does not
recognize such acts of collective authorship. And so they go unprotected. They
are vulnerable to private appropriation and enclosure, much as Stallman’s
hacker community at MIT saw its commons of code destroyed by enclosure.
={ Jaszi, Peter ;
   Woodmansee, Martha ;
   commons :
     enclosure of ;
   enclosure movement
}

Before the Internet, the collaborative dimensions of creativity were hardly
given much thought. An “author” was self-evidently an individual endowed with
unusual creative skills. As the World Wide Web and digital technologies have
proliferated, however, copyright’s traditional notions of “authorship” and
“originality” have come to seem terribly crude and limited. The individual
creator still matters and deserves protection, of course. But when dozens of
people contribute to a single entry of Wikipedia, or thousands contribute to an
open-source software program, how then shall we determine who is the
“author”?~{ Henry Miller writes: “We carry within us so many entities, so many
voices, that rare indeed is the man who can say he speaks with his own voice.
In the final analysis, is that iota of uniqueness which we boast of as ‘ours’
really ours? Whatever real or unique contribution we make stems from the same
inscrutable source whence everything derives. We contribute nothing but our
understanding, which is a way of saying — our acceptance.” Miller, /{The Books
in My Life}/ (New York: New Directions), p. 198. }~ By the lights of copyright
law, how shall the value of the public domain, reconstituted as a commons, be
assessed?~{ Rufus Pollock, “The Value of the Public Domain,” report for
Institute for Public Policy Research, London, July 2006, at
http://www.rufuspollock.org/economics/papers/value_of_public_domain.ippr.pdf.
}~
={ World Wide Web :
     collective authorship, and ;
   creativity :
     collaborative
}

The Bellagio Declaration, the outgrowth of a conference organized by Woodmansee
and Jaszi in 1993, called attention to the sweeping deficiencies of copyright
law as applied. One key point stated, “In general, systems built around the
author paradigm tend to obscure or undervalue the importance of the ‘public
domain,’ the intellectual and cultural commons from which future works will be
constructed. Each intellectual property right, in effect, fences off some
portion of the public domain, making it unavailable to future creators.”~{ See
James Boyle, /{Shamans, Software, and Spleens: Law and the Construction of the
Information Society}/ (Cambridge, MA: Harvard University Press, 1995), p. 192.
}~
={ Jaszi, Peter ;
   Woodmansee, Martha ;
   Bellagio Declaration ;
   Boyle, James :
     Shamans, Software and Spleens, by +1 ;
   intellectual property :
     public domain vs.
}

Another fusillade of flaming arrows engulfed the fortress of “authorship” and
“originality” in 1996, when James Boyle published /{Shamans, Software, and
Spleens}/. With sly wit and deep analysis, this landmark book identified many
of the philosophical paradoxes and absurdities of property rights in indigenous
knowledge, software, genes, and human tissue. Boyle deftly exposed the
discourse of IP law as a kind of Möbius strip, a smooth strip of logic that
confusingly turns back on itself. “If a geography metaphor is appropriate at
all,” said Boyle, “the most likely cartographers would be Dali, Magritte and
Escher.”~{ James Boyle, “A Theory of Law and Information: Copyright, Spleens,
Blackmail and Insider Trading,” /{California Law Review}/ 80, no. 1413 (1992),
at http://www.law.duke.edu/boylesite/law&info.htm. }~
={ copyright law :
     philosophical challenges to
}

2~ “You Have No Sovereignty Where We Gather”
={ copyright law :
     philosophical challenges to +13
}

The deconstruction of copyright law over the past twenty years has been a
significant intellectual achievement. It has exposed the copyright law’s
philosophical deficiencies, showed how social practice deviates from it, and
revealed the antisocial effects of expanding copyright protection. Critics knew
that it would be impossible to defend the fledgling cyberculture without first
documenting how copyright law was metastasizing at the expense of free
expression, creative innovation, consumer rights, and market competition.

But as the millennium drew near, the tech-minded legal community — and
law-minded techies — knew that critiques and carping could only achieve so
much. A winnable confrontation with copyright maximalists was needed. A
compelling counternarrative and a viable long-term political strategy had to be
devised. And then somehow they had to be pushed out to the wider world and made
real.

That task was made easier by the intensifying cultural squeeze. The
proprietarian lockdown was starting to annoy and anger people in their everyday
use of music, software, DVDs, and the Web. And the property claims were growing
more extreme. The American Society of Composers, Authors and Publishers had
demanded that Girl Scout camps pay a public performance license for singing
around the campfire. Ralph Lauren challenged the U.S. Polo Association for
ownership of the word /{polo}/. McDonald’s succeeded in controlling the
Scottish prefix Mc as applied to restaurants and motels, such as “McVegan” and
“McSleep.”~{ These examples can be found in Bollier, /{Brand Name Bullies}/. }~
={ Lauren, Ralph }

The mounting sense of frustration fueled a series of conferences between 1999
and 2001 that helped crystallize the disparate energies of legal scholarship
into something resembling an intellectual movement. “A number of us [legal
scholars] were still doing our own thing, but we were beginning to get a sense
of something,” recalls Yochai Benkler, “It was no longer Becky Eisenberg
working on DNA sequences and Pamela Samuelson on computer programs and Jamie
Boyle on ‘environmentalism for the ’Net’ and me working on spectrum on First
Amendment issues,” said Benkler. “There was a sense of movement.”~{ Interview
with Yochai Benkler, February 7, 2006.}~ (“Environmentalism for the ’Net” was
an influential piece that Boyle wrote in 1998, calling for the equivalent of an
environmental movement to protect the openness and freedom of the Internet.)~{
James Boyle, “A Politics of Intellectual Property: Environmentalism for the
Net,” /{Duke Law Journal}/ 47, no. 1 (October 1997), pp. 87–116, at
http://www.law.duke.edu/boylesite/Intprop.htm. }~
={ Boyle, James +1 ;
   Benkler, Yochai +1 ;
   Eisenberg, Rebecca ;
   Samuelson, Pamela
}

“The place where things started to get even crisper,” said Benkler, “was a
conference at Yale that Jamie Boyle organized in April 1999, which was already
planned as a movement-building event.” That conference, Private
Censorship/Perfect Choice, looked at the threats to free speech on the Web and
how the public might resist. It took inspiration from John Perry Barlow’s 1996
manifesto “A Declaration of the Independence of Cyberspace.” It is worth
quoting at length from Barlow’s lyrical cri de coeur — first published in
/{Wired}/ and widely cited — because it expresses the growing sense of thwarted
idealism among Internet users, and a yearning for greater self-determination
and self-governance among commoners. Barlow wrote:
={ Barlow, John Perry +6 }

_1 Governments of the Industrial World, you weary giants of flesh and steel, I
come from Cyberspace, the new home of Mind. On behalf of the future, I ask you
of the past to leave us alone, You are not welcome among us, You have no
sovereignty where we gather.

_1 We have no elected government, nor are we likely to have one, so I address
you with no greater authority than that with which liberty itself always
speaks. I declare the global social space we are building to be naturally
independent of the tyrannies you seek to impose on us. You have no moral right
to rule us nor do you possess any methods of enforcement we have true reason to
fear.

_1 Governments derive their just powers from the consent of the governed. You
have neither solicited nor received ours. We did not invite you, You do not
know us, nor do you know our world. Cyberspace does not lie within your
borders. Do not think that you can build it, as though it were a public
construction project, You cannot. It is an act of nature and it grows itself
through our collective actions.

_1 You have not engaged in our great and gathering conversation, nor did you
create the wealth of our marketplaces. You do not know our culture, our ethics,
or the unwritten codes that already provide our society more order than could
be obtained by any of your impositions.

_1 You claim there are problems among us that you need to solve, You use this
claim as an excuse to invade our precincts. Many of these problems don’t exist.
Where there are real conflicts, where there are wrongs, we will identify them
and address them by our means. We are forming our own Social Contract. This
governance will arise according to the conditions of our world, not yours. Our
world is different.

As Barlow made clear, the Internet was posing profound new questions — not just
about politics, but about the democratic polity itself. What would be the terms
of moral legitimacy and democratic process in cyberspace? Would the new order
be imposed by a Congress beholden to incumbent industries and their political
action committees, or would it be a new social contract negotiated by the
commoners themselves? In posing such questions, and doing it with such
rhetorical panache, Barlow earned comparisons to Thomas Jefferson.

The stirrings of a movement were evident in May 2000, when Benkler convened a
small conference of influential intellectual property scholars at New York
University Law School on “A Free Information Ecology.” This was followed in
November 2001 by a large gathering at Duke Law School, the first major
conference ever held on the public domain. It attracted several hundred people
and permanently rescued the public domain from the netherworld of
“nonproperty.” People from diverse corners of legal scholarship, activism,
journalism, and philanthropy found each other and began to reenvision their
work in a larger, shared framework.
={ Benkler, Yochai ;
   public domain :
     conferences about +1
}

Over three decades, copyright scholarship had become more incisive,
impassioned, and focused on the public good — but much of the talk remained
within the rarefied circles of the academy. What to do about the disturbing
enclosures of the cultural commons remained a vexing, open question. The 1990s
saw an eclectic smattering of initiatives, from EFF lawsuits and visionary
manifestos to underfunded advocacy efforts and sporadic acts of hacker mischief
and civil disobedience. All were worthwhile forms of engagement and exploratory
learning. None were terribly transformative. Free software was growing in
popularity in the 1990s, but its relevance to broader copyright struggles and
the Internet was not yet recognized. Congress and the courts remained captive
to the copyright-maximalist worldview. The idea of organizing a
counter-constituency to lay claim to the public domain and forge a new social
contract for cyberspace was a fantasy. Copyright law was just too obscure to
excite the general public and most creators and techies. The commoners were too
scattered and diverse to see themselves as an insurgent force, let alone
imagine they might create a movement.

1~ 3 WHEN LARRY LESSIG MET ERIC ELDRED

/{A constitutional test case becomes the seed for a movement.}/

Once the value of the public domain became evident, and a few visionaries
realized that the commons needed to be protected somehow, an important
strategic question arose: Which arena would offer the best hope for success —
politics, culture, technology, or law?

The real answer, of course, was all of the above. Building a new digital
republic would require a wholesale engagement with the politics of effecting
democratic change and the challenges of building a cultural movement. It would
require the invention of a shared technological infrastructure, and the
development of legal tools to secure the commons. All were intertwined. But as
a practical matter, anyone who aspired to stop the mass-media-driven expansions
of copyright law had to choose where to invest his or her energy. In the
mid-1990s, Lawrence Lessig decided that the greatest leverage would come
through law.
={ Lessig, Lawrence :
     law in contemporary context, and +2
}

Lessig, usually referred to as Larry, had the knowledge, talent, and good
timing to conceptualize the politics of digital technologies at a ripe moment,
the late 1990s, when the World Wide Web was exploding and people were
struggling to understand its significance. However, Lessig was not content to
play the sage law professor dispensing expertise at rarefied professional and
scholarly gatherings; he aimed to become a public intellectual and highbrow
activist. Through a punishing schedule of public speaking and a series of
high-profile initiatives starting in 1998 and 1999, Lessig became a roving
demigod-pundit on matters of the Internet, intellectual property, and cultural
freedom.

In the course of his frequent travels, he had a particularly significant
rendezvous at the Starbucks on Church Street in Cambridge, Massachusetts. It
was November 1998. A month earlier, Congress had enacted the Sonny Bono
Copyright Extension Act. Lessig was eager to meet with one Eric Eldred, a
retired navy contractor, to see if he would agree to be a plaintiff in the
first federal case to challenge the constitutionality of the copyright clause.
={ Copyright Term Extension Act ;
   Eldred, Eric :
     Lessig, and ;
   Lessig, Lawrence :
     Eldred, and
}

Eldred was a book enthusiast and computer programmer who had reached the end of
his rope. Three years earlier, in 1995, he had launched a simple but brilliant
project: a free online archive of classic American literature. Using his PC and
a server in his home in New Hampshire, Eldred posted the books of Nathaniel
Hawthorne, Henry James, Wallace Stevens, and dozens of other great authors
whose works were in the public domain. Eldred figured it would be a great
service to humanity to post the texts on the World Wide Web, which was just
beginning to go mainstream.

Eldred had previously worked for Apollo Computer and Hewlett-Packard and was
experienced in many aspects of computers and software. In the late 1980s, in
fact, he had developed a system that enabled users to post electronic text
files and then browse and print them on demand. When the World Wide Web
arrived, Eldred was understandably excited. “It seemed to me that there was a
possibility of having a system for electronic books that was similar to what I
had done before. I was interested in experimenting with this to see if it was
possible.”~{ Interview with Eric Eldred, August 1, 2006; Daren Fonda,
“Copyright Crusader,” /{Boston Globe Magazine}/, August 29, 1999, available at
http://www.boston.com/globe/magazine/8-29/featurestory1.shtml; and Eric Eldred,
“Battle of the Books: The Ebook vs. the Antibook,” November 15, 1998, at
http://www.eldritchpress.org/battle.html. }~

So Eldred set out to build his own archive of public-domain books: “I got books
from the library or wherever, and I learned how to do copyright research and
how to scan books, do OCR [opticalcharacter recognition] and mark them up as
HTML [the programming language used on the Web],” he said. “I just wanted to
make books more accessible to readers.”~{ Interview with Eric Eldred, August 1,
2006. }~

Eldred didn’t realize it at the time, but his brave little archive, Eldritch
Press, embodied a dawning cultural archetype — the selfpublished digital work
meant to be freely shared with anyone in the world, via the Internet. Thanks to
the magic of “network effects” — the convenience and value that are generated
as more people join a network — Eldred’s Web site was soon receiving more than
twenty thousand hits a day. A growing community of book lovers came together
through the site. They offered annotations to the online books, comments, and
links to foreign translations and other materials. In 1997, the National
Endowment for the Humanities considered the site so educational and exemplary
that it formally cited Eldritch Press as one of the top twenty humanities sites
on the Web.
={ Eldritch Press +12 ;
   Internet :
     communication system, as +3
}

Although it was only a one-person project, Eldritch Press was not just an
idiosyncratic innovation. The convergence of telecommunications, personal
computers, and software in the 1990s, otherwise known as the Internet, was
facilitating an explosion of new genres of public expression. We are still
grappling with how this new type of media system is different from broadcasting
and other mass media. But we do know this: it invites mass participation
because the system doesn’t require a lot of capital or professional talent to
use. The system favors decentralized interactivity over centralized control and
one-way communication. Ordinary people find it relatively inexpensive and
versatile. Since everyone has roughly the same access and distribution
capacities, the Internet is perhaps the most populist communication platform
and egalitarian marketplace in human history.
={ Internet :
     mass participation in
}

This was not the goal of the computer scientists who invented the Internet, of
course. Working under the auspices of the U.S. military, they were chiefly
concerned with building a communications system that would allow academic
researchers to share computerized information cheaply and easily. The idea was
that intelligence and innovation would arise from the “edges” of a “dumb”
network, and not be controlled by a centralized elite in the manner of
broadcasting or book publishing. The Internet — a network of networks — would
be a platform open to anyone who used a shared set of freely accessible
“protocols,” or standardized code, for computer hardware and software.~[* The
Internet protocols that enable different computers and networks to connect
despite their differences is TCP/IP, which stands for TransmissionControl
Protocol/Internet Protocol. These protocols enabled the commons known as the
Internet to emerge and function, and in turn to host countless other commons
“on top” of it.]~
={ Internet :
     protocols of +1
}

What was radically new about the network architecture was its freedom: No
special qualifications or permissions were needed to communicate or “publish.”
No one needed to pay special fees based on usage. Anyone could build her own
innovative software on top of the open protocols, It is a measure of the
system’s power that it has spawned all sorts of innovations that were not
foreseen at the outset: in the 1990s, the World Wide Web, instant messaging,
peer-to-peer file sharing, and Web logs, and, in the 2000s, podcasts, wikis,
social networking software, and countless other applications. The open, shared
protocols of the Internet provided an indispensable communications platform for
each of these innovations to arise.
={ free culture :
     Internet, of the ;
   Internet :
     architecture of
}

In building his online archive, Eric Eldred was part of this new cultural
cohort of innovators. He not only shared Richard Stallman’s dream — to build an
open, sharing community. He also came to share Stallman’s contempt for the long
arm of copyright law. The problem, in Eldred’s case, was the corporate
privatization of large portions of the public domain. In the 1990s, the Walt
Disney Company was worried that its flagship cartoon character, Mickey Mouse,
would enter the public domain and be freely available for anyone to use.
Mickey, originally copyrighted in 1928, was nearing the end of his
seventy-five-year term of copyright and was due to enter the public domain in
2003.
={ copyright law :
     public domain vs. +6 ;
   Eldred, Eric :
     public domain, and ;
   public domain :
     copyright law, and +6 | privatization of +2 ;
   Stallman, Richard :
     influence of ;
   Walt Disney Company
}

Disney led a concerted campaign to extend the term of copyrights by twenty
years. Under the new law, all works copyrighted after January 1, 1923, would be
privately controlled for another twenty years. Corporations would be able to
copyright their works for ninety-five years instead of seventy-five years, and
the works of individual authors would be a private monopoly for the author’s
lifetime plus seventy years. Thousands of works that were expected to enter the
public domain in 1999 and following years would remain under copyright until
2019 and beyond.

Congress readily enacted this twenty-year giveaway of monopoly rights on a
unanimous vote, and without any public hearings or debate. Disney was the most
visible beneficiary of the law, prompting critics to dub it the Mickey Mouse
Protection Act. But its more significant impact was to deprive Americans of
access to an estimated four hundred thousand cultural works from the 1920s and
1930s. Books by Sherwood Anderson, music by George Gershwin, poems by Robert
Frost, and tens of thousands of other works would remain under private control
for no good reason. The law was the eleventh time in the course of four decades
that Congress had extended the term of copyright protection. American
University law professor Peter Jaszi complained that copyright protection had
become “perpetual on the installment plan.”
={ Copyright Term Extension Act +6 ;
   Jaszi, Peter ;
   copyright law :
     expansion of | purpose of +3
}

The law was astonishingly inefficient and inequitable as well. To preserve the
property rights of the 2 percent of works from this period that still had
commercial value, the law also locked up the remaining 98 percent of works
(whose owners are often unknown or unable to be located in order to grant
permissions). Indeed, it was these “orphan works” — works still under copyright
but not commercially available, and with owners who often could not be found —
that represent an important “feedstock” for new creativity. The Sonny Bono Act
showered a windfall worth billions of dollars to the largest entertainment
businesses and authors’ estates.
={ copyright law :
     orphan works
}

At a more basic level, the copyright term extension showed contempt for the
very rationale of copyright law. Copyrights are intended as an inducement to
authors to create works. It is a government grant of monopoly property rights
meant to help authors earn money for producing books, music, film, and other
works. But, as Lessig pointed out, “You can’t incent a dead person. No matter
what we do, Hawthorne will not produce any more works, no matter how much we
pay him.” Jack Valenti replied that longer copyright terms would give Hollywood
the incentive to preserve old films from deteriorating and make them available.

The copyright term extension act privatized so many of the public domain books
on the Eldritch Press Web site, and so offended Eldred’s sense of justice, that
in November 1998 he decided to close his site in protest. The new law meant
that he would not be able to add any works published since 1923 to his Web site
until 2019. “I can no longer accomplish what I set out to do,” said Eldred.~{
Ibid. }~
={ Eldred, Eric :
     public domain, and | Lessig, and +3 ;
   Lessig, Lawrence +3 :
     Eldred, and +3
}

As luck had it, Larry Lessig was looking for an Everyman of the Internet.
Lessig, then a thirty-seven-year-old professor at Harvard Law School, was
looking for a suitable plaintiff for his envisioned constitutional test case.
He had initially approached Michael S. Hart, the founder of Project Gutenberg,
the first producer of free electronic books. At the time, the project had
nearly six thousand public-domain books available online. (It now has twenty
thousand books; about 3 million books are downloaded every month.) Hart was
receptive to the case but had his own ideas about how the case should be
argued. He wanted the legal complaint to include a stirring populist manifesto
railing against rapacious copyright holders. Lessig demurred and went in search
of another plaintiff.~{ Richard Poynder interview with Lawrence Lessig, “The
Basement Interviews: Free Culture,” April 7, 2006, p. 26, available at
http://poynder.blogspot.com/2006/03/basement-interviews.html. See also Steven
Levy, “Lawrence Lessig’s Supreme Showdown,” /{Wired}/, October 2002, pp.
140–45, 154–56, available at
http://www.wired.com/wired/archive/10.10/lessig.html. Project Gutenberg is at
http://wwwgutenberg.org. }~
={ Hart, Michael S. ;
   Project Gutenberg
}

After reading about Eldred’s protests in the /{Boston Globe}/, and meeting with
him over coffee, Lessig asked Eldred if he would be willing to be the plaintiff
in his envisioned case. Eldred readily agreed. As a conscientious objector and
draft resister during the Vietnam War, he was ready to go to great lengths to
fight the Sonny Bono Act. “Initially, I volunteered to violate the law if
necessary and get arrested and go to jail,” Eldred said. “But Larry told me
that was not necessary.” A good thing, because under the No Electronic Theft
Act, passed in 1997, Eldred could be charged with a felony. “I could face jail,
fines, seizure of my computer, termination of my Internet service without
notice — and so all the e-books on the Web site could be instantly lost,” he
said.
={ No Electronic Theft Act (1997) }

It was the beginning of a landmark challenge to the unchecked expansion of
copyright law. The case would turbocharge Lessig’s unusual career and educate
the press and public about copyright law’s impact on democratic culture. Most
significantly, it would, in time, spur the growth of an international free
culture movement.
={ copyright law :
     expansion of ;
   Eldred, Eric :
     copyright law, and
}

2~ Larry Lessig’s Improbable Journey
={ Lessig, Lawrence +49 }

Since Lessig looms so large in this story, it is worth pausing to understand
his roots. Raised by culturally conservative, rock-ribbed Republican parents in
central Pennsylvania, Lessig was a bright kid with a deep enthusiasm for
politics. “I grew up a right-wing lunatic Republican,” Lessig told journalist
Steven Levy, noting that he once belonged to the National Teen Age Republicans,
ran a candidate’s unsuccessful campaign for the Pennsylvania state senate, and
attended the 1980 Republican National Convention, which nominated Ronald Reagan
for president. Larry’s father, Jack, was an engineer who once built Minuteman
missile silos in South Dakota (where Lessig was born in 1961), and who later
bought a steelfabrication company in Williamsport, Pennsylvania.~{ Wikipedia
entry, at http://en.wikipedia.org/wiki/Lessig; Levy, “Lawrence Lessig’s Supreme
Showdown.” }~
={ Lessig, Lawrence :
     background of +4
}


Lessig initially thought he would follow in his father’s footsteps, and so he
went to the University of Pennsylvania to earn degrees in economics and
management. Later, studying philosophy at Trinity College in Cambridge,
England, he faced growing doubts about his deep-seated libertarian worldview.
Hitchhiking through Eastern Bloc countries, Lessig gained a new appreciation
for the role of law in guaranteeing freedom and making power accountable.
“There were many times when people in Eastern Europe would tell me stories
about the history of the United States that I had never been taught: things
like the history of how we treated Native Americans; and the history of our
intervention in South America; and the nature of our intervention in South East
Asia,” Lessig told Richard Poynder in 2006. “All of those were stories that we
didn’t tell ourselves in the most accurate and vivid forms.” These experiences,
said Lessig, “opened up a channel of skepticism in my head.”~{ Poynder
interview with Lessig, April 7, 2006. }~

Lessig’s sister Leslie once told a reporter that Larry came back from Cambridge
a very different person: “His views of politics, religion, and his career had
totally flipped.”~{ Levy, “Lawrence Lessig’s Supreme Showdown.” }~ No longer
aspiring to be a businessman or a philosopher, Lessig set his sights on law and
entered the University of Chicago Law School in 1986. He transferred the next
year to Yale Law School (to be near a girlfriend), groomed himself to be a
constitutional law scholar, and graduated in 1989.

Although he now considered himself a liberal, Lessig spent the next two years
in the service of two of the law’s most formidable conservatives. He clerked
for circuit court judge Richard Posner in 1988–89, followed by a year clerking
for Supreme Court justice Antonin Scalia during the 1990–91 term. His
educational odyssey complete, the thirty-year-old Lessig settled into the life
of a tenured law professor at the University of Chicago Law School.
={ Posner, Richard ;
   Scalia, Antonin
}

One of Lessig’s early scholarly concerns — adjudication — was not exactly a
warm-up for tub-thumping activism. But it did curiously prefigure his later
interest in using law as a tool to effect political change. In a 1993 law
review article, Lessig wondered how courts should interpret the law when public
sentiment and practice have changed. If a judge is going to be true to the
original meaning of a law, Lessig argued, he must make a conscientious
“translation” of the law by taking account of the contemporary context. A new
translation of the law is entirely justified, and should supplant an old
interpretation, Lessig argued, if prevailing social practices and
understandings have changed, The important thing in interpreting law,
therefore, is “fidelity in translation.”~{ Lawrence Lessig, “Fidelity in
Translation,” /{Texas Law Review}/ 71, no. 1165 (May 1993). }~
={ law :
     social change, and +8 ;
   Lessig, Lawrence :
     law in contemporary context, and +8
}

Lessig elaborated on this theme in a 1997 article that spent twenty-seven dense
pages pondering how two different Supreme Courts, separated by nearly a
century, could look to identical words in the Constitution and reach precisely
opposite conclusions.~[* The Erie ruling held that federal common law,
previously recognized by the U.S. Supreme Court in 1842, was
unconstitutional.]~ It is not as if one Court or the other was unprincipled or
wrong, Lessig wrote. Rather, any court must take account of contemporary social
norms and circumstances in “translating” an old law for new times. Lessig
called this dynamic the "/{Erie}/-effect," a reference to the U.S. Supreme
Court’s 1938 ruling in /{Erie Railroad Co. v. Tompkins}/. The /{Erie}/-effect
is about the emergence of “a kind of contestability about a practice within a
legal institution,” which prompts “a restructuring of that practice to avoid
the rhetorical costs of that contestability.”~{ Lawrence Lessig, “Erie-Effects
of Volume 110: An Essay on Context in Interpretive Theory,” /{Harvard Law
Review}/ 110, no. 1785 (1997). }~
={ Erie Railroad Co. v. Tompkins +1 }

Lessig described how an /{Erie}/-effect might be exploited to catalyze a
political shift (paraphrased here): /{identify}/ a socially contested law, aim
to /{force}/ the conflicting social practice into the foreground by
/{inflaming}/ conventional discourse, and then /{argue}/ for a change in legal
interpretation in order to relieve the contestability that has been alleged.~{
Ibid., p. 1809. }~ If the conflict between the law and actual social practice
can be made vivid enough, a court will feel pressure to reinterpret the law. Or
the court will defer to the legislature because the very contestability of the
law makes the issue a political question that is inappropriate for a court to
resolve. One notable instance of the /{Erie}/-effect in our times, Lessig
pointed out, was the successful campaign by feminist law scholar Catherine
MacKinnon to define sexual harassment in the workplace as a form of illegal
discrimination. The point was to transform popular understanding of the issue
and then embody it in law.
={ MacKinnon, Catherine }

Lessig was not especially focused on tech issues until he ran across Julian
Dibbell’s article “A Rape in Cyberspace,” which appeared in the /{Village
Voice}/ in December 1993.~{ Julian Dibbell, “A Rape in Cyberspace: How an Evil
Clown, a Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turns a
Database into a Society,” /{Village Voice}/, December 21, 1993, pp. 36–42,
reprinted in Mark Stefik, /{Internet Dreams: Archetypes, Myths, and Metaphors}/
(Cambridge, MA: MIT Press, 1997), pp. 293–315, Dibbell quote at p. 296. }~ The
piece described the social havoc that ensued in an online space, LambdaMOO,
hosted at Xerox Palo Alto Research Center. One pseudonymous character “raped”
another in the virtual space, using cruel words and graphic manipulations. The
incident provoked an uproar among the thousand members of LambdaMOO, and had
real emotional and social consequences. Yet, as Dibbell pointed out, “No bodies
touched. Whatever physical interaction occurred consisted of a mingling of
electronic signals sent from sites spread out between New York City and Sydney,
Australia.”
={ Dibbell, Julian :
     "A Rape in Cyberspace" +1 ;
   law :
     cyberspace, of +3
}

For Lessig, the LambdaMOO “rape” had an obvious resonance with Catherine
MacKinnon’s arguments in her 1993 book /{Only Words}/. Does a rape in
cyberspace resemble the harms inflicted on real women through pornography?
Lessig saw intriguing parallels: “I really saw cyberspace as a fantastic
opportunity to get people to think about things without recognizing the
political valences. That’s all I was interested in; it was purely
pedagogical.”~{ Interview with Lawrence Lessig, March 20, 2006. }~
={ MacKinnon, Catherine }

To explore the issues further, Lessig developed one of the first courses on the
law of cyberspace. He taught it in the spring semester of 1995 at Yale Law
School, where he was a visiting professor, and later at the University of
Chicago and Harvard law schools. During the Yale class, an exchange with a
student, Andrew Shapiro, jarred his thinking in a new direction: “I was
constantly thinking about the way that changing suppositions of constitutional
eras had to be accounted for in the interpretation of the Constitution across
time. Andrew made this point about how there’s an equivalent in the technical
infrastructure [of the Internet] that you have to think about. And then I began
to think about how there were norms and law and infrastructure — and then I
eventually added markets into this — which combine to frame what policymaking
is in any particular context.”~{ Ibid. }~
={ Shapiro, Andrew }

This line of analysis became a central theme of Lessig’s startling first book,
/{Code and Other Laws of Cyberspace}/, published in 1999.~{ Lessig, /{Code and
Other Laws of Cyberspace}/ (New York: Basic Books, 1999). }~ /{Code}/ took on
widespread assumptions that the Internet would usher in a new libertarian,
free-market utopia. Cyberlibertarian futurists such as Alvin Toffler, Esther
Dyson, George Gilder, and John Gilmore had routinely invoked cyberspace as a
revolutionary force that would render government, regulation, and social
welfare programs obsolete and unleash the transformative power of free
markets.~{ Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler,
“Cyberspace and the American Dream: A Magna Carta for the Knowledge Age,”
Progress and Freedom Foundation, August 1994, available at
http://www.pff.org/issues-pubs/futureinsights/fil.2magnacarta.html. }~ In the
libertarian scenario, individual freedom can flourish only if government gets
the hell out of the way and lets individuals create, consume, and interact as
they see fit, without any paternalistic or tyrannical constraints. Prosperity
can prevail and scarcity disappear only if meddling bureaucrats and politicians
leave the citizens of the Internet to their own devices. As Louis Rossetto, the
founder and publisher of /{Wired}/, bluntly put it: “The idea that we need to
worry about anyone being ‘left out’ is entirely atavistic to me, a product of
that old economics of scarcity and the 19th century social thinking that grew
out of it.”~{ David Hudson, interview with Louis Rossetto, “What Kind of
Libertarian,” /{Rewired}/ (Macmillan, 1997), p. 255. }~
={ code :
     law, as +4 ;
   law :
     code as +4 ;
   Lessig, Lawrence :
     Code and Other Laws of Cyberspace +4 ;
   Dyson, Esther ;
   Gilder, George ;
   Gilmore, John ;
   Rossetto, Louis ;
   Toffler, Alvin ;
   Internet :
     architecture of +2 | freedom of +1 ;
   cyberspace :
     economic effects of
}

Lessig was more wary. In /{Code}/, he constructed a sweeping theoretical
framework to show how freedom on the Internet must be actively, deliberately
constructed; it won’t simply happen on its own. Inspired by conversations with
computer programmer Mitch Kapor, who declared that “architecture is politics”
in 1991, Lessig’s book showed how software code was supplanting the regulatory
powers previously enjoyed by sovereign nation-states and governments. The
design of the Internet and software applications was becoming more influential
than conventional sources of policymaking — Congress, the courts, federal
agencies. /{Code is law}/, as Lessig famously put it.
={ Kapor, Mitch }

What was worrisome, Lessig warned, was how relatively small changes in software
code could alter the “architecture of control” governing the Internet. The
current architecture was not necessarily stable and secure, in other words.
Moreover, any future changes were likely to be animated by private, commercial
forces and not publicly accountable and democratic ones. Lessig illustrated
this point with a disarmingly simple drawing of a dot representing an
individual, whose range of behaviors is affected by four distinct forces:
software architecture, the market, law, and social norms. Each of these factors
conspires to regulate behaviors on the Internet, Lessig argued — and commercial
forces would clearly have the upper hand.

/{Code}/ was a powerful and sobering rebuttal to libertarian assumptions that
“keeping government out” would safeguard individual freedom. Its analysis
quickly became the default conceptual model for talking about governance on the
Internet. It helped situate many existing policy debates — Internet censorship,
digital privacy, copyright disputes — in a larger political and policy
framework. Although many readers did not share Lessig’s pessimism, /{Code}/
helped expose an unsettling truth — that a great many legislators, federal
agencies, and courts were largely oblivious to the regulatory power of software
code. They didn’t have a clue about the technical structures or social dynamics
affecting life on the Internet, let alone how existing law would comport with
this alien domain.
={ Internet :
     freedom of
}

/{Code}/ was widely praised and widely read. But it was only one project of
that period that catapulted Lessig to international prominence. In the
mid-1990s, Charles Nesson, a bold-thinking, highflying evidence professor at
Harvard Law School, was organizing the Berkman Center for Internet & Society.
The new project aspired to study “the most difficult and fundamental problems
of the digital age,” and show public-interest leadership in addressing them.
Nesson, who had become modestly famous for his role in the W. R. Grace
litigation chronicled in Jonathan Harr’s /{A Civil Action}/, recruited Lessig
to be the Berkman Center’s marquee star in 1997. It was an irresistibly
prestigious and visible perch.
={ Berkman Center for Internet & Society ;
   Nesson, Charles
}

This was demonstrated within months, when Judge Penfield Jackson tapped Lessig
to be a “special master” in one of the most important antitrust cases in a
generation, /{U.S. v. Microsoft}/.~{ Steven Levy, “The Great Liberator,”
/{Wired}/, October 2002, and Poynder interview with Lessig, April 7, 2006. }~
Lessig’s assignment was to sift through the welter of technical claims and
counterclaims in the case and produce a report with recommendations to the
court. The government alleged that Microsoft had abused its monopoly power in
its sales of its operating system and Web browser, particularly in “bundling”
the browser with the Windows operating system.
={ Jackson, Penfield ;
   Microsoft :
     antitrust lawsuit against +1 ;
   Lessig, Lawrence :
     Microsoft lawsuit, and +1
}

Microsoft soon raised questions about Lessig’s neutrality as a special master.
Among other objections, the company cited his book’s claim that software code
is political and a passage that said Microsoft was “absolutely closed” compared
to an open-standards body. It also dredged up an e-mail in which Lessig
facetiously equated using Micosoft’s Internet Explorer with “selling one’s
soul.” After nearly eight weeks on the job, the Court of Appeals, citing a
technicality, took Lessig off the case, to his enduring disappointment. He has
been deeply frustrated by the implication that he had been removed for bias
(the court made no such finding) and by his abrupt banishment from a plum role
in a landmark case.
={ Lessig, Lawrence :
     Code and Other Laws of Cyberspace
}

2~ Waging the /{Eldred}/ Case

Back at the Berkman Center, however, there were plenty of opportunities to
influence the digital future. The center was a hothouse of venturesome ideas
and eccentric visionaries. It was a place where John Perry Barlow could drop by
to talk with Lessig and Berkman co-founder Jonathan Zittrain, one of the early
cyberlaw experts. The center drew upon the ideas of intellectual property guru
William (Terry) Fisher; Charles Nesson, who specialized in launching Big Ideas;
and a self-renewing batch of bright law students eager to make their mark on a
hip and emerging field of law. Richard Stallman at nearby MIT was an occasional
visitor, as was MIT computer scientist Hal Abelson, who combined deep technical
expertise with an appreciation of the social and democratic implications of
digital technologies. It was during this time, in 1998, that Lessig and Abelson
jointly taught The Law of Cyberspace: Social Protocols at Harvard Law School.
The class was an attempt to make sense of some novel legal quandaries exploding
on the Internet, such as computer crime, identity authentication, digital
privacy, and intellectual property.
={ Berkman Center for Internet & Society +5 ;
   Nesson, Charles ;
   Abelson, Hal :
     cyberlaw, and ;
   Barlow, John Perry ;
   Fisher, William (Terry) ;
   Stallman, Richard ;
   Zittrain, Jonathan ;
   Internet :
     legal quandaries arising on ;
   law :
     cyberspace, of
}

While nourished by the work of his academic colleagues, Lessig was determined
to come up with ingenious ways to /{do something}/ about the distressing drift
of copyright law. It was important to take the offensive. Notwithstanding the
pessimism of /{Code}/, Lessig’s decidedly optimistic answer was to gin up a
constitutional challenge to copyright law. Many legal experts and even
sympathetic colleagues were skeptical. Peter Jaszi, a leading intellectual law
professor at American University, told a reporter at the time, “It’s not so
much that we thought it was a terrible idea but that it was just unprecedented.
Congress has been extending copyright for 180 years, and this is the first time
someone said it violated the Constitution.”~{ David Streitfeld, “The Cultural
Anarchist vs. the Hollywood Police State,” /{Los Angeles Times Magazine}/,
September 22, 2002, p. 32. }~ Others worried that an adverse ruling could set
back the larger cause of copyright reform.
={ Jaszi, Peter ;
   Lessig, Lawrence :
     Code and Other Laws of Cyberspace ;
   law :
     social change, and +3 ;
   copyright law :
     expansion of
}

In the spirit of the commons, Lessig and his Berkman Center colleagues decided
that the very process for mounting the /{Eldred}/ lawsuit would be different:
“Rather than the secret battles of lawyers going to war, we will argue this
case in the open. This is a case about the commons; we will litigate it in the
commons. Our arguments and strategy will be developed online, in a space called
‘openlaw.org.’ Key briefs will be drafted online, with participants given the
opportunity to criticize the briefs and suggest other arguments. . . . Building
on the model of open source software, we are working from the hypothesis that
an open development process best harnesses the distributed resources of the
Internet community. By using the Internet, we hope to enable the public
interest to speak as loudly as the interests of corporations.”~{ Lawrence
Lessig, “Commons Law,” June 24, 1999, posted on www.intellectu
alcapital.com/issues/issue251/item5505.asp, and Open Law archive at
http://cyber.law.harvard.edu/openlaw. }~
={ Eldred v. Reno/Eldred v. Ashcroft +28 ;
   Lessig, Lawrence :
     Eldred v. Reno, and +28 | law in contemporary context, and +1
}

Emulating the open-source development model was a nice touch, and perhaps
useful; dozens of people around the world registered at the Openlaw site and
posted suggestions. Some of the examples and legal critiques were used in
developing the case, and the model was later used by lawyers in the so-called
DeCSS case, in which a hacker broke the encryption of a DVD. But it turns out
that open, distributed creativity has its limits in the baroque dance of
litigation; it can’t work when secrecy and confidentiality are important, for
example.

The case, /{Eldred v. Reno}/ — later renamed /{Eldred v. Ashcroft}/ when the
Bush II administration took office — was filed in federal district court in
Washington, D.C., on January 11, 1999.~{ /{Eldred v. Reno}/ (later, Eldred v.
Ashcroft), 537 U.S. 186 (2003), affirming 239 F. 3d 372. }~ The complaint
argued that the Copyright Term Extension Act violated Article 1, section 8,
clause 8, of the Constitution, which provides that copyright protection shall
be of limited duration. It also argued that the Term Extension Act violated the
free speech clause of the First Amendment. In some respects, the case could
never have been waged without the foundation of legal scholarship produced in
the 1990s, which rehearsed a great many of the arguments presented to the
Court. In opposition were motion picture studios, the music industry, and book
publishers. They argued that Congress had full authority under the Constitution
to extend copyright terms, as it had done since the beginning of the republic.
={ copyright law :
     expansion of ;
   Copyright Term Extension Act ;
   Copyright Clause, U.S. Constitution
}

In October 1999, the U.S. District Court brusquely dismissed the case without
even holding a trial. Lessig and his Berkman colleagues were not entirely
surprised, and quickly set about filing an appeal with the U.S. Court of
Appeals for the District of Columbia Circuit. Going beyond the Openlaw
experiment at Berkman, they enlisted the support of several lawyers at Jones,
Day, Reavis & Pogue. On appeal, Lessig was allowed to argue the case personally
to a panel of judges. But once again, in February 2001, the case was dismissed.
Lessig considered it a significant victory that it was a 2-1 ruling, however,
which meant that a further appeal was possible. Lessig was also encouraged that
the dissenter had been the court’s most conservative member, Judge David
Sentelle. Lessig requested that the full circuit court hear the case — a
petition that was also rejected, this time after picking up support from a
liberal dissenter, Judge David Tatel.
={ Jones, Day, Reavis & Pogue +4 ;
   Sentelle, David ;
   Tatel, David
}

Normally, this would have been the end of the road for a case. Very few appeals
court cases are accepted for review by the U.S. Supreme Court, particularly
when the case has not even been argued at trial and no other courts have passed
judgment on the statute. So it was quite surprising when the Supreme Court, in
February 2002, accepted /{Eldred}/ for review and scheduled oral arguments for
October 2002.
={ Eldred v. Reno/Eldred v. Ashcroft :
     Supreme Court, and +11
}

At this point, Lessig realized he needed the advice and support of some
experienced Supreme Court litigators. He enlisted help from additional lawyers
at Jones, Day; Alan Morrison of Public Citizen Litigation Group; Kathleen
Sullivan, the dean of Stanford Law School; and Charles Fried, a former
solicitor general under President Reagan. Professor Peter Jaszi and the
students of his law clinic drafted an amicus brief.
={ orrison, Alan ;
   Fried, Charles ;
   Jaszi, Peter ;
   Sullivan, Kathleen
}

A key concern was how to frame the arguments. Attorney Don Ayer of Jones, Day
repeatedly urged Lessig to stress the dramatic harm that the Bono Act was
inflicting on free speech and free culture. But as Lessig later confessed, “I
hate this view of the law. . . . I was not persuaded that we had to sell our
case like soap.”~{ Lessig, “How I Lost the Big One,” /{Legal Affairs}/,
March/April 2004, available at
http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp.
}~ Lessig was convinced that the only way /{Eldred}/ could prevail at the
Supreme Court would be to win over the conservative justices with a matter of
principle. To Lessig, the harm was obvious; what needed emphasis was how the
Sonny Bono Act violated “originalist” principles of jurisprudence. (Originalist
judges claim to interpret the Constitution based on its “original” meanings in
1791, which includes a belief that Congress has strictly enumerated powers, not
broad legislative discretion.)
={ Ayer, Don ;
   law :
     originalist principles of +2
}

“We tried to make an argument that if you were an originalist— in the way these
conservative judges said they were in many other cases — then you should look
to the original values in the Copyright Clause,” said Lessig. “And we argued
that if you did that then you had to conclude that Congress had wildly
overstepped its constitutional authority, and so the law should be struck
down.”~{ Lessig interview with Richard Poynder, April 7, 2006, p. 25. }~
Flaunting the harm caused by the copyright term extension struck Lessig as
showy and gratuitous; he considered the harm more or less selfevident. In the
aftermath of a public debate that Lessig once had with Jack Valenti, a
questioner on Slashdot, a hacker Web site, suggested that Lessig would be more
persuasive if he asserted “a clear conception of direct harm . . . than the
secondary harm of the copyright holders getting a really sweet deal.” Lessig
conceded that such a focus “has been a weakness of mine for a long time. In my
way of looking at the world, the point is a matter of principle, not
pragmatics. . . . There are many others who are better at this pragmatism
stuff. To me, it just feels insulting.”~{ “Lawrence Lessig Answers Your
Questions,” Slashdot.org, December 21, 2001, Question 1, “The question of
harm,” posted by “caduguid,” with Lessig response, available at
http://interviews.slashdot.org/article.pl?sid=01/12/21/155221. }~
={ copyright law :
     expansion of ;
   Copyright Clause, U.S. Constitution ;
   Valenti, Jack
}

And so, despite warnings to the contrary, Lessig’s legal strategy relied on a
call to uphold originalist principles. Having clerked for Justice Scalia and
Judge Posner, Lessig felt that he understood the mind-set and sympathies of the
conservative jurists. “If we get to the Supreme Court,” Lessig told Slashdot
readers in December 2001, “I am certain that we will win. This is not a
left/right issue. The conservatives on the Court will look at the framers’
Constitution— which requires that copyrights be granted for ‘limited times’ —
and see that the current practice of Congress . . . makes a mockery of the
framers’ plan. And the liberals will look at the effect of these never-ending
copyrights on free speech, and conclude that Congress is not justified in this
regulation of speech. The Supreme Court doesn’t give a hoot about Hollywood;
they will follow the law.”~{ Lessig response to question 11, Slashdot.org,
“Will the extension of copyright continue?” posed by “Artifice_Eternity,”
available at http://interviews.slashdot.org/article.pl?sid=01/12/21/155221. }~
={ Posner, Richard ;
   Scalia, Antonin ;
   Copyright Clause, U.S. Constitution ;
   copyright law :
     expansion of +5 ;
   Copyright Term Extension Act +5
}

Lessig took pride in the fact that thirty-eight amicus briefs were filed on
behalf of /{Eldred}/. They included a wide range of authors, computer and
consumer electronics companies, and organizations devoted to arts, culture,
education, and journalism. Besides the usual suspects like the Free Software
Foundation, Electronic Frontier Foundation, and Public Knowledge, supporting
briefs were filed by fifteen economists including Kenneth Arrow and Milton
Friedman, Phyllis Schlafly of the Eagle Forum, and the Intel Corporation.

At oral arguments, Lessig immediately confronted a skeptical bench. Justice
Sandra Day O’Connor worried about overturning years of previous copyright term
extensions. Justice William Rehnquist proposed. “You want the right to copy
verbatim other people’s books, don’t you?” And when Justice Anthony Kennedy
invited Lessig to expound upon the great harm that the law was inflicting on
free speech and culture, Lessig declined the opportunity. He instead restated
his core constitutional argument, that copyright terms cannot be perpetual.
“This was a correct answer, but it wasn’t the right answer,” Lessig later
confessed in a candid postmortem of the case. “The right answer was to say that
there was an obvious and profound harm. Any number of briefs had been written
about it. Kennedy wanted to hear it. And here was where Don Ayer’s advice
should have mattered. This was a softball; my answer was a swing and a miss.”~{
See
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/01-618.pdf.
See also Lessig, “How I Lost the Big One,” and Linda Greenhouse, “Justices Hear
Arguments in Challenge to Copyrights,” /{New York Times}/, October 10, 2002. A
number of Supreme Court opinions in the /{Eldred}/ case can be found at the
Openlaw archive at http://cyber.law.harvard.edu/openlaw/eldredvreno. The
/{Loyola Los Angeles Law Review}/ held a symposium on /{Eldred v. Ashcroft}/,
available at http://llr.lls.edu/volumes/v36-issue1. }~ No justices spoke in
defense of the Sonny Bono Act.
={ Ayer, Don ;
   Kennedy, Anthony ;
   O’Connor, Sandra Day ;
   Rehnquist, William
}

Yet they had clear reservations about the Supreme Court’s authority to dictate
the length of copyright terms.

A few months later, on January 15, 2003, the Supreme Court announced its
ruling: a 7-2 defeat for Eldred. The majority opinion, written by Justice Ruth
Bader Ginsburg, did not even raise the “enumerated powers” argument or engage
with originalist philosophy. “We are not at liberty to second-guess
Congressional determinations and policy judgments of this order, however
debatable or arguably unwise they may be,” Ginsburg wrote.~{ 537 U.S. 186
(1993). See also “Court Majority Says It Won’t Second-Guess Congress,” /{New
York Times}/, January 16, 2007, p. A22. }~ She likewise ignored the idea that
there is a “copyright bargain” between the American people and copyright
holders, which entitles the public to certain rights of access to the public
domain. As for copyright’s impact on free speech, Ginsburg invoked the fair use
doctrine and the “idea/expression dichotomy” (the notion that ideas are freely
available but expression can be copyrighted) as sufficient protections for the
public. She ignored the fact that both doctrines were (and are) under fierce
assault.
={ Ginsburg, Ruth Bader ;
   law :
     originalist principles of ;
   fair use doctrine :
     copyright law, and ;
   copyright law :
     fair use doctrine, and | balance of public and private rights
}

Justices Stephen Breyer and John Paul Stevens accepted Lessig’s arguments, and
wrote separate dissents. Breyer — a respected scholar of copyright law since
his famous 1970 essay “The Uneasy Case for Copyright”~{ Stephen Breyer, “The
Uneasy Case for Copyright,” /{Harvard Law Review}/ 84, no. 281 (1970). }~
—agreed that copyright terms had effectively become perpetual, and that the law
was therefore unconstitutional. Stevens complained that the majority decision
reneged on the copyright bargain and made copyright law “for all intents and
purposes judicially unreviewable.”
={ Breyer, Stephen ;
   Stevens, John Paul
}

In assessing the broad impact of the /{Eldred}/ ruling, copyright scholar Siva
Vaidhyanathan cited law professor Shubha Ghosh’s observation that the
/{Eldred}/ ruling had effectively “deconstitutionalized” copyright law.
/{Eldred}/ pushed copyright law
={ Ghosh, Shubha ;
   Vaidhyanathan, Siva +1
}

_1 farther into the realm of policy and power battles and away from principles
that have anchored the system for two centuries. That means public interest
advocates and activists must take their battles to the public sphere and the
halls of Congress. We can’t appeal to the Founders’ wishes or republican
ideals. We will have to make pragmatic arguments in clear language about the
effects of excessive copyright on research, teaching, art and journalism. And
we will have to make naked mass power arguments with echoes of “we want our
MP3” and “it takes an industry of billions to hold us back.”~{ Siva
Vaidhyanathan, “After the Copyright Smackdown: What Next?” /{Salon}/, January
17, 2003, at http://www.salon.com/tech/feature/2003/01/17/copyright.print.html.
}~
={ copyright law :
     balance of public and private rights
}

2~ A Movement Is Born
={ Eldred v. Reno/Eldred v. Ashcroft :
     effects of +12
}

The /{Eldred}/ case had a paradoxical effect. Early on, Lessig had said, “We
didn’t want to make it a big political cause. We just wanted to make it an
extension of the existing Supreme Court jurisprudence, because we realized that
the only way to win the case was to win the conservatives’ view, and the
conservatives were not likely to be motivated by great attacks on media
concentration.”~{ Interview with Poynder, April 7, 2006, p. 25. }~ The upshot
of the Court’s ruling was to intensify the political battles over copyright
law. While such resistance was already growing, the /{Eldred}/ ruling and the
publicity surrounding it spawned a new generation of “copyfighters.” Lessig had
wanted to protect the commons through law, only to find that the courts were
unwilling to offer any help. Any answers would now have to be pursued through
politics, culture, and technology — and ingenious uses of law where feasible.
How to proceed in this uncharted territory became the next challenge, as we see
in chapter 4.

After four years of relentless work, Lessig was frustrated and dejected. “I had
failed to convince [the Supreme Court] that the issue was important,” he wrote
in a frank confessional, “and I had failed to recognize that however much I
might hate a system in which the court gets to pick the constitutional values
that it will respect, that is the system we have.”~{ Lessig, “How I Lost the
Big One.” See also Lessig, /{Free Culture}/ (New York: Penguin, 2004), pp.
228–48. }~ For a constitutional law scholar, it was a rude awakening:
constitutional originalists could not be taken at their word! Scalia and fellow
justice Clarence Thomas had declined to stand behind their jurisprudential
principles.
={ law :
     originalist principles of +1 ;
   Scalia, Antonin ;
   Thomas, Clarence
}

Yet Lessig had certainly been correct that /{Eldred}/ would not succeed unless
it convinced the Court’s conservative majority. The fact that the originalist
gambit failed was perhaps the strongest message of all: /{nothing}/ would
convince this Court to rein in the excesses of copyright law.

Even before the Supreme Court had delivered its ruling, Lessig admitted his
misgivings about the power of law to solve copyright’s failings: “The more I’m
in this battle, the less I believe that constitutional law on its own can solve
the problem. If Americans can’t see the value of freedom without the help of
lawyers, then we don’t deserve freedom.”~{ Lessig response to Question 11,
“Cyberspace Amendment,” posed by “kzinti,” in Slashdot, available at
http://interviews.slashdot.org/article.pl?sid=01/12/21/155221. }~ Yet
mobilizing freedom-loving Americans to seek redress from Congress was also
likely to be doomed. Hollywood film studios and record companies had showered
some $16.6 million and $1.8 million, respectively, on federal candidates and
parties in 1998. Legislators know who butters their bread, and the public was
not an organized influence on this issue. No wonder a progressive copyright
reform agenda was going nowhere.
={ Copyright Term Extension Act +1 ;
   Eldred v. Reno/Eldred v. Ashcroft :
     Supreme Court, and ;
   law :
     limited power of ;
   copyright law :
     expansion of +1
}

Four years after the /{Eldred}/ ruling, Lessig had some second thoughts about
the “Mickey Mouse” messaging strategy. Opponents of the copyright term
extension, including Lessig, had often flaunted Mickey motifs in their dealings
with the press and railed at the “Mickey Mouse Protection Act.” Yet in 2006,
Lessig lamented to one interviewer that “the case got framed as one about
Mickey Mouse. Whereas the reality is, who gives a damn about Mickey Mouse? The
really destructive feature of the Sonny Bono law is the way it locks up culture
that has no continuing commercial value at all. It orphaned culture. So by
focusing on Mickey Mouse, the Court thought this was an issue of whether you
believed in property or not. If, however, we had focused people on all the
culture that is being lost because it is locked up by copyright, we might have
succeeded.”~{ Interview with Poynder, April 7, 2006, pp. 26–27. }~

The lasting impact of the /{Eldred}/ case, ironically, may have less to do with
the law than with the cultural movement it engendered. The lawsuit provided a
powerful platform for educating the American people about copyright law. A
subject long regarded as arcane and complicated was now the subject of
prominent articles in the /{New York Times}/, /{Salon}/, computer magazines,
wire services, and countless other publications and Web sites. A cover story
for the /{Los Angeles Times}/'s Sunday magazine explained how the case could
“change the way Hollywood makes money — and the way we experience art.”
/{Wired}/ magazine headlined its profile of Lessig “The Great Liberator.”
Lessig himself barnstormed the country giving dozens of presentations to
librarians, technologists, computer programmers, filmmakers, college students,
and many others. Even Lessig’s adversary at the district court level, Arthur R.
Miller, a Harvard Law School professor, agreed, “The case has sparked a public
discussion that wasn’t happening before.”
={ Miller, Arthur R. }

Lessig’s orations often provoked the fervor of a revival meeting — and led to
more than a few conversions. This may appear surprising because Lessig, with
his receding hairline and wireframe glasses, strikes an unprepossessing pose.
In the professorial tradition, he can sometimes be didactic and patronizing.
But on the stage, Lessig is stylish, poised, and mesmerizing. His carefully
crafted talks are intellectual but entertaining, sophisticated but plainspoken—
and always simmering with moral passion. He typically uses a customized version
of Keynote, a Macintosh-based program similar to PowerPoint, to punctuate his
dramatic delivery with witty visuals and quick flashes of words. (Experts in
professional presentations have dubbed this style the “Lessig Method,” and
likened it to the Takahashi Method in Japan because slides often use a single
word, short quote, or photo.)~{ Garr Reynolds’s blog on professional
presentation design, “The ‘Lessig Method’ of Presentation,” October 5, 2005,
available at
http://presentationzen.blogs.com/presentationzen/2005/10/the_lessig_meth.html.
}~

More than a sidebar, Lessig’s public speaking has been an important aspect of
his leadership in building a commons movement. His talks have helped some
fairly sequestered constituencies in technical fields — computer programming,
library science, Internet policy, copyright law — understand the larger
political and cultural significance of their work. The results have sometimes
been galvanizing. As one veteran hacker told me in 2006, “There’s a whole
connoisseurship of Lessig talks. He’s a little past his peak right now — but
there was a period where, like when he gave the lecture at OSCON [a conference
of open-source programmers], when he was done, they wanted to start a riot.
People were literally milling around, looking for things to smash. He was
saying to these people who worked on open source, ‘There’s a larger world
context to your work. The government is doing things — and you can stop them!’
”~{ Interview with Aaron Swartz, October 10, 2006. }~
={ Lessig, Lawrence :
     public speaker, as
}

Following oral arguments before the Supreme Court, the movement — such as it
was — had a rare gathering of its leaders. Public Knowledge co-hosted a
luncheon for those who had aided the lawsuit. The diners spanned the worlds of
libraries, computers, Internet publishing, public-interest advocacy, and many
other fields. The event was held at Washington’s Sewall-Belmont House, where
the National Woman’s Party once led the fight for women’s suffrage. This
prompted Gigi Sohn, president of Public Knowledge, to declare, “We, too, are
building a movement.”~{ Amy Harmon, “Challenge in Copyright Case May Be Just a
Beginning,” /{New York Times}/, October 14, 2002. }~
={ Sohn, Gigi }

So after arguing — and losing — before the U.S. Supreme Court, what does a
copyright superstar do for an encore?

A seed had already been planted at the Starbucks meeting four years earlier.
Eldred recalls telling Lessig, “I think this case is very important, and I
think you’re the right guy for this. But at the same time, I’d like to talk to
you about something else. I really think that we need to start up some sort of
a copyright conservancy, which would be sort of like a nature conservancy. It
would allow people to donate books to the public domain; we could then take
ownership of them. They could maybe have a tax deduction for them, and we could
— instead of having the book privately owned — they would be in the public
domain, maybe before the copyright term expired. We could sort of have an
independent group maintain this conservancy, and allow the books to be put on
the Internet for free.”
={ copyright conservancy ;
   Eldred, Eric :
     copyright conservancy, and | Lessig, and +1 ;
   Lessig, Lawrence :
     Eldred, and +1 ;
   Eldred, Eric :
     Lessig, and | public domain, and
}

Eldred remembers that Lessig “was sort of stunned. He didn’t have anything to
say for a little while. We sort of looked at each other, and I think he was
very shocked and surprised that I said that. And he said, ‘I don’t think we can
do it until we’ve done the work on the copyright term extension act suit, but I
promise to do it.’”~{ Interview with Eric Eldred, August 1, 2006. }~

:B~ PART II

:C~ The Rise of Free Culture

1~intro_ii [Intro] -#

To the commoners seeking to build a new cultural universe, the failure of the
/{Eldred}/ case in the U.S. Supreme Court was both depressing and liberating.
It confirmed what the legal scholars of the 1990s had long suspected— that both
Congress and the courts were captives to a backward-looking vision of copyright
law. Government was tacitly committed to a world of centralized and commercial
mass media managed by elite gatekeepers. That was not likely to change soon.
={ Eldred v. Reno/Eldred v. Ashcroft :
     effects of :
     Supreme Court, and
}

As for helping build a new digital republic with a more open, democratic
character, the Clinton administration made its intentions clear in its infamous
White Paper. It wanted to convert the gift economy of the Internet into a
wall-to-wall marketplace. It wanted to give sellers absolute control over
content and limit the disruptions of innovative newcomers. The government,
acting on behalf of the film, record, and book industries, had no desire to
legitimize or fortify the sharing culture that was fast gaining a hold on the
Internet. Quite the contrary: strengthening the public’s fair use rights,
access to the public domain, and online free speech rights might interfere with
the perceived imperatives of electronic commerce. /{Freedom}/ would therefore
have to be defined as the freedom of consumers to buy what incumbents were
selling, not as a robust civic freedom exercised by a sovereign citizenry.
={ Clinton administration :
     White Paper ;
   fair use doctrine :
     White Paper vs. ;
   White Paper [on copyright] ;
   gift economy ;
   Internet :
     gift economy of ;
   free culture :
     Internet, of the
}

By the conclusion of /{Eldred}/, in 2003, it was clear that the copyright
dissidents were not just confronting one policy battle or another; they were
confronting an antiquated and entrenched worldview. While Lessig, Eldred, and
the growing band of commoners realized that it was important to pay close
attention to pending legislation and lawsuits, many of them also realized that
the real challenge was to develop a new vision — and then try to actualize it.
={ Eldred, Eric :
     copyright law, and
}

A more affirmative, comprehensive vision was needed to supersede the limited
intellectual parameters of copyright law.Copyright law was a mode of property
discourse, after all, and that discourse simply could not adequately express
the aspirations of hackers, citizen-journalists, librarians, academics,
artists, democrats, and others trying to secure open online spaces for
themselves. The online insurgents acknowledged the great importance of fair use
and the public domain, but they also considered such doctrines to be vestiges
of an archaic, fraying legal order. It was time to salvage what was valuable
from that order, but otherwise instigate a new language, a new aesthetic, a new
legal regime, a new worldview.
={ copyright law :
     property rights, and ;
   property rights :
     copyright law, and
}

This meant venturing into risky, unknown territory. Law professors accustomed
to working within the comfort of the academy would have to clamber onto public
stages and set forth idealistic, politically inflected scenarios for Internet
culture. Activists accustomed to rhetorical critiques would have to initiate
pragmatic, results-driven projects. Free software hackers would have to invent
new software and digital protocols. Volunteers would need to be enlisted and
organized and funding secured to sustain bare-boned organizational structures.
Wholly new constituencies would have to be imagined and mobilized and brought
together into something resembling a new movement. Part II, The Rise of Free
Culture, describes the building of this foundation from 2000 to 2005.

1~ 4 INVENTING THE CREATIVE COMMONS

/{A public-spirited cabal schemes for a way to legalize sharing.}/

Larry Lessig remembers his Starbucks conversation with Eric Eldred as a
“crystallizing moment,” a revelation that the stakes in copyright reform were
much higher than he had originally imagined. Both Lessig and Eldred obviously
wanted to win the lawsuit and recognized its importance. But Eldred had made
clear that he didn’t just want to roll back regressive laws; he wanted to
develop an affirmative and sustainable alternative.
={ copyright law :
     property rights, and +1 ;
   property rights :
     copyright law, and +1 ;
   Eldred, Eric :
     copyright law, and +2 | Lessig, and +16 ;
   Lessig, Lawrence :
     Eldred, and +16
}

This got Lessig thinking: “So, okay — you get the Supreme Court to strike the
laws down, but you still live in a world where people think that everything is
property and has to be owned. If nobody has a political awareness about why the
judicial response makes sense, then it’s a pretty empty result.”~{ Interview
with Lawrence Lessig, March 20, 2006. }~ Throughout the /{Eldred}/ case,
paradoxically enough, Lessig says he was “skeptical” of the traditional liberal
strategy of seeking redress through the courts.
={ Eldred v. Reno/Eldred v. Ashcroft :
     Supreme Court, and
}


The turning point for him, Lessig recalled, was in recognizing that Eldred was
not just a plaintiff in a test case but “someone trying to build a movement
around a practice of making things available in a way that took advantage of
the infrastructure of the Net.”~{ Ibid. }~ True, Eldritch Press resembled an
old-style archive of canonical works. Yet Eldred’s goal all along had been to
host an active social community of book lovers, not just provide a repository
for old texts. The Web site’s real importance was in the social activity it
represented — the fact that thousands of participant-readers could come
together around a self-selected amateur eager to build a new type of social
community and information genre.
={ Eldritch Press ;
   World Wide Web :
     social activity on +7
}

Lessig told me that when he recognized Eldred’s Web site as a new type of
social practice, it helped define the challenge: “The question became a very
technical, legal one: How could we instantiate that movement?” Lessig said he
needed to find a way to “disambiguate the social practice.” By that bit of
tech-legalese, he meant, How could the practices and values animating Eldred’s
Web site be articulated in law, denoted on the Web, and thereby be seen for
what they were: a new mode of social practice and cultural freedom?

It helps to remember that in 1998 and the following years, the legality of
sharing online works and downloading them was highly ambiguous. Prevailing
legal discourse set forth a rather stark, dualistic world: either a work is
copyrighted with “all rights reserved,” or a work is in the public domain,
available to anyone without restriction. The mental categories of the time
offered no room for a “constituency of the reasonable,” in Lessig’s words.
={ copyright law :
     public domain vs. ;
   public domain :
     copyright law, and
}

Copyright law made nominal provisions for a middle ground in the form of the
fair use doctrine and the public domain. But Lessig realized that fair use was
“just a terrible structure on which to build freedom. There are basically no
bright lines; everything is a constant debate. Of course, we don’t want to
erase or compromise or weaken [these doctrines] in any sense. But it’s very
important to build an infrastructure that doesn’t depend upon four years of
litigation.” Or as Lessig was wont to put it in his impassioned performances on
the stump: “Fuck fair use.”~{ Robert S. Boynton, “Righting Copyright: Fair Use
and Digital Environmentalism,” /{Bookforum}/, February/March 2005, available at
http://www.robertboynton.com/articleDisplay.php?article_id=1. }~
={ copyright law :
     fair use doctrine, and +2 ;
   fair use doctrine :
     copyright law, and +2 ;
   Lessig, Lawrence :
     fair use, on +2
}

This was a theatrical flourish, of course. Back in Palo Alto, Lessig in 2001
had launched the Center for Internet & Society at Stanford Law School, which
actively takes on lawsuits seeking to vindicate the public’s fair use rights,
among other things. One notable case was against Stephen Joyce, the grandson of
novelist James Joyce. As executor of the Joyce literary estate, Stephen Joyce
steadfastly prevented dozens of scholars from quoting from the great writer’s
archive of unpublished letters.~{ See, e.g., D. T. Max, “The Injustice
Collector,” /{New Yorker}/, June 19, 2006, pp. 34ff. }~ (After losing a key
court ruling in February 2007, the Joyce estate settled the case on terms
favorable to a scholar who had been denied access to the Joyce papers.)
={ Joyce, Stephen }

But Lessig’s intemperance toward fair use has more to do with the almost
subliminal void in legal discourse and political culture. There was no way to
talk about the social behaviors exemplified by Eldred’s Web site except through
crabbed, legalistic rules. The only available language, the default vocabulary,
is copyright law and its sanctioned zones of freedom, such as fair use. Lessig
wanted to open up a new, more bracing line of discourse. “We wanted to rename
the social practice,” he said. It sounds embarrassingly grandiose to state it
so bluntly, but in later years it became clear to Lessig and his loose
confederation of colleagues that the real goal was to /{imagine and build a
legal and technical infrastructure of freedom}/.
={ Lessig, Lawrence :
     freedom, and | law in contemporary context, and +2
}

Initially, the goal was more exploratory and improvisational — an earnest
attempt to find leverage points for dealing with the intolerable constraints of
copyright law. Fortunately, there were instructive precedents, most notably
free software, which by 2000, in its opensource guise, was beginning to find
champions among corporate IT managers and the business press. Mainstream
programmers and corporations started to recognize the virtues of GNU/Linux and
opensource software more generally. Moreover, a growing number of people were
internalizing the lessons of Code, that the architecture of software and the
Internet really does matter.
={ free software :
     open source software, as ;
   GNU/Linux ;
   software :
     open source ;
   Internet :
     architecture of +1 ;
   Lessig, Lawrence :
     Code and Other Laws of Cyberspace
}

Even as he sought to prevail in /{Eldred}/, Lessig understood that enduring
solutions could not be conferred by the U.S. Supreme Court; they had to be made
real through people’s everyday habits. The commoners needed to build a new set
of tools to actualize freedom on the Internet, and to develop a new language, a
new epistemology, a new vision, for describing the value proposition of sharing
and collaboration. The big surprise, as we will see in chapter 6, was the
latent social energies poised to support this vision.
={ Eldred v. Reno/Eldred v. Ashcroft +7 :
     Supreme Court, and ;
   Internet :
     freedom of ;
   Lessig, Lawrence :
     Eldred v. Reno, and | freedom, and
}

2~ What If . . . ?

Shortly after the /{Eldred}/ case was filed in January 1999, a number of
Harvard Law students working with Lessig announced the formation of a new
group, “Copyright’s Commons.”~{ The Copyright’s Commons Web site is now defunct
but can be found at the Internet Archive’s Wayback Machine, at
http://cyber.law.harvard.edu/cc. }~ Led by Jennifer Love and Ashley Morgan,
Copyright’s Commons published a monthly Web newsletter that provided updates on
the progress of the /{Eldred}/ case and miscellaneous news about the public
domain.
={ Love, Jennifer ;
   Morgan, Ashley ;
   Copyright’s Commons +3 :
     See also Creative Commons ;
   Creative Commons (CC) :
     Copyright’s Commons, as +3 ;
   Eldred v. Reno/Eldred v. Ashcroft :
     Copyright’s Commons, and +3
}

Copyright’s Commons described itself as “a coalition devoted to promoting the
public availability of literature, art, music, and film.” It was actually a
named plaintiff in the /{Eldred}/ case.

That spring, Copyright’s Commons announced a new project that it called the
“counter-copyright [cc] campaign.” Billed as “an alternative to the exclusivity
of copyright,” the campaign invited the general public to “show your support
for the public domain by marking your work with a [cc] and a link to the
Copyright’s Commons website. . . . If you place the [cc] icon at the end of
your work, you signal to others that you are allowing them to use, modify,
edit, adapt and redistribute the work that you created.”
={ counter-copyright (cc) campaign }

The project may have been an imaginative call to arms, but there was no
infrastructure behind it except one Web page, and no background material except
a Web link to the Open Source Initiative. Wendy Seltzer, a Harvard Law student
at the time, recalled that the [cc] symbol produced by Copyright’s Commons “was
supposed to be a public domain dedication, but nobody had yet gone through all
of the thinking about what was actually required to put something into the
public domain, and did this satisfy the ‘affirmative act’ requirements [of the
law]? Part of the germ of the Creative Commons was thinking about what would it
take to make this — the [cc] symbol — an actual, meaningful, legally binding
statement.”~{ Interview with Wendy Seltzer, September 28, 2006. }~
={ Seltzer, Wendy }

Lessig, in the meantime, was keeping a frenetic schedule. He was overseeing the
progress of the /{Eldred}/ lawsuit; traveling to give speeches to dozens of
conferences and forums every year; promoting his book Code; and writing a
monthly column in the /{Industry Standard}/ until it went under with the tech
bubble collapse in 2001. The year before, Kathleen Sullivan of Stanford Law
School persuaded Lessig to join its faculty and supervise a new law clinic, the
Center for Internet and Society.~{ Ross Hanig, “Luring Lessig to Stanford Law
School,” /{Recorder}/, October 17, 2001, at http://www.law.com. }~ Along the
way Lessig also got married to Bettina Neuefeind, a human rights lawyer.
={ Sullivan, Kathleen ;
   Neuefeind, Bettina ;
   Center for Internet and Society ;
   Lessig, Lawrence :
     Code and Other Laws of Cyberspace ;
   Lessig, Lawrence :
     Eldred v. Reno, and +1
}

Work on /{Eldred}/ intensified after the district court dismissed the case in
October 1999. Lessig embarked on a new round of legal strategizing with
colleagues to prepare the appeals court brief, which was submitted in May 2000.
Throughout this period, intellectual property (IP) thinkers and tech activists
— especially those in the Lessig/Cambridge/Stanford axis — were highly attuned
to the gathering storm in copyright and software policy.

One of the most tumultuous developments was Napster, a homemade file-sharing
software program that had become an international sensation. Released in June
1999, Napster was the creation of hacker Shawn Fanning, then a student at
Northeastern University in Boston. Within a year, the free program had been
downloaded by an estimated 70 million users, drawing fierce denunciations by
the recording industry and Washington officials. Napster used centralized file
directories on the Internet to connect users to music files on thousands of
individual computers. By enabling people to download virtually any recorded
music in existence, for free, it was as if the fabled “cosmic jukebox” had
arrived. Of course, much of the copying was blatantly illegal. Yet consumers
welcomed Napster as one of the few vehicles they had for thumbing their nose at
a reactionary music industry that refused to offer digital downloads. The
Recording Industry Association of America (RIAA) sued Napster in December 1999,
and succeeded in shutting it down in July 2001.~{ Wikipedia entry, at
http://en.wikipedia.org/wiki/Napster. }~
={ Fanning, Shawn ;
   Napster +2 ;
   Recording Industry Association of America (RIAA) +1
}

The Napster craze intensified the polarized property discourse that Lessig and
his colleagues were trying to transcend. Napster encouraged an either/or debate
by suggesting that a song is either private property or contraband; there was
no middle ground for fair use or the public domain. While the RIAA and acts
like Metallica and Madonna railed against massive copyright infringements,
defenders of Napster were quick to point out its promotional power. An album
produced by the English rock band Radiohead, for example, was downloaded for
free by millions of people before its release — a fact that many credit with
pushing the album, Kid A, to the top of the Billboard CD sales chart. But such
claims carried little weight against those defending what they considered their
property rights.
={ Radiohead ;
   property rights :
     copyright law, and +2 ;
   copyright law :
     property rights, and +2 | public domain vs. +1 ;
   public domain :
     copyright law, and +1
}

The controversy over Napster was clearly influential in shaping the debate over
how to protect the public domain. Berkman Center co-director Jonathan Zittrain
recalls, “If we’re trying to hang the hopes of the community on the right just
to copy stuff, we’re going to lose — and maybe we should. [The issue] is
actually about the right to manipulate the symbols and talismans of our
culture” — what Professor Terry Fisher likes to call “semiotic democracy.”~{
Interview with Jonathan Zittrain, September 28, 2006. }~
={ Zittrain, Jonathan ;
   Fisher, William (Terry) ;
   free culture :
     sharing ethic of +1 ;
   copyright law :
     sharing economy vs. +1 ;
   democracy :
     semiotic
}

The problem was that copyright discourse, at least in the hands of the record
and film industries, refused to acknowledge that the sharing and reuse of works
might be necessary, desirable, or legal. The concept did not compute. There was
a conspicuous void in the prevailing terms of debate. So the challenge facing
the Cambridge copyright cabal was really a riddle about epistemology, law, and
culture rolled into one. How could a new type of free culture, independent of
the market, be brought into existence? And how could the creative works of this
imagined culture be made legally “shareable” instead of being automatically
treated as private property?

This was an unprecedented challenge. When culture was chiefly a set of analog
media — books, records, film — there had been affirmative legal limits on the
scope of copyright. Before 1978, the law regulated only commercial uses of a
work and only works that had been formally registered, which meant that most
works automatically remained in the public domain. Moreover, there was a
natural, physical “friction” preventing copyright holders from over-controlling
how a work could circulate and be used. When words were fixed in books and
sounds embedded in vinyl, people could circulate those objects freely, without
having to ask permission from copyright holders. In the digital world, however,
the physical constraints of analog media disappeared. Copyright holders now
claimed that every digital blip, however transient, constituted a “copyright
event” subject to their unilateral control. In practice, this greatly weakened
the rights a person could enjoy under the fair use doctrine.
={ copyright law :
     public domain vs. +3 ;
   public domain :
     copyright law, and +3 ;
   fair use doctrine :
     copyright law, and +1 | digital age, in +1 ;
   copyright law :
     digital age, in +1 | fair use doctrine, and +1 | limits on the scope of
}

In a sense, the entire legal and cultural framework for free culture needed to
be reimagined so it could function in the digital environment. The terms of
fair use essentially had to be renegotiated — an undertaking that copyright law
had never had to tackle in the past. But how might that be achieved when both
Congress and the courts were beholden to the copyright maximalists’ worldview?

Such were the kinds of conversations that swirled around the Berkman Center,
Harvard Law School, MIT, and a handful of progressive intellectual property
circles. Such discussions had been going on for years, especially in the
context of free software and public-domain scholarship, but now they were
reaching the lay public. The Napster and /{Eldred}/ cases were vehicles for
educating the press and the public, and Lessig’s book /{Code}/ was becoming
must reading for anyone who cared about Internet governance and digital
culture.
={ Berkman Center for Internet & Society ;
   Napster ;
   Lessig, Lawrence :
     Code and Other Laws of Cyberspace
}

Amid this swirl of copyright controversy, MIT professor Hal Abelson had lunch
with Lessig at the Harvard Faculty Club in July 2000. The two had co-taught a
class on cyberlaw two years earlier and shared many interests in the confluence
of copyright and technology. One topic that day was Eric Eldred’s idea of a
copyright conservancy — a “land trust” for public-domain works. On August 1,
2000, Abelson sent Zittrain an e-mail:
={ Abelson, Hal :
     copyright conservancy idea, and +5 | cyberlaw, and +5 ;
   Eldred, Eric :
     copyright conservancy, and ;
   Zittrain, Jonathan ;
   Eldred v. Reno/Eldred v. Ashcroft :
     effects of ;
   copyright conservancy +35
}

_1 /{Here’s an idea that we might be able to get going, and where the Berkman
Center could help.}/

_1 /{Let’s set up a tax-free, charitable foundation to which artists and record
label companies could donate the copyright for recorded music. I’m thinking of
all the old music for which there isn’t currently an active market.}/

_1 /{The foundation would arrange for this stuff to be loaded for free onto the
internet and give the public permission to use it. The artists and record
labels get a tax writeoff. The RIAA and Napster hug and kiss, and everyone goes
home happy.}/
={ Recording Industry Association of America (RIAA) }

_1 /{What do you think?}/

_1 /{Hal}/

Zittrain loved the idea, and suggested that it might make a great clinical
project for Harvard Law students that fall. But he wondered if the Copyright
Clearinghouse Center — a licensing and permissions organization for music —
already offered such a service (it didn’t). Lessig proposed that Stanford and
Harvard law schools jointly develop the program. He immediately identified one
glaring problem: it would be difficult to “establish a process for valuing
gifts of copyrighted stuff that would be clearly understood and would be
accepted by the IRS.”
={ Zittrain, Jonathan +1 }

What ensued was a lengthy and irregular series of e-mail conversations and social encounters through which the idea was chewed over and refined. Lessig acted as the “supernode” among a small group of participants that initially included Zittrain, Eldred, Nesson, and Diane Cabell, a lawyer and administrator at the Berkman Center. Within a month, others were invited into the conversation: Richard Stallman; Duke Law professors James Boyle and Jerome H. Reichman; and documentary film producer Eric Saltzman, who had just become director of the Berkman Center.
={ Berkman Center for Internet & Society ;
   Boyle, James :
     CC formation, and ;
   Cabell, Diane ;
   Reichman, Jerome H. ;
   Nesson, Charles ;
   Saltzman, Eric ;
   Stallman, Richard :
     Copyright’s Commons, and ;
   Eldred, Eric :
     copyright conservancy, and
}

A digital archive for donated and public-domain works had great appeal. Just as
land trusts acted as trustees of donated plots of land, so the Copyright’s
Commons (as Lessig proposed that it be named) would be a “conservancy” for
film, books, music, and other works that were either in the public domain or
donated. Six weeks after Abelson’s original suggestion, Lessig produced a
“Proposal for an Intellectual Property Conservancy” for discussion purposes.~{
Lawrence Lessig, “Proposal for the Intellectual Property Conservancy,” e-mail
to ipcommons group, November 12, 2000. }~ He now called the concept “an IP
commons” — “the establishment of an intellectual property conservancy to
facilitate the collection and distribution under a GPL-like license of all
forms of intellectual property.” As elaborated by two Harvard Law School
students, Chris Babbitt and Claire Prestel, “The conservancy will attempt to
bridge the gap between authors, corporate copyright holders and public domain
advocates by providing a repository of donated works which we believe will
create a more perfect ‘market’ for intellectual property.”~{ Chris Babbitt and
Claire Prestel, “Memorandum to Michael Carroll, Wilmer Cutler Pickering, ‘IP
Conservancy,’ ” October 24, 2000. }~
={ belson, Hal :
     copyright conservancy idea, and +2 ;
   Babbitt, Chris ;
   Prestel, Claire ;
   Copyright’s Commons +27 ;
   Creative Commons (CC) :
     Copyright’s Commons, as +27 ;
   IP Commons +27 ;
   Lessig, Lawrence :
     Copyright’s Commons, and +27
}

Friendly critiques started arriving immediately. Stallman considered the
proposal a “good idea overall,” but as usual he objected to the words, such as
“intellectual property” and “copyright protection,” which he considered
“propaganda for the other side.”~{ E-mail from Richard Stallman to Lessig,
September 11, 2000. See also http://www.gnu.org/philosophy/words-to-avoid.html.
Stallman suggested calling the project the “Copyright and Patent Conservancy.”
}~ Abelson, a friend and colleague of Stallman’s at MIT, was not finicky about
word choices, but he did believe that software donations should be directed to
the Free Software Foundation, not to the envisioned project. FSF already
existed, for one thing, but in addition, said Abelson, “It may be detrimental
to have people initially associate this [new project] too closely with the FSF.
. . . We need to craft a public position that will unify people. An FSF-style
‘let’s undo the effects of all those evil people licensing software’ is not
what we want here.”~{ E-mail from Hal Abelson to Lessig, September 12, 2000. }~
Some people suggested attracting people to the conservancy by having “jewels”
such as material from the estates of deceased artists. Another suggested
hosting special licenses, such as the Open Audio License, a license issued by
the Electronic Frontier Foundation in 2001 that lets musicians authorize the
copying and reuse of their songs so long as credit is given and derivative
songs can be shared.
={ Stallman, Richard :
     Copyright’s Commons, and ;
   Abelson, Hal :
     Free Software Foundation, and +1 ;
   Electronic Frontier Foundation (EFF) ;
   Free Software Foundation
}

The most difficult issue, said Abelson, was the economics of the project. The
care and maintenance of donations, such as the master version of films, could
be potentially huge expenses. Digitizing donated works could also be expensive.
Finally, there were questions about the economic incentives to potential
donors. Would people really wish to donate works that have significant cash
value?

Answers to such questions were hardly self-evident, but there were encouraging
signs. After Lessig gave a speech at the University of Michigan in September
2000, a man came up to him and announced, “I’m one of the people who benefited
by the Mickey Mouse Protection Act.” It was Robert Frost, Jr., son of the great
poet. Frost said, “I obviously need to check with my family, but we may be
interested in becoming a contributor to your conservancy.”~{ E-mail from
Lawrence Lessig to ipcommons group, September 8, 2000. }~ If Robert Frost’s
estate could come forward with his literary legacy, perhaps there were others
willing to do the same.
={ Frost, Robert, Jr. ;
   Lessig, Lawrence :
     public speaker, as ;
   Copyright Term Extension Act
}

When Berkman Center director Eric Saltzman joined the conversation, he raised a
series of difficult questions about the whole idea:
={ Saltzman, Eric +1 }

_1 Why would a person or corp. donate copyrighted materials? Larry’s draft
implies a benefit to the IP owner — does this mean broader Internet facilitated
use, and not merely a tax deduction? Under what circumstances, if any, does the
Conservancy charge for use of its IP? If a user modifies a story, say,
producing a screenplay, to whom does that screenplay belong? Would a motion
picture based upon that screenplay owe $$ to the Conservancy? If so, how much
(this is the damages phase of the /{Rear Window}/ case)?~{ This case, /{Stewart
v. Abend}/, 100 S. Ct. 1750 (1990), required the copyright owners of Alfred
Hitchcock’s movie /{Rear Window}/ to pay damages to the author of a book upon
which the film was based. Saltzman was concerned that the conservancy would be
liable for any illicit derivative works. See Daniel A. Saunders, “Copyright
Law’s Broken Rear Window: An Appraisal of Damage and Estimate of Repair,”
/{California Law Review}/ 80, no. 1 (January 1992), pp. 179–245. }~ Wouldn’t a
new, hopeful band prefer to allow free use of its song(s) on a commercially
promoted site like MP3.com rather than the Conservancy site? All asking: How to
make the Conservancy into a useful garden, not a well-meaning weed patch of
unwanted, neglected IP?~{ E-mail to ipcommons group, September 18, 2000. }~

By early October 2001, some of these questions had been provisionally answered.
For example: Only digital works would be accepted initially. No limitations or
restrictions would be set on the use of donated works. Prospective academic
partners would include the University of California at Berkeley, Duke, Harvard,
MIT, and Stanford. Lessig suggested both Richard Stallman and Jack Valenti as
possible board members. The central goal was to develop a new sort of
noncommercial space in cyberspace for the sharing and reuse of music, visual
art, film, literature, nonfiction, academic work, software, and science.~{
E-mail from Lawrence Lessig to ipcommons group, November 12, 2000. }~
={ Valenti, Jack ;
   Stallman, Richard :
     Copyright’s Commons, and
}

But many questions still hung in the air. Could the free software ethic really
translate to other creative genres? Would tax incentives elicit donations of
works? Would independent appraisals of donated works be needed? How would the
conservancy search the titles of works and get permissions clearances?

For all of its brainpower and commitment, Lessig’s rump caucus might not have
gotten far if it had not found a venturesome source of money, the Center for
the Public Domain. The center — originally the Red Hat Center — was a
foundation created by entrepreneur Robert Young in 2000 following a highly
successful initial public offering of Red Hat stock. As the founder of Red Hat,
a commercial vendor of GNU/Linux, Young was eager to repay his debt to the
fledgling public-domain subculture. He also realized, with the foresight of an
Internet entrepreneur, that strengthening the public domain would only enhance
his business prospects over the long term. (It has; Young later founded a
print-on-demand publishing house, Lulu.com, that benefits from the free
circulation of electronic texts, while making money from printing hard copies.)
={ Young, Robert ;
   Red Hat ;
   GNU/Linux :
     Red Hat, and ;
   enter for the Public Domain +2 ;
   public domain :
     Center for Public Domain +2
}

The director of the center, Laurie Racine, a former geneticist and business
professor, was skilled at making shrewd strategic grants and “character bets”
in public-domain activism. Because the center was not hobbled by the
bureaucracy or timidity that afflicts many large foundations, it was able to
make swift decisions and bold bets on innovative projects. (I came to work
closely with Racine on a number of projects, including the co-founding of
Public Knowledge, in 2001.)
={ Racine, Laurie +1 }

Lessig met with Racine in October 2000. On a napkin, he sketched his idea for
expanding copyright for authors. He came away with funding for a meeting at the
Berkman Center and, later, a $100,000 commitment to launch the IP conservancy;
the Center for the Public Domain eventually put up $1 million to get the
project going, well before other funders saw the promise of the idea. Racine
wanted her new center to be associated with “a project that has broad vision,
credibility, range and staying power.” She saw Lessig’s project as having all
of those things.~{ E-mail from Lawrence Lessig to ipcommons group, October 11,
2000, which contained e-mail from Laurie Racine to Lessig, October 25, 2000. }~
The grant was based more on the concept than a specific plan, however. At the
time it was not entirely clear if the project would own and manage digital
works, host Web services that made things freely available, or provide legal
and software tools — or something else.~{ E-mail from Lawrence Lessig to
ipcommons group, November 12, 2000. }~ There was, nonetheless, a great sense of
mission and urgency to get under way.

Interestingly, two similar initiatives were also in the early stages of
development. The Knowledge Conservancy, led by David Bearman at Carnegie Mellon
University in Pittsburgh, had a similar model of accepting donations of
materials and making them available online. It focused more on sponsorship
donations and memberships, while Lessig’s group was more oriented toward legal
research and Web hosting of works. Another project, OpenCulture.org, planned to
compensate artists for contributions to the public domain, but apparently it
never took off.~{ http://web.archive.org/web/*/http://Openculture.org. }~
Lessig and his group were not averse to joining forces with others, but they
were intent on vetting their own business model, such as it was, before joining
anyone else’s venture.
={ Bearman, David ;
   OpenCulture.org ;
   Knowledge Conservancy
}

One turning point came in January 2001 after Saltzman had met with several
lawyers at Wilmer, Cutler & Pickering, a prominent law firm in Washington,
D.C.~{ Contained in e-mail from Christina Ritchie to ipcommons group, December
15, 2000. }~ After conversations with attorneys David Johnson and Michael W.
Carroll, it became clear that a nonprofit trust managing donated material could
face considerable liability if it turned out that the donors did not actually
own the works. To explore this issue, Carroll produced a much-praised legal
memo that raised a red flag: “What if we were fools, and the person who gave us
the rights [to a work] actually never had the rights and suddenly we get sued
for infringement?” asked Carroll.~{ Michael Carroll, “Potential Copyright
Liability and DMCA Safe Harbor Relief for Creative Commons,” appendix to
“Briefing Book for Creative Commons Inaugural Meeting,” May 7, 2001. }~ One
successful lawsuit could sink the whole enterprise.
={ Carroll, Michael W. ;
   Johnson, David R. ;
   Wilmer, Cutler & Pickering ;
   Saltzman, Eric +8
}

The project was caught in a conundrum. It wanted to legalize a whole set of
social practices for sharing and reusing creative works — but establishing a
content intermediary for that purpose appeared to be financially prohibitive
under the law. It could be hugely expensive to clear titles and indemnify the
organization and future users against copyright infringement risks.
={ copyright law :
     sharing economy vs. +1
}

For a few months, various people in Lessig’s orbit suggested complicated
schemes to try to finesse the legal problems. For example, one way that the
conservancy could reduce its liability would be to simply point to the Web
locations of public-domain materials, in the style of Napster’s centralized
index of songs. This would also avoid the nuisance and expense of clearing
titles on thousands of works. Another idea was to create a “three zone system”
of content — Zone A for content that the conservancy owned and licensed; Zone B
for content that was merely hosted at the conservancy site with no copyright
representations; and Zone C, a simple search engine with links to public-domain
content. Each of these zones, in turn, raised a flurry of complicated,
speculative legal issues.~{ E-mail from Eric Saltzman to ipcommons group,
January 19, 2001. }~
={ Napster ;
   Copyright’s Commons :
     three zone system of
}

None of the proposed alternatives got much traction, especially when Saltzman
took a closer look at the realities of tax deductions for donors. Saltzman came
to see that tax breaks would have very little incentive value for most
potential donors, and establishing the cash value of donations would be
difficult in any case. Moreover, if donors were getting little in return for
their donations, they would be wary of signing a form indemnifying the
conservancy against legal liability. On top of all this, Saltzman, like others,
had misgiving about “the idea of the federal treasury contributing public money
[in the form of tax expenditures].” In short, the conservancy approach seemed
plagued with many complicated and perhaps insoluble problems.

As if to keep the pot boiling, newcomers kept adding new thoughts. Two leading
thinkers about the public domain in science, Paul Uhlir and Jerome H. Reichman,
urged that the group expand its mission to include scientific research and take
an international perspective.~{ E-mail from Paul Uhlir and Jerry Reichman,
January 30, 2001. }~ (Uhlir directs the international scientific and technical
information programs at the National Academy of Sciences/ National Research
Council; Reichman is an intellectual property professor at Duke Law School.)
Both were keenly aware of the dangers to scientific progress if copyright and
patent protection continued to expand.
={ Reichman, Jerome H. ;
   Uhlir, Paul ;
   copyright law :
     expansion of
}

In January 2001, the caucus reached one point of consensus— that the primary
function of this commons should be “to facilitate free/low-cost public use of
original works.” It also agreed upon a name. Asked to vote on a name from a
list that included IP Commons, Dot-commons, Sui Generous, IP Conservancy, and
Public Works, Saltzman piped up, “May I suggest another name? CREATIVE
COMMONS.” When the final poll results were counted, Creative Commons was the
clear winner with five votes, with one vote apiece for the remaining names. A
later poll pitted “The Constitution’s Commons” against “Creative Commons” (CC)
in a final runoff. The vote tally is lost to history, but we do know which name
prevailed.~{ E-mails from ipcommons listserv to ipcommons group, January 11,
12, 13, 16, 2001. }~
={ Creative Commons (CC) :
     development of +10 | function of
}

Viewpoints quickly diverged on how a commons ought to be structured and what
metrics of success should be used. Should it seek to maximize the number of
donations or the number of downloads? Should it develop quality holdings in a
given field or provide the widest possible breadth of content? Should it focus
on social interaction and creative reuses of works? Should the focus be on
producers or consumers of intellectual property? Should the organization focus
on individuals or institutions? And how would it be different from other rights
clearance organizations and content archives? The group seemed mired in a great
cloud of uncertainty.

For the next nine months, the group intensified its debate about how to build
the envisioned conservancy. After law student Dotan Oliar sketched out possible
“business models,” Saltzman persuaded a friend at McKinsey & Company, the
consulting firm, to provide a pro bono assessment.~{ Dotan Oliar, “Memo on
Creative Commons — Towards Formulating a Business Plan,” March 19, 2001. }~
“The McKinsey folks were very skeptical and, I think, had a hard time fitting
this into their [business] framework,” recalled one student at the meeting,
Chris Babbitt. After the meeting, he was convinced that Creative Commons could
not possibly host a content commons: “It would just be huge amounts of
material, huge costs, and we didn’t have the money for that.” ~{ Interview with
Chris Babbitt, September 14, 2006. }~
={ Babbitt, Chris +1 ;
   McKinsey & Company ;
   Oliar, Dotan
}

Feeling the need to force some concrete decisions, Saltzman and Lessig convened
twenty-eight people for an all-day meeting in Hauser Hall at Harvard Law
School, on May 11, 2001, to hash out plans. “What we’re trying to do here is
/{brand the public domain}/,” Lessig said. A briefing book prepared by Chris
Babbitt posed a pivotal question to the group: Should Creative Commons be
structured as a centralized Web site or as an distributed, open-source
licensing protocol that would allow content to be spread across cyberspace? The
centralized model could be “an eBay for opensource IP” or a more niche-based
commons for out-of-print books, film, or poetry. A mock Web site was actually
prepared to illustrate the scenario. The home page read: “The member sites
listed on the CommonExchange have been certified by Creative Commons to offer
high-quality, non-infringing content on an unrestricted basis. Please feel free
to use and pass these works along to others. We invite you to donate works of
your own to help maintain the digital Commons.”~{ The mock-up can be found at
http://cyber.law.harvard.edu/creativecommons/site.htm. }~
={ public domain :
     branding of
}

The distributed commons model would resemble the Chicago Mercantile Exchange or
the New York Stock Exchange — “a trusted matchmaker to facilitate the
transaction of securing rights,” according to the briefing book. “Just as
corporations or commodities producers must meet certain criteria before they
are listed on the Exchange, we could condition ‘listing’ in the Commons on
similar criteria, albeit reflecting open source rather than financial
values.”~{ “Briefing Book for Creative Commons Inaugural Meeting,” May 7,2001,
p.10. }~ The virtue of the distributed model was that it would shift costs,
quality control, and digitization to users. Creative Commons would serve mostly
as a credentialing service and facilitator. On the other hand, giving up
control would be fraught with peril — and what if Creative Commons’ intentions
were ignored?

Several participants remember Lessig, Nesson, and Zittrain pushing for the
distributed model, which seemed a bolder and riskier option. “Larry was the
lead advocate for a distributed commons, where it would be focused on a license
mechanism that we then would release to the world, and we let the world do with
it what it will,” one attendee recalled. “At the time, I think, XML-type
capabilities were just coming around, and Larry was very confident that that
was the direction to go.”~{ Interview with Chris Babbitt, September 14, 2006.
}~ XML, or Extensible Markup Language, is a programming language that uses
self-created “tags” that help Internet users aggregate and share digital
content residing on different computer systems. Lessig envisioned XML tags
embedded in any Creative Commons–licensed work, which could then be used to
identify shareable content on the Internet.
={ Nesson, Charles ;
   Zittrain, Jonathan ;
   XML (Extensible Markup Language) ;
   Creative Commons (CC) licenses +3
}

This perspective carried the day, and the “conservancy” model of the commons
was formally abandoned. CC would serve as a licensing agent. The licenses would
enable authors’ works to be made available online in an easy, low-cost way
without the full restrictions of copyright law. A standardized set of licenses
would overcome the ambiguities of the fair use doctrine without overriding it.
Creators could voluntarily forfeit certain copyright rights in advance— and
signal that choice — so that others could freely reuse, share, and distribute
CC-licensed works.
={ authorship :
     Creative Commons, and +2
}

Jonathan Zittrain remembers being skeptical at first: “So this whole thing is
just about some tags? It’s about /{licensing}/? How boring.” Upon reflection,
however, he saw the value of CC licensing as a way to create a new default. “As
soon as you realize — ‘Well, wait a minute! It’s just about authors being able
to express their desires!’”~{ Interview with Jonathan Zittrain, September 28,
2006. }~

More than a menu of individual choices, the licenses would constitute an
embryonic cultural order — a “constitutional system” to direct how text,
images, and music could circulate in the online world, based on authors’
individual choices. But the new focus on licenses raised its own set of novel
quandaries. What options should an author be able to choose? What suite of
licenses made sense? While licensing terms may be boring and legalistic, the
architecture could have potentially profound implications for cultural freedom
— which is why the legal minds involved in the licenses spent so much time
arguing seemingly obscure points.
={ Creative Commons (CC) :
     function of
}

However these debates were resolved, everyone agreed that it was time to
incorporate Creative Commons as a nonprofit group, assemble a board, recruit a
chief executive officer, and of course raise more money. The stated goal: “to
expand the shrinking public domain, to strengthen the social values of sharing,
of openness and of advancing knowledge and individual creativity.”~{ Oren
Bracha and Dotan Oliar, “Memo: May 7th Consensus Regarding the Creative Commons
Project,” August 20, 2001, p. 1. }~
={ public domain :
     CC licenses, and +1 ;
   Creative Commons (CC) licenses :
     public domain, and +1
}

There was a certain audacity if not unreality to the whole venture. Law
professors don’t go around inventing ambitious public projects to revamp the
social applications of copyright law. They don’t generally muck around with
software, contract law, and artists to build an imagined “sharing economy.”
“There was always this lingering suspicion in the back of my mind,” recalled
Babbitt in 2006, “that it [Creative Commons] would be kind of a rich man’s
folly, and this would just be some little thing — a niche experiment — that
really wouldn’t turn out to have merited the sort of sustained interest of this
high-caliber group of people.”~{ Interview with Chris Babbitt, September 14,
2006. }~
={ Babbitt, Chris }

2~ Crafting the Licenses
={ Creative Commons (CC) licenses +14 }

If Creative Commons licenses were going to enable artists to determine future
uses of their works — on less restrictive terms than copyright law — what did
actual artists think of the whole idea? To get a crude baseline of opinion,
Laura Bjorkland, a friend of Lessig’s and manager of a used-book store in
Salem, Massachusetts, conducted an unscientific survey. She asked about a dozen
writers, photographers, painters, filmmakers, and a sculptor if they would be
interested in donating their works to a commons, or using material from one?
Most of them replied, “I’ve never even /{thought}/ of this before. . . .”~{
Laura Bjorkland, “Regarding Creative Commons: Report from the Creative
Community,” in “Briefing Book for Creative Commons Inaugural Meeting,” May 7,
2001, pp. 16–19. }~
={ Bjorkland, Laura ;
   Creative Commons (CC) :
     function of
}

A classical composer said he “loved the idea of a Nigerian high school chamber
group playing one of my string quartets without paying royalties . . . but I
would not want a film studio or pop song writer using one of my themes on a
commercial project, even if my name’s attached, without royalties.” Some
artists worried about others making money off derivatives of their work. Many
complained that artists earn so little anyway, why should they start giving
away their work? Others were reluctant to see their work altered or used for
violence or pornography. Photographers and visual artists found it “a little
scary” to let their signature style be used by anyone.

In short, there was no stampede for starting a public-domain conservancy or a
set of licenses. Some worried that the CC licenses would be a “case of
innovation where’s there’s no current demand.” Another person pointed out, more
hopefully, that it could be a case of “changing the market demand with a new
model.”~{ Oren Bracha and Dotan Oliar, “Memo: May 7th Consensus Regarding the
Creative Commons Project,” August 20, 2001, p. 3, note 9. }~

The Lessig caucus was clearly struggling with how best to engage with the
networked environment. Napster had demonstrated that, in the dawning Internet
age, creativity would increasingly be born, distributed, and viewed on the Web;
print and mass media would be secondary venues. For a society still deeply
rooted in print and mass media, this was a difficult concept to grasp. But
Michael Carroll, the Washington lawyer who had earlier vetted the conservancy’s
liability issues, shrewdly saw network dynamics as a potentially powerful tool
for building new types of digital commons. In 2001, he had noticed how a bit of
Internet folk art had become an overnight sensation. Mike Collins, an amateur
cartoonist from Elmira, New York, had posted the cartoon below on Taterbrains,
a Web site.~{
http://politicalhumor.about.com/od/funnypictures/ig/100-Funny-Pictures/Confusing-Florida-Ballot.htm.
}~ The image suddenly rocketed throughout the cyberlandscape. Everyone was
copying it and sharing it with friends.
={ Carroll, Michael W. +4 ;
   Collins, Mike +4 ;
   Napster
}

{ vs_db_1.png }http://viralspiral.cc/

% group{
% 
% Official Florida Presidential Ballot
% Follow the arrow and Punch the appropriate dot.
% 
% Bush Buchanan Gore Nadar
% (c) 2000 Mike Collins, Taterbrains.com
% 
% }group

Carroll observed:

_1 [Collins] distributed his design initially without a motive to profit from
it. But the scale of distribution surpassed what he imagined, and in a
subsequent interview he expressed some resentment over those who had made money
from T-shirts and other paraphernalia using his design. But he appears to have
taken no actions to enforce his copyright, the notice notwithstanding.
Copyright lawyers would consider the unlicensed distribution of this work
“leakage” — that is, a violation of law but not worth pursuing.

_1 But if we could take steps to make it cheap, easy and desirable for the Mike
Collinses of the world to stick a CC tag on something like this before sending
it out, “leakage” becomes legal, changing the terms of the debate.~{ E-mail
from Michael Carroll to Molly Van Houweling and Larry Lessig, October 15, 2001.
}~

CC tags could make nonproprietary culture the default, reversing the
presumption of copyright law. Everyone agreed with this general approach, but
implementing it was rife with difficult questions. As Saltzman recalled: “What
kind of relationship did we want to encourage between the creator/licensor and
the user? Should it be totally automated? Should it invite some back-and-forth?
Should there be a requirement that licensors provide contact information?”~{
Interview with Eric Saltzman, April 11, 2006. }~ The General Public License for
software had shown the feasibility of a license for safeguarding a commons of
shared code. Could it work in other creative sectors? It would be critical to
strike the right balance. As law student Chris Babbitt put it, “Too little
protection for the donor’s interests and no one will donate; too little room
for the users to use the work, and the service is useless.”~{ “Briefing Book,”
p. 12. }~
={ Babbitt, Chris ;
   Saltzman, Eric ;
   General Public License (GPL) :
     legal enforceability of
}

If there were going to be several licenses, the next question was how many, and
of what sort? There are many different types of creativity, after all. Should
each one have its own set of special licenses? The Berkman conclave agreed that
there should be a publicdomain license enabling creators to grant a
nonexclusive, royaltyfree license on their works, without the viral conditions
of the GPL. As for other licenses, five ideas were put on the table for
consideration: a license authorizing free reuses of a work so long as proper
attribution is given to the author; a license authorizing noncommercial uses;
and a license authorizing free reuses but prohibiting derivative uses. Other
suggestions included a license authorizing academic uses only and a “timed
donations” license, which would allow an artist to revoke a work from the
commons after a stipulated number of years.~{ Ibid. }~ Neither of these two
licenses gained support from the group.

There were also lots of open questions about how to structure the specific
terms of the licenses. Should they be perpetual? Will the licensor be liable
for “downstream” uses of a work that are deemed an infringement? Will licensors
be required to identify themselves? Should licensors be able to add their own
separate warranties and representations? Crafting the licenses meant going
beyond the abstract rhetoric of the commons. These licenses had to be serious,
operational legal instruments that courts would recognize as valid.

Another concern was making the new CC licenses compatible with existing
licenses seeking similar goals. MIT had produced the first such license for its
OpenCourseWare initiative, which allows Internet users to use the university’s
curricula and syllabi (see chapter 12). To ensure that CC- and MIT-licensed
content would be compatible, the CC lawyers deliberately wrote a license that
would meet MIT’s needs. Another license, the GNU Free Documentation License
(FDL), was being used on Wikipedia, among other online sites. But the FDL,
originally intended for software documentation materials, was incompatible with
the CC licenses. Stallman refused to alter the FDL, and Wikpedia was already
under way and committed to the FDL. This quirk of history meant that Wikipedia
content and CC-licensed content could not legally be combined. As we will see
in chapter 9, this was the beginning of a rancorous schism in the free culture
world, and the beginning of a heated philosophical/ political debate over which
licenses truly promote “freedom.”
={ ree Documentation License ;
   GNU Project :
     GNU FDL ;
   Stallman, Richard :
     GNU Project, and ;
   Wikipedia :
     GNU FDL, and
}

As this overview suggests, licensing complexities can quickly soar out of
control and become overwhelming. Yet the very point of the Creative Commons
licenses was to simplify the sharing and reuse of digital material. CC planners
wanted to help ordinary people bypass the layers of mind-numbing legalese that
make copyright law so impenetrable and inaccessible. The Creative Commons was
all about empowering individuals and avoiding lawyers. A proliferation of
licensing choices would only lead to license incompatibilities, a Balkanization
of content on the Internet, and more lawyers. Sharing and interoperability go
together, as Stallman’s early experiences with his Emacs Commune showed.
={ Emacs ;
   Stallman, Richard :
     Emacs, and
}

Somehow, therefore, the licenses had to thread three needles at once. They
needed to align (1) the technical dynamics of the Internet with (2) the legal
realities of copyright law and (3) the everyday needs of people. The ingenious
solution was to create licenses on three layers: a “lawyer-readable” license
that could stand up in court, a “human-readable” license that could be
understood by ordinary people, and a “machine-readable” license that could be
recognized by search engines and other software on the Internet. Each “layer”
expressed the same license terms in a different way — an unexpected twist on
Lessig’s concern for “fidelity in translation.” The formal license was called
the “Legal Code” (or “legal source code”); the machine-readable translation of
the license was called “Digital Code”; and the plain-language summary of the
license, with corresponding icons, was the “Commons Deed” (or the “happy
deed”).

2~ Branding the Public Domain in Code
={ code :
     branding the public domain in +8 ;
   Creative Commons (CC) :
     code, and +8 ;
   public domain :
     branding of +8
}

As the lawyers brooded and debated the licensing terms, another complicated
debate was unfolding on the tech side of CC: how to brand the public domain in
software code. If code is law, then it was imperative for Creative Commons to
find some way to represent CC licenses in digital code. Abelson, Lessig, and
others understood that the future of the Internet was likely to include all
sorts of automated, computer-to-computer functions. One of the best ways to
promote a new body of “free content” on the Web, therefore, would be to develop
machine-readable code that could be inserted into any digital artifact using a
Creative Commons license. That way, search engines could more easily identify
CC-licensed works by their terms of use, and help assemble a functionally
accessible oeuvre of digital content that was free to use.
={ code :
     law, as ;
   law :
     code as +1 ;
   Abelson, Hal :
     CC licensing, and ;
   Internet :
     freedom of ;
   Internet :
     future of ;
   Lessig, LawrenceCC licenses, and ;
   World Wide Web :
     free content on
}

At this time, in 2001, the founder of the World Wide Web, Tim Berners-Lee, and
others at the World Wide Web Consortium, based at MIT, were trying to
conceptualize the protocols for a new “logical layer” of code on top of the
World Wide Web. They called it the Semantic Web. The idea is to enable people
to identify and retrieve information that is strewn across the Internet but not
readily located through conventional computer searches. Through a software
format known as RDF/XML,~[* RDF, or Resource Description Framework, is a way to
make a statement about content in a digital artifact. XML, or Extensible Markup
Language, is a way to write a specialized document format to send across the
Web, in which certain content can be marked up, or emphasized, so that other
computers can “read” it.]~ digital content could be tagged with
machine-readable statements that would in effect say, “This database contains
information about x and y.” Through Semantic Web protocols and metatags on
content, it would be possible to conduct searches across many types of digital
content — Web pages, databases, software programs, even digital sensors — that
could yield highly specific and useful results.
={ Berners-Lee, Tim ;
   Semantic Web +6 ;
   World Wide Web :
     Semantic Web +6 | protocols for +6 ;
   RDF/XML
}

Unfortunately, progress in developing the Semantic Web has been bogged down in
years of technical disagreement and indifference among the larger Web
community. Some critics argue that the project has stalled because it was being
driven by a small corps of elite software theorists focused on databases, and
not by a wider pool of decentralized Web practitioners. In any case, the
Creative Commons became one of the first test cases of trying to implement
RDF/XML for the Semantic Web.~{ For background, see “The Semantic Web: An
Introduction,” at http://infomesh.net/2001/swintro; Aaron Swartz and James
Hendler, “The Semantic Web: A Network of Content for the Digital City,” at
http://blogspace.com/rdf/SwartzHendler; and John Markoff, “Entrepreneurs See a
Web Guided by Common Sense,” /{New York Times}/, November 12, 2006. }~ The
project was led initially by Lisa Rein, a thirty-three-year-old data modeler
who met Lessig at an O’Reilly open-source software conference. Lessig hired her
as CC’s first technical director in late 2001 to embed the CC legal licenses in
machine-readable formats.
={ Rein, Lisa +2 ;
   Swartz, Aaron ;
   Lessig, Lawrence :
     CC licenses, and
}

Writing the XML code was not so difficult, said Rein; the real challenge was
“deciding what needed to be included and how you represent the licenses as
simply as possible.”~{ Interview with Lisa Rein, December 20, 2006. }~ This
required the lawyers and the techies to have intense dialogues about how the
law should be faithfully translated into software code, and vice versa. Once
again, there were complicated problems to sort through: Should there be a
central database of CC-licensed content? How could machine-readable code be
adapted if the legal licenses were later modified?

Rein got an unexpected assist in the project from programming whiz Aaron
Swartz, who had heard about Creative Commons and volunteered to help write the
RDF/XML code. Swartz was an esteemed member of the RDF core working group at
the World Wide Web Consortium (W3C), and so was intimately involved in Semantic
Web deliberations. He was also a fifteen-year-old junior high school student
living with his parents in Chicago. “I remember these moments when I was
sitting in the locker room, typing on my laptop, in these [W3C] debates, and
having to close it because the bell rang and I had to get back to class,”
Swartz recalled. At CC, he was given the title of “Volunteer Metadata
Coordinator.” His job was “to design the RDF schema and what the XML documents
would look like, and work that out with my friends at the W3C and get their
approval on things.”~{ Interview with Aaron Swartz, October 10, 2006. }~ For
his troubles, Swartz received an in-kind donation of a laptop computer and
travel expenses, rather than a salary. “At the time, I felt bad,” said Swartz.
“They were a nonprofit doing work I believe in. I didn’t feel I should be
taking their money when I didn’t need it.” With later help from Ben Adida, the
CC team managed to develop an RDF that could attach CC licenses to Web pages.
But since the Semantic Web protocols were still in flux, and not widely used,
the effort amounted to a speculative gamble on future and widespread adoption
of those protocols.
={ RDF/XML +3 ;
   Adida, Ben ;
   Swartz, Aaron ;
   World Wide Web Consortium (W3C) ;
   Internet :
     future of | protocols of +3
}

Although inspired by the Semantic Web and by Lessig’s analysis in /{Code}/, the
RDF/XML coding was also provoked by the growing specter of digital rights
management (DRM), the reviled systems used by film and music companies to lock
up their content. The Creative Commons dreamed of developing an “anti-DRM” code
to express the idea, “This content is and shall remain free.” Professor Hal
Abelson remembered that “we even used the phrase, ‘DRM of the public
domain.’”~{ Interview with Hal Abelson, April 14, 2007. }~ The coinage that
Lessig later popularized is “digital rights expression” — metadata that
indicate that a digital object can be shared and reused. There was a passing
fear that CC’s digital rights expression code might infringe on DRM patents;
one company known for its aggressive patent defense raised concerns. But once
it was made clear that the CC’s RDF code amounted to a label, and did not
execute online rights on a person’s computer, the problem disappeared.
={ Abelson, Hal :
     digital rights management, and ;
   digital rights management (DRM) ;
   copyright law :
     digital age, in ;
   Lessig, Lawrence :
     Code and Other Laws of Cyberspace
}

The machine-readable CC licenses were one of the first major buildouts of RDF
protocols. Swartz ruefully recalled the reaction of his friends at W3C: “I got
the sense that they thought it was sort of a silly project, that they were
thinking about bigger and longer-term things.” Adida, who later replaced Swartz
as the CC representative at the W3C, played a major role in helping develop the
metatags and protocols.
={ Adida, Ben ;
   Swartz, Aaron +1
}

The RDF/XML coding was part of a larger CC strategy to brand the public domain
via software code. Since RDF code alone is like a nail without a hammer,
Creative Commons decided to develop a specialized search engine so that
Internet users could locate CC-licensed content. Without such a search engine,
Lessig said in April 2002, “there will be no way to demonstrate that we’ve
produced anything useful.”~{ E-mail from Lawrence Lessig to Hal Abelson, April
22, 2002. }~ Swartz, who was not involved in the project, said, “I was
impressed that they did it, because it was probably the biggest programming job
I’d seen them do at the time.” In the meantime, the CC began a series of
overtures to Google and Yahoo in an attempt to get their search engines to
search for CC-licensed content. After years of lukewarm interest, both Google
and Yahoo added CC-search capabilities in 2005. Creative Commons also nurtured
the hope that once enough content contained CC metadata, software developers
would develop new applications to let people browse, use, and distribute
CC-tagged content.
={ Google ;
   Yahoo ;
   Lessig, Lawrence :
     CC licenses, and
}

2~ The Action Shifts to Palo Alto
={ Creative Commons (CC) licenses :
     evolution of +31
}

By the fall of 2001, Creative Commons was still an idea without definition. The
project gained new momentum in September 2001 when Lessig hired a former
student, Molly Shaffer Van Houweling, to be the first director of the
organization. Van Houweling, a sophisticated yet plainspoken law scholar with
strong executive skills, had just finished clerking for Supreme Court justice
David Souter. She set about incorporating the Creative Commons, organizing the
board, building a Web site, and hammering out final versions of the licenses.
={ Souter, David ;
   Van Houweling, Molly Shaffer +5
}

Once a key foundation grant was secured — $1 million from the Center for the
Public Domain — the Creative Commons was incorporated in Massachusetts (home to
many key backers of the project) on December 21, 2001. The first board members
included several legal scholars (Boyle, Carroll, Lessig), a computer scientist
(Abelson), two filmmakers (Saltzman and Davis Guggenheim, a friend of
Lessig’s), and a Web publisher (Eldred). Charged with breathing life into a
fragile idea, Van Houweling settled into a small office on the third floor of
Stanford Law School (before the project was reassigned to basement offices).
={ Abelson, Hal ;
   Boyle, James :
     CC board, on | CC formation, and ;
   Carroll, Michael W. ;
   Center for Public Domain ;
   public domain :
     Center for Public Domain ;
   Saltzman, Eric ;
   Eldred, Eric :
     Creative Commons, and ;
   Guggenheim, Davis
}

In January 2002, Glenn Otis Brown, a lawyer and former student of Lessig’s, was
hired as assistant director. Brown had been a law student at Harvard Law
School, where he had known Van Houweling and taken a constitutional law course
from Lessig. An affable Texan who had flirted with a journalism career, Brown
had just finished a year of clerking for a circuit court judge. He was due to
start a job in New York City the following week when he got a call from Van
Houweling. “She and Larry were starting something to do with copyright at
Stanford,” recalled Brown. “I knew pretty much nothing else about it except it
was a nonprofit and it was going to be a fulltime job. . . . The next thing I
knew, I was moving to California.”~{ Interview with Glenn Otis Brown, June 9,
2006. }~
={ Brown, Glenn Otis :
     CC formation, and +1
}

Lessig, Van Houweling, and Brown took the menu of licenses proposed by two
graduate students, Dotan Oliar and Oren Bracha, and sought to refine them and
make them as legally bulletproof as possible.~{ Oren Bracha and Dotan Oliar,
“Memo: Presentation of Two Possible Creative Commons Layer 1 Architectures,”
October 1, 2001. }~ They were torn about the process to adopt. “We didn’t want
to do a collective drafting process with the entire Internet community,” said
Van Houweling. “That didn’t seem practical. And yet we were a little nervous, I
think, about not knowing what our potential user base would want to use.”
Lessig was unfazed. Release of the licenses “isn’t going to be like a movie
premiere,” he told Van Houweling, but more of an evolutionary process. The idea
was to get the licenses in circulation, monitor their progress, and make
changes as necessary.~{ Interview with Molly Van Houweling, March 21, 2006. }~
={ Lessig, Lawrence :
     CC licenses, and +1 ;
   Bracha, Oren ;
   Oliar, Dotan ;
   Brown, Glenn Otis :
     CC licensing, and
}

Two of the most prestigious law firms in Silicon Valley, Cooley Godward Kronish
and Wilson, Sonsini, offered pro bono legal assistance to the effort. Attorney
John Brockland, an expert in opensource software licenses at Cooley Godward and
a former student of Lessig’s, was the architect of the final licenses, assisted
by Catherine Kirkman, a licensing attorney at Wilson, Sonsini. Brockland
recalled, “One of the drafting challenges was to write something that could be
broadly useful across a wide range of copyrighted works and would not be tied
to particular nuances of the way the copyright statute works.”~{ Interview with
John Brockland, January 5, 2007. }~ Most copyright licenses are drafted for
specific clients and particular circumstances, not for the general public and
all types of copyrighted works.
={ Brockland, John ;
   Cooley Godward Kronish ;
   Kirkman, Catherine ;
   Wilson, Sonsini, Goodrich & Rosati ;
   copyright law :
     licenses for ;
   open source software :
     legal implications of
}

Much of the discussion, said Van Houweling, “revolved around the values that we
wanted to embed in the licenses, and what were the outer limits of those
values?” Ultimately, she said, “we opted for a menu of licenses that was
weighted toward the nonproprietary [content]. . . . We wanted to subsidize a
certain set of choices that are otherwise underserved.”~{ Interview with Molly
Van Houweling, March 21, 2006.}~ The point was to facilitate the rise of a
sharing culture, after all, not to replicate the baroque dysfunctions of
copyright law.
={ copyright law :
     purpose of
}

Since the CC licenses were trying to articulate a new “middle ground” of
voluntary choices for sharing, it had to grapple with all sorts of fine legal
complexities. How exactly should they define a derivative work? What should be
considered a noncommercial reuse of a work? Can you dedicate a work to the
public domain?

Some artists felt that they ought to be able to prohibit derivative uses of
their works in pornography or hate speech. Hal Abelson adamantly disagreed. If
the licenses had an “offensive uses” clause, as either a standard or optional
term, it would open up a can of worms and put Creative Commons on the side of
censors. That view readily prevailed.
={ Abelson, Hal }

A primary concern was anticipating how the licenses might be interpreted by the
courts. Wendy Seltzer was worried that the CC licenses might become entangled
with court cases involving the fair use doctrine. She wanted to make sure that
the CC licenses were not seen as limiting or waiving a person’s fair use rights
in any way. Her concern, shared by many others, resulted in an explicit
disclaimer stating that intention. “I’m really glad that we did that,” recalled
Glenn Brown, then the assistant director of CC, “because we ended up pointing
to that over and over and over again — to make clear that this was something
that went above and beyond fair use.”~{ Interview with Glenn Otis Brown, June
9, 2007. }~
={ Brown, Glenn Otis :
     fair use, and ;
   Seltzer, Wendy ;
   fair use doctrine :
     CC licenses, and ;
   Creative Commons (CC) licenses :
     fair use, and
}

To ensure that the licenses would be enforceable, the CC lawyers built on the
same legal base as the GPL; the licenses were crafted not as contracts, but as
conditional permissions based on copyright law. A contract requires that the
licensee have the opportunity to accept or reject the terms of an agreement,
which would not be the case here. A conditional permission, by contrast, is the
legal prerogative of a copyright holder. She is simply offering advance
permission to use a CC-licensed work (to share, modify, distribute, etc.) so
long as the specified terms are respected.
={ General Public License (GPL) :
     legal enforceability of ;
   copyright law :
     conditional permission license | enforceability of | CC licenses, and +21 ;
   Creative Commons (CC) licenses :
     copyright law, and +21 | version 1.0 of +21 | enforceability of
}

Countless lawyerly refinements of a very technical nature were made to the
licenses to ensure that they would be specific as needed, vague enough to be
versatile, and rigorous enough to survive a court’s scrutiny.~{ The lawyers
also wrestled with a host of imponderables that had no obvious answers, such
as: What if people started spoofing the licenses by using them in inappropriate
ways? Should the Creative Commons establish a central registry for CC-licensed
works as a way to ensure the credibility of the project? (After long debate,
the idea was ultimately rejected.) Would the Creative Commons be held liable
for contributory negligence if someone used a CC license on a copyrighted song?
(The CC took its chances.) Would the Creative Commons lose its trademark if it
allowed anyone to use its trademarked logo? (Several lawyers warned that CC
licensing of its trademark could not be properly policed.) Glenn Otis Brown
worried that the board might be sued for facilitating the unauthorized practice
of law. “I don’t know how long I spent calling up different insurance brokers
trying to get a quote,” he recalled. “People had no idea what I was talking
about. We ended up going all the way to Lloyd’s of London to ask them,” said
Brown, laughing. “They wrote back and said, ‘You can’t insure that.’ ” }~

The first set of licenses, version 1.0, was completed in the spring of 2002 and
included eleven choices. The six basic licenses, listed here in order of least
restrictive to most restrictive, included:
={ Creative Commons (CC) licenses :
     types of +12
}

!_ Attribution (BY).
Authorizes free reuses (download, distribution, modifications, commercial uses,
etc.) so long as the author is credited for the original creation.

!_ ShareAlike (SA).
Authorizes free reuses so long as credit is given and the new work is licensed
under the same terms.

!_ No Derivatives (ND).
Authorizes free reuses so long as the new work is unchanged and in whole.

!_ NonCommercial (NC).
Authorizes free reuses so long as they are not commercial in nature.

!_ NonCommercial ShareAlike (NC-SA).
Requires free reuses so long as the new work is passed along on the identical
terms as the original work (so, for example, works that use a NonCommercial
ShareAlike work will also have to be distributed as NonCommercial ShareAlike
works).

!_ NonCommercial No Derivatives (NC-ND).
Authorizes free reuses so long as credit is given, no changes are made, the
work is kept intact, and it is not used commercially. This is the most
restrictive CC license.

Because each of these six basic choices can be combined with other CC licenses,
copyright holders had five additional choices:

!_ Attribution-ShareAlike (BY-SA).
Authorizes free reuses so long as the author is credited and the new work is
licensed under the same terms.

!_ Attribution-NonCommercial (BY-NC).
Authorizes free reuses so long as the author is credited and the new work is
used for noncommercial purposes.

!_ Attribution NonCommercial-ShareAlike (BY-NCSA).
Authorizes free reuses so long as the author is credited, the new work is used
for noncommercial purposes, and the new work is passed along using this same
license.

!_ Attribution-No Derivatives (BY-ND).
Authorizes free reuses so long as the author is credited and the new work is
unchanged and in whole.

!_ Attribution No Derivatives-ShareAlike (BY-ND-SA).
Authorizes free reuses so long as the author is credited, the new work is
unchanged and in whole, and the new work is passed along using this same
license.

It soon became clear that very few people were choosing any of the five
licenses that did not require attribution of the author (the SA, ND, NC, NC-SA,
and NC-ND licenses). So in May 2004 Creative Commons decided to “retire” those
licenses, leaving the six most commonly used ones today (BY, BY-SA, BY-NC,
BY-NC-SA, BY-ND, and BY-ND-SA).

Still another choice was offered to copyright holders, a “public domain
dedication,” which is not a license so much as “an overt act of relinquishment
in perpetuity” of any rights in the work. The public domain dedication places
no restrictions whatsoever on subsequent reuses of the work.
={ public domain dedication }

To the first-time user, the licenses may seem a little daunting.~{ A FAQ at the
Creative Commons Web site answers the most frequent user questions about the
licenses. It is available at http://wiki.creativecommons.org/. }~ The full
implications of using one or another license are not immediately obvious. The
tagline for the licenses, “Some Rights Reserved,” while catchy, was not really
self-explanatory. This became the next big challenge to Creative Commons, as we
see in chapter 6: how to educate creators about a solution when they may not
have realized they even had a problem.

By December 2002, the three levels of code — legal, digital, and human — had
been coordinated and finalized as version 1.0. The organization was set to go
public, which it did at a splashy coming-out party in San Francisco. The gala
featured appearances by the likes of rapper DJ Spooky (an ardent advocate for
remix culture) and a London multimedia jam group, People Like Us. Lessig
proudly introduced the licenses as “delivering on our vision of promoting the
innovative reuse of all types of intellectual works, unlocking the potential of
sharing and transforming others’ work.”~{
http://creativecommons.org/press-releases/entry/3476. }~
={ DJ Spooky ;
   People Like Us ;
   code :
     levels of ;
   Lessig, Lawrence :
     CC licenses, and +2
}

Perhaps the biggest surprise was a set of video testimonials from both ends of
the copyright spectrum — John Perry Barlow of Electronic Frontier Foundation
and Jack Valenti of the Motion Picture Association of America. With
uncharacteristic solemnity, Barlow said: “I personally think there is something
deeply oxymoronic about the term ‘intellectual property.’ But as long as we
have set up a huge matrix of laws and social understandings that traffic in
that assumption, we have to meet the conditions as we have found them and use
what exists to preserve the human patrimony.” The silvermaned Valenti saluted
the “Lessig compact” that is both “respectful of, and supports, copyright”
while allowing people “to give up some of their copyrighted material, or all of
it, and put it on the creative commons for others to view it or hear it.”
“Larry, I hope that my supporting you in this doesn’t ruin your reputation,”
Valenti joked.~{ See http://mirrors.creativecommons.org/cc-barlow-valenti.mov.
}~
={ Barlow, John Perry ;
   Electronic Frontier Foundation (EFF) ;
   Valenti, Jack +1
}

Many copyfighters were not thrilled to have an arch-adversary like Valenti
praise their efforts at their moment of triumph. Yet that was a deliberate part
of Lessig’s strategy: to assert a politically neutral middle ground from which
to remake the social landscape of creativity. The question raised in some
people’s mind was whether something so politically unassailable could have
significant impact. Still others saw it as a welcome base upon which to build a
new sharing economy.

The CC launch party can be seen as a watershed moment in the struggle to
protect the public domain. It announced a novel gambit to transcend the
political impasse over copyright reform, a way to address copyright abuses
without getting embroiled in a pitched and unwinnable confrontation. It
legitimized all sorts of activities that had historically been seen as morally
problematic, if not illegal. While building on the idea of the public domain
developed over the preceding twenty years, Creative Commons inaugurated a new
story about the commons, creativity, and the value of sharing. Watching the
rocking party and savoring the hard work completed, Glenn Brown remembers a
friend musing to him, “I wonder if we’ll see another legal hack like this in
our careers.”
={ Creative Commons (CC) licenses :
     launch of | public domain, and ;
   public domain :
     CC licenses, and
}

1~ 5 NAVIGATING THE GREAT VALUE SHIFT

/{Amateurs discover new tools for creating value: open networks and
self-organized commons.}/

“It was never really clear to me what was going to happen after we launched the
licenses,” recalled Glenn Otis Brown. “Would our work be done?” The intense
push to craft the licenses and release them now over, Brown and his colleagues
were only too happy to ease up in their work. (Van Houweling had left in 2002
to teach law; she is now at the University of California at Berkeley.) Despite
his enthusiasm for the licenses, Brown had his private doubts about their
future success. “To be honest, I was pretty scared,” he said. “I was worried
they were going to go nowhere, and that I was going to be blamed for that.”~{
Interview with Glenn Otis Brown, August 10, 2006. }~
={ Brown, Glenn Otis :
     CC licensing, and +1 ;
   Van Houweling, Molly Shaffer ;
   Creative Commons (CC) licenses :
     evolution of +10
}

In January 2003, a month after the CC licenses were announced, however, the
project took on a new urgency. The Supreme Court handed down its /{Eldred}/
ruling, sending a clear signal that the courts were not much interested in
reforming copyright law. Soon after this crushing disappointment, Lessig began
to intensify his focus on the Creative Commons. “The pressure really
increased,” said Brown, “but that’s also when things started to get a lot more
fun. That’s when the staff started working on things /{all the time}/ and we
got a stable, permanent staff, instead of contractors.”
={ Eldred v. Reno/Eldred v. Ashcroft :
     Copyright’s Commons, and | Supreme Court, and ;
   Lessig, Lawrence :
     CC licenses, and +9
}

What began as a modest licensing experiment began to take on the character of a
permanent campaign. Working from the themes in /{The Future of Ideas}/, Lessig
came to see the Creative Commons as more than a nonprofit custodian of some
free public licenses; it was a champion for a bracing new vision of culture.
This broader orientation meant reaching out to various creative sectors and the
general public with messages that were both practical (“here’s how to use the
licenses”) and idealistic (“you, too, can build a better world”).
={ Lessig, Lawrence :
     The Future of Ideas ;
   Creative Commons (CC) :
     function of +5 | social movement, as +5
}

The band of enterprising law scholars and techies who once saw their challenge
as one of bolstering the public domain began to widen their gaze to the vast
world of creativity and democratic culture. Social practice, not theory, became
the animating force in their work.

This meant reaching out to writers, musicians, filmmakers, photographers,
librarians, academics, and other creators. All faced worrisome threats to their
freedoms in the digital environment, as we saw in chapter 2. Lessig and the
small Creative Commons staff made it their job to speak to these threats,
promote the licenses, and set forth an alternative to the corporate media’s
vision of culture.

“Our single, overarching aim,” said Lessig in December 2002, “is to build the
public domain, by building projects that expand the range of creative work
available for others to build upon.”~{ Lawrence Lessig, Creative Commons press
release, December 19, 2002; “CC in Review: Lawrence Lessig on How It All Began”
[weekly e-mail series], October 12, 2005. }~ In an attempt to credential the
licenses, the Creative Commons touted endorsements by a number of educational
institutions (MIT, Rice University, Stanford Law School), public-spirited tech
enterprises (iBiblio, the Internet Archive, O’Reilly & Associates), and
venturesome musicians (DJ Spooky, Roger McGuinn of the Byrds).
={ DJ Spooky ;
   McGuinn, Roger ;
   Lessig, Lawrence :
     public domain, and ;
   public domain :
     CC licenses, and ;
   Creative Commons (CC) licenses :
     public domain, and
}

As if by spontaneous replication, people from far-flung corners of the Internet
began to use the licenses on their blogs, their MP3 music files, their
photographs, their books. Week after week, the Creative Commons’s blog
trumpeted the new recruits — the blog for book designers (Foreword), the
database of metadata about music (MusicBrainz), the online storytelling Web
site (Fray), the 2004 presidential campaign of Dennis Kucinich.
={ Kucinich, Dennis }

But the larger challenge for Creative Commons was finding ways to reach new
constituencies who knew little about technology or copyright law. Why should
they bother to use a CC license? This was a major public education challenge.
Besides appearing at many conferences and cultivating press coverage, Glenn
Brown spent a lot of time developing a Web site that could explain the licenses
clearly. Great pains were taken to develop a precise, intuitive user interface
to help people learn about the licenses and choose the right one for them.
Copyright law was complicated enough; the CC licenses had to be seen as a
simple alternative.
={ Brown, Glenn Otis :
     CC licensing, and +1 ;
   copyright law :
     licenses, and +3
}

Advertisers have plenty of trouble communicating the virtues of mouthwash in a
crowded public sphere. Could something as dry and forbidding as copyright law
ever be made lucid and even hip? Although not a trained marketer, Glenn Brown
had a knack for communicating things simply.Working with graphic designer Ryan
Junell and Web designer Matt Haughey, Brown developed a site that combined a
certain institutional authority with contemporary pizzazz. This style was on
abundant display in a series of jaunty and entertaining Flash animations that
explained the rationale for Creative Commons.
={ Haughey, Matt ;
   Junell, Ryan +1
}

Junell designed the now-familiar CC logo as a deliberate counterpoint to the
copyright logo, ©. “I thought that Creative Commons should have something like
the copyright logo since it deals with the same stuff,” said Junell. “It should
be something really simple and pure.”~{ Interview with Ryan Junell, September
23, 2006. }~ Junell set his sights on making the CC logo a standard, ubiquitous
symbol. He hoped that it would eventually be incorporated into the Unicode, an
international registry for every character in any language used in software,
from % to ∆ to ≠.
={ Creative Commons (CC) :
     logo of ;
   Unicode
}

In promoting its licenses, Creative Commons fashioned itself as a neutral,
respectable defender of individual choice. “Our tools are just that — tools,”
said Haughey, who was then developing the CC Web site. “Our model intentionally
depends on copyright holders to take responsibility for how they use those
tools. Or how they don’t use them: If you’re unsure and want to keep your full
copyright, fine. If you choose to allow others to re-use your work, great.”~{
Matthew Haughey, “Blogging in the Public Domain,” Creative Commons blog post,
February 5, 2003, at http://creativecommons.org/weblog/entry/3601. }~ While
many CC users were enthusiastically bashing copyright law, Lessig and the CC
staff made it a point to defend the basic principles of copyright law — while
extolling the value of collaborative creativity and sharing under CC licenses.
={ Haughey, Matt }

Despite praise by the heads of the Motion Picture Association of America and
the Recording Industry Association of America, the licenses nonetheless did
attract critics. Some in the music industry regarded the licenses as a Trojan
horse that would dupe unsuspecting artists. David Israelite, president and CEO
of the National Music Publishers’ Association, told /{Billboard}/, “My concern
is that many who support Creative Commons also support a point of view that
would take away people’s choices about what to do with their own property.”~{
Susan Butler, “Movement to Share Creative Works Raises Concerns in Music
Circles,” /{Billboard}/, May 28, 2005.}~ /{Billboard}/ went on to cite the
cautionary tale of a songwriter who was being kept alive by his AIDS
medications, thanks to the royalties from a highly successful song. “No one
should let artists give up their rights,” said Andy Fraser of the rock group
Free. Other critics, such as John Dvorak of /{PC Magazine}/, called the CC
licenses “humbug” and accused them of adding “some artificial paperwork and
complexity to the mechanism [of copyright],” while weakening the rights that an
author would otherwise enjoy.~{ John C. Dvorak, “Creative Commons Humbug: This
Scheme Doesn’t Seem to Benefit the Public,” PC Magazine, July 28, 2005. }~
Still others had cultural scores to settle and criticized “anything advocated
by clever, sleek young lawyers.”~{ Researchers at the Economic Observatory of
the University of Openness, “Commercial Commons,” on the online journal
/{Metamute}/, at http://www.metamute.org/?q=en/Commercial-Commons. }~
={ Creative Commons (CC) licenses :
     critics of ;
   sraelite, David ;
   Recording Industry Association of America (RIAA) ;
   Dvorak, John ;
   Fraser, Andy
}

Putting aside such quibbles and prejudices, the CC licenses seemed a benign
enough idea. Given its reliance on copyright law, how could any entertainment
lawyer object? Yet the real significance of the licenses was only appreciated
by those who realized that a Great Value Shift was kicking in. For them, the
licenses were a useful legal tool and cultural flag for building a new sharing
economy.
={ Great Value Shift }

2~ The Great Value Shift
={ Great Value Shift +9 ;
   Inernet :
     Great Value Shift, and +9
}

In retrospect, the CC licenses could not have been launched at a more
propitious moment. Networked culture was exploding in 2003. Broadband was
rapidly supplanting dial-up Internet access, enabling users to navigate the Web
and share information at much faster speeds. Prices for personal computers were
dropping even as computing speeds and memory capacity were soaring.
Sophisticated new software applications were enabling users to collaborate in
more powerful, user-friendly ways. The infrastructure for sharing was reaching
a flashpoint.

Put another way, the original promise of the Internet as a gift economy was
coming into its own. Originally built as a platform for efficient sharing among
academic researchers, the Internet by 2003 was being used by some 600 million
people worldwide.~{ Nielsen/Net Ratings estimated 585 million Internet users in
2002; the International Telecommunications Union estimated 665 million. See
http://www2.sims.berkeley.edu/research/proiects/how-much-info-2003/internet.htm.
}~ The open framework for sharing was no longer just a plaything of
technophiles and academics; it was now insinuated into most significant corners
of the economy and social life. As it scaled and grew new muscles and limbs,
the Internet began to radically change the ways in which wealth is generated
and allocated.
={ Internet :
     gift economy of +1
}

I call this the Great Value Shift — a deep structural change in how valuable
things are created for commerce and culture. The shift is not only a
fundamental shift in business strategy and organizational behavior, but in the
very definition of wealth. On the Internet, wealth is not just financial
wealth, nor is it necessarily privately held. Wealth generated through open
platforms is often /{socially created value}/ that is shared, evolving, and
nonmonetized. It hovers in the air, so to speak, accessible to everyone.
={ Internet :
     socially created value of +1 ;
   value :
     creation of
}

Creative Commons had the good fortune to introduce its licenses just as the
Great Value Shift was picking up momentum. The types of distributed innovation
first seen in free software were now popping up in every imaginable corner of
cyberspace. The social content was not just about listservs and newsgroups, but
instant messaging networks, Web logs, podcasts, wikis, social networking sites,
collaborative archives, online gaming communities, and much else.
={ free software :
     Great Value Shift, and
}

“What we are seeing now,” wrote Yochai Benkler in his book, /{The Wealth of
Networks}/, “is the emergence of more effective collective action practices
that are decentralized but do not rely on either the price system or a
managerial structure for coordination.” Benkler’s preferred term is
“commons-based peer production.” By that, he means systems that are
collaborative and non-proprietary, and based on “sharing resources and outputs
among widely distributed, loosely connected individuals who cooperate with each
other.”~{ Yochai Benkler, /{The Wealth of Networks: How Social Production
Transforms Markets and Freedom}/ (New Haven, CT: Yale University Press, 2006),
p. 60. }~
={ Benkler, Yochai :
     The Wealth of Networks +1 ;
   commoners :
     sharing by ;
   commons-based peer production
}

Informal social relationships, working in the unregimented, free space of open
platforms, were beginning to change economic production and culture. “Behaviors
that were once on the periphery— social motivations, cooperation, friendship,
decency — move to the very core of economic life,” Benkler argued.~{ Benkler at
the iCommons Summit, Dubrovnik, Croatia, June 15, 2007. }~ Money and markets do
not necessarily control the circulation of creativity; increasingly, online
communities — large numbers of people interacting with one another on open
platforms — are the engines that create value.

The CC licenses were launched at a moment when the new modes of value creation
were just gaining a foothold.

We do not yet have well-accepted theoretical models for understanding this new
“socioeconomic space”; the online environments are still so new, and much is
still in flux.~{ An excellent overview of these new spaces is Don Tapscott and
Anthony D. Williams, /{Wikinomics: How Mass Collaboration Changes Everything}/
(New York: Portfolio, 2006). }~ But it has not escaped the notice of major
corporations that online social dynamics can result in some radically more
effective models for organizing employees and engaging with customers. A
/{BusinessWeek}/ cover story touted “The Power of Us” in June 2005, profiling
the ways in which companies like Procter & Gamble use mass collaboration for
R&D; Hewlett-Packard had created a virtual stock market among its staff to
gather collective estimates that have improved sales forecasts.~{ Robert D.
Hof, “The Power of Us: Mass Collaboration on the Internet Is Shaking Up
Business,” /{BusinessWeek}/, June 20, 2005, pp. 73–82. }~ The /{Economist}/ has
written about the “fortune of the commons” that can result when there are open
technical standards, and business professors such as Henry Chesbrough have
examined new “open business models.”~{ “The Fortune of the Commons,” Economist,
May 8, 2003; Henry Chesbrough, /{Open Business Models: How to Thrive in the New
Innovation Landscape}/ (Cambridge, MA: Harvard Business School Press, 2006). }~
={ Chesbrough, Henry ;
   Hewlett-Packard ;
   Procter & Gamble
}

Before looking at the many creative sectors that have adopted the CC licenses —
the focus of chapter 6 — it helps to understand the Great Value Shift that open
networks have catalyzed. In one market after another, open networks have helped
new competitors slash all sorts of business costs while enhancing their
capacity to innovate and respond to changing consumer demand. Open networks
have also given rise to new types of social platforms on the Web, often known
as Web 2.0, which are making it economically attractive to serve niche markets.
This is the so-called Long Tail. Yet even these sweeping changes in market
structure are facing a qualitatively different kind of competition — from the
commons sector. It turns out that informal online communities based on trust,
reciprocity, and shared social norms can perform a great many tasks more
efficiently than markets, and with some measure of social pleasure and fun.
={ Long Tail ;
   Web 2.0 :
     Great Value Shift, and
}

2~ The Endangered Economics of Centralized Media
={ Centralized Media +7 ;
   media :
     See also Centralized Media
}

The dominant systems of communications in the twentieth century — radio,
broadcast and cable television, recorded music, theatrical film — required
large amounts of centralized capital, corporate management, and professional
control. These media have very different business models and practices, but
they all rely upon centralized control of capital and distribution to large,
fairly undifferentiated audiences. Each depends upon efficiencies derived from
high-volume sales and a limited spectrum of commercial choices.

Centralized Media also dictate certain economic and social identities for
people. There are “sellers,” who are the prime source of expertise, innovation,
and production, and there are “consumers,” who passively buy, or don’t buy,
what is offered. Sellers mostly determine what choices are offered to buyers,
and they tend to have greater market power and information than consumers.
Interactions between sellers and consumers are mostly brief and transactional;
there is little ongoing conversation or relationship between seller and buyer.

Much of the strength of the Centralized Media derives from its control of
critical “choke points” of product development and distribution. By controlling
the technical standards for a product, its retail distribution or its brand
identity, a company can maximize its competitive advantages and limit
competition. The high concentration of capital needed to communicate through a
Centralized Media outlet is itself a useful way to limit competition. No
surprise that only large, publicly traded corporations and rich individuals own
and control Centralized Media — and that their messages tend to be overtly
commercial or commercial-friendly.
={ Centralized Media :
     choke points of | competition, and +4
}

While this paradigm is obviously quite attractive for those investors with a
piece of the action, it also entails some very large costs that are not readily
evident. Companies have to spend a lot on advertising to build a brand identity
that can enhance sales. Their “blockbuster” business model entails large
upfront costs in order to reap large financial returns. Centralized Media
require expensive systems for finding, recruiting, and developing stars; an
elaborate marketing apparatus to find and retain customers; and legal and
technological means to identify and prosecute “piracy” of creative works.
={ Centralized Media :
     piracy, and ;
   piracy
}

In a more static environment, this model worked fairly well. But as the
Internet revolution proceeded in the 2000s, distributed media started to
undercut the economic logic of Centralized Media. Your personal computer,
connected to other computers via inexpensive telecommunications and software,
can do things more cheaply. Distributed online media not only avoid the costly
overhead needed by Centralized Media, they can generate dynamic, interactive,
and sociable types of communication: /{user-generated content!}/ While this
amateur content is wildly variable in quality, it does have this virtue: it is
more culturally diverse and authentic than the homogenous, overproduced
programming of Centralized Media. And because distributed media are not
economically driven to amass large, undifferentiated audiences, the content can
be more idiosyncratic, passionate, and, in its own ways, creative. There is no
“fifty-seven channels and nothing on” problem. The problem is how to locate
what you want from among millions of choices.
={ Centralized Media :
     Internet vs. ;
   Internet :
     Centralized Media vs.
}

For all these reasons — but mostly because of the economics— conventional media
are becoming more vulnerable to the most advanced Internet-based competitors
(Amazon, eBay, Google, Yahoo) as well as to new types of nonmarket social
production (e.g., Craigslist, Wikipedia, special-interest affinity groups). We
may even be approaching a point at which the historic cost structures and risk
management strategies of major media companies are no longer sustainable. Some
analysts fret about the long-term viability of American newspapers, whose stock
value fell by 42 percent, or $23 billion, between 2005 and 2008. Broadcast and
cable television have similar fears. They worry, correctly, that Internet
venues are siphoning away “eyeballs” by providing more timely and convenient
alternatives. While the amateur videos of YouTube may not have the production
quality of NBC, broadcast and cable television cannot ignore an upstart
platform that in 2006 was attracting more than 100 million video downloads
/{per day}/ and had a market valuation of $1.65 billion when bought by Google
that year. No wonder Cable News Network co-hosted a presidential debate with
YouTube in 2007; it needed to reassert its cultural relevance.
={ Amazon ;
   eBay ;
   Google ;
   Yahoo ;
   Craigslist ;
   Wikipedia ;
   YouTube
}

Large media companies are struggling to support some huge financial,
administrative, and marketing burdens simply to “tread water” and retain some
measure of their customary market dominance. This helps explain why Centralized
Media are so keenly focused on influencing Congress and the Federal
Communications Commission. They want to lock in competitive advantages through
regulation. (Consider the fierce battles over media ownership rules, spectrum
allocation policies, anticopying technology mandates such as the “broadcast
flag,” new copyright and trademark protections, must-carry rules for cable
operators, and on and on.) Centralized Media’s great interest in securing legal
and regulatory privileges for themselves suggests their relative weakness and
decline. For them, it is easier to chase market advantages through political
interventions than through innovation, superior performance, and price.
={ Centralized Media :
     ownership rules for ;
   media :
     ownership of +3
}

2~ The Economic Advantages of Open Media
={ Centralized Media :
     Internet vs. +7 ;
   Internet :
     Centralized Media vs. +7 ;
   media :
     open +7
}

By contrast, a profusion of new ventures are finding that a company can thrive
on the open networks of the Internet. Even a startup without brand recognition
or regulatory preferences can compete on the merits — price, quality,
responsiveness — against entrenched giants. They can leverage user-generated
content and the vast reservoir of value previously known as the public domain.
The success of thousands of new Internet businesses reflects an epochal shift
in the terms of competition — a Great Shift in how value is created.
={ Great Value Shift }

The most significant shifts in the history of capitalism have come when new
mechanisms lower the costs of managing risk and serving latent market demand.
We are apparently in such a stage of economic transformation today. The genius
of the Renaissance banks and the Dutch insurance and shipping companies, for
example, was to reinvent the structure of markets through new financial and
legal instruments that enabled commercial trust and transparency to work on a
larger scale. The limited liability corporation was also a powerful innovation
for diversifying risk, coordinating people, and deploying capital on a scale
that was previously impossible.~{ I am indebted to my friend John Clippinger
for this insight, as explained in his book /{A Crowd of One: The Future of
Individual Identity}/ (New York: Public Affairs, 2007), chapter 7,
“Transforming Trust: Social Commerce in Renaissance Florence,” pp. 97–114. }~
={ markets :
     restructuring +1
}

In like fashion, the Internet is now facilitating some deep shifts in the cost
structures and scale of markets. Innovative online business models are
significantly undercutting the (expensive) cost structures of traditional
Centralized Media, and in the process sometimes creating entirely new sorts of
markets (search engine advertising, discounted travel, specialty niches) and
more open, competitive markets.
={ Internet :
     socially created value of +3
}

One of the most intriguing developments is a set of “open business models” that
shun closed, proprietary technical standards and content restrictions. Unlike
the classic industrial business models of the twentieth century, the new open
business models make money by aggressively insinuating themselves into open
networks. They are able to identify new trends, mobilize talent, interact with
customers, and develop customized products more rapidly than competitors. They
are also building ingenious new business models “on top of ” social behaviors
of online users. (See chapter 10.)
={ open business models }

MySpace, for example, hosts a social network of more than 100 million “friends”
(a claim that, even if inflated by inactive user accounts, is indisputably
huge). eBay consolidated the world’s garage sales and flea markets into a more
efficient market by developing Web-based software that “manages” social trust
and reputation and evolves with user interests. Amazon has become a premier
online retail Web site by hosting a platform open to all sorts of online
vendors and spurred by the recommendations and collective purchase records of
buyers. Google devised its famous PageRank search algorithms to aggregate the
Web-surfing “wisdom of the crowd,” making online searches vastly more useful.
={ Amazon :
     eBay ;
   Google ;
   MySpace
}

The basic point is that open media platforms are significantly reducing
business coordination and communication costs by leveraging people’s natural
social behaviors in ways that conventional businesses simply cannot. Open Web
platforms allow large and diverse groups to organize themselves and their
projects more easily. Individuals have greater self-defined choice and the
capacity to express their own market demand; they need not be constrained by
the choices presented to them in the market. The Internet has opened up gushing
channels of virtual word of mouth, which is a more trusted form of consumer
information than advertising. Those companies with excellent products use
favorable word of mouth to reduce their marketing and distribution costs.
“Smart mobs” can elevate obscure bloggers and Web sites because they regard
them as more trustworthy, expert, and authentic (or entertaining) than those of
Centralized Media. Many conservatives now trust the Drudge Report and Free
Republic more than CBS News, just as many liberals trust DailyKos and
Huffington Post more than CBS News. Indeed, the very genre of “objective
journalism” — an artifact of the economic necessity of appealing to broad,
lowest-commondenominator audiences — is now in jeopardy.
={ Internet :
     virtual word of mouth on ;
   media :
     participatory ;
   Centralized Media :
     competition, and +3 ;
   markets :
     restructuring +1
}

As people migrate to the Web, advertising revenues for Centralized Media are
eroding further, setting off a scramble to devise new advertising vehicles to
reach fugitive Internet users. It is a chase that cannot be avoided because
that’s where the eyeballs are. Moreover, the value proposition of open networks
is too attractive to ignore. But because that value proposition is so radically
different from conventional media — a company must revamp its organizational
structures, strategies, marketing, etc. —it raises some wrenching choices for
Centralized Media: Should they “go native” and let their products loose on open
networks? Or would that destroy their entrenched business models for television
shows, theatrical films, music CDs, and other content? The vast infrastructure
and business practices of Centralized Media cannot be summarily abandoned, but
neither can they remain economically tenable over the long haul without
significant changes. For now, Centralized Media are attempting an ungainly
straddle of both worlds.
={ Centralized Media :
     alternatives vs.
}

2~ Web 2.0: A New Breed of Participatory Media
={ media :
     participatory +17 ;
   Centralized Media :
     alternatives vs. +17 ;
   Web 2.0 :
     applications +17
}

At the time, Eric Eldred’s Web repository of public-domain books could be seen
as a modest little experiment. In retrospect, it can be seen as a dawning
cultural archetype. It betokened the power of the amateur.~{ Dan Hunter and F.
Gregory Lastowka, “Amateur-to-Amateur,” /{William and Mary Law Review}/ 46, no.
951 (December 2004). }~ While Centralized Media continue to have greater
resources, talent, and political clout, amateurs are finding their voices and
new online venues. A significant cultural emancipation is under way. Creative
expression need no longer cater to corporate gatekeepers and the imperatives of
the mass market. A no-name amateur can produce useful and influential work
without having to go through New York, Los Angeles, London, or Tokyo. The
do-ityourself culture is flourishing and expanding. With little money or
marketing, anyone can launch a viral spiral that, with enough luck and panache,
can sweep across global culture.
={ Eldritch Press }

It is only now dawning on some media chieftains that the biggest threat to
Centralized Media is not piracy or online competitors, but /{nonmarket
alternatives}/: you, me, and the online friends that we can attract. Hollywood
and record labels might rail against “pirates” and demand stronger copyright
protection, but the real longterm threat to their business models is the
migration of consumer attention to amateur creativity and social communication.
Social production on open networks has become a powerful creative and economic
force in its own right. Ordinary people can now find their own voices and
develop folk cultures of their own that may or may not use the market.
={ piracy ;
   Centralized Media :
     piracy, and
}

After the tech bubble of 2000–2001 burst, the surviving techies and
entrepreneurs developed a remarkable range of cheap, versatile software that
took to heart the lessons of free software and open networks. Blogs, wikis,
social networking software, peer-to-peer file-sharing and metadata tools began
to migrate from the tech fringe to the mainstream. There have been many
conceptual frames and buzzwords associated with this new order — “smart mobs”
(Howard Rheingold), “the wisdom of crowds” (James Surowiecki), “wikinomics”
(Don Tapscott and Anthony D. Williams) — but the catchphrase that has gained
the most currency is “Web 2.0,” a term launched by Tim O’Reilly in a canonical
2003 essay.~{ Tim O’Reilly, “What Is Web 2.0: Design Patterns and Business
Models for the Next Generation of Software,” O’Reilly Media Web site, September
30, 2005, at
http://www.oreilly.com/pub/a/oreilly/tim/news/2005/09/30/what-isweb-20.html. }~
={ O’Reilly, Tim ;
   Rheingold, Howard ;
   Surowiecki, James ;
   Tapscott, Don ;
   Williams, Anthony D. ;
   free software :
     economic effects of ;
   open source software :
     economic implications of
}

O’Reilly, a prominent publisher of books on open-source software, coined Web
2.0 to describe the fluid social dynamics that occur on open Web platforms —
wikis, blogs, social networking Web sites, and other open, collaborative
platforms — where people have the freedom to share and reuse work. Web 2.0
amounts to a worldview that celebrates open participation as a way to create
valuable collective resources. It regards open technical protocols and content
as the basis for this process (whether managed as a commons or a business), and
dismisses closed, proprietary regimes as both socially and economically
questionable. In essence, Web 2.0 honors socially created value as the basis
for value creation, which market players may or may not be able to exploit.
={ Web 2.0 :
     coining of term
}

Blogging is more of a social medium than is generally supposed, for example. It
is not just the outburst of some ranter in his pajamas, as the stereotype has
it, but a social medium that connects people in new ways. Most blogs have a
blogroll — a list of admired blogs— which enables the readers of one blog to
identify other bloggers engaged in similar conversations. Permalinks — stable
Web addresses for blog content — enable people to make reliable Web citations
of content, which means that people can coalesce around a shared body of work.
And RSS feeds— “Really Simple Syndication” — allow people to “subscribe” to
individual blogs and Web sites, enabling them to keep abreast of a sprawling
set of communities.
={ blogging +1 ;
   permalinks ;
   RSS feeds
}

The rise of blog-tracking companies like Technorati and Alexa has also helped
blogging become a durable social genre. These companies inventory and rank
blogs, and help people discover blogs for virtually any subject of interest —
cocktail mixing, high-energy physics, needlework design. By 2007, there were an
estimated 100 million blogs in existence (although many were inactive or
abandoned), making the blogosphere a powerful cultural force in its own right.
There was also a flood of online “news aggregators” — Web sites that
cherry-pick their own mix of pieces from the wire services, newspapers, Web
sites, blogs, and other online sources. With huge audiences, news aggregators
like the Drudge Report (1.6 million unique monthly visitors) and the Huffington
Post (773,000 visitors) have begun to rival major daily newspapers in reach and
influence.

Another seminal social innovation has been Wikipedia, a strange and wondrous
cultural eruption. Founded by Jimmy Wales and Larry Sanger in January 2001, the
English-language Wikipedia began to gain serious momentum in the months after
the CC licenses were released, and by early 2003 hosted 100,000 articles. (A
“wiki” is a special type of Web site that allows anyone who accesses it to add
or modify its contents.) After two years, Wikipedia had amassed a collection of
400,000 articles and inspired the launch of affiliated Wikipedias in more than
100 languages. In May 2008,
={ Sanger, Larry ;
   Wales, Jimmy ;
   Wikipedia :
     social movement, as +2
}

Wikipedia featured 10.2 million articles in 255 languages; 2.3 million of the
articles were in English. By harnessing the energies of tens of thousands of
volunteers to write an infinitely expandable “encyclopedia,” Wikipedia has
become the leading symbol for a radically new way of compiling and editing
knowledge.~{ Wikipedia statistics from
http://en.wikipedia.org/wiki/Wikipedia:About. }~ Remarkably, the Wikimedia
Foundation, the umbrella organization that funds Wikipedia and many sister
projects, had fewer than twenty paid employees in 2008 and a budget of less
than $2 million.

Wikipedia has also spun off affiliated multilingual, free-content wikis on
various subjects. Wikispecies is compiling an inventory of the world’s species,
Wikiquote is collecting thousands of memorable quotations, the Wikimedia
Commons is providing freely usable media files, and Wikibooks is assembling
open-content textbooks. Wiki software has been adopted by dozens of different
online communities, giving rise to scores of collaborative Web sites such as
Conservapedia (for American political conservatives), Intellipedia (for U.S.
intelligence agencies), Wookieepedia (for Star Wars fans), Wikitravel (for
travelers), and OpenWetWare (for biological researchers).

In the months following the launch of the CC licenses, peer-topeer (P2P) file
sharing was also expanding rapidly. Long associated with illicit sharing of
copyrighted music, P2P software in fact has many entirely legitimate uses in
science, education, and diverse creative sectors. One of the key attractions of
P2P software is its efficiency. It does not need to route information through
centralized servers; information can be rapidly shared by routing digital files
directly to participants, computer to computer, or by passing it through key
nodes in an on-the-fly manner. Even after the courts shut down Napster in 2002,
a variety of other P2P software applications — Grokster, Lime Wire, KaZaA,
Gnutella, BitTorrent — continued to facilitate online sharing and
collaboration. Some thirty-five companies, including Hollywood studios, are
sufficiently impressed with the efficiencies of P2P that they have licensed
BitTorrent technology to distribute their video content.
={ Napster ;
   software :
     P2P
}

Peer-to-peer file sharing has also unleashed radically new types of knowledge
creation: volunteers who join the NASA Clickworkers project to count and
classify craters on Mars, “citizen scientists” who help compile an interactive
database of butterfly and bird sightings, or geneticists from around the world
who submit data to the Human Genome Project and share access to the database.

Although the tech world and some Internet users had known about various
networking tools for years, the general public was largely in the dark until
the presidential campaign of Vermont governor Howard Dean in 2002 and 2003. At
the time, Dean was considered a long-shot antiwar candidate with little base
and little money. Within a few short months, however, thanks to Dean’s
outspoken style and his campaign’s skillful use of the Internet, he became the
front-runner in a field of twelve candidates. Dean did not use the Internet as
a simple publishing tool, but as a way to stimulate decentralized collaboration
and thereby organize a diverse community of supporters. The campaign was not
just about Dean, but about the participation of 640,000 volunteers who
virtually organized themselves through various online tools. The campaign
became a dynamic conversation between the candidate and voters — and generated
a gusher of more than $50 million, most of it donations of a hundred dollars or
less. So much was raised that Dean famously asked his supporters whether he
should forgo federal matching funds, and instead raise more money from them.
They agreed. The campaign ultimately imploded, of course, after his famous
“Dean’s Scream” speech — itself a complex story — but what is notable is how
the Dean campaign vividly demonstrated the speed and power of viral networks.
={ Dean, Howard ;
   Interenet :
     political campaigns on
}

By 2003 many ordinary people knew about the Napster controversy, the record
industry’s scorched-earth litigation tactics against consumers, and the Supreme
Court’s ruling in the /{Eldred}/ case. So people welcomed blogs, wikis, and
other Web 2.0 applications as tools to emancipate themselves culturally. In the
mass media era, people had few tools or sufficient money to speak to the
general public or organize their own communities of interest. But now, using a
lightweight infrastructure of software code and telecommunications, people
could build stable online communities that reflected their own values and
social practices. No permission or payment necessary. No expensive capital
investments.
={ Napster ;
   Eldred v. Reno/Eldred v. Ashcroft ;
   Internet :
     socially created value of +4 ;
   communities :
     online +4
}

In many instances, amazingly, virtual communities are performing tasks that
existing markets are not performing as efficiently or with as much social trust
and goodwill. Craigslist, the free want-ad service that has significantly
undercut classified advertising in newspapers, is one of the more stellar
examples. In South Korea, OhmyNews.org uses thirty-six thousand
citizen-journalists to write up to two hundred online stories a day. The
publication is considered the sixth-most influential media outlet in Korea,
based on a national magazine poll. Countless specialty blogs are considered
more expert and timely sources of information and analysis than mainstream
newspapers and magazines.
={ OhmyNews.org ;
   Craigslist ;
   blogging
}

Taken together, the new participatory media platforms constitute something new
under the sun — a globally accessible space that is both personal and public,
individual and social. The riot of unfiltered expression that has materialized
on the Internet is often dismissed as stupid, unreliable, and silly; or praised
as brilliant, stylish, and specialized; or simply accepted as idiosyncratic,
irregular, and local. It is all of these things, of course, and that is
precisely the point.
={ Internet :
     mass participation in +1
}

If print culture honors the ethic of “edit, then publish,” the Internet inverts
it: /{anything}/ can be made public . . . and then it is up to users to become
their own editors. On the Internet, people do not “consume” content, they
become active writers, editors, and critics in their own right. They use search
engines, news aggregators, and favorite bloggers to identify what they want —
or they create their own content, as desired. They are /{participants}/, not
merely informed consumers who choose what some professional editor offers to
them.
={ blogging }

The Web 2.0 environment was quite hospitable for the spread of the CC licenses.
It enabled people to signal their willingness to share and their enthusiasm for
cool niche fare as opposed to massaudience kitsch.Members of online communities
could confidently share their work on wikis and collaborative Web sites,
knowing that no one could appropriate their content and take it private.
Socially, the licenses let people announce their social identity to others and
build a countercultural ethos of sharing. The ethos became hipper and more
attractive with every new antipiracy measure that Centralized Media instigated.
={ Web 2.0 :
     CC licenses, and ;
   Creative Commons (CC) licenses :
     Web 2.0 environment, and
}

% Creative Commons (CC) licenses  not separated from Creative Commons (CC) in index, try fix above this point

2~ Open Networks and the Long Tail
={ open networks +6 }

While technology and economics have been driving forces in shaping the new
participatory platforms, much of their appeal has been frankly cultural.
Amateur content on the Net may be raw and irregular, but it also tends to be
more interesting and authentic than the highly produced, homogenized fare of
commercial media. Some of it vastly outshines the lowest common denominator of
mass media. Again, the cheap connectivity of the Internet has been key. It has
made it possible for people with incredibly specialized interests to find one
another and organize themselves into niche communities. For closeted
homosexuals in repressive countries or isolated fans of the actor Wallace
Beery, the Internet has enabled them to find one another and mutually feed
their narrow interests. You name it, there are sites for it: the fans of
obscure musicians, the collectors of beer cans, Iranian exiles, kite flyers.
Freed of the economic imperative of attracting huge audiences with broad fare,
niche-driven Internet content is able to connect with people’s personal
passions and interests: a powerful foundation not just for social communities,
but for durable markets.
={ Internet :
     communication system, as +1
}

This, truly, is one of the more profound effects of networking technologies:
the subversion of the “blockbuster” economics of the mass media. It is becoming
harder and more expensive for film studios and broadcast networks to amass the
huge, cross-demographic audiences that they once could. In the networked
environment, it turns out that a diversified set of niche markets can be
eminently profitable with lower-volume sales. While Centralized Media require a
supply-side “push” of content, the Internet enables a demand-side “pull” of
content by users. This radically reduces transaction costs and enhances the
economic appeal of niche production. It is easier and cheaper for a company (or
single creator) to “pull” niche audiences through word of mouth than it is to
pay for expensive “push” advertising campaigns. Specialty interests and
products that once were dismissed as too marginal or idiosyncratic to be
profitable can now flourish in small but robust “pull markets.”~{ David
Bollier, “When Push Comes to Pull: The New Economy and Culture of Networking
Technology” (Washington, DC: Aspen Institute, 2006), at
http://www.aspeninstitute.org/atf/cf/%7BDEB6F227-659B-4EC8-8F84-8DF23CA704F5%7D/2005InfoTechText.pdf.
}~
={ Centralized Media :
     Internet vs. ;
   Internet :
     Centralized Media vs.
}

The term associated with this phenomenon is the “Long Tail” — the title of a
much-cited article by Chris Anderson in the October 2004 issue of /{Wired}/
magazine, later expanded into a book. Anderson explained the “grand transition”
now under way:
={ Anderson, Chris +2 ;
   Long Tail +3
}

_1 For too long we’ve been suffering the tyranny of lowestcommon-denominator
fare, subjected to brain-dead summer blockbusters and manufactured pop. Why?
Economics. Many of our assumptions about popular taste are actually artifacts
of poor supply-and-demand matching — a market response to inefficient
distribution. . . . Hit-driven economics is a creation of an age without enough
room to carry everything for everybody. Not enough shelf space for all the CDs,
DVDs, and games produced. Not enough screens to show all the available movies.
. . .~{ Chris Anderson, “The Long Tail,” /{Wired}/, October 2004, at
http://www.wired.com/wired/archive/12.10/tail.html. }~

The “Long Tail” refers to the huge potential markets that can be created for
low-volume niche books, CD, DVDs, and other products. More than half of
Amazon’s book sales, for example, come from books that rank below its top
130,000 titles. The implication is that “the market for books that are not even
sold in the average bookstore is larger than the market for those that are,”
writes Anderson. “In other words, the potential book market may be twice as big
as it appears to be, if only we can get over the economics of scarcity.”
={ Amazon }

Unconstrained by the size and tastes of a local customer base or by limited
shelf space, online retailers such as Amazon, Netflix (DVDs), Rhapsody (music),
and iTunes (music) are showing that the Long Tail can be a very attractive
business model. These companies have developed new tools, such as collaborative
filtering software and user recommendations, to drive demand for lesser-known
titles at the far end of the Long Tail. This is just another instance of using
new technologies that leverage people’s natural social dynamics, and in so
doing inventing new types of markets.
={ Amazon }


2~ Another Vehicle for Niche Communities: The Commons
={ commons :
     niche communities as +13 ;
   communities :
     commons, and +13
}

If the Long Tail is a market vehicle for amassing niche communities, the
commons is the social analogue. A commons does not revolve around money and
market exchange, but around collective participation and shared values. It does
not use property rights and contracts in order to generate value; it uses gift
exchange and moral commitments to build a community of trust and common
purpose. Such communities, it turns out, can generate significant “wealth” — as
Richard Stallman demonstrated with free software.
={ Stallman, Richard :
     free software, and ;
   free software :
     economic effects of
}

Generically speaking, a commons is a governance regime for managing collective
resources sustainably and equitably. The commons is generally associated with
open fields, forests, and other natural resources that were collectively used
by villagers for their subsistence needs. During the “enclosure movement” in
medieval times and extending through the eighteenth century, British gentry and
entrepreneurs began to privatize the commons and convert its resources into
marketable commodities. Enclosures essentially dispossessed the commoners and
installed a new market regime to manage resources that were previously shared.
The commoners, unable to feed themselves or participate in markets, migrated to
the industrial cities of England to become the wage slaves and beggars who
populate Charles Dickens’s novels.
={ commons :
     enclosure of +2 | tragedy of +2 ;
   enclosure movement +2
}

Although markets tend to be more efficient than commons, they also tend to
focus on that which can be sold and converted into cash. Markets presume that
deserts and the public domain have no value because they have no marketable
output. Markets also presume that a commons cannot be sustained because
inevitably someone will overuse a shared resource — a practice known as “free
riding” —and ruin it. This is the famous “tragedy of the commons” notion
popularized by biologist Garret Hardin in a 1968 essay, which described how a
few farmers will let their sheep overgraze a common pasture and so destroy it.
={ Hardin, Garret ;
   free riding ;
   markets :
     efficiency of
}

The “tragedy of the commons” metaphor has ossified into a truism of
neoclassical economics. It takes for granted that shared resources cannot be
managed sustainably, and that private property regimes are much better stewards
of resources. This prejudice was powerfully rebutted by political scientist
Elinor Ostrom in her noted 1990 book /{Governing the Commons}/, which marshaled
many empirical examples of natural resource commons that have been managed
responsibly for decades or even hundreds of years. Ostrom’s scholarship has
since given rise to a great deal of academic study of commons, particularly
through the International Association for the Study of the Commons and the
Workshop in Political Theory and Policy Analysis at Indiana University. It also
inspired thinking about the commons by law scholars like Yochai Benkler,
Lawrence Lessig, and James Boyle, who saw close parallels with the commons as
they watched corporations use copyright law to enclose culture and information.
={ Benkler, Yochai ;
   Boyle, James ;
   Ostrom, Elinor, Governing the Commons ;
   Lessig, Lawrence :
     law in contemporary context, and ;
   commons :
     types of +2
}

Cultural commons differ significantly from natural resource commons in this key
respect: they are not finite, depletable resources like pastures or forests.
Online commons tend to grow in value as more people participate, provided there
is sufficient governance and common technical standards to enable sharing.
Online commons, in short, are less susceptible to the dreaded “tragedy of the
commons” and, indeed, tend to be highly generative of value. Their output does
not get “used up” the way natural resources do.
={ commons :
     online
}

The burden of Lessig’s 2001 book /{The Future of Ideas}/ was to argue that the
Internet constitutes a great, underappreciated commons. It can serve as the
infrastructure for tremendous wealth and innovation if its “layers” — the
hardware, software, and content— remain sufficiently open and usable by all.
The problem, he warned with great prescience, is that policymakers are
generally blind to the value of the commons and markets are too eager to reap
short-term individual gains. They fail to appreciate that too much private
control at any “layer” of the Internet — through proprietary hardware or
software, or excessive copyright or patent protection — can stifle personal
freedom, market competition, and innovation. Lessig wanted to name the book
/{Dot.commons}/, but his publisher rejected it as too obscure.
={ Lessig, Lawrence :
     The Future of Ideas
}

One of the key advantages of treating key infrastructure (such as Internet
transmission protocols and computer operating systems) as a commons is that
people have the freedom to modify and improve them, with resulting benefits for
all. Innovation and competition can flourish more readily. At the content
layer, much of the appeal of the commons is the creative freedom, above and
beyond what the market may enable. Precisely because it is a commons, and not a
market, people’s freedoms are not constrained by marketability. A commons is a
noncommercial, nongovernmental space that is free from corporate manipulations
and government meddling. It offers a qualitatively different type of experience
than the marketplace or government power. A commons tends to be more informal,
a place where people know you by name, and where your contributions are known
and welcomed. A commons based on relationships of trust and reciprocity can
undertake actions that a business organization requiring extreme control and
predictable performance cannot.
={ commons :
     concept of +1
}

Precisely because a commons is open and not organized to maximize profit, its
members are often willing to experiment and innovate; new ideas can emerge from
the periphery. Value is created through a process that honors individual
self-selection for tasks, passionate engagement, serendipitous discovery,
experimental creativity, and peer-based recognition of achievement. The Open
Prosthetics Project, for example, invites anyone to contribute to the design of
a prosthetic limb and/or the specification of limbs that ought to be designed,
even if they don’t know how to do it.~{ http://www.openprosthetics.org. }~ This
has generated such unexpected innovations as limbs specifically adapted for
rock climbers and an arm designed for fishing. Athletes who engage in “extreme
sports” — skiing, biking, surfing — have been a rich source of ideas for new
products, just as software hackers are among the first to come up with
innovative programming ideas.
={ commoners :
     sef-selection of ;
   commons :
     value proposition of +1 ;
   value :
     creation of +1
}

Part of the value proposition of the commons at the content layer is that it
can host a more diverse range of expression — personal, social, and creative —
than the market, in part because it does not have the burden of having to
sustain costly overhead and sell a product. It has other goals — the personal
interests and whims of the commoners — and it can often meet those needs
inexpensively. Yet the commons does in fact generate many marketable
innovations, thanks to its open accessibility, the social relationships it
enables and the free sharing and circulation of work.

Seeing the success of online commons, Centralized Media have tried to fight
back by embracing elements of user participation. They invite audiences to vote
in polls (/{American Idol}/), publish lists of “most e-mailed” articles (major
newspapers), and direct radio listeners to their Web sites for more information
(National Public Radio). /{Time}/ magazine’s choice for the “Person of the
Year” in 2006 — “You,” the primary driver of Web sites like MySpace and YouTube
— was a landmark moment in media history: with a pinched smile and backhanded
assertion of its cultural authority, Centralized Media formally acknowledged
its most powerful competitor, Decentralized Media!
={ Centralized Media :
     competition, and +2 ;
   commons :
     online ;
   Time (magazine)
}

Yet for all the celebration of “you” as the master of your own fate in
cyberspace, the question that is skirted is whether “you” can indeed retain
control of your stuff in a Centralized Media environment. The point of
conventional business models, after all, is to engineer a proprietary lock-in
of customers through technological dependence, binding contract terms,
frequent-buyer credits, brand loyalty, etc. That’s how companies have
traditionally secured a more durable customer base and preempted competition.

But the commons is about securing user freedoms, and not necessarily about
prevailing in a market. Web 2.0 may or may not protect both concerns. Like the
commons, Web 2.0 relies upon user-generated content, network effects, and
bottom-up innovation. But Web 2.0 entrepreneurs, at the end of the day, need to
make money. Their sites need to adopt business practices that protect revenue
streams. Facebook is catering to advertisers, not users, when they sift through
masses of users’ personal data in order to sell targeted advertising. MySpace
at one point refused to let its users connect to rival Web sites and outside
software “widgets.”~{ Rachel Rosmarin, “Why MySpace Blinked,” /{Forbes}/, April
24, 2007. }~ In this sense, Web 2.0 media may be “open,” but they are not
necessarily “free,” as in freedom. Web 2.0 entrepreneurs are more likely to
focus on protecting their market advantages than advancing user freedoms. The
two issues may overlap substantially, but they are not identical.
={ commons :
     concept of ;
   Facebook ;
   MySpace ;
   Web 2.0 :
     purposes of +1
}

Science-fiction writer William Gibson once wrote, “The future is already here;
it’s just not well-distributed yet.” That sums up the Great Value Shift circa
2003. The efficiencies and affordances made possible by the Internet were
there. They were enabling all sorts of pioneers to build new business models,
new creative genres, and new online communities — but these innovations were
unevenly distributed. More to the point, their potential was unevenly
perceived, especially in many precincts of Washington officialdom and the
corporate world. The challenge for amateurs venturing onto open platforms was
to validate the new sorts of socially created value enabled by the Internet.
={ Gibson, William ;
   Great Value Shift ;
   Internet :
     Great Value Shift, and
}

1~ 6 CREATORS TAKE CHARGE

/{Rip, remix, burn, mashup — legally. The CC licenses facilitate new Internet
genres and business models.}/

The first users of CC licenses understood that something different was going
on; a different order was taking shape. More than just a legal tool, the CC
licenses gave the tech vanguard a way to express their inchoate sense that a
new and better world was possible, at least on the Internet. They yearned for a
noncommercial sharing economy with a different moral calculus than mass media
markets, and for markets that are more open, accountable, and respectful of
customers.
={ Creative Commons (CC) licenses :
     first users of +9 | books, for +19
}

The early adopters were unusually informed about the politics of technology,
skeptical of Big Media, and passionate about the artistic freedoms and social
responsibility. They were a locally engaged but globally aware network of tech
sophisticates, avant-garde artists, clued-in bloggers, small-/{d}/ democratic
activists, and the rebellious of spirit: the perfect core group for branding
the Creative Commons and instigating a movement.

It only made sense that Cory Doctorow — copyfighter, sciencefiction writer,
tech analyst, co-editor of the popular Boing Boing blog — became the first book
author to use a CC license. Doctorow — then a thirty-two-year-old native of
Canada, the son of Trotskyite schoolteachers, the European representative for
the Electronic Frontier Foundation from 2002 to 2006 — is a singular character
on the tech/intellectual property/free culture circuit. He can hold forth with
intelligence, wry wit, and bravado on digital rights management, Internet
economics, or the goofy gadgets and pop culture artifacts that he regularly
showcases on Boing Boing.

In January 2003, a month after the CC licenses were released, Doctorow
published his first novel, /{Down and Out in the Magic Kingdom}/, under an
Attribution, NonCommercial, No Derivative Works license (BY-NC-ND).
Simultaneously, his progressive-minded publisher, Tor Books of New York City,
sold hard copies of the book. “Why am I doing this thing?” Doctorow asked
rhetorically:
={ Doctorow, Cory :
     Down and Out in the Magic Kingdom +5
}

_1 Well, it’s a long story, but to shorten it up: first-time novelists have a
tough row to hoe. Our publishers don’t have a lot of promotional budget to
throw at unknown factors like us. Mostly, we rise and fall based on
word-of-mouth. I’m not bad at word-of-mouth. I have a blog, Boing Boing
(http://boingboingnet), where I do a /{lot}/ of word-ofmouthing. I compulsively
tell friends and strangers about things I like. And telling people about stuff
is /{way, way}/ easier if I can just send it to ’em. Way easier.~{ Cory
Doctorow, “A Note About This Book,” February 12, 2004, and “A Note About This
Book,” January 9, 2003, in /{Down and Out in the Magic Kingdom}/, available at
http://www.craphound.com/down. }~

A year later, Doctorow announced that his “grand experiment” was a success; in
fact, he said, “my career is turning over like a goddamned locomotive engine.”
More than thirty thousand people had downloaded the book within a day of its
posting. He proceeded to release a collection of short stories and a second
novel under a CC license. He also rereleased /{Down and Out in the Magic
Kingdom}/ under a less restrictive CC license — an Attribution, NonCommercial,
ShareAlike license (BY-NC-SA), which allows readers to make their own
translations, radio and film adaptations, sequels, and other remixes of the
novel, so long as they are made available on the same terms.~{ Anna
Weinberg,“Buying the Cow, Though the Milk Is Free: Why Some Publishers are
Digitizing Themselves,” June 24, 2005, /{Book Standard}/, June 24, 2005,
available at
http://www.thebookstandard.com/bookstandard/news/publisher/article_display.jsp?vnu_content_id=1000968186.
}~

With some sheepish candor, Doctorow conceded: “I wanted to see if the sky would
fall: you see writers are routinely schooled by their peers that maximal
copyright is the only thing that stands between us and penury, and so ingrained
was this lesson in me that even though I had the intellectual intuition that a
‘some rights reserved’ regime would serve me well, I still couldn’t shake the
atavistic fear that I was about to do something very foolish indeed.”

By June 2006, /{Down and Out in the Magic Kingdom}/ had been downloaded more
than seven hundred thousand times. It had gone through six printings, many
foreign translations, and two competing online audio adaptations made by fans.
“Most people who download the book don’t end up buying it,” Doctorow conceded,
“but they wouldn’t have bought it in any event, so I haven’t lost any sales.
I’ve just won an audience. A tiny minority of downloaders treats the free
e-book as a substitute for the printed book — those are the lost sales. But a
much larger minority treats the e-book as an enticement to buy the printed
book. They’re gained sales. As long as gained sales outnumber lost sales, I’m
ahead of the game. After all, distributing nearly a million copies of my book
has cost me nothing.”~{ Cory Doctorow, “Giving it Away,” Forbes.com, December
1, 2006, available at
http://www.forbes.com/2006/11/30/cory-doctorow-copyright-tech-media_cz_cd_books06_1201doctorow.html.
}~ In 2008, Doctorow’s marketing strategy of giving away online books to
stimulate sales of physical books paid off in an even bigger way. His novel for
teenagers, /{Little Brother}/, about a youthful hacker who takes on the U.S.
government after it becomes a police state, spent weeks on the /{New York
Times}/ bestseller list for children’s books.

It is perhaps easier for a sci-fi futurist like Doctorow than a publishing
business to take such a wild leap into the unknown. But that, too, is an
important insight: artists are more likely to lead the way into the sharing
economy than entrenched industries. “I’d rather stake my future on a literature
that people care about enough to steal,” said Doctorow, “than devote my life to
a form that has no home in the dominant medium of the century.” Book lovers and
authors will pioneer the future; corporate publishing will grudgingly follow,
or be left behind.

Over the past few years, a small but growing number of pioneering authors have
followed Doctorow’s lead and published books under Creative Commons licenses.
While the hard evidence is scarce, many authors who use CC licenses believe
that releasing free electronic versions of their books does not hurt, and
probably helps, the sales of physical copies of their books. Lessig released
his 2004 book, /{Free Culture}/, under an Attribution, NonCommercial license
(BY-NC), and scores of authors and established publishers have since released
books under CC licenses. Among the more notable titles: Yochai Benkler’s /{The
Wealth of Networks}/ (Yale University Press, 2006), Kembrew McLeod’s /{Freedom
of Expression}/ (Doubleday, 2005), Peter Barnes’s /{Capitalism 3.0}/
(Berrett-Koehler, 2006), and Dan Gillmor’s /{We the Media}/ (O’Reilly Media,
2004).
={ Barnes, Peter :
     Capitalism 3.0 ;
   Benkler, Yochai :
     The Wealth of Networks ;
   Gillmor, Dan :
     We the Media ;
   Lessig, Lawrence :
     Free Culture ;
   McLeod, Kembrew :
     Freedom of Expression
}

In 2006, Paulo Coelho, author of a bestselling book, /{The Alchemist}/, created
a “pirate” blog site that invited readers to use BitTorrent and other
file-sharing networks to download free copies of his books. After he put the
Russian translation of /{The Alchemist}/ online, sales of hardcover copies in
Russia went from around 1,000 a year to 100,000, and then to more than 1
million. Coelho attributes the success of foreign translations of his book to
their free availability online.~{ Smaran, “Alchemist Author Pirates His Own
Book,” TorrentFreak blog, January 24, 2008, at
http://torrentfreak.com/alchemist-author-pirates-own-books080124. }~
Experiments such as these were likely influential in the launch of
LegalTorrents, a site for the legal peer-to-peer distribution of CC-licensed
text, audio, video games, and other content.
={ blogging ;
   Coelho, Paulo
}

The CC licenses have been useful, not just for helping individual authors
promote their books, but in fueling open-access scholarly publishing. As we
will see in chapter 11, the CC licenses help scientists put their “royalty-free
literature” on the Internet — a move that enlarges their readership, enhances
their reputations, and still enables them to retain copyrights in their works.

Free culture publishing models are popping up in many unusual quarters these
days. LibriVox, to take one instance, is a nonprofit digital library of
public-domain audio books that are read and recorded by volunteers.~{ Mia
Garlick, “LibriVox,” Creative Commons blog, December 5, 2006, at
http://creativecommons.org/text/librivox. }~ Since it started in 2005, the
group has recorded more than 150 books by classic authors from Dostoyevsky and
Descartes to Jane Austen and Abraham Lincoln. All of them are free. Most are in
English but many are in German, Spanish, Chinese, and other languages.
={ Lessig, Lawrence :
     Free Culture +1
}

Founder Hugh McGuire said the inspiration for LibriVox was a distributed
recording of Lessig’s book /{Free Culture}/ read by bloggers and podcasters,
chapter by chapter. “After listening to that, it took me a while to figure out
how to record things on my computer (which I finally did, thanks to free
software Audacity). Brewster Kahle’s call for ‘Universal Access to all human
knowledge’ was another inspiration, and the free hosting provided by
archive.org and ibiblio.org meant that LibriVox was possible: there was no
worry about bandwidth and storage. So the project was started with an
investment of $0, which continues to be our global budget.” LibriVox’s mission,
said McGuire, is the “acoustical liberation of books in the public domain.”
={ Kahle, Brewster ;
   LibriVox ;
   McGuire, Hugh ;
   bloging
}

Several publishing businesses now revolve around CC licenses. Wikitravel is a
collaborative Web site that amasses content about cities and regions around the
world; content is licensed under the CC Attribution, ShareAlike license
(BY-SA).~{ “Wikitravel Press launches,” Creative Commons blog, August 3, 2007,
at http://creativecommons.org/weblog/entry/7596. See also Mia Garlick,
“Wikitravel,” Creative Commons blog, June 20, 2006, at
http://creativecommons.org/text/wikitravel. }~ In 2007, its founder joined with
a travel writer to start Wikitravel Press, which now publishes travel books in
a number of languages. Like the Wikitravel Web pages, the text in the books can
be freely copied and reused.
={ Wikitravel Press }

Another new business using CC licenses is Lulu, a technology company started by
Robert Young, the founder of the Linux vendor Red Hat and benefactor for the
Center for the Public Domain.Lulu lets individuals publish and distribute their
own books, which can be printed on demand or downloaded. Lulu handles all the
details of the publishing process but lets people control their content and
rights. Hundreds of people have licensed their works under the CC ShareAlike
license and Public Domain Dedication, and under the GNU Project’s Free
Documentation License.~{ Mia Garlick, “Lulu,” Creative Commons blog, May 17,
2006, at http://creativecommons.org/text/lulu. }~
={ Lulu ;
   Red Hat ;
   Young, Robert ;
   Center for the Public Domain ;
   GNU Project :
     GNU FDL ;
   public domain :
     Center for Public Domain
}

As more of culture and commerce move to the Internet, the question facing the
book industry now is whether the text of a book is more valuable as a physical
object (a codex) or as a digital file (intangible bits that can circulate
freely), or some combination of the two. Kevin Kelly, the former editor of
/{Wired}/ magazine, once explained: “In a regime of superabundant free copies,
copies lose value. They are no longer the basis of wealth. Now relationships,
links, connection and sharing are. Value has shifted away from a copy toward
the many ways to recall, annotate, personalize, edit, authenticate, display,
mark, transfer and engage a work.”~{ Kevin Kelly, “Scan This Book!” /{New York
Times Magazine}/, May 14, 2006, p. 43. }~
={ Kelly, Kevin +1 }

What this means in practice, Kelly has pointed out, is that books become more
valuable as they become more broadly known and socially circulated — the very
functionalities that the Internet facilitates. If people can discover a book
online and read portions of it, share it with friends, and add annotations and
links to related materials, it makes a book more desirable than a hard-copy
version that is an inert text on a shelf. As Kelly writes: “When books are
digitized, reading becomes a community activity. Bookmarks can be shared with
fellow readers. Marginalia can be broadcast. Bibliographies swapped. You might
get an alert that your friend Carl has annotated a favorite book of yours. A
moment later, his links are yours.”~{ Ibid., p. 45. }~

Needless to say, most book publishers and authors’ organizations are not yet
prepared to embrace this newfangled value proposition. It seems way too iffy. A
“sharing” business model would seemingly cannibalize their current revenues and
copyright control with little guarantee of doing better in an open, online
milieu. The bigger problem may be the cultural prejudice that an absolute right
of control over any possible uses of a book is the best way to make money.
={ open business models }

In general, the publishing trade remains skeptical of the Internet, clueless
about how to harness its marketing power, and strangers to CC licenses. And it
could be years before mainstream publishing accepts some of the
counterintuitive notions that special-interest Internet communities will drive
publishing in the future. In a presentation that caused a stir in the book
industry, futurist Mike Shatzkin said in May 2007 that this is already
happening in general trade publishing: “We’re close to a tipping point, or
maybe we’re past it . . . where Web-based branding will have more credibility
than print, because print, needing more horizontal reach to be viable, won’t
deliver the attention of the real experts and megaphones in each field.”~{ Mike
Shatzkin, “The End of General Trade Publishing Houses: Death or Rebirth in a
Niche-by-Niche World,” presented to the Book Expo America, New York, May 31,
2007, available at http://www.idealog.com/speeches/endoftrade.htm. }~
={ Shatzkin, Mike }

2~ DIY Videos and Film
={ Internet :
     videos and films on +12 ;
   videos and film +12 ;
   World Wide Web :
     videos and film on +12
}

One of the biggest cultural explosions of the past decade has been amateur
video on the Web. The volume of online video has been so great that there are
actually many distinct genres of amateur video: short videos on YouTube, video
mashups, “machinima” (a combination of video and online gaming images), amateur
pornography, and hybrid forms that combine user videos with conventional
broadcast and cable television shows. Just as the Great Value Shift has
empowered musicians, so it is giving video- and filmmakers new powers to
express themselves as they wish, and reach huge audiences via the Internet.
This power represents a potentially major threat to the cultural dominance of
the television and film industries, as reflected in various schemes by the
networks and studios to establish their own online presences. The threat of
do-it-yourself (DIY) video and film is big enough that Viacom alleged that
YouTube’s copyright infringements of Viacom-owned video should entitle Viacom
to $1 billion in damages. The entertainment industry and the Writers Guild of
America endured a long, bitter strike in 2007–2008 precisely because the
projected revenues from Internet video are so large.
={ Great Value Shift ;
   Internet :
     Great Value Shift, and ;
   YouTube +2 ;
   Viacom ;
   Writers Guild of America
}

It is too early to know which new video styles will be flash-inthe-pan
novelties and which will ripen into popular, and perhaps lucrative, genres. But
rarely has a culture seen so many diverse experiments in amateur and indie
video expression. One site, Justin.tv, is a free platform for broadcasting and
viewing live video. Some people make round-the-clock “life casts” of their
daily activities; others have used it to broadcast live from Baghdad, showing
war-related events. Yahoo and Reuters have entered into a partnership to host
amateur photojournalism by people using their digital cameras and camera
phones. Machinima video, the product of the underground gaming community,
blends filmmaking with online games to produce computer-generated imagery. As
John Seely Brown describes it, “Basically, you can take Second Life or Worlds
of Warcraft and have a set of avatars run all over the world, that come
together and create their own movie, and then you can ‘YouTube’ the movie.”~{
Cited in David Bollier, /{The Rise of Collective Intelligence: Decentralized
Cocreation of Value as a New Paradigm in Commerce and Culture}/ (Washington,
DC: Aspen Institute Communications and Society Program, 2007), p. 27. }~
={ Brown, John Seely }

As amateur video and film proliferate, thanks to inexpensive technologies and
Internet access, the CC licenses have obvious value in letting the creator
retain a copyright in the video while inviting its duplication and reuse by
millions of people online. To industry traditionalists locked into binary
options, the free circulation of a work precludes any moneymaking
opportunities. But of course, that is precisely what is now being negotiated:
how to devise ingenious new schemes to make money from freely circulating
video. One option is to own the platform, as YouTube does. But there are also
competitors such as Revver and blip.tv, which have established their own
approaches based on advertising and commercial licensing of works. There are
also schemes that use Internet exposure to drive paying customers into theaters
and advertisers to buy commercial licenses. For some amateurs, DIY video is
simply a way to get noticed and hired by a conventional media company.
={ Creative Commons (CC) licenses :
     video and film, for +8
}

That’s what the Los Angeles–based comedy collective The Lonely Island did to
promote themselves to national attention. They posted their comedy shorts and
songs to their Web site using Creative Commons licenses. Soon other artists
began making remixes of their songs. The remixes in effect served as free
marketing, which caught the attention of the Fox Broadcasting Company, which in
turn hired them to create a comedy pilot TV episode. In the end, Fox did not
pick up the show, but as /{Wired News}/ recounted, “Instead of letting the show
wither on a shelf somewhere, the group posted the full video both cut and
uncut. The edgy, quirky short— Awesometown — spread like wildfire online and
eventually landed all three performers an audition spot for /{Saturday Night
Live}/.”~{ Matt Haughey, “From LA’s Awesometown to New York City’s SNL,”
/{Wired News}/, October 1, 2005. }~

Perhaps the most successful example of leveraging free Internet exposure to
reap commercial benefits is the sci-fi parody /{Star Wreck}/. Finnish producer
Samuli Torssonen took seven years to shoot a fulllength movie using a Sony
DVCAM, computer-generated graphics, and a makeshift studio. Some three hundred
people were involved in the project, including some professional actors and
many amateurs. When /{Star Wreck}/ was deliberately posted to the Internet in
2005, tagged with a CC-BY-NC-ND license (Attribution, NonCommercial, No
Derivatives), it was eventually downloaded 5 million times and became the
most-watched Finnish film in history. Fans in Russia, China, and Japan soon
copied the film, which stimulated broader viewer demand and led to commercial
deals to distribute the film. /{Star Wreck}/ became so popular that Universal
Pictures, the American studio, signed a deal in 2006 to distribute DVD versions
of the film. Torssonen says that the film has earned a 20to-1 return on
investment. “I wouldn’t call free distribution stupid, as some people say, but
a success,” he told an audience in 2007.~{ Samuli Torssonen presentation at
iCommons Summit 2007, Dubrovnik, Croatia, June 15, 2007. See also
www.starwreck.com. }~
={ Star Wreck Studios +1 ;
   Torssonen, Samuli
}

The lesson for Stephen Lee, CEO of Star Wreck Studios, is that “you don’t need
millions to make a quality movie. You need an active, passionate community.”
Lee says the plan for a peer-produced model of “wrecking a movie” is to develop
an Internet collaboration, make the film popular through viral marketing, and
then license it commercially. Star Wreck Studios is now developing a new movie,
/{Iron Sky}/, about a Nazi base on the far side of the moon.
={ Lee, Stephen }

One of the more daring experiments in film production is being pioneered by the
Blender Institute, a studio for open-content animation and game projects
located in the Amsterdam docklands. Started in August 2007, the Institute
employs fourteen full-time people who are obsessed with improving its
three-dimensional open-source software, the so-called Blender 3D suite. The
software is widely used by a large international user community for modeling,
animation, rendering, editing, and other tasks associated with 3D
computer-generated animation.
={ Blender Institute +2 }

Ton Roosendaal, who directs the Blender Institute, is trying to demonstrate
that a small studio can develop a virtuous cycle of economically sustainable
creativity using open-source software, Creative Commons licenses, and talented
programmers and artists from around the world. “We give programmers the freedom
to do their best, and what they want to do is improve the technology,” he said.
“The market is too hyper-rational and nailed down and filled with limits,” he
argues, referring to his peers at major animation studios. “Open source is free
of most of these constraints.”~{ Ton Roosendaal remarks at conference,
“Economies of the Commons,” De Balie Centre for Culture and Politics,
Amsterdam, April 10–12, 2008. }~
={ Roosendaal, Ton }

In April 2008, the Blender Institute released a ten-minute animated short,
/{Big Buck Bunny}/, which features a kind-hearted, fat white bunny who endures
the abuse of three stone-throwing rodents until they smash a beautiful
butterfly with a rock — at which point the bunny rallies to teach the bullies a
lesson.~{ The film can be downloaded at
http://www.bigbuckbunny.org/index.php/download. }~ The film uses cutting-edge
computer-generated animation techniques that rival anything produced by Pixar,
the Hollywood studio responsible for /{Toy Story}/, /{Cars}/, and
/{Ratatouille}/. /{Big Buck Bunny}/ is licensed under a CC Attribution license,
which means the digital content can be used by anyone for any purpose so long
as credit is given to the Blender Institute.
={ Big Buck Bunny (animated short) +1 }

/{Big Buck Bunny}/ was initially distributed to upfront investors as a DVD set
that includes extras such as interviews, outtakes, deleted scenes, and the
entire database used in making the film. Then, to pique wider interest in sales
of the DVD set, priced at thirty-four euros, a trailer was released on the
Internet. This resulted in extensive international press coverage and blog
exposure. Early signs are promising that Blender will be able to continue to
make highquality animation on a fairly modest budget without worries about
illegal downloads or a digital rights management system. The Blender production
model also has the virtue of enabling access to top creative talent and
cutting-edge animation technologies as well as efficient distribution to paying
audiences on a global scale.

While CC-licensed films are not common, neither are they rare. Davis
Guggenheim, the filmmaker who directed /{An Inconvenient Truth}/, made a short
film, /{Teach}/, to encourage talented people to become teachers. The film was
released in 2006 under a CC BY-NCND license because Guggenheim wanted the film
widely available to the public yet also wanted to preserve the integrity of the
stories told, hence the NoDerivatives provision. A Spanish short film, /{Lo que
tú Quieras Oír}/, became YouTube’s fifth most-viewed video— more than 38
million views. The film’s viral diffusion may have been helped by the CC
BY-NC-SA (Attribution, NonCommercial, ShareAlike) license, which allows viewers
not only to share the film, but to remix for noncommercial purposes so long as
they use the same license.
={ Guggenheim, Davis ;
   YouTube
}

In Brazil, director Bruno Vianna released his first full-length film,
/{Cafuné}/, under a CC BY-NC-SA license (Attribution, NonCommercial,
ShareAlike) and put it on file-sharing networks at the same time that it was
exhibited in a handful of theaters.~{ Mia Garlick, CC blog, at
http://creativecommons.org/weblog/entry/6048; see also “Cafuné breaking the
limits for open business models,” iCommons blog, at
http://www.icommons.org/static/2006/11/22/cafune-breakingthe-limits-for-open-business-models.
}~ Each release had different endings; downloaders were invited to remix the
ending as they wished. The film was financed by the government’s culture
ministry as part of a competition for low-budget films, but only about fifty
Brazilian films are released to commercial theaters each year. Vianna saw the
Internet release as a great way to build an audience for his debut film . . .
which is exactly what happened. For some weeks, it made it into the list of
twenty most-watched films in the country.
={ Vianna, Bruno }

2~ Letting the Music Flow
={ music :
     CC licenses for +18 | remixes +18 ;
   remix works +18 ;
   Creative Commons (CC) licenses :
     music, for +18
}

Media reform activist Harold Feld offers a succinct overview of why creativity
in music — and therefore the business of selling recorded music — has suffered
over the past two decades:
={ Feld, Harold +2 }

_1 The 1990s saw a number of factors that allowed the major labels to push out
independents and dominate the market with their own outrageously priced and
poorly produced products: consolidation in the music industry, the whole
“studio system” of pumping a few big stars to the exclusion of others, the
consolidation in music outlets from mom-andpop record stores to chains like
Tower Records and retail giants like Wal-Mart that exclude indies and push the
recordings promoted by major labels, and the consolidation of radio — which
further killed indie exposure and allowed the labels to artificially pump their
selected “hits” through payola. All this created a cozy cartel that enjoyed
monopoly profits.
={ music :
     music industry +1
}

_1 As a result, the major labels, the mainstream retailers, and the radio
broadcasters grew increasingly out of touch with what listeners actually
wanted. But as long as the music cartel controlled what the vast majority of
people got to hear, it didn’t matter . . . The music cartel remained the de
facto only game in town.~{ Harold Feld, “CD Sales Dead? Not for Indies!” blog
post on Public Knowledge Web site, March 27, 2007, at
http://www.publicknowledge.org/node/890. }~

Changing the music industry is obviously a major challenge that is not going to
be solved overnight. Still, there is a growing effort led by indie musicians,
small record labels, Internet music entrepreneurs, and advocacy groups such as
the Future of Music Coalition to address these problems. Creative Commons is
clearly sympathetic, but has largely focused on a more modest agenda — enabling
a new universe of shareable music to arise. Its chief tools for this mission,
beyond the CC licenses, are new software platforms for legal music remixes,
online commons that legally share music, and new business models that respect
the interests of both fans and artists. Ultimately, it is hoped that a global
oeuvre of shareable music will emerge. Once this body of music matures,
attracting more artists and fans in a self-sustaining viral spiral, the record
industry may be forced to give up its dreams of perfect control of how music
may circulate and adopt fan-friendly business practices.
={ Future of Music Coalition }

This, at least, is the theory, as Lessig explains it. He calls it the “BMI
strategy,” a reference to the strategy that broadcasters and musicians used to
fight ASCAP’s monopoly control over radio music in the early 1940s. ASCAP, the
American Society of Composers, Authors and Publishers, is a nonprofit
organization that collects royalties for musical performances. At the time,
ASCAP required artists to have five hits before it would serve as a collection
agency for them, a rule that privileged the playing of pop music on the radio
at the expense of rhythm and blues, jazz, hillbilly, and ethnic music. Then,
over the course of eight years, ASCAP raised its rates by 450 percent between
1931 and 1939 — at which point, ASCAP then proposed /{doubling}/ its rates for
1940. In protest, many radio stations refused to play ASCAP-licensed music.
They formed a new performance-rights body, BMI, or Broadcast Music, Inc., which
sought to break the ASCAP monopoly by offering free arrangements of
public-domain music to radio stations. They also charged lower rates than ASCAP
for licensing music and offered better contracts for artists.~{ Donald Clarke,
/{The Rise and Fall of Popular Music}/, chapter 11. }~
={ ASCAP +1 ;
   BMI (Broadcast Music, Inc.) +3 ;
   music :
     ASCAP+l ;
   Lessig, Lawrence :
     CC licenses, and +2 | music, and +2
}

“The Internet is today’s broadcasters,” said Lessig in a 2006 speech. “They are
facing the same struggle.”~{ Lessig explained his BMI strategy at a speech, “On
Free, and the Differences Between Culture and Code,” at the 23d Chaos
Communications Conference (23C3) in Berlin, Germany, December 30, 2006; video
can be watched at
http://video.google.com/videoplay?docid=7661663613180520595&q=23c3. }~ Just as
ASCAP used its monopoly power to control what music could be heard and at what
prices, he said, so today’s media corporations want to leverage their control
over content to gain control of the business models and technologies of digital
environments. When Google bought YouTube, one-third of the purchase price of
$1.65 billion was allegedly a financial reserve to deal with any copyright
litigation, said Lessig. This is how the incumbent media world is trying to
stifle the emergence of free culture.
={ Google ;
   YouTube
}

The same questions that once confronted broadcasters are now facing Internet
innovators, Lessig argues: “How do we free the future from the dead hand of the
past? What do we do to make it so they can’t control how technology evolves?”
With copyright terms lasting so long, it is not really feasible to try to use
public-domain materials to compete with a commercial cartel. Lessig’s answer is
a BMI-inspired solution that uses the CC licenses to create a new body of
“free” works that, over time, can begin to compete with popular works. The
legendary record producer Jerry Wexler recalled how ASCAP marginalized R & B,
country, folk, and ethnic music, but “once the lid was lifted — which happened
when BMI entered the picture — the vacuum was filled by all these archetypal
musics. BMI turned out to be the mechanism that released all those primal
American forms of music that fused and became rock-androll.”~{ From BMI, Inc.,
Web site, at http://www.bmi.com/genres/entry/533380. }~ Lessig clearly has
similar ambitions for Creative Commons.
={ Wexler, Jerry }

For now, the subculture of CC-licensed music remains something of a fringe
movement. It is easy to patronize it as small, amateurish, and quirky. Yet its
very existence stands as a challenge to the music industry by showing the
feasibility of a more artist- and fanfriendly way of distributing music. Is it
visionary to believe that free culture artists will force the major labels to
change — just as BMI forced ASCAP to lower prices — and make them more
competitive and inclusive?
={ ASCAP ;
   music :
     ASCAP +1 ;
   music :
     music industry
}

Creative Commons’s primary task is practical — to help musicians reach
audiences directly and reap more of the financial rewards of their music. So
far, a wide range of indie bands, hip-hop artists, and bohemian
experimentalists of all stripes have used the licenses. One of the most popular
is the Attribution, NonCommercial license, which lets artists share their works
while getting credit and retaining commercial rights. A number of marquee
songwriters and performers — David Byrne, Gilberto Gil, the Beastie Boys, Chuck
D — have also used CC licenses as a gesture of solidarity with free culture
artists and as an enlightened marketing strategy. Inviting people to remix your
songs is a great way to engage your fan base and sell more records. And tagging
your music with a CC license, at least for now, wraps an artist in a mantle of
tech sophistication and artistic integrity.
={ Beastie Boys ;
   Byrne, David ;
   Chuck D ;
   Gil, Gilberto
}

Guitarist Jake Shapiro was one of the first musicians to show the marketing
potential of unleashing free music on the Internet. In 1995, Shapiro put MP3
files of music by his band, Two Ton Shoe, on the group’s Web site. Within a few
years, Two Ton Shoe was one of the most-downloaded bands on the Internet,
developing fan bases in Italy, Brazil, Russia, and South Korea. One day Shapiro
received a phone call out of the blue from a South Korean concert promoter. He
wanted to know if the band would fly over to Seoul to perform four concerts. It
turned out that fans in South Korea, where fast broadband connections are the
norm, had discovered Two Ton Shoe through file sharing. A local CD retailer
kept getting requests for the band’s music, which led him to contact a concert
promoter. In August 2005, Shapiro and his buddies arrived in Seoul as
conquering rock stars, selling out all four of their concerts. “The kids who
showed up knew all the words to the songs,” Shapiro recalled. A year later, the
band signed a deal to distribute a double CD to East Asia.~{ Shapiro described
his experiences at the “Identity Mashup Conference,” June 19–21, 2006, hosted
by the Berkman Center for Internet and Society at Harvard Law School, at
http://blogs.law.harvard.edu/mediaberkman/2006/06/28/id-mashup-2006-day-two-the-commons-open-apis-meshups-and-mashups.
His band’s Web site is at http://www.twotonshoe.com. }~
={ Shapiro, Jake ;
   Two Ton Shoe
}

While such stories of viral marketing success are not common, neither are they
rare. Lots of bands now promote themselves, and find admiring (paying) fans, by
posting their music, for free, on Web sites and file-sharing sites. Perhaps the
most scrutinized example was Radiohead’s decision to release its album /{In
Rainbows}/ for free online, while inviting fans to pay whatever they wanted.
(The band did not release any numbers, but considered the move a success. They
later released the album through conventional distribution channels as well.)~{
Jon Pareles, “Pay What You Want for This Article,” /{New York Times}/, December
9, 2007. }~
={ Radiohead }

Just as previous generations of fans came together around FM radio or live
performance venues, the Internet is the new gathering place for discovering
interesting, fresh, and authentic talent. The lesson that the record industry
hasn’t quite learned is that music is not just a commodity but a /{social
experience}/ — and social experiences lose their appeal if overly controlled
and commercialized. If the music marketplace does not provide a place for fans
to congregate and share in a somewhat open, unregimented way — if the commodity
ethic overwhelms everything else — the music dies. Or more accurately, it
migrates underground, outside the marketplace, to sustain itself. This is why
so much of the best new music is happening on the fringes of the stagnant
commercial mainstream.
={ music :
     social experience, as +4
}

It is also why the Creative Commons licenses have acquired such cachet. They
have come to be associated with musicians who honor the integrity of music
making. They symbolize the collective nature of creativity and the importance
of communing freely with one’s fans. Nimrod Lev, a prominent Israeli musician
and supporter of the CC licenses, received considerable press coverage in his
country for a speech that lamented the “cunning arrangement” (in Israeli slang,
/{combina}/) by which the music industry has betrayed people’s love of music,
making it “only a matter of business and commerce.” Said Lev:
={ music :
     music industry +1 ;
   Lev, Nimrod +2
}

_1 The music industry treats its consumer as a consumer of sex, not of love,
the love of music. Just like everything else: a vacuum without values or
meaning. But it is still love that everyone wants and seeks. . . . The music
vendors knew then [a generation ago] what they have forgotten today, namely
that we must have cultural heroes: artists that are not cloned in a manner out
to get our money. There was an added value with a meaning: someone who spoke to
our hearts in difficult moments, and with that someone, we would walk hand in
hand for a while. We had loyalty and love, and it all meant something.~{ Nimrod
Lev, “The Combina Industry,” November 16, 2004, at
http://law.haifa.ac.il/techlaw/new/try/eng/nimrod.htm. }~

At the risk of sounding naïve, Lev said he wanted to stand up for the
importance of “authenticity and empathy and my own truth” in making music. It
is a complaint that echoes throughout the artistic community globally. A few
years ago, Patti Smith, the punk rocker renowned for her artistic integrity,
decried the “loss of our cultural voice” as the radio industry consolidated and
as music television became a dominant force. She grieved for the scarcity of
places for her to “feel connected” to a larger musical community of artists and
fans.~{ Patti Smith at a panel at the National Conference for Media Reform, St.
Louis, sponsored by Free Press, May 14, 2005. }~
={ Smith, Patti }

The classic example of music as social experience — music as a vehicle for a
community of shared values — is the Grateful Dead. The band famously invited
its fans to record all of its concerts and even provided them with an
authorized “tapers’ section” in which to place their microphones and equipment.
Fans were also allowed to circulate their homemade tapes so long as the music
was shared, and not sold. This had the effect of building a large and committed
fan base, which avidly archived, edited, and traded Grateful Dead cassettes.
One reason that the Dead’s “customer base” has been so lucrative and durable
over several decades is that the fans were not treated as mere customers or
potential pirates, but as a community of shared values. The music belonged to
the fans as much as to the band, even though Deadheads were only too happy to
pay to attend concerts and buy the officially released CDs and t-shirts.~{ A
fascinating collision of the Grateful Dead’s sharing ethic and the copyright
business model occurred in 2005, when the Internet Archive placed a huge cache
of fan recordings online, available for free download. When Grateful Dead
Merchandising objected, Deadheads accused the band’s representatives of
betraying the band’s long-established sharing ethic. Paradoxically, the band’s
merchandisers may also have jeopardized the band’s commercial appeal by
prohibiting the downloads. As music critic Jon Pareles put it, “The Dead had
created an anarchy of trust, going not by statute but by instinct and turning
fans into co-conspirators, spreading their music and buying tickets, T-shirts
and official CDs to show their loyalty. The new approach . . . removes what
could crassly be called brand value from the Dead’s legacy by reducing them to
one more band with products to sell. Will the logic of copyright law be more
profitable, in the end, than the logic of sharing? That’s the Dead’s latest
improvisational experiment.” Jon Pareles, “The Dead’s Gamble: Free Music for
Sale,” /{New York Times}/, December 3, 2005. }~
={ Grateful Dead +1 }

While the Grateful Dead may be an outlier case, it exemplifies the sharing
ethic that the Internet is facilitating: the formation of communities of
amateurs that flourish by sharing and celebrating music. Artists can make some
money through CD sales, but much more through performances, merchandising,
endorsements, and sales to films, television, and advertisers. If established
singers and bands are reluctant to make a transition to this new business
model, hungry newcomers are not.

The Mountain Goats, an indie rock group, authorized the Internet Archive to
host their live shows on the Web because they realized the videos seed market
demand for their music. The group’s front man, John Darnielle, said, “I am
totally in favor of tape trading, and file sharing never did anything wrong by
me. People got into The Mountain Goats after downloading my stuff.”~{ Creative
Commons blog, “Musicians Large and Small on Internet Downloading,” by Matt
Haughey, July 26, 2004. }~ In 2001, two newcomers working out of a basement
produced a cover version of Tears for Fears’ “Mad World,” which two years later
went to the top of the British pop charts.~{
http://news.bbc.co.uk/l/hi/entertainment/3352667.stm. }~ In a world where
amateur creativity can easily migrate to the commercial mainstream, tagging
works with a NonCommercial CC license is a valuable option. By requiring uses
that fall outside the scope of the license to pay as usual, it can help artists
get visibility while retaining their potential to earn money. A larger
restructuring of the music industry, alas, will take longer to achieve.
={ Darnielle, John ;
   Mountain Goats
}

2~ Music as Remix
={ Creative Commons (CC) licenses :
     music, for +18 ;
   music :
     remixes +18 ;
   remix works +18
}

If any segment of the music world really understands the social dynamics of
musical creativity, it is hip-hop artists. As Joanna Demers documents in her
book about “transformative appropriation” in music, /{Steal This Music}/,
hip-hop was born as a remix genre in the 1970s and 1980s.~{ Joanna Demers,
/{Steal This Music: How Intellectual Property Law Affects Musical Creativity}/
(Athens: University of Georgia Press, 2006). }~ In defiance of copyright law,
which considers unauthorized borrowing as presumptively illegal, hip-hop
artists used turntable scratching and digital sampling to transform existing
songs into something new, which in time grew into a lucrative market segment.
Hip-hop illustrates how the commons and the market need to freely interact,
without undue restrictions, in order for both to flourish. It works because
sampling is not a simple matter of “theft” but a mode of creativity, a way of
carrying on a cultural conversation. Sampling is a way of paying tribute to
musical heroes, mocking rivals, alluding to an historical moment, or simply
experimenting with an arresting sound. When the rap group Run-DMC used
Aerosmith’s “Walk This Way” as the basis for a remix, it was not only a salute
to the group’s musical influence and a new turn of the creative wheel, it
revived Aerosmith’s sagging career (or, in economist’s terms, it “created new
value”).
={ Demers, Joanna :
     Steal This Music +1 ;
   music :
     hip-hop +1
}

The problem, of course, is that most remix culture (and the value it creates)
is illegal. By the late 1980s, in fact, the freedom of the commons that gave
birth to hip-hop was coming under siege. Musicians and record labels were
routinely invoking copyright law to demand permission and payments for the
tiniest samples of music. Only wealthy artists could afford to clear the rights
of familiar songs, and basement amateurs (who had given rise to the genre in
the first place) were being marginalized. When George Clinton’s group
Funkadelic succeeded in its lawsuit against the rap group N.W.A. for using a
nearly inaudible sample of a three-note, two-second clip from “Get Off Your Ass
and Jam” — the infamous /{Bridgeport v. Dimension Films}/ decision, in 2004 —
it became clear that the commons of hip-hop music was being enclosed.~{ This
story is told by Demers in Steal This Music. The court ruling is /{Bridgeport
v. Dimension Films}/, 383 F. 3d 390 (6th Circ. 2004). }~ Critics like Siva
Vaidhyanathan and Kembrew McLeod believe that the legal crusade against
sampling has significantly harmed the creative vitality of hip-hop. Something
is clearly amiss when the one of the most critically acclaimed albums of 2005 —
/{The Grey Album}/, a remix collection by DJ Danger Mouse — cannot be legally
released. /{The Grey Album}/ artfully combined music from the Beatles’s /{White
Album}/ with lyrics from Jay-Z’s /{Black Album}/, resulting in “the most
popular album in rock history that virtually no one paid for,” according to
/{Entertainment Weekly}/.~{ DJ Danger Mouse’s remix received considerable press
attention. A good overview is by Chuck Klosterman, “The DJ Auteur,” /{New York
Times Magazine}/, June 18, 2006, pp. 40–45. }~
={ Bridgeport v. Dimension Films ;
   Clinton, George ;
   Funkadelic ;
   McLeod, Kembrew ;
   Vaidhyanathan, Siva ;
   DJ Danger Mouse
}

The impetus for a solution to the sampling problem started with Negativland, an
irreverent “sound collage” band known as much for its zany culture jamming as
for its anticopyright manifestos. (One of its CDs includes a polemical booklet
about fair use along with a whoopee cushion with a © symbol printed on it.)
Negativland gained notoriety in the 1990s for its protracted legal battle with
the band U2 and Island Records over Negativland’s release of a parody song
called “U2.” Island Records claimed it was an infringement of copyright and
trademark law, among other things. Negativland claimed that no one should be
able to own the letter U and the numeral 2, and cited the fair use doctrine as
protecting its song and title. The case was eventually settled.~{ See
Negativland’s book, /{Fair Use: The Story of the Letter U and the Numeral 2}/
(Concord, CA: Seeland, 1995). }~
={ Negativland +1 }

As an experienced sampler of music, Negativland and collagist People Like Us
(aka Vicki Bennett) asked Creative Commons if it would develop and offer a
music sampling license. Don Joyce of Negativland explained:
={ Joyce, Don }

_1 This would be legally acknowledging the now obvious state of modern
audio/visual creativity in which quoting, sampling, direct referencing, copying
and collaging have become a major part of modern inspiration. [A sampling
option would] stop legally suppressing it and start culturally encouraging it —
because it’s here to stay. That’s our idea for encouraging a more democratic
media for all of us, from corporations to the individual.~{ Glenn Otis Brown,
“Mmm . . . Free Samples (Innovation la),” Creative Commons blog, March 11,
2003, at http://creativecommons.org/weblog/entry/3631. }~

With legal help from Cooley Godward Kronish and Wilson, Sonsini, Goodrich &
Rosati, Creative Commons did just that. During its consultations with the remix
community, Creative Commons learned that Gilberto Gil, the renowned
/{tropicalismo}/ musician and at the time the Brazilian minister of culture,
had been thinking along similar lines, and so it received valuable suggestions
and support from him.
={ Cooley Godward Kronish ;
   Wilson, Sonsini, Goodrich & Rosati ;
   Gil, Gilberto
}

In 2005, Creative Commons issued the Sampling license as a way to let people
take pieces of a work for any purpose except advertising.~{ Creative Commons
Web site, at http://creativecommons.org/about/sampling. See also Ethan Smith,
“Can Copyright Be Saved?” /{Wall Street Journal}/, October 20, 2003. }~ It also
prohibited copying and distribution of the entire work.~[* A “Sampling Plus”
license was also issued to allow noncommercial copying and distribution of an
entire work, which means it could be distributed via file-sharing networks.
Finally, a “NonCommercial Sampling Plus” license was devised to let people
sample and transform pieces of a work, and copy and distribute the entire work,
so long as it was for noncommercial purposes.]~ For example, an artist could
take a snippet of music, a clip of film, or a piece of a photograph, and use
the sample in a new creation. Since its release, the Sampling license has been
criticized on philosophical grounds by some commoners who say it does not truly
enhance people’s freedom because it prohibits copying and distribution of the
entire work. This concern reached serious enough proportions that in 2007
Creative Commons “retired” the license; I’ll revisit this controversy in
chapter 9.

The CC Sampling license only whetted the imagination of people who wanted to
find new ways to sample, share, and transform music. Neeru Paharia, then the
assistant director of the Creative Commons, came up with the idea of developing
ccMixter, a software platform for remixing music on the Web.~{ See
http://wiki.creativecommons.org/ccMixter. Interview with Mike Linksvayer,
February 7, 2007, and Neeru Paharia, April 13, 2007. }~ Paharia realized one
day that “this whole remixing and sharing ecology is about getting feedback on
who’s using your work and how it’s evolving. That’s almost half the
pleasure.”~{ Interview with Neeru Paharia, April 13, 2007. }~ So the
organization developed a Web site that would allow people to upload music that
could be sampled and remixed. The site has about five thousand registered
users, which is not terribly large, but it is an enthusiastic and active
community of remix artists that acts as a great proof of concept while
promoting the CC licenses. There are other, much larger remix sites on the
Internet, such as Sony’s ACIDplanet, but such sites are faux commons. They
retain ownership in the sounds and remixes that users make, and no derivative
or commercial versions are allowed.
={ Paharia, Neeru }

One feature of viral spirals is their propensity to call forth a jumble of new
projects and unexpected partners. The CC licenses have done just that for
music. ccMixter has joined with Opsound to offer a joint “sound pool” of clips
licensed under an Attribution ShareAlike license. It also supports Freesound, a
repository of more than twenty thousand CC-licensed samples ranging from
waterfalls to crickets to music.~{ Neeru Paharia, “Opsound’s Sal Randolph,”
Creative Commons blog, October 1, 2005, at
http://creativecommons.org/audio/opsound; Mike Linksvayer, “Freesound,”
Creative Commons blog, October 1, 2005, at
http://creativecommons.org/audio/freesound; Matt Haughey, “Free Online Music
Booms as SoundClick Offers Creative Commons Licenses,” Creative Commons blog,
August 11, 2004. }~

Runoff Records, Inc., a record label, discovered a remix artist who teaches
physics and calculus and goes by the name of Minus Kelvin. Runoff heard a
podcast of Kelvin’s CC-licensed music, and signed him up, along with another
ccMixter contributor, to do music for three seasons of the television show
/{America’s Next Top Model}/.~{ Neeru Paharia, “Minus Kelvin Discovered on
ccMixter,” Creative Commons blog, May 17, 2005, at
http://creativecommons.org/weblog/archive/2005/5. }~ A few months later, two
ccMixter fans based in Poland and Holland started an online record label,
DiSfish, that gives 5 percent of all sale proceeds to CC, another 5 percent to
charity, with the remainder split between the label and the artist. All music
on the label is licensed under CC.~{ Cezary Ostrowski from Poland and Marco
Raaphorst from Holland met online at ccMixter and decided to go into business
together. They started an online label called DiSfish. }~

The CC licenses are not just the province of daring remix artists and other
experimentalists. Disappointed by its CD sales through traditional channels,
the Philharmonia Baroque Orchestra released its performance of Handel’s 1736
opera, /{Atalanta}/, exclusively through the online record label Magnatune,
using a CC license. Conductor Nicholas McGegan said the Internet “has
potentially given the industry a tremendous shot in the arm,” letting
orchestras reach “new audiences, including ones that are unlikely to hear you
in person.”~{ Mia Garlick, “Classical Music Goes Digital (& CC),” May 3, 2006,
at http://creativecommons.org/weblog/entry/5883. }~ A company that specializes
in Catalan music collaborated with the Catalonian government to release two CDs
full of CC-licensed music.~{ The Enderrock Group, a company that specializes in
Catalan music and publishes three popular music magazines, released the two
CDs, /{Música Lliure and Música Lliure II}/, free within the page of its
magazines. See Margot Kaminski, “Enderrock,” Creative Commons Web site, January
17, 2007, at http://creativecommons.org/audio/enderrock. }~ A group of Gamelan
musicians from central Java who perform in North Carolina decided to release
their recordings under a CC license.~{ The group, Gamelan Nyai Saraswait, was
blogged about by Matt Haughey on February 1, 2003, at
http://creativecommons.org/weblog/entry/3599. }~
={ McGegan, Nicholas }

Big-name artists have gotten into the licenses as well. DJ Vadim created a
splash when he released all the original solo, individual instrumental, and a
cappella studio tracks of his album /{The Sound Catcher}/ under an Attribution,
NonCommercial license, so that remixers could have at it.~{ Victor Stone, “DJ
Vadim Releases Album Tracks Under CC,” August 20, 2007, at
http://creativecommons.org/weblog/entry/7619. }~ In 2004, /{Wired}/ magazine
released a CD with sixteen tracks by the likes of David Byrne, Gilberto Gil,
and the Beastie Boys. “By contributing a track to /{The Wired CD}/., these
musicians acknowledge that for an art form to thrive, it needs to be open,
fluid and alive,” wrote /{Wired}/. “These artists — and soon, perhaps, many
more like them — would rather have people share their work than steal it.”~{
Thomas Goetz, “Sample the Future,” /{Wired}/, November 2004, pp. 181–83. }~
={ Byrne, David ;
   Gil, Gilberto +1 ;
   DJ Vadim ;
   Beastie Boys
}

Soon thereafter, Byrne and Gil went so far as to host a gala benefit concert
for Creative Commons in New York City. In a fitting fusion of styles, Gil sang
a Brazilian arrangement of Cole Porter’s cowboy song, “Don’t Fence Me In.” The
crowd of 1,500 was high on the transcultural symbolism, said Glenn Brown:
“Musical superstars from North and South, jamming together, building earlier
works into new creations, in real time. Lawyers on the sidelines and in the
audience, where they belong. The big Creative Commons logo smiling overhead.”~{
Glenn Otis Brown, “WIRED Concert and CD: A Study in Collaboration,” September
24, 2004, available at http://creativecommons.org/weblog/entry/4415. }~ The
description captures the CC enterprise to a fault: the fusion of some
clap-your-hands populism and hardheaded legal tools, inflected with an
idealistic call to action to build a better world.
={ Brown, Glenn Otis ;
   Porter, Cole
}

By 2008 the power of open networks had persuaded the major record labels to
abandon digital rights management of music CDs, and more major artists were
beginning to venture forth with their own direct distribution plans, bypassing
the standard record label deals. Prince, Madonna, and others found it more
lucrative to run their own business affairs and deal with concert venues and
merchandisers. In a major experiment that suggests a new business model for
major music acts, Nine Inch Nails released its album /{Ghosts I-IV}/ under a
Creative Commons NonCommercial ShareAlike license, and posted audio files of
the album on its official Web site, inviting free downloads. It did not do
advertising or promotion. Despite the free distribution — or because of it —
the group made money by selling 2,500 copies of an “Ultra-Deluxe Limited
Edition” of the album for $300; the edition sold out in less than three days.
There were also nonlimited sales of a “deluxe edition” for $75 and a $10 CD.
The scheme showed how free access to the music can be used to drive sales for
something that remains scarce, such as a “special edition” CD or a live
performance. One week after the album’s release, the Nine Inch Nails’ Web site
reported that the group had made over $1.6 million from over 750,000 purchase
and download transactions. Considering that an artist generally makes only
$1.60 on the sale of a $15.99 CD, Nine Inch Nails made a great deal more money
from a “free” album distribution than it otherwise would have made through a
standard record deal.~{ See, e.g., Wikipedia entry, “Ghosts I-IV,” at
http://en.wikipedia.org/wiki/Ghosts_I-IV. }~
={ Nine Inch Nails }

It is too early to know if Lessig’s “BMI strategy” will in fact catalyze a
structural transformation in the entertainment industries. But Lessig
apparently feels that it is the only feasible strategy. As he said in a 2006
speech, intensified hacking to break systems of proprietary control will not
work; new campaigns to win progressive legislation won’t succeed within the
next twenty years; and litigation is “a long-term losing strategy,” as the
/{Eldred}/ case demonstrated. For Lessig and much of the free culture
community, the long-term project of building one’s own open, commons-friendly
infrastructure is the only enduring solution.
={ BMI (Broadcast Music, Inc.) ;
   Eldred v. Reno/Eldred v. Ashcroft :
     effects of ;
   Lessig, Lawrence :
     Eldred v. Reno, and | music, and +1
}

In the music industry, the early signs seem to support this approach. When
digital guru Don Tapscott surveyed the events of 2006, he concluded that “the
losers built digital music stores and the winners built vibrant communities
based on music. The losers built walled gardens while the winners built public
squares. The losers were busy guarding their intellectual property while the
winners were busy getting everyone’s attention.” In a penetrating analysis in
2007, music industry blogger Gerd Leonhard wrote: “In music, it’s always been
about interaction, about sharing, about engaging — not Sell-Sell-Sell right
from the start. Stop the sharing and you kill the music business — it’s that
simple. When the fan/user/listener stops engaging with the music, it’s all
over.”~{ Gerd Leonhard, “Open Letter to the Independent Music Industry: Music
2.0 and the Future of Music,” July 1, 2007, at
http://www.gerdleonhard.net/2007/07/gerd-leonhards.html. }~
={ Leonhard, Gerd ;
   Tapscott, Don
}

Serious change is in the air when the producer/consumer dichotomy is no longer
the only paradigm, and a vast network of ordinary people and talented creators
are becoming active participants in making their own culture. They are sharing
and co-creating. Markets are no longer so separate from social communities;
indeed, the two are blurring into each other. Although we may live in a
complicated interregnum between Centralized Media and distributed media, the
future is likely to favor those creators and businesses who build on open
platforms. As Dan Hunter and F. Gregory Lastowka write: “It is clear that two
parallel spheres of information production exist today. One is a traditional,
copyright-based and profit-driven model that is struggling with technological
change. The second is a newly enabled, decentralized amateur production sphere,
in which individual authors or small groups freely release their work.”~{ Dan
Hunter and F. Gregory Lastowka, “Amateur-to-Amateur,” /{William and Mary Law
Review}/ 46, no. 951 (December 2004), pp. 1029–30. }~
={ Hunter, Dan +1 ;
   Lastowka, F. Gregory
}

Hunter and Lastowka liken copyright law today to the Roman Empire in decline:
“It is meaningless to ask whether the unitary might of imperial Rome was
preferable to the distributed, messy agglomeration of tribes and states that
eventually emerged after Rome fell. It was not better, just different.” That is
certainly a debatable conclusion, depending upon one’s cultural tastes and
sense of history. But the Rome metaphor does capture the fragmentation and
democratization of creativity that is now under way. And that, in fact, is
something of the point of the CC licenses: to make access and use of culture
more open and egalitarian. For all his commitment to law and the CC licenses,
Lessig ultimately throws his lot in with social practice: “Remember, it’s the
/{activity}/ that the licenses make possible that matters, not the licenses
themselves. The point is to change the existing discourse by growing a new
discourse.”~{ Interview with Lawrence Lessig, September 14, 2006. }~
={ copyright law :
     decline of ;
   Creative Commons (CC) licenses :
     social practice, and ;
   Lessig, Lawrence :
     CC licenses, and
}

1~ 7 THE MACHINE AND THE MOVEMENT
={ Creative Commons (CC) :
     social movement, as +10
}

/{An infrastructure of code gives rise to a movement for free culture.}/

When the CC licenses were first launched, many regarded them as a boring legal
license that may or may not really matter. The real surprise was how the CC
licenses became a focal object for organizing a movement. As more users began
to adopt the licenses in 2003 and 2004, they ceased being just a set of legal
permissions and became a cool social brand. The CC licenses and logo became
symbols of resistance against the highly controlled, heavily marketed, Big
Brother worldview that Hollywood and the record industry seem to embody. The CC
licenses offered a way to talk about one’s legal and creative rights in the
Internet age, and to cite to a positive alternative — the sharing economy. With
no paid advertising to speak of, the CC logo came to symbolize an ethic and
identity, one that stood for artistic integrity, democratic transparency, and
innovation.

Glenn Otis Brown recalls how people spontaneously took up the license to
express their anger at the media establishment and their yearning for a more
wholesome alternative: “If you’re frustrated with the way the world works now,
frustrated with the way the media is becoming more democratized but all these
laws aren’t really facilitating that,” said Brown, “you can just cast a little
virtual vote for a different sort of copyright system by putting the ‘Some
Rights Reserved’ tag on your Web page. But also, practically, you can help
create pools of content that people can work with and make it so much easier to
participate.” Without really planning it, the Creative Commons became much more
than a system of free licenses for sharing. It became a symbol for a movement.
Communities of social practice began to organize themselves around the CC
project.
={ Brown, Glenn Otis :
     CC licensing, and +3 ;
   Creative Commons (CC) licenses :
     social practice, and
}

“Inside of the organization, we always talked about how we really had /{two}/
organizations,” said Brown. “One was Creative Commons, the /{movement}/; and
one was Creative Commons, the /{machine}/.”~{ Interview with Glenn Otis Brown,
June 9, 2006. }~ The machine was about meeting utilitarian needs through
licenses and software; the movement was about motivating people and
transforming culture. Just as the GPL had given rise to the free software
community and a hacker political philosophy (which in turn inspired the
Creative Commons’s organizers), so the CC licenses were spontaneously igniting
different pockets of the culture: Web designers, bloggers, musicians, book
authors, videographers, filmmakers, and amateurs of all stripes. The viral
spiral was proceeding apace.
={ Brown, Glenn Otis :
     CC as movement and “machine,”, and +3 ;
   Creative Commons (CC) :
     growth of +3 | “machine”, as +3 ;
   General Public License (GPL)free software, and +1 ;
   hackers :
     political philosophy
}

The tension between the machine and the movement has been an animating force in
the evolution of the Creative Commons. “You want to have something that’s
actually useful to people,” said Brown, “but you also have to get people
excited about it, and build up your constituency.”~{ Ibid. }~ Some CC
initiatives have had strong symbolic resonances but little practical value,
while other initiatives were quite useful but not very sexy. For example,
embedding CC metadata into software applications and Web services is
complicated and technical — but highly effective in extending the practices of
free culture. On the other hand, the Creative Commons’s release of specialty
licenses for music sampling, developing nations, and a CC version of the
General Public License for software (as discussed below) were discretionary
moves of some utility that were probably more important as gestures of
solidarity to allies.

This has been a recurrent motif for the organization — pragmatic,
improvisational outreach to distinct constituencies as part of a larger attempt
to build a movement. There has always been a corresponding pull, however, “not
to put ‘the machine’ at risk by incorporating the new licenses into every last
one of our software tools,” said Brown. The integrity of “the machine”
ultimately needs to be respected.

Even as the machine was getting built, Lessig was taking steps to stoke up a
movement. In 2004, Lessig published his third book in five years, /{Free
Culture}/. The book described, as the subtitle put it, “how big media uses
technology and the law to lock down culture and control creativity.” Lessig’s
earlier books, /{Code}/ and /{The Future of Ideas}/, had critiqued the alarming
trends in copyright law, explained the importance of the commons, and set forth
a philosophical rationale for what became the CC licenses. Now /{Free Culture}/
provided a wide-ranging survey of how incumbent industries with old business
models — for recorded music, film, broadcasting, cable television — were (and
are) curbing traditional creative freedoms and technological innovations.
Drawing explicitly on the ideas of freedom developed by Richard Stallman in the
1980s, and upon legal history, politics, and colorful stories, Lessig argued
that industry protectionism poses a profound harm to creators, business, and
democratic culture — and that action needed to be taken.
={ Lessig, Lawrence :
     Free Culture +2 ;
   Lessig, Lawrence :
     Code and Other Laws of Cyberspace | The Future of Ideas | CC licenses, and | law in contemporary context, and ;
   Stallman, Richard :
     influence of | freedom, and
}

Although /{Free Culture}/ repeats many of the fundamental arguments made in his
earlier books, Lessig’s arguments this time did not sound like a law
professor’s or academic’s, but more like an activist trying to rally a social
movement. “This movement must begin in the streets,” he writes. “It must
recruit a significant number of parents, teachers, librarians, creators,
authors, musicians, filmmakers, scientists — all to tell their story in their
own words, and to tell their neighbors why this battle is so important. . . .
We will not reclaim a free culture by individual action alone. It will take
important reforms of laws. We have a long way to go before the politicians will
listen to these ideas and implement these reforms. But that also means that we
have time to build awareness around the changes that we need.”~{ Lawrence
Lessig, /{Free Culture}/ (New York: Penguin, 2004), pp. 275, 287. }~ The
preeminent challenge for this would-be movement, Lessig wrote, is “rebuilding
freedoms previously presumed” and “rebuilding free culture.”

Lessig had reason to think that his analysis and exhortations would find
receptive ears. He was now a leading voice on copyright and Internet issues,
and well known through his earlier books, public speaking, and /{Eldred}/
advocacy. The launch of the Creative Commons was thrusting him into the
spotlight again. Adoption of the CC licenses was steadily growing in 2003 and
2004 based on the most comprehensive sources at the time, search engines. Yahoo
was reporting in September 2004 that there were 4.7 million links to CC
licenses on the Web. This number shot up to 14 million only six months later,
and by August 2005 it had grown to 53 million.~{ CC license statistics, on CC
wiki page, at http://wiki.creativecommons.org/License_statistics. }~ These
numbers offer only a crude estimate of actual license usage, but they
nonetheless indicated a consistent trend. Usage was also being propelled by new
types of Web 2.0 sites featuring usergenerated content. For example, Flickr,
the photo-sharing site, had 4.1 million photos tagged with CC licenses at the
end of 2004, a number that has soared to an estimated 75 million by 2008.
={ Lessig, Lawrence :
     CC licenses, and ;
   Yahoo ;
   Web 2.0 :
     CC licenses, and ;
   Creative Commons (CC) licenses :
     Web 2.0 environment, and
}

The decisive choice, four years earlier, to build a suite of licenses that
could propagate themselves via open networks was bearing fruit.

2~ Building the CC Machine
={ Creative Commons (CC) :
     “machine”, as +22
}

It was a pleasant surprise for the organization to learn that a great deal of
individual usage of the CC licenses was fairly spontaneous. Persuading large
companies and respected institutions to use the CC licenses was a more
difficult proposition. Lessig therefore spent a fair amount of time trying to
get prominent institutions to adopt the licenses and give them some validation.
Among the early converts were MIT, Rice University, Stanford Law School, and
Sun Microsystems, supplemented by some relatively new organizations such as
Brewster Kahle’s Internet Archive and the Public Library of Science, a
publisher of open-access journals.

Personal diplomacy can accomplish only so much, however, and in any case the
Internet itself needed to be leveraged to disseminate the licenses and educate
the public. One challenge, for example, was to introduce the CC licenses —
which are not, after all, a self-evident need for most people — in a clear,
compelling way. Most authors and artists have little idea what licenses they
may want to choose, and their implications for how they might be able to sell
or share works in the future. People needed a quick and easy way to make
intelligent choices. It fell to Lisa Rein, the first technical director at CC,
in late 2001, to develop a license-generating interface for the Web site. The
quandary she faced was how to maximize user choice in selecting licenses while
minimizing complexity.
={ Rein, Lisa }

The Web interface for the licenses has steadily improved over the years, but in
a sense, those improvements have been offset by a growing complexity and number
of CC licenses. Some critics have complained that the whole CC scheme can be a
bit daunting. Yes, the licenses can ensure certain freedoms without your having
to hire an attorney, which is clearly an improvement over relying on the fair
use doctrine. But that does not mean that anyone can immediately understand the
implications of using a NonCommercial or ShareAlike license for a given work.
Any lurker on a CC listserv soon encounters head-scratching questions like “Can
I use a BY-NC photo from Flickr on my blog if the blog is hosted by a company
whose terms of service require me to grant them a worldwide, nonexclusive
license to use any work hosted by their service, including for commercial use?”
={ Creative Commons (CC) licenses :
     complexity of | fair use, and ;
   fair use doctrine :
     CC licenses, and
}

By far the more important vehicle for promoting usage of the CC licenses has
been software code. Lessig and the CC team realized that if the licenses could
become an embedded element of leading search engines, Web publishing tools, and
Web 2.0 platforms, it could powerfully promote license use. Integrating the
code into existing Web sites and software can pose some serious technical
challenges, however. Figuring out how to integrate the CC licenses with popular
software applications, Web services, and digital file formats has fallen
chiefly to Nathan Yergler, the chief technology officer of Creative Commons.
Over the years, he and other CC developers have come up with a variety of
applications to help make software infrastructures more friendly. One program
that was developed, ccHost, is a content management system that has licensing
and remix tracking built into its core. JsWidget is a simple javascript widget
that developers can easily integrate into their sites to enable users to choose
a license without leaving the site. Creative Commons has made it a standard
practice to coordinate its work with technology volunteers, startup companies,
and nonprofits with a stake in digitally enabling open licensing. It does this
work through a CC development wiki, the cc-devel mailing list, Internet Relay
Chat, World Wide Web Consortium working groups, and participation in Google’s
annual “Summer of Code” program for student programmers.
={ code :
     CC licenses, and +7 ;
   Creative Commons (CC) licenses :
     software code, and +7 | Web 2.0 environment, and ;
   Web 2.0 :
     CC licenses, and ;
   Google ;
   software :
     CC licenses, and +7
}

Lessig and top CC staff have worked hard at convincing executives at major
software enterprises to incorporate the CC licenses into a software application
or Web site. One early triumph came when the makers of Movable Type, a blogging
platform, agreed to make it easy for users to tack a CC license onto their
blogs. Two months later, the O’Reilly empire of software blogs adopted the CC
licenses. Then programmer Dave Winer embedded the licenses in his new Web log
software in 2003. Blogs may not be core infrastructure for the Internet, but
they are plentiful and popular, and have given Creative Commons enormous
visibility and a high adoption curve.
={ Lessig, Lawrence :
     CC licenses, and +6 ;
   O’Reilly, Tim ;
   blogging ;
   Winer, Dave
}

It had always been Lessig’s ambition that the major search engines would be
reengineered to help people find CC-tagged content. To help prove that it could
be done, Creative Commons built its own jerry-rigged search engine that
retrieved content tagged with CC metadata. Lessig and Brown, meanwhile, made
numerous diplomatic overtures to Google and Yahoo executives and software
engineers. After two years of off-and-on conversations, both search engine
companies agreed in 2005 to incorporate changes into their advanced searches so
that users could locate CC-licensed content. (The Google advanced search does
not use the Creative Commons name, but simply asks users if they want content
that is “free to use or share,” among other options.) The search engine
exposure was a serious breakthrough for Creative Commons’s visibility and
legitimacy.
={ Brown, Glenn Otis +2 ;
   Google ;
   Yahoo
}

After a few years, the CC licenses were integrated into a number of other
software platforms. It became possible to search for CClicensed images
(Flickr), video programs (blip.tv), music (Owl), and old Web content (Internet
Archive, SpinXpress). With these search tools, Internet users had a practical
way to locate blues tunes that could be remixed, photos of the Eiffel Tower
that could be modified and sold, and articles about flower arrangements that
could be legally republished. Advertisers, publishers, and other companies
could search for images, songs, and text that could be licensed for commercial
use.

Lessig and Brown worked hard to get other major Web and software companies to
make it easy for users to tag content with CC licenses. The ultimate goal was
to make it easy for users to automate their preferences. Joi Ito, a Japanese
venture capitalist and democratic reformer who became the chair of the Creative
Commons’s board of directors in 2006, put it this way: “Every input device that
you have, whether it’s a camera phone, a digital camera or PowerPoint software,
should allow you to automatically set it to the CC license that you want. And
the minute you take that picture, you’ve already expressed how you would want
that picture to be used.”
={ Ito, Joichi }

Creative Commons also urged open-source software communities to incorporate
CC-made software into their applications so that users can more easily tag
content with the licenses or find licensed works. Firefox, for example, has
integrated a Creative Commons search function into the drop-down menu of its
browser search interface. It also has a plug-in module called MozCC that scans
for any CC metadata as you browse Web pages, and then reports on the browser
status bar how content is licensed. CC licenses have been integrated into other
software as well, such as Songbird, a free software media player, and Inkscape,
a free vector-graphics program similar to Adobe Illustrator.
={ open source software :
     CC licenses, and +2
}

Application by application, Web site by Web site, the Creative Commons board
and staff have tried to insinuate the licenses into as many software
applications and Web services as they could, in a kind of behind-the-scenes
enactment of Lessig’s book /{Code}/. If code is law, then let’s write it
ourselves! The diffusion of the licenses has tended to occur through personal
connections of Lessig, CC board members, and friendly tech entrepreneurs and
programmers. Joi Ito used his contacts at Sony to persuade it to develop a
video remix Web site in Japan that uses CC licenses as the default choice. For
Sony, the licenses help the company avoid any whiff of legal impropriety
because users must stipulate whether their video remixes may be shared or not.
={ code :
     as law ;
   law :
     code as ;
   Lessig, Lawrence :
     Code and Other Laws of Cyberspace ;
   Ito, Joichi
}

In 2006, Microsoft went so far as to come out with a plug-in module for its
Word program, enabling writers to tag their text documents with CC licenses. At
the time, many CC fans grumbled at the hypocrisy of Microsoft, the
five-hundred-pound gorilla of proprietary software, embracing the Creative
Commons, even in such a modest way. But for Lessig and CC board members, any
business that chooses to advance the reach of free culture — in this case, by
accessing the 400 million users of Microsoft Office — is welcomed. While this
ecumenical tolerance has made the Creative Commons a big-tent movement with an
eclectic assortment of players, it has also provoked bitter complaints in free
software and Wikipedia circles that the Creative Commons promotes a fuzzy,
incoherent vision of “freedom” in the digital world (an issue to which I return
in chapter 9).
={ Microsoft :
     CC licenses, and
}

One vexing problem that CC developers confronted was how to digitally tag
stand-alone files as CC-licensed work if they are not on the Web. How could one
tag an MP3 file, for example, to show that the music is under a CC license? One
problem with just inserting a CC tag onto the MP3 file is that anyone could
fraudulently mark the file as CC-licensed. To prevent scams, Neeru Paharia,
then CC assistant director, and other developers came up with a solution that
requires any stand-alone digital files that are embedded with CC licenses to
include a URL (Uniform Resource Locator) that links to a Web page verifying the
assertions made on the file.
={ Paharia, Neeru }

The practice of embedding CC license information on digital files has been
called /{digital rights expression}/ — a kind of benign analogue to digital
rights management. The purpose is to embed information about the copyright
status of a work /{in}/ the digital file. Unlike DRM, the goal is not to try to
build an infrastructure for enforcing those rights or controlling how people
may use a work. “Instead of using technology to ensure that the consumer can’t
do anything with it,” said Mike Linksvayer, CC vice president and former chief
technology officer, “we’re trying to use technology to ensure that people can
find a CC-licensed work. If they’re looking, for instance, for music that can
remixed, then this information will help a search engine locate that
information.”~{ Interview with Mike Linksvayer, February 7, 2007. }~
={ Linksvayer, Mike ;
   digital rights expression ;
   digital rights management (DRM)
}

Perhaps the neatest self-promotional trick that the Creative Commons has
devised is to rely upon companies whose very business plans revolve around CC
licenses. We will examine “open business” enterprises in chapter 10, but for
now it is worth noting that a number of innovative companies use the licenses
as a core element of their business strategy. These enterprises include Flickr
(photo sharing), Magnatune (an online record label), Jamendo (a
Luxembourg-based music site), and Revver (a video-sharing site that shares
advertising revenues with creators).

Infrastructure grows old and occasionally needs to be updated and improved. The
CC licenses have been no exception. As users have incorporated them into one
medium after another, the unwitting omissions and infelicitous legal language
of some parts of the licenses needed revisiting. After many months of
discussions with many parts of the CC world, the Creative Commons issued a new
set of 2.0 licenses in May 2004.~{ Glenn Otis Brown, “Announcing (and
explaining) our new 2.0 licenses,” CC blog, May 25, 2004, at
http://creativecommons.org/weblog/entry/4216. }~ They did not differ
substantially from the original ones, and in fact the changes would probably
bore most nonlawyers. For example, version 2.0 included a provision that allows
a licensor to require licensees to provide a link back to the licensor’s work.
The 2.0 licenses also clarify many complicated license options affecting music
rights, and make clear that licensors make no warranties of title,
merchantability, or fitness for use. Perhaps the biggest change in version 2.0
was the elimination of the choice of Attribution licenses. Since nearly 98
percent of all licensors chose Attribution, the Creative Commons decided to
drop licenses without the Attribution requirement, thereby reducing the number
of CC licenses from eleven to six.
={ Creative Commons (CC) licenses :
     version 2.0 of
}

Another set of major revisions to the licenses was taken up for discussion in
2006, and agreed upon in February 2007.~{ 7. Mia Garlick, “Version 3.0
Launched,” CC blog, http://creativecommons.org/weblog/entry/7249. }~ Once
again, the layperson would care little for the debates leading to the changes,
but considerable, sometimes heated discussion went into the revisions. In
general, the 3.0 tweaks sought to make the licenses clearer, more useful, and
more enforceable. The issue of “moral rights” under copyright law — an issue in
many European countries — is explicitly addressed, as are the complications of
the CC licenses and collecting societies. New legal language was introduced to
ensure that people who remix works under other licenses, such as the GNU Free
Documentation License (FDL), would be able to also use CC-licensed materials in
the same work — an important provision for preventing free culture from
devolving into “autistic islands” of legally incomptabile material. Besides
helping align the CC world with Wikipedia (which uses the GNU FDL license), the
3.0 revisions also made harmonizing legal changes to take account of MIT and
the Debian software development community.
={ GNU Project :
     GNU FDL ;
   copyright law :
     moral rights, and ;
   Creative Commons (CC) licenses :
     version 3.0 of
}

By getting the CC licenses integrated into so many types of software and Web
services, and even leveraging market players to embrace the sharing ethic,
Creative Commons has managed to kill at least three birds with one stone. It
has enlarged the universe of shareable Internet content. It has educated people
to consider how copyright law affects them personally. And it has given
visibility to its larger vision of free culture.
={ copyright law :
     CC licenses, and ;
   Creative Commons (CC) licenses :
     copyright law, and ;
   Internet :
     communication system, as +1 ;
    ;
   Creative Commons (CC) :
     growth of +2
}

In one sense, the CC “machine” composed of the licenses, the CC-developed
software, and the CC-friendly protocol was the engine for change. In another
sense, the influence that Creative Commons has acquired derives from the social
communities that gradually began to use its infrastructure. The social practice
infused power into the “machine” even as the machine expanded the social
practice. A virtuous cycle took hold, as the CC community used its self-devised
legal and technological infrastructure to advance their shared cultural agenda.
={ Creative Commons (CC) :
     influence of
}

Driving this cycle was an ever-growing staff and new managers working out of
offices in downtown San Francisco. Although Lessig has been the chief executive
officer and chairman of the board of Creative Commons for most of its
existence, most day-to-day operating responsibilities fell to executive
director Glenn Otis Brown until his departure in 2005, and then to general
counsel Mia Garlick, who left in 2007. (Both took jobs at Google.) Key
executives at Creative Commons in 2008 included Mike Linksvayer, vice
president; Eric Steuer, creative director; Diane Peters, general counsel;
Nathan Yergler, chief technology officer; and Jennifer Yip, operations manager.
The annual budget, which was $750,000 in 2003, had grown to $3.6 million in
2008 (a sum that included the Science Commons project). Much of this funding
came from foundations such as the John D. and Catherine T. MacArthur
Foundation, the William and Flora Hewlett Foundation, the Rockefeller
Foundation, and Omidyar Network.
={ Linksvayer, Mike ;
   Brown, Glenn Otis :
     executive director, as ;
   Peters, Diane ;
   Steuer, Eric ;
   Yergler, Nathan ;
   Yip, Jennifer ;
   John D. and Catherine T. MacArthur Foundation ;
   Garlick, Mia ;
   Lessig, Lawrence :
     CC licenses, and +2 ;
   Creative Commons (CC) :
     funding of ;
   Omidyar Network ;
   Rockefeller Foundation ;
   William and Flora Hewlett Foundation
}

Once the CC machine had secured its footing, Lessig and the CC staff paid close
attention to the movement — the social communities that find utility and
meaning through Creative Commons— and to developing new software and projects
that these early adopters would welcome. In 2006, the organization hit upon the
idea of hosting a series of “salons” in major cities. The gatherings have
become a big success, and are now replicated in cities throughout the world.
Artists talk about how they use CC licenses; entrepreneurs explain how their
business models work; remix artists perform their work. The events, free and
open to the public, combine testimonials about free culture, personal
networking, entrepreneurial idea-mongering, live performances, and partying.
The CC crowd seems to enjoy partying; they do it well. Every December, there
are gala anniversary parties in groovy San Francisco hot spots. There have been
virtual parties in the immersive online world, Second Life. Because CC users
tend to include some of the most adventurous artistic talent and eclectic
innovators around — people who know where the truly cool night spots are — CC
parties tend to be lively, good times. The parties in Rio and Dubrovnik, at the
iCommons Summits, were memorable international happenings, for example —
occasions, as one self-styled Lothario boasted to me, “where a guy could dance
with a woman from every continent of the world in a single evening.”
={ Creative Commons (CC) :
     social movement, as +2 | CC Salons
}

Add to the mix tech-oriented college students, another key sector of free
culture activism, and there is even more youthful energy. Hundreds of college
students participate in a nationwide student organization, FreeCulture.org,
later renamed Students for Free Culture. The group got its start in 2004 when
some students at Swarthmore College began investigating the reliability of
Diebold electronic voting machines; the company invoked copyright law in an
attempt to keep the problems secret, leading to a public confrontation that
Diebold lost. Nelson Pavlosky and Luke Smith, who were also inspired by
Lessig’s advocacy, co-founded the group, which has since spawned over thirty
quasi-autonomous chapters on campuses across the United States and a few
foreign nations. The organization tries to be a grassroots force on Internet,
digital technology, and copyright issues. It has mounted protests against CDs
with digital rights management, for example, and hosted film remixing contests
and exhibits of CC-licensed art at NYU and Harvard. Students for Free Culture
also organized a “no-profit record company/recording collective,” the Antenna
Alliance, which gave bands free recording space and distributed their
CC-licensed music to college radio stations.
={ Pavlosky, Nelson ;
   Smith, Luke ;
   Students for Free Culture
}

We have looked at the machine and many parts of the movement, but not at one of
the most significant forces fueling Creative Commons — the dozens of national
projects to adapt the licenses to legal systems around the world. The long-term
reverberations of this movement — which includes activists in Brazil, Croatia,
South Africa, Egypt, Peru, Scotland, and dozens of other countries — are only
beginning to be felt.

2~ 8 FREE CULTURE GOES GLOBAL
={ Creative Commons International +79 }

/{The commoners mount a transnational mobilization to build their own digital
commons.}/

It is a measure of Lessig’s ambition for Creative Commons that only five months
after the release of the licenses, in April 2003, he instigated a move to take
the idea global. Glenn Brown remembers objecting, “I don’t know how we’re going
to get this done! Larry was like, ‘We have no other choice. We /{have}/ to do
this. This needs to be an international organization.’”~{ Interview with Glenn
Otis Brown, June 9, 2006. }~
={ Boyle, James :
     CC International, and +1 ;
   Lessig, Lawrence :
     CC International, and +1
}

Professor James Boyle, a board member, was aghast. “That’s the stupidest thing
I’ve ever heard,” he said upon hearing the idea. “I was practically foaming at
the mouth,” he recalled, noting that it was “just insane” to try to adapt the
licenses to the mind-boggling complexities of copyright laws in scores of
nations.~{ Interview with James Boyle, August 15, 2006. }~ But Lessig,
determined to make the Creative Commons an international project, proceeded to
hire Christiane Asschenfeldt (now Christiane Henckel von Donnersmarck), a
Berlin-based copyright lawyer whom he had met the previous summer at an iLaw
(Internet Law) conference in Cambridge, Massachusetts. He charged her with
helping project leaders in different countries adapt the licenses (or, in
computerese, “port” them) to their respective national legal codes.
={ Asschenfeldt, Christiane +1 ;
   copyright law :
     international
}

Asschenfeldt set about inventing a system for gathering teams of volunteers,
usually associated with a law school or technology institute, to become CC
affiliates. Once an affiliate institution and project lead are chosen, the
project lead produces a first draft of the licenses, which then undergoes
public discussion, rewriting, and a final review by the new international arm
of Creative Commons, CC International.~{ The procedures for porting a CC
license to another jurisdiction are outlined in a document, “Welcome to
Creative Commons International,” undated, at
http://wiki.creativecommons.org/Worldwide_Overview. }~ (Confusingly, this
project was originally called “iCommons,” a name that in 2006 was reassigned to
a new CC spinoff group that convenes the international free culture movement.)
={ free culture :
     international
}

In a pre-Internet context, the whole idea of a creating a new international
license architecture and network of legal experts might seem ridiculously
unrealistic. But by 2003 there were enough examples of “distributed
intelligence” popping up that it no longer seemed so crazy to think that a
passionate corps of dispersed volunteers could collaborate as catalysts for
change. In any case, following the /{Eldred}/ defeat, Lessig and Brown came to
believe, as discussed earlier, that the Creative Commons needed to be both a
machine and a movement.
={ Brown, Glenn Otis :
     CC as movement and “machine,”, and ;
   Creative Commons (CC) :
     “machine”, as | social movement, as ;
   Eldred v. Reno/Eldred v. Ashcroft :
     effects of ;
   Lessig, Lawrence :
     Eldred v. Reno, and ;
   Lessig, Lawrence :
     CC International, and +1
}

Going international with the licenses offered an appealing way to grow both
simultaneously without forcing unpleasant trade-offs between the two, at least
initially. Drafting the licenses for a country, for example, helps convene top
lawyers committed to the idea of legal sharing and collaboration while also
mobilizing diverse constituencies who are the potential leaders of a movement.

According to Jonathan Zittrain, an early collaborator on the project and a
board member, Creative Commons at the international level is more of a
“persuasive, communicative enterprise than a legal licensing one.”~{ Interview
with Jonathan Zittrain, September 28, 2006. }~ It is a vehicle for starting a
process for engaging public-spirited lawyers, law scholars, and all manner of
creators. The licenses do have specific legal meanings in their respective
legal jurisdictions, of course, or are believed to have legal application.
(Only three courts, in the Netherlands and Spain, have ever ruled on the legal
status of the CC licenses. In two instances the courts enforced the licenses;
in the other case, in which the defendant lost, the validity of the licenses
was not at issue.)~{ The most famous court case involving the CC licenses is
/{A. Curry v. Audax/Weekend}/, in which Adam Curry sued the publishers of a
Dutch tabloid magazine and two senior editors for using four photos of his
family on his Flickr account that had been licensed under a BY-NC-SA license.
See http://creativecommons.org/weblog/entry/5944 and
http://creativecommons.org/weblog/entry/5823. A District Court of Amsterdam
upheld Curry’s usage of the CC licenses in a March 9, 2006, decision; see
http://mirrors.creativecommons.org/judgements/Curry-Audax-English.pdf. There
have been two Spanish cases involving CC licenses. In both cases, a collecting
society, the Sociedad General de Autores y Editores (SGAE), sued cafés for
playing “free music” licensed under CC licenses; SGAE claimed that it was owed
royalties for the public performance of music because artists cannot legally
apply a CC license to their work (or even release it online) without the
consent of their collecting society. In both instances, the cases turned on
evidentiary issues, not on the enforceability of CC licenses. See
http://creativecommons.org/weblog/entry/5830 and
http://creativecommons.org/weblog/entry/7228. }~ Apart from their legal
meaning, the licenses’ most important function may be as a social signaling
device. They let people announce, “I participate in and celebrate the sharing
economy.” The internationalization of the CC licenses has also been a way of
“localizing” the free culture movement.
={ Zittrain, Jonathan }

The first nation to port the CC licenses was Japan. This was partly an
outgrowth of a five-month sabbatical that Lessig had spent in Tokyo, from late
2002 through early 2003. There were already stirrings of dissatisfaction with
copyright law in Japan. Koichiro Hayashi, a professor who had once worked for
the telecom giant NTT, had once proposed a so-called d-mark system to allow
copyright owners to forfeit the statutory term of copyright protection and
voluntarily declare a shorter term for their works. In the spring of 2003, a
team of Japanese lawyers associated with a technology research institute, the
Global Communications Center (GLOCOM), working with CC International in Berlin,
set about porting the licenses to Japanese law.
={ Creative Commons International :
     Japan +2 ;
   Global Communications Center (GLOCOM) ;
   Hayashi, Koichiro
}

Yuko Noguchi, a former Lessig student and lawyer who later became the legal
project lead, explained that the CC licenses are a culturally attractive way
for Japanese to address the structural problems of copyright law. Japan is a
country that prizes harmony and dislikes confrontation. The licenses offer a
way to promote legal sharing without forcing bitter public policy conflicts
with major content industries.~{ Interview with Yuko Noguchi, September 12,
2007. }~ (Partly for such reasons, CC Japan shifted its affiliation to the
University of Tokyo in 2006.) In a culture that enjoys the sharing of comics,
animation, haiku, and other works, the CC Japan licenses, launched in January
2004, have been used by a diverse range of artists and companies.
={ Noguchi, Yuko }

During his sojourn in Japan, Lessig had a fateful meeting with Joichi Ito, who
in many ways embodies the tech sophistication, democratic zeal, and
cosmopolitan style of the international Creative Commons movement. Widely known
as Joi (pronounced “Joey”), Ito, forty-two, was born in Japan and educated in
the United States. Disaffected with formal education in the U.S., where he
studied computer science and physics, he dropped out and began his highly
unusual career in Japan as an activist, entrepreneur, and venture capitalist.
He has worked as a nightclub disc jockey, and brought industrial music and the
rave scene to Japan, but he has also become a talented venture capitalist and
early stage investor in such companies as Six Apart, Technorati, Flickr,
SocialText, Dopplr, and Rupture. Lessig and Ito became close friends; Ito later
joined the Creative Commons board. He was appointed chairman of the board in
2007 and then, in 2008, he became chief executive officer when Lessig left to
start a congressional reform project. Duke law professor James Boyle, a board
member, replaced Ito as chairman.
={ Ito, Joichi +1 ;
   Boyle, James :
     as chairman
}

Once it went public, the very idea of Creative Commons attracted many other
people like Ito to its ranks: educated, tech-savvy, culturally fluent,
activist-minded. In fact, following the American launch of Creative Commons,
volunteers from many countries began to approach the organization, asking if
they could port the licenses to their own legal systems. Finland became the
second nation to adopt the licenses, in May 2004, followed a month later by
Germany. In Europe, the early adopters included Denmark, Hungary, Scotland,
Slovenia, Sweden, and Malta. In South America, CC licenses were introduced in
Argentina, Chile, and Peru. In Asia, Malaysia and China ported the licenses, as
did Australia. Israel was the first Middle Eastern country to port the
licenses.

As each jurisdiction introduces its licenses, it typically hosts a gala public
event to celebrate and publicize free culture. News media and government
officials are invited. There are panel discussions about copyright law and
digital culture; performances by musicians who use the licenses; and
endorsements by prominent universities, cultural institutions, and authors.
Lessig has made it a practice to fly in and deliver an inspirational speech.
Few international launches of CC licenses have been more spectacular or
consequential than the one staged by Brazil in March 2004.
={ Lessig, Lawrence :
     public speaker, as | CC International, and
}

2~ Brazil, the First Free Culture Nation
={ Brazil :
     free culture in +23 ;
   Creative Commons International :
     Brazil +23
}

Luiz Inácio Lula da Silva had just been elected president of Brazil, and he was
eager to stake out a new set of development policies to allow his nation to
plot its own economic and cultural future. His government, reflecting his
electoral mandate, resented the coercive effects of international copyright law
and patent law. To tackle some of these issues on the copyright front,
President Lula appointed Gilberto Gil, the renowned singer-songwriter, as his
minister of culture.
={ Lula da Silva, Luiz Inácio ;
   Gil, Gilberto +11
}

Gil became a revered cultural figure when he helped launch a new musical style,
/{tropicalismo}/, in the late 1960s, giving Brazil a fresh, international
cachet. The music blended national styles of music with pop culture and was
inflected with political and moral themes. As one commentator put it,
/{tropicalismo}/ was “a very ’60s attempt to capture the chaotic, swirling feel
of Brazil’s perennially uneven modernization, its jumble of wealth and poverty,
of rural and urban, of local and global. . . . They cut and pasted styles with
an abandon that, amid today’s sample-happy music scene, sounds
up-to-theminute.”~{ Wikipedia entry, “Tropicalismo,” at
http://en.wikipedia.org/wiki/Tropicalismo. }~ The military dictatorship then
running the government considered /{tropicalismo}/ sufficiently threatening
that it imprisoned Gil for several months before forcing him into exile, in
London. Gil continued writing and recording music, however, and eventually
returned to Brazil.~{ For a history of Gil, see his personal Web site at
http://www.gilbertogil.com.br/index.php?language=en; the Wikipedia entry on him
at http://en.wikipedia.org/wiki/Gilberto_Gil; and Larry Rohter, “Gilberto Gil
Hears the Future, Some Rights Reserved,” /{New York Times}/, March 11, 2007. }~

This history matters, because when Gil was appointed culture minister, he
brought with him a rare political sophistication and public veneration. His
moral stature and joyous humanity allowed him to transcend politics as
conventionally practiced. “Gil wears shoulder-length dreadlocks and is apt to
show up at his ministerial offices dressed in the simple white linens that
identify him as a follower of the Afro-Brazilian religion /{candomblé}/,” wrote
American journalist Julian Dibbell in 2004. “Slouching in and out of the
elegant Barcelona chairs that furnish his office, taking the occasional sip
from a cup of pinkish herbal tea, he looks — and talks — less like an elder
statesman than the posthippie, multiculturalist, Taoist intellectual he is.”~{
Julian Dibbell, “We Pledge Allegiance to the Penguin,” /{Wired}/, November
2004, at http://www.wired.com/wired/archive/12.11/linux_pr.html. }~
={ Dibbell, Julian +1 }

As luck had it, Dibbell — author of the article on cyber-rape that had enticed
Lessig to investigate digital culture in the first place (see chapter 3) — was
living in Rio at the time. He was friendly with Hermano Vianna, a prominent
intellectual who knew Gil and was deeply into the music scene and digital
technology. Between Dibbell and Vianna, a flurry of introductions was made, and
within months Larry Lessig, John Perry Barlow, and Harvard law professor
William Fisher were sitting with Gil, Vianna, and Dibbell in Gil’s Rio de
Janeiro penthouse across from the beach.~{ Ibid. }~ Lessig’s mission was to
pitch the Creative Commons licenses to Gil, and in particular, get Gil’s
thoughts about a new CC Sampling license that would let musicians authorize
sampling of their songs.
={ Fisher, William (Terry) ;
   Vianna, Hermano +1 ;
   Lessig, Lawrence :
     CC International, and +3 ;
   Barlow, John Perry :
     CC International, and
}

“Gil knew that sampling was a central driving power for contemporary creativity
well before digital instruments came along,” recalled Vianna. "/{Tropicalismo}/
was all about sampling different ideas and different cultures. /{Tropicalismo}/
was about juxtapositions, not fusions, and in this sense was heir to a long
tradition of Brazilian modern thought and art that began with the cultural
anthropology of the early modernists, in the 1920s and 1930s, and can be traced
back to all debates about Brazilian identity in the 20th century."~{ E-mail
from Hermano Vianna, January 8, 2007. }~

Lessig did not need to argue his case. Gil immediately understood what Creative
Commons was trying to accomplish culturally and politically. He was
enthusiastic about CC licenses, the proposed Sampling license, and the prospect
of using his ministry to advance a vision of free culture.

By further coincidence, Ronaldo Lemos da Silva, then a Brazilian law student
who has been described as a “Lessig of the Southern Hemisphere,” had just
completed his studies at Harvard Law School. He was well acquainted with
Creative Commons and was considering his future when friends at the Fundação
Getulio Vargas (FGV), a Rio de Janeiro university, urged him to join them in
founding a new law school. The school would host a new Center for Technology
and Society to study law and technology from the perspective of developing
nations like Brazil. Lemos accepted, and the center soon became the host for CC
Brazil and myriad free culture projects.
={ Lemos da Silva, Ronaldo }

This alignment of intellectual firepower, artistic authority, and political
clout was extraordinary — and a major coup for Creative Commons. The culture
minister of the world’s fifth-largest country and tenth-largest economy — whose
own forty-year career was based on a remix sensibility — became a spirited
champion of the CC licenses and free culture. Unlike most culture ministers,
who treat culture chiefly as an aesthetic amenity, Gil took the economic and
technological bases of creativity seriously. He wanted to show how creativity
can be a tool for political and cultural emancipation, and how government can
foster that goal. It turned out that Brazil, with its mix of African,
Portuguese, and indigenous cultures and its colorful mix of vernacular
traditions, was a perfect laboratory for such experimentation.

One of the first collaborations between Creative Commons and the Brazilian
government involved the release of a special CC-GPL license in December 2003.~{
Creative Commons press release, “Brazilian Government First to Adopt New
‘CC-GPL,’ ” December 2, 2003. }~ This license adapted the General Public
License for software by translating it into Portuguese and putting it into the
CC’s customary “three layers” — a plain-language version, a lawyers’ version
compatible with the national copyright law, and a machine-readable metadata
expression of the license. The CC-GPL license, released in conjunction with the
Free Software Foundation, was an important international event because it gave
the imprimatur of a major world government to free software and the social
ethic of sharing and reuse. Brazil has since become a champion of GNU/Linux and
free software in government agencies and the judiciary. It regards free
software and open standards as part of a larger fight for a “development
agenda” at the World Intellectual Property Organization and the World Trade
Organization. In a related vein, Brazil has famously challenged patent and
trade policies that made HIV/AIDS drugs prohibitively expensive for thousands
of sick Brazilians.
={ free software :
     international licensing, and +1 ;
   GNU/Linux :
     Brazil, in ;
   World Trade Organization ;
   World Intellectual Property Organization ;
   open networks :
     international
}

When the full set of CC Brazil licenses was finally launched— at the Fifth
International Free Software Forum, in Port Alegre on June 4, 2004 — it was a
major national event. Brazilian celebrities, government officials, and an
enthusiastic crowd of nearly two thousand people showed up. Gil, flying in from
a cabinet meeting in Brasília, arrived late. When he walked into the
auditorium, the panel discussion under way immediately stopped, and there was a
spontaneous standing ovation.~{ A ten-minute video of the CC Brazil opening can
be seen at http://support.creativecommons.org/videos#brasil. }~ “It was like a
boxer entering the arena for a heavyweight match,” recalled Glenn Otis Brown.
“He had security guards on both sides of him as he walked up the middle aisle.
There were flashbulbs, and admirers trailing him, and this wave of people in
the audience cresting as he walked by.”~{ Interview with Glenn Otis Brown,
August 10, 2006. }~
={ Brown, Glenn Otis, CC International, and +1 }

Gil originally planned to release three of his songs under the new CC Sampling
license — dubbed the “Recombo” license — but his record label, Warner Bros.,
balked. He eventually released one song, “Oslodum,” that he had recorded for an
indie label. “One way to think about it,” said Brown, “is that now, anybody in
the world can jam with Gilberto Gil.”~{ Film about CC Brazil launch, at
http://support.creativecommons.org/videos#brasil. }~

As culture minister, Gil released all materials from his agency under a CC
license, and persuaded the Ministry of Education as well as Radiobrás, the
government media agency, to do the same. He also initiated the Cultural Points
(Pontos de Cultura) program, which has given small grants to scores of
community centers in poor neighborhoods so that residents can learn how to
produce their own music and video works. Since industry concentration and
payola make it virtually impossible for newcomers to get radio play and
commercially distribute their CDs, according to many observers, the project has
been valuable in allowing a fresh wave of grassroots music to “go public” and
reach new audiences.

For developing countries, the real challenge is finding ways to tap the latent
creativity of the “informal” economy operating on the periphery of formal
market systems. Brazil is rich with such creative communities, as exemplified
by the flourishing /{tecnobrega}/ music scene in the northeast and north
regions of Brazil. Ronaldo Lemos says that /{tecnobrega}/ — “a romantic sound
with a techno-beat and electronica sound”~{ Interview with Ronaldo Lemos da
Silva, September 15, 2006. }~ —arose on the fringes of the mainstream music
marketplace through “sound system parties” attended by thousands of people
every weekend. Local artists produce and sell about four hundred new CDs every
year, but both the production and distribution take place outside the
traditional music industry. The CDs can’t be found in retail stores but are
sold entirely by street vendors for only $1.50. The CDs serve as advertising
for the weekend parties. The music is “born free” in the sense that the
/{tecnobrega}/ scene doesn’t consider copyrights as part of its business model
and does not enforce copyrights on their CDs; it invites and authorizes people
to share and reuse the content.~{ The /{tecnobrega}/ scene is described by
Ronaldo Lemos in “From Legal Commons to Social Commons: Developing Countries
and the Cultural Industry in the 21st Century,”
http://icommons.org/banco/from-legal-commons-tosocial-commons-brazil-and-the-cultural-industry-1.
}~ (The /{tecnobrega}/ business model is discussed at greater length in chapter
10.)
={ Lemos da Silva, Ronaldo +6 }

Lemos believes the CC licenses are an important tool for helping grassroots
creativity in Brazil to “go legitimate.” He explains, “Creative Commons
provides a simple, non-bureaucratic structure for intellectual property that
might help to integrate the massive marginal culture that is arising in the
peripheries, with the ‘official,’ ‘formal’ structures of the Brazilian
economy.”~{ Ibid. }~ Freed of the blockbuster imperatives of the current music
market, the CC licenses allow creativity in the informal “social commons” to
flow — yet not be appropriated by commercial vendors. People can experiment,
generate new works, and learn what resonates with music fans. All of this is a
predicate for building new types of open markets, says Lemos. /{Tecnobrega}/ is
just one of many open-business models that use the free circulation of music to
make money.

Since its launch in June 2004, Lemos and the CC Brazil office have instigated a
number of projects to demonstrate how sharing and collaboration can spur
economic and cultural development. They have promoted free software and open
business models for music and film and started collaborations with allies in
other developing nations. Nigerian filmmakers inspired the People’s Cinema in
Brazil, a project to help people use audio-video technology to produce their
own films and develop audiences for them. The /{culture-livre}/ (free culture)
project, a joint effort of Creative Commons in Brazil and South Africa, is
using the ccMixter software to encourage young musicians to mix traditional
African instruments with contemporary sensibilities, and launch their
careers.~{ http://www.ccmixter.co.za. }~

In Brazil, there are open-publishing projects for scientific journals;~{
http://www.scielo.br. }~ a Web site that brings together a repository of short
films;~{ http://www.portacurtas.comb.br. }~ and Overmundo,a popular site for
cultural commentary by Internet users.~{ http://www.overmundo.com.br }~
TramaVirtual, an open-platform record label that lets musicians upload their
music and fans download it for free, now features more than thirty-five
thousand artists.~{ http://tramavirtual.uol.com.br. }~ (By contrast, the
largest commercial label in Brazil, Sony-BMG, released only twelve CDs of
Brazilian music in 2006, according to Lemos.)

“Cultural production is becoming increasingly disconnected from traditional
media forms,” said Lemos, because mass media institutions “are failing to
provide the adequate incentives for culture to be produced and circulated. . .
. Cultural production is migrating to civil society and/or the peripheries,
which more or less already operate in a ‘social commons’ environment, and do
not depend on intellectual property within their business models.”~{ Ronaldo
Lemos, “From Legal Commons to Social Commons: Developing Countries and the
Cultural Industry in the 21st Century,”
http://icommons.org/banco/from-legal-commons-to-social-commons-brazil-and-the-culturalindustry-1.
}~

As more people have adopted legal modes of copying and sharing under CC
licenses, it is changing the social and political climate for copyright reform.
Now that CC Brazil can cite all sorts of successful free culture ventures, it
can more persuasively advocate for a Brazilian version of the fair use doctrine
and press for greater photocopying privileges in educational settings (which
are legally quite restrictive).
={ free culture :
     international +2
}

Although the CC licenses are now familiar to many Brazilians, they have
encountered some resistance, mostly from lawyers. “Among all other audiences —
musicians, artists, writers — they were extremely well received,” said Lemos.
When he presented the CC licenses to an audience of three hundred lawyers,
however, he recalls that a famous law professor publicly scoffed: “You’re
saying this because you’re young, foolish, and communist.” Three years later,
Lemos discovered that the professor was using his intellectual property
textbook in her class.

As a unique global ambassador of creative sharing, Gilberto Gil did a lot to
take the CC licenses to other nations and international forums such as the
World Intellectual Property Organization. The day before his 2004 benefit
concert for the Creative Commons in New York City with David Byrne, Gil
delivered a powerful speech explaining the political implications of free
culture:
={ Byrne, David ;
   Gil, Gilberto +3 ;
   World Intellectual Property Organization
}

_1 A global movement has risen up in affirmation of digital culture. This
movement bears the banners of free software and digital inclusion, as well as
the banner of the endless expansion of the circulation of information and
creation, and it is the perfect model for a Latin-American developmental
cultural policy (other developments are possible) of the most anti-xenophobic,
anti-authoritarian, anti-bureaucratizing, anti-centralizing, and for the very
reason, profoundly democratic and transformative sort.~{ Gil remarks at New
York University, September 19, 2004, at
http://www.nyu.edu/fas/NewsEvents/Events/Minister_Gil_speech.pdf. }~

The Brazilian government was making digital culture “one of its strategic
public policies,” Gil said, because “the most important political battle that
is being fought today in the technological, economic, social and cultural
fields has to do with free software and with the method digital freedom has put
in place for the production of shared knowledge. This battle may even signify a
change in subjectivity, with critical consequences for the very concept of
civilization we shall be using in the near future.”~{ Ibid. }~

To advance this new paradigm, Gil, who left his post as culture minister in
2008, called for the rise of “new creative /{mestizo}/ [hybrid] industries”
that break with the entrenched habits of the past. Such businesses “have to be
flexible and dynamic; they have to be negotiated and re-negotiated, so that
they may contemplate the richness, the complexity, the dynamism and the speed
of reality itself and of society itself, without becoming impositions.”~{ Ibid.
}~

2~ National Variations of a Global Idea

When it comes to free culture, Brazil is clearly a special case. But citizens
in more than seventy nations have stepped forward to build a CC presence in
their societies. Each has shown its own distinctive interests.

Tomislav Medak, a philosopher by training and a copyfighter by circumstance,
runs the Multimedia Institute in Zagreb, Croatia, a cultural center that
consists mostly of a performance space, a lounge, and a café. The organization
survives on donations from the likes of George Soros’s Open Society Institute,
but it thrives because it is the gathering place for an avant-garde corps of
electronic musicmakers, publishers, performers, and hackers. Mainstream Croats
would probably describe the community as a bunch of
“cyberSerbian-gay-Communists,” said Medak, which he concedes is not
inaccurate.~{ Interview with Tomislav Medak, CC Croatia, June 25, 2006. }~ But
the institute is not just a coalition of minority interests; it is also
broad-spectrum champion of cultural freedom. It sees free software, civil
liberties, and artists’ rights as core elements of a democratic society that it
would like to build.
={ Creative Commons International :
     Croatia +1 ;
   Croatia :
     CC licenses in +1 ;
   Medak, Tomislav +2 ;
   Open Society Institute ;
   Soros, George
}

The Multimedia Institute was understandably excited when it learned about
Creative Commons and Lessig’s vision of free culture. With help from some
lawyer friends, the institute in January 2004 ported the CC licenses to
Croatian law, primarily as a way to empower artists and counteract the
dominance of corporate media and expansive copyright laws. “We are a country
where the IP framework is very young, and most of the policies are
protection-driven. Most policies are dictated by official institutions that
just translate international documents into local legislation,” Medak said.~{
Ibid. }~ This commercial/copyright regime tends to stifle the interests of
emerging artists, amateurs, consumers and local culture.
={ Lessig, Lawrence :
     CC International, and
}

“In the post-socialist period,” said Medak, “our society has been hugely
depleted of the public domain, or commons. The privatization process and the
colonizing of cultural spaces have been blatant over the last couple of years,
especially in Zagreb. So the Creative Commons has fit into a larger effort to
try to recapture some of those public needs that were available, at least
ideologically, in socialist societies. Now they are for real.”~{ Ibid. }~ Medak
has since gone on to become a leader of iCommons and the host of the
international iCommons Summit in 2007, which brought several hundred commoners
from fifty nations to Dubrovnik.

In Scotland, government and other public-sector institutions have been huge
fans of the CC licenses. In fact, museums, archives, and educational
repositories have been the primary advocates of the CC Scotland licenses, says
Andrés Guadamuz, a law professor at the Research Centre for Studies in
Intellectual Property and Technology Law at the University of Edinburgh.
“People who want to try to share information in the public sector are turning
to Creative Commons because they realize that here is a license that is already
made.”~{ Interview with Andrés Guadamuz of CC Scotland, December 19, 2006. }~
={ Guadamuz, Andrés ;
   Scotland :
     CC licenses in ;
   Creative Commons International :
     Scotland
}

The BBC was a pioneer in making its archived television and radio programs
available to the public for free. In 2003, inspired by the CC licenses, the BBC
drafted its own “Creative Archive” license as a way to open up its vast
collection of taxpayer-financed television and radio programs.~{ See
http://news.bbc.co.uk/2/hi/help/4527506.stm, and interview with Paula Le Dieu,
joint director of the BBC Creative Archive project, May 28, 2004, at
http://digital-lifestyles.info/2004/05/28/exclusive-providing-the-fuel-fora-creative-nation-an-interview-with-paula-le-dieu-joint-director-on-the-bbccreative-archive.
}~ The license was later adopted by Channel 4, the Open University, the British
Film Institute, and the Museum, Libraries and Archives Council. Although the
Creative Archive license has similar goals as the CC licenses, it contains
several significant differences: it restricts use of video programs to United
Kingdom citizens only, and it prohibits use of materials for political or
charitable campaigns and for any derogatory purposes.
={ BBC }

The CC licenses have proven useful, also, to the British Museum and National
Archives. In 2004, these and other British educational institutions were
pondering how they should make their publicly funded digital resources
available for reuse. A special government panel, the Common Information
Environment, recommended usage of the CC licenses because they were already
international in scope. The panel liked that the licenses allow Web links in
licensed materials, which could help users avoid the complications of formal
registration. The panel also cited the virtues of “human readable deeds” and
machine-readable metadata.~{ Intrallect Ltd and AHRC Research Centre for
Studies in Intellectual Property and Technology Law, University of Edinburgh,
“The Common Information Environment and Creative Commons,” October 10, 2005, at
http://www.intrallect.com/index.php/intrallect/content/download/632/2631/file/CIE
_CC_Final_Report.pdf. }~

As it happened, a team of Scottish legal scholars led by a private attorney,
Jonathan Mitchell, successfully ported the licenses and released them a few
months later, in December 2005. The Scottish effort had been initiated a year
earlier when Mitchell and his colleagues objected that the U.K. CC licenses
then being drafted were too rooted in English law and not sufficiently attuned
to Scottish law. Since the introduction of the CC Scotland licenses,
publicsector institutions have enthusiastically embraced them. Museums use the
licenses on MP3 files that contain audio tours, for example, as well as on Web
pages, exhibition materials, and photographs of artworks. Interestingly, in
England and Wales, individual artists and creative communities seem to be more
active than public-sector institutions in using the licenses.
={ Scotland :
     CC licenses in ;
   Creative Commons International :
     Scotland ;
   Mitchell, Jonathan
}

The use of CC licenses for government information and publicly funded materials
is inspiring similar efforts in other countries. Governments are coming to
realize that they are one of the primary stewards of intellectual property, and
that the wide dissemination of their work — statistics, research, reports,
legislation, judicial decisions — can stimulate economic innovation, scientific
progress, education, and cultural development. Unfortunately, as Anne
Fitzgerald, Brian Fitzgerald, and Jessica Coates of Australia have pointed out,
“putting all such material into the public domain runs the risk that material
which is essentially a public and national asset will be appropriated by the
private sector, without any benefit to either the government or the
taxpayers.”~{ iCommons annual report, 2007, http://www.icommons.org/annual07.
}~ For example, the private sector may incorporate the public-domain material
into a value-added proprietary model and find other means to take the
information private. The classic instance of this is West Publishing’s
dominance in the republishing of U.S. federal court decisions. Open-content
licenses offer a solution by ensuring that taxpayerfinanced works will be
available to and benefit the general public.
={ Coates, Jessica ;
   Fitzgerald, Anne ;
   Fitzgerald, Brian ;
   West Publishing
}

In the United States, the National Institutes of Health has pursued a version
of this policy by requiring that federally funded research be placed in an
open-access archive or journal within twelve months of its commercial
publication. The European Commission announced in 2007 that it plans to build a
major open-access digital repository for publicly funded research.~{ Michael
Geist, “Push for Open Access to Research, BBC News, February 28, 2007, at
http://news.bbc.co.uk/go/pr/fr/~/2/hi/technology/6404429. }~ In Mexico, the
Sistema Internet de la Presidencia, or Presidency Internet System (SIP),
decided in 2006 to adopt CC licenses for all content generated by the Mexican
presidency on the Internet — chiefly the president’s various Web sites,
Internet radio station, and documents.~{ Creative Commons blog, Alex Roberts,
March 8, 2006, at http://creativecommons.org/text/sip. }~ In Italy, CC Italy is
exploring legislation to open up national and local government archives. It
also wants new contract terms for those who develop publicly funded information
so that it will automatically be available in the future.~{ Interview with Juan
Carlos de Martin, CC Italy, July 17, 2007. }~
={ Creative Commons International :
     Italy | Mexico ;
   Italy :
     CC licenses in ;
   Mexico :
     CC licenses in
}

2~ Laboratories of Free Culture
={ Creative Commons International :
     laboratories for free culture, as +7
}

In 2005, about two years after the launch of CC International, twenty-one
jurisdictions around the world had adopted the licenses. (A legal jurisdiction
is not necessarily the same as a nation because places like Scotland, Puerto
Rico, and Catalonia — which have their own CC licenses — are not separate
nations.) Under a new director of CC International, copyright attorney
Catharina Maracke, who took over the license-porting project in 2006, the pace
of license adoption has continued. By August 2008, fortyseven jurisdictions had
ported the CC licenses, and a few dozen more had their projects under way. The
CC affiliates have now reached a sufficient critical mass that they represent a
new sort of international constituency for the sharing economy. The CC network
of legal scholars, public institutions, artistic sectors, and Internet users is
not just a motivated global community of talent, but a new sort of
transnational cultural movement: a digital republic of commoners.
={ Maracke, Catharina }

To be sure, some nations have more institutional backing than others, and some
have more enthusiastic and active projects than others. CC Poland reported in
2006 that its biggest challenge was “a complete lack of financial and
organizational support, in particular from our partner organization.”~{
iCommons ’06 conference booklet, p. 77. }~ (This was remedied in 2008 when CC
Poland entered into a partnership with an interdisciplinary center at the
University of Warsaw and with a law firm.) CC affiliates in smaller developing
countries with fewer resources — especially in Africa — often have to beg and
scrape to pull together resources to supplement the work of volunteers.

Not surprisingly, the American CC licenses — a version of which was spun off as
a generic license, as opposed to jurisdictionspecific licenses — are the most
used. In a pioneering study of license usage in January 2007, Giorgos Cheliotis
of Singapore Management University and his co-authors conservatively estimated
that there were 60 million distinct items of CC content on the Internet — a sum
that rose to 90 million by the end of 2007. Over 80 percent of these items use
a license that is not jurisdiction-specific; the remaining 20 percent are
spread among the thirty-three nations included in the study.~{ Giorgos
Cheliotis, Warren Chik, Ankit Guglani, and Girl Kumar Tayi, “Taking Stock of
the Creative Commons Experiment: Monitoring the Use of Creative Commons
Licenses and Evaluating Its Implications for the Future of Creative Commons and
for Copyright Law,” paper presented at 35th Research Conference on
Communication, Information and Internet Policy (TPRC), September 28–30, 2007.
Paper dated August 15, 2007. }~ The highest volume of license usage per capita
can be found in European nations — particularly Spain, Germany, Belgium,
France, Italy, and Croatia — which were among the earliest adopters of the
licenses. In absolute terms, the heaviest usage can be seen in Spain, Germany,
France, South Korea, Italy, and Japan.~{ Cheliotis, “Taking Stock,” pp. 20–22.
}~ Overall, however, CC usage outside of the United States is still fairly new,
and usage and growth rates vary immensely from country to country.
={ Cheliotis, Giorgos +1 }

As a fledgling network, the international CC community is a rudimentary
platform for change. Its members are still groping toward a shared
understanding of their work and devising new systems of communication and
collaboration. But a great deal of cross-border collaboration is occurring. A
variety of free culture advocates have constituted themselves as the Asia
Commons and met in Bangkok to collaborate on issues of free software, citizen
access to government information, and industry antipiracy propaganda. CC Italy
has invited leaders of neighboring countries— France, Switzerland, Austria,
Croatia, and Slovenia — to share their experiences and work together. A CC
Latin America project started /{Scripta}/, a new Spanish-language journal based
in Ecuador, to discuss free software and free culture issues affecting the
continent.
={ Creative Commons International :
     cross-border collaboration +1
}

CC leaders in Finland, France, and Australia have published books about their
licensing projects.~{ The French book is Danièle Bourcier and Mélanie Dulong de
Rosnay, eds., /{International Commons at the Digital Age}/ (Paris: Romillat,
2004), at http://fr.creativecommons.org/icommons_book.htm. The Finnish book is
Herkko Hietanen et al., /{Community Created Content: Law, Business and Policy}/
(Turre Publishing, 2007), at
http://www.turre.com/images/stories/books/webkirja_koko_optimoitu2.pdf. The
Australian book is Brian Fitzgerald, /{Open Content Licensing: Cultivating the
Creative Commons}/ (Sydney: Sydney University Press, 2007). }~ CC Brazil and CC
South Africa have collaborated on a project about copyright and developing
nations. CC Canada is working with partners to develop an online, globally
searchable database of Canadian works in the Canadian public domain. CC Salons
have been held in Amsterdam, Toronto, Berlin, Beijing, London, Warsaw, Seoul,
Taipei, and Johannesburg.

In the Netherlands, CC project lead Paul Keller engineered a breakthrough that
may overcome the persistent objections of European collecting societies to
CC-licensed content. Collecting societies in Europe generally insist that any
musician that they represent transfer all of their copyrights to the
collective. This means that professional musicians cannot distribute their
works under a CC license. Artists who are already using CC licenses cannot join
the collecting societies in order to receive royalties for commercial uses of
their works. In this manner, collecting societies in many European nations have
effectively prevented many musicians from using the CC licenses.
={ Keller, Paul ;
   collecting societies +1 :
     see also ASCAP
}

In 2007, however, CC Netherlands negotiated a one-year pilot program with two
Dutch collecting societies, Buma and Stemra, to let artists use CC
NonCommercial licenses for parts of their repertoire.~{ Creative Commons
Netherlands press release, “Buma/Stemra and Creative Commons Netherlands Launch
a Pilot,” August 23, 2007; e-mail by Paul Keller, CC Netherlands, to CC
International listserv, August 23, 2007. }~ As a result, artists will have
greater choice in the release of their works and the ability to easily manage
their rights via a Web site. Other European CC affiliates hope that this Dutch
experiment will break the long stalemate on this issue and persuade their
collecting societies to be more flexible.

2~ The Developing Nations License
={ Creative Commons International :
     Developing Nations license +9
}

One of the boldest experiments in the CC world was the creation of the
Developing Nations license, launched in September 2004. A year earlier, Lessig
had approached James Love, the director of Knowledge Ecology International
(previously the Consumer Project on Technology), to ask him to craft a CC
license that might help developing countries. Love proposed that the CC offer a
“rider” at the end of its existing licenses so that people using the licenses
could exempt developing nations from, say, the NonCommercial or NoDerivatives
license restrictions. So, for example, if a textbook author wanted to let
developing nations copy her book for either commercial or noncommercial
purposes, she could add a rider authorizing this practice.
={ Love, James +3 ;
   Lessig, Lawrence :
     CC International, and
}

Love was trying to do for books and journal articles what is already possible
for drugs — the legalization of a commercial market for generic equivalents.
Love had seen how generic drugs could reach people only because for-profit
companies were able to produce and sell the drugs; nonprofit or philanthropic
distribution is just not powerful enough. But the market for generic drugs is
possible only because of laws that authorize companies to make legal knockoffs
of proprietary drugs once the patent terms expire. Love hoped to do the same
via a Developing Nations license for copyrighted works: “It would create an
opportunity for the publishing equivalent of generic drug manufacturers who
make ‘generic’ books. In developing countries, you have whole libraries full of
photocopied books. You would not have libraries there if people didn’t engage
in these practices.”~{ Interview with James P. Love, June 13, 2006. }~

In the end, Creative Commons offered the Developing Nations license as a
separate license, not a rider. It had simple terms: “You must attribute the
work in the manner specified by the author or licensor (but not in any way that
suggests that they endorse you or your use of the work)” — and the license was
valid only in non–high income nations, as determined by United Nations’
statistics. Although the release of the license got considerable press
coverage, actual usage of the license was extremely small. The most prominent
use was totally unexpected — for architectural designs. Architecture for
Humanity, a California nonprofit, used the license for its designs of low-cost
housing and health centers. The organization wanted to give away its
architectural plans to poor countries while not letting its competitors in the
U.S. use them for free.~{ Creative Commons blog, Kathryn Frankel, “Commoners:
Architecture for Humanity,” June 30, 2006, at
http://creativecommons.org/education/architecture. }~
={ United Nations }

The expected uses of the Developing Nations license never materialized. In
2006, Love said, “The license is there, but people who might be willing to use
it are not really aware of it.” He worried that the license “hasn’t really been
explained in a way that would be obvious to them,” and ventured that there may
be “a need for a re-marketing campaign.” By this time, however, the license had
attracted the ire of Richard Stallman for its limitations on “freedom.”~{ See
Lessig on Creative Commons blog, December 7, 2005, at
http://creativecommons.org/weblog/archive/2005/12/page/3. }~ It prohibited
copying of a work in certain circumstances (in high-income countries) even for
noncommercial purposes, and so authorized only a partial grant of freedom, not
a universal one. “Well, the whole point was /{not}/ to be universal,” said
Love. “The license is for people that are unwilling to share with high-income
countries, but are willing to share with developing countries. So it actually
expands the commons, but only in developing countries.”~{ Interview with James
Love, June 13, 2006. }~
={ Lessig, Lawrence :
     CC International, and +1 ;
   Stallman, Richard :
     freedom, and +2
}

The controversy that grew up around the Developing Nations license illuminates
the different approaches to movement building that Lessig and Stallman
represent. Lessig’s advocacy for free culture has been an exploratory journey
in pragmatic idealism; Stallman’s advocacy for free software has been more of a
crusade of true believers in a core philosophy. For Stallman, the principles of
“freedom” are unitary and clear, and so the path forward is fairly self-evident
and unassailable. For Lessig, the principles of freedom are more situational
and evolving and subject to the consensus of key creative communities. The
flexibility has enabled a broad-spectrum movement to emerge, but it does not
have the ideological coherence of, say, the free software movement.
={ Richard :
     free software, and ;
   free software :
     international licensing, and ;
   Lessig, Lawrence :
     freedom, and
}

Several factors converged to make it attractive for Creative Commons to revoke
the Developing Nations license. Some people in the open-access publishing
movement disliked the license because it did not comply with its stated
standards of openness. In addition, Richard Stallman’s increasingly strident
objections to Creative Commons licenses were starting to alarm some segments of
the “free world.” What if Internet content became Balkanized through a series
of incompatible licenses, and the movement were riven with sectarian strife?
Stallman objected not only to the Developing Nations license, but to attempts
by Creative Commons to get Wikipedia to make its content, licensed under the
GNU Free Documentation license, compatible with the CC licenses. By 2007 this
dispute had been simmering for four years (see pages 212–217).
={ Wikipedia :
     CC licenses, and ;
   Stallman, Richard :
     influence of
}

Finally, many CC staff members regarded the Developing Nations and Sampling
licenses as misbegotten experiments. Fewer than 0.01 percent of uses of CC
licenses at the time involved the Developing Nations license, and the Sampling
license was used by a relatively small community of remix artists and
musicians. If eliminating two little-used niche licenses could neutralize
objections from the open access and free software movements and achieve a
greater philosophical and political solidarity in the “free world,” many CC
partisans regarded a rescission of the licenses as a modest sacrifice, if not a
net gain.
={ remix works +1 ;
   music :
     remixes ;
   Creative Commons (CC) licenses :
     music, for
}

In June 2007, Creative Commons announced that it was officially retiring the
two licenses.~{ Creative Commons “retired licenses page,” at
http://creativecommons.org/retiredlicenses. }~ In a formal statement, Lessig
explained, “These licenses do not meet the minimum standards of the Open Access
movement. Because this movement is so important to the spread of science and
knowledge, we no longer believe it correct to promote a standalone version of
this license.”~{ Lawrence Lessig, “Retiring standalone DevNations and One
Sampling License,” message to CC International listserv, June 4, 2007. }~ The
Creative Commons also revoked the Sampling license because it “only permits the
remix of the licensed work, not the freedom to share it.” (Two other sampling
licenses that permit noncommercial sharing— SamplingPlus and NonCommercial
SamplingPlus — were retained.)
={ Lessig, Lawrence :
     CC International, and
}

Anyone could still use the Sampling or Developing Nations license if they
wished; they still exist, after all. It’s just that the Creative Commons no
longer supports them. While the actual impact of the license revocations was
minor, it did have major symbolic and political significance in the commons
world. It signaled that the Creative Commons was capitulating to objections by
free software advocates and the concerns of open access publishing activists.

2~ The iCommons Network
={ iCommons +13 ;
   Creative Commons International :
     iCommons network +13
}

As an international network of CC affiliates grew, it naturally spawned new
pockets of activism. Lessig explained: “Once a country gets launched, it
becomes a cell of activism. Sometimes it is very traditional — Creative Commons
Korea is made up of a bunch of federal judges — and sometimes it is very
radical — Creative Commons Croatia is made of up a bunch of real activists who
want to change copyright. Creative Commons Poland, too, is a bunch of really
smart law graduates. But then there is the artist community, on the other side,
many of whom want to blow up copyright; they just think it is ridiculous.
={ Croatia :
     CC licenses in ;
   Korea :
     CC licenses in ;
   Creative Commons International :
     Croatia | Korea | Poland ;
   Poland :
     CC licenses in ;
   Lessig, Lawrence :
     CC International, and +1 | iCommons, and +1
}

“So the opportunity and problem we faced at that point,” said Lessig, “was,
‘Well, what are we going to do with these activists?’ Because Creative Commons
wanted to facilitate activism, of course, but it wasn’t as if we could bring
activism into our core because it would make it more suspect.”~{ Interview with
Lawrence Lessig, March 20, 2006. }~

The first steps toward organizing this protocommunity of activists came in
March 2005, when eighty people from the various international licensing
projects convened in Boston to talk about their shared challenges.~{
http://icommons.org/isummit05. }~ It quickly became clear that everyone wanted
a forum in which to learn from one another, coordinate their work, and see
themselves as something larger . . . perhaps a new sort of movement.
={ Creative Commons (CC) :
     social movement, as +1
}

Here again was the tension between “the movement” and “the machine.” As neutral
stewards of the licenses, the CC affiliates could not become full-throated
advocates of a new international free culture movement. Their mission was
preserving the integrity and utility of the licenses for all users, not
advocacy. To avoid this problem, the Creative Commons, with an infusion of seed
money and CC leaders, in 2006 started a new nonprofit organization, iCommons.
={ Creative Commons (CC) :
     “machine”, as
}

iCommons, a registered charity in the United Kingdom, is led by Heather Ford, a
South African who met Lessig at Stanford and went back to her country to
evangelize the Creative Commons licenses. Working out of Johannesburg, Ford is
the activist counterpart to her Berlin licensing colleagues. She is a
gregarious, spirited organizer who keeps tabs on activist gambits in dozens of
nations and pulls together annual iCommons “summits.”
={ Ford, Heather }

The iCommons conferences are something of a staging area for a new type of
global citizenship in the digital “free world.” The first conference, in Rio de
Janeiro in June 2006, attracted more than three hundred commoners from fifty
nations.~{ http://icommons.org/isummit06. }~ The second one, in Dubrovnik,
Croatia, drew a somewhat larger and still more diverse crowd, and a third was
held in Sapporo, Japan, in 2008. The free and open-source software community
and the Creative Commons network are two of the largest, most influential blocs
participating in iCommons, although Wikipedians represent a growing sector. But
there are many other factions. There are musicians from the indie music,
netlabels, and the remix scene. Filmmakers trying to reform fair use legal
norms and video artists who are into mashups. Bloggers and citizen-journalists
and social-networking fans. Gamers and participants in immersive environments
like Second Life and World of Warcraft. Open business entrepreneurs who regard
free software and CC licenses as key elements of their competitive,
profit-making strategies.
={ Wikipedia :
     iCommons, and
}

From Japan, there were anime artists who are into remixes. From South Africa,
print-on-demand research publishers. A bare-chested Brazilian guitarist traded
thoughts about copyright law with a Zagreb performer. An Amsterdam hacker with
a punk t-shirt shared a smoke with an American academic. From India, there was
Lawrence Liang, founder of the Alternative Law Forum, a leading intellectual
about copyright law and economic and social inequality. From Syria, there was
Anas Tawileh, who is working to produce the Arab Commons, a directory of Arabic
works released under any of the CC licenses. He hopes it will counteract “the
weak representation of the Arabic language on the Internet, the shallow nature
of Arabic content currently available and the consumption rather than the
production of knowledge.” From the United States, there was Michael Smolens, an
entrepreneur who started dotSUB, a captioning system to make any film available
in any language.
={ Liang, Lawrence ;
   Tawileh, Anas ;
   Smolens, Michael ;
   Smolens, Michael
}

The convergence of so many players in the nascent sharing economy, assembled in
the flesh, was a bracing glimpse into a new kind of cosmopolitan, democratic
sensibility. The program organizers stated their aspirations this way: “How do
we help one another to build a commons that nurtures local communities while
respecting the needs of others? How can we move towards the growth of a ‘Global
Commons Community’?”~{ iCommons Summit ’06 program. }~

Although most international commoners seem to be culturally progressive and
politically engaged, they cannot be situated along a left-right ideological
spectrum. This is because commoners tend to be more pragmatic and
improvisational than ideological. They are focused on building specific
projects to facilitate sharing and creativity, based on open-source principles.
Their enthusiasm is for cool software, effective legal interventions, and
activist innovations, not sectarian debate.

It is not as if politics has been banished. For example, some critics have
questioned the “elite” origins and governance structure of iCommons, which was
hatched by CC board members and leaders. David Berry, a free culture advocate
who teaches at the University of Sussex, complained on a listserv that iCommons
was “creating a corporate machine rather than a democratic one.”~{ David Berry,
“The iCommons Lab Report,” sent to UK FreeCulture listserv, November 9, 2006.
}~ He cited ambiguity in the powers of the organization, the murky process by
which the iCommons code of conduct was adopted, and the board’s selection of
community council members. Still other critics have grumbled at the Creative
Commons’s collaboration with Microsoft in developing a licensing feature within
the Word application.
={ Berry, David ;
   Microsoft :
     CC licenses, and
}

When pressed at the 2006 iCommons Summit to develop more formal organizational
structure, Lessig begged off for the time being, saying that “trust and faith
in each other” was a better approach than rigid rules and system. “We need a
recognition that we have a common purpose. Don’t tell me that I need to tell
you what that is, because we’ll never agree, but we do have a common
purpose.”~{ Becky Hogge, “What Moves a Movement,” OpenDemocracy.org, June 27,
2006, at www.opendemocracy.net/media-commons/movement_3686.jsp. }~ This
provoked Tom Chance, a free software and free culture advocate, to complain
that “Lessig’s call to base the organization on ‘trust and faith in each other’
is too idealistic and undemocratic.”
={ Chance, Tom ;
   Lessig, Lawrence :
     iCommons, and
}

The encounter nicely captures the quandaries of leadership and governance in
the networked environment. How can the effectiveness and clarity of leadership
be combined with networked participation and the legitimacy that it provides?
How should an organization draw philosophical boundaries to define itself while
remaining open to new ideas? How should participation in online collectives be
structured to generate collective wisdom and legitimacy and avoid collective
stupidity and bureaucratic paralysis? In this case, iCommons diversified its
governance in late 2007. It invited the Free Software Foundation Europe,
Computer Professionals for Social Responsibility, and Instituto Overmundo, a
Brazilian nonprofit dedicated to cultural diversity, to join Creative Commons
as full-fledged partners in managing the organization. Despite its broadened
leadership, iCommons remains more of a convener of annual forums and discussion
host than the democratically sanctioned voice of an international movement.

This is not surprising. The international commons community is still a
fledgling enterprise trying to forge an identity and agenda. The resources for
many CC affiliates are quite modest and the bonds of cooperation remain
rudimentary. That said, the international explosion of free culture projects,
above and beyond the CC licenses themselves, is nothing short of remarkable. It
represents a “vast, transnational mobilization in favor of digital freedom,” as
Gilberto Gil put it. In the early stages of the viral spiral, no one could have
imagined that a corps of passionate, self-selected volunteers cooperating
through the Internet could accomplish so much. And it continues, unabated.
={ Gil, Gilberto ;
   free culture :
     international
}

1~ 9 THE MANY FACES OF THE COMMONS

/{As the “free world” grows and diversifies, so does debate over how to build
the commons.}/

As the Creative Commons insinuated itself into one creative sector after
another, and throughout dozens of nations, the variety of licenses
proliferated. By one count in 2006, there were once eighteen distinct CC
licenses, not counting version changes.~[* The eighteen licenses once offered
include the core six licenses; a nonattribution version of five of those six
licenses (now retired); three sampling licenses (one of which has been
retired); the Developing Nations license (now retired); and a public domain
dedication (which is otherwise not possible under copyright statutes). There
was also a “Music Sharing license,” which was just another name for the
Attribution-NonCommercial-No Derivatives license, and a “Founders’ Copyright,”
which is not a license but a contract between an author and Creative Commons to
place a particular work in the public domain after fourteen years (or
twenty-eight years, if the author opts for a fourteen-year extension)]~ In the
meantime, other parties were offering their own licenses. While the Creative
Commons licenses had become the most-used licenses on the Internet, many people
were choosing to use Free Software Foundation licenses for text (the GNU Free
Documentation License, or FDL), the European Art Libre license, and special
licenses that various institutions have devised for the arts, music, and
educational works.
={ Creative Commons (CC) licenses :
     types of +6
}

In theory, a proliferation of licenses is not a bad thing. By the lights of
free-market economics and complexity theory, in fact, the best way to identify
the most useful licenses is to introduce a variety of them and then let them
compete for supremacy. Let natural selection in an ecosystem of licenses cull
the losers and elevate the most useful ones.

Unfortunately, this libertarian vision of diverse licenses competing for
supremacy in the cultural ecosystem can run up against a harsh reality of the
Internet. Too many disparate licenses may make it /{harder}/ for people to
share content in an easy, interoperable way. It is not the proliferation of
licenses per se that is problematic, it is the absence of a mechanism to enable
differently licensed works to “play together” so that they can commingle and be
used to produce new things. If bodies of works released under a CC license
cannot be combined with works licensed under other licenses, it defeats one of
the key value propositions of the Internet, easy interoperability and facile
sharing and reuse. Despite its best intentions, license proliferation has the
effect of “fencing off the commons,” because the different license terms keep
different bodies of work in separate ghettos.

Incompatibility is a problem both within the suite of CC licenses and between
CC licenses and other licenses. Within the CC suite of licenses, for example, a
work licensed under the AttributionNonCommercial-ShareAlike license (BY-NC-SA)
cannot legally be combined with a work licensed under the Attribution-No
Derivatives license (BY-ND) or an Attribution-NonCommercial (BY-NC). The former
license requires that any derivative works be licensed under the same license,
period.
={ Creative Commons (CC) licenses :
     incompatibility of +3
}

Some observers are not disturbed by the internal incompatibilities of the CC
suite of licenses. They regard the different licenses as tools for various
communities to build their own “subeconomies” of content, based on their own
distinct needs and priorities. A scientist may not want his research articles
altered or combined with other material. A musician may want to promote
noncommercial usage on the Internet but retain commercial rights so that he can
benefit from any CD sales. Not all creative sectors want to distribute their
work in the same ways.

The incompatibility between CC-licensed work and other freecontent licenses is
arguably more problematic. At a conference in Spain in the summer of 2005,
Lessig recalls having a “Homer Simpson moment” — /{D’oh!}/ — when he realized
where license proliferation was heading. The incompatibility of licenses, and
therefore bodies of content, could lead to an irretrievably fragmented universe
of content. Lessig saw license proliferation as analogous to the Balkanization
of technical standards that once plagued mainframe computing. IBM computers
couldn’t communicate with DEC, which couldn’t communicate with Data General.~{
Ibid. }~ “The legal framework of the licensing world is basically a
pre-Internet framework,” said Lessig in 2007. “We don’t have interoperability
at the layer of legal infrastructure.”~{ Interview with Lawrence Lessig,
October 23, 2007. }~
={ Lessig, Lawrence :
     CC licenses, and +1
}

_1 In my view [said Lessig], there’s a critical need for the free culture
movement to achieve interoperability. And until it achieves interoperability,
there’s a huge problem — because we’re creating these kinds of autistic islands
of freedom. Basically, the stuff produced in the Wikimedia world is free, but
can only be used in the Wikimedia world; the stuff created in the Creative
Commons world is free, but can only be used in the Creative Commons world — and
never the two will meet. That’s very destructive, because what we want is a
kind of invisible platform of freedom that everybody can then build on. It’s
been my objective from the very beginning to find the way to assure that we
would get that platform.~{ Ibid. }~

A critic might call it “the revenge of choice” — the inevitable outcome of a
neoliberal philosophy that privileges individualism and choice, rather than a
collective concern for the commons. This is the view of Niva Elkin-Koren, a law
professor at the University of Haifa (which coincidentally is the host of CC
Israel). Elkin-Koren argues that the Creative Commons is replicating and
reinforcing property rights discourse and failing to advance the cause of
copyright reform. Because the Creative Commons is plagued by an “ideological
fuzziness” that does not adequately set forth a philosophical vision of freedom
or the commons, Elkin-Koren believes the CC project threatens to “spread and
strengthen the proprietary regime in information.”~{ Niva Elkin-Koren,
“Exploring Creative Commons: A Skeptical View of a Worthy Pursuit,” chapter XIV
in Lucie Guibault and P. Bernt Hugenholtz, editors, /{The Future of the Public
Domain: Identifying the Commons in Information Law}/ (Alphen aan den Rijn,
Netherlands: Kluwer Law International BV, 2006). }~
={ Elkin-Koren, Niva ;
   Creative Commons (CC) licenses :
     critics of +5
}

This critique was at the heart of one of the most serious internecine squabbles
in the movement, the struggle to make Wikipedia content — licensed under the
Free Software Foundation’s GNU Free Documentation License — compatible with
CC-licensed content. The failure to find a solution, after four years of
negotiation, threatened to keep two great bodies of Internet content from
legally commingling and cause further fragmentation of open content.
={ Wikipedia :
     CC licenses, and ;
   GNU Project :
     GNU FDL ;
   Free Software Foundation
}

There are other controversies. Anticapitalist leftists periodically take the
Creative Commons to task for being too politically respectable. Friendly voices
from underdeveloped nations of the Southern Hemisphere have raised alarms that
the public domain is just another excuse for corporate exploitation of their
resources. Others from the South argue that the informal, social commons
inhabited by poor people — the “nonlegal commons” — deserve respect, too. And
then there are copyright traditionalists, who believe that a redoubled effect
to fortify the fair use doctrine should be a top priority.
={ Creative Commons (CC) licenses :
     public domain, and ;
   public domain :
     CC licenses, and
}

For the most part, the general public is oblivious to these internecine
disputes. Who cares about the relative merits of using a GNU Free Documentation
License for Wikipedia entries instead of a Creative Commons license? The
layperson may not understand the long-term implications of vesting individual
authors with the choice of how to share a work (in the style of the Creative
Commons) as opposed to vesting communities of practice with those rights (in
the style of the Free Software Foundation’s General Public License). Yet tech
sophisticates realize that, in the context of the Internet, uninformed choices
today can have serious practical consequences tomorrow. The terms of a license
or the design of a software application or digital appliance can prevent people
from sharing or reusing works. Bodies of content may become legally
incompatible. Consumer freedoms to innovate and distribute may be limited. And
then there are second-order questions that have great symbolic importance
within the movement, such as, Whose vision of “freedom” in digital spaces shall
we endorse? What is philosophically desirable and consistent?
={ Wikipedia :
     CC licenses, and ;
   free culture :
     sharing ethic of ;
   Internet :
     future of
}

For a movement that aspires to simplify copyright law, the free culture
movement has gotten embroiled in knotty debates that might give lawyers
headaches. It is not easy to tell if the disputants are persnickety zealots who
have spent too much time in front of their screens or latter-day Jeffersons,
Madisons, and Hamiltons— brilliant thinkers who are astute enough to understand
the longterm implications of some difficult issues and passionate enough to
take a stand. One person’s arcana can be another person’s foundational
principle, and one person’s quest for intellectual clarity is another person’s
distraction from the messy challenges of building a movement.

That is the basic problem of the crazy-quilt network that constitutes the free
world. There are, in fact, so many divergent, sometimes competing, sometimes
congruent agendas that it can be difficult to orchestrate them into a single,
harmonious song. For better or worse, the passions that animate culture
jammers, copyright reformers, hackers, law scholars, artists, scientists, and
countless others in seventy-plus countries are widely divergent. Although the
intramovement disagreements may sometimes seem gratuitous, sectarian, and
overblown, they are, in fact, understandable. The commoners tend to see their
projects as part of a larger, ennobling enterprise— the construction of a new
democratic polity and cultural ecology. It makes sense to fret about the
technical, legal, and philosophical details when so much is potentially at
stake.

2~ Individual Choice Versus the Commons
={ commons :
     individual choice vs. +8
}

It turns out that overcoming license incompatibilities is not such an easy
task. Any attempt to bridge differences immediately runs into mind-bending
legal complexities. Crafting new licensing language can trigger philosophical
disagreements, some of which may be proxies for turf issues and personal
control. One of the major philosophical disagreements involves the one raised
by Elkin-Koren: the merits of individual choice versus the commons. Should
individuals be allowed to choose how their work may circulate in the wider
world, or is such legal partitioning of culture an affront to the value
proposition of the commons and its sharing ethic? Why should the choices of
individual creators be privileged over the creative needs of the general
culture?
={ Elkin-Koren, Niva ;
   Creative Commons (CC) licenses :
     incompatibility of +4
}

The question is a divisive one. The answer that you give, Yochai Benkler of
Harvard Law School told me, “depends on whether you think that what you’re
doing is building a political movement or whether you’re building a commons
that has narrower appeal, but is potentially, more functionally unitary.”~{
Interview with Yochai Benkler, February 7, 2006. }~ A movement is about
building a “big tent,” he said — a vision that accommodates many different
types of people with different preferences. If you are building a movement,
then you will use terminologies that are attractive to a very broad range of
liberal and illiberal conceptions of choice, he said.
={ Benkler, Yochai :
     social movements, on ;
   Creative Commons (CC) :
     social movement, as
}

But a commons — of the sort that Richard Stallman’s GPL enables for software
code — requires that its members honor a community’s social and moral
priorities. A commons does not cater to individual preferences; its first
priority is to advance the shared goals and relationships of the community. A
commons is not oblivious to the self-interest of individuals. It just fulfills
that self-interest in a different way. A commons does not confer benefits
through individual negotiations or transactions, but instead through an
individual’s good-faith participation in an ongoing, collective process. There
is no individual quid pro quo, in other words. A person’s contributions accrue
to the collective — and benefits flow from belonging to that collective. This
is not an exotic or communistic model; it more or less resembles a scientist’s
relationship with his research discipline. In the style of a gift economy, a
scientist’s articles and lectures are gifts to the discipline; in return, he
enjoys privileged access to his colleagues and their research.
={ Stallman, Richard :
     GPL, and ;
   General Public License (GPL) :
     free software, and +3 ;
   Internet :
     gift economy
}

It is worth noting that a commons does not necessarily preclude making money
from the fruit of the commons; it’s just that any commercial activity cannot
interfere with the integrity of social relationships within the commons. In the
case of GPL’d software, for example, Red Hat is able to sell its own versions
of GNU/Linux only because it does not “take private” any code or inhibit
sharing within the commons. The source code is always available to everyone. By
contrast, scientists who patent knowledge that they glean from their
participation in a scientific community may be seen as “stealing” community
knowledge for private gain. The quest for individual profit may also induce
ethical corner-cutting, which undermines the integrity of research in the
commons.
={ Red Hat ;
   GNU/Linux :
     Red Hat, and ;
   code :
     free access to ;
   commoners :
     sharing by
}

Ironically, the Creative Commons is not itself a commons, nor do its licenses
necessarily produce a commons in the strict sense of the term. The licenses are
/{tools}/ for creating commons. But the tools do not require the creation of a
commons (unlike the GPL). In this sense, a commons of CC-licensed content may
be a “lesser” type of commons because it may have restrictions on what content
may be shared, and how. The choices of individual authors, not the preexisting
claims of the community, are considered paramount.
={ Creative Commons (CC) licenses :
     tools for creating commons, as +3
}

Is one type of commons superior to the others? Does one offer a superior vision
of “freedom”? This philosophical issue has been a recurrent source of tension
between the Free Software Foundation, the steward of the GPL, and the Creative
Commons, whose licenses cater to individual choice.

Strictly speaking, a commons essentially offers a binary choice, explained
Benkler: “You’re in the commons or you’re out of the commons.” By broadening
that binary choice, the CC licenses make the commons a more complicated and
ambiguous enterprise. This is precisely what some critics like Stallman have
found objectionable about certain CC licenses. They don’t necessarily help
forge a community of shared values and commitments. Or as two British critics,
David Berry and Giles Moss, have put it, the CC licenses create “commons
without commonality.”~{ David Berry and Giles Moss, “On the ‘Creative Commons’:
A Critique of the Commons without Commonality,” Free Software Magazine, July
15, 2005, at
http://www.freesoftwaremagazine.com/articles/commons_without_commonality. }~
={ Benkler, Yochai :
     social movements, on ;
   Berry, David ;
   Moss, Giles ;
   Stallman, Richard :
     criticisms by
}

Inviting authors to choose how their work may circulate can result in different
types of “commons economies” that may or may not be interoperable. ShareAlike
content is isolated from NoDerivatives content; NonCommercial content cannot be
used for commercial purposes without explicit permission; and so on.
CC-licensed works may themselves be incompatible with content licensed under
other licenses, such as the GNU Free Documentation License.

2~ Freedom, the Commons, and Movement Building
={ free culture +9 }

The slightly confused layperson may ask, Why does all of this matter? The
answer may depend on your commitment to the commons as a different (better?)
way of creating value. Do you believe in individual freedom and choice, as
conceived by contemporary liberal societies? Or do you believe in the
/{different type of freedom}/ that comes through participation in a community
of shared values?
={ commons :
     individual choice vs. +8
}

Does this state the choice too starkly, as an either/or proposition? Some
believe that it does. Perhaps a broader taxonomy of commons is possible.
Perhaps a commons can accommodate some measure of individual choice. Or is that
an oxymoron?

These are pivotal questions. The answers point toward different visions of free
culture and different strategic ideas about movement building. Is it enough to
put forward a demanding, utopian ideal of the commons, and hope that it will
attract a corps of true believers willing to toil away in the face of general
indifference or hostility? This is essentially what Stallman has done. Or is it
better to build a “coalition of the reasonable,” so that a more accessible,
practical vision can gain widespread social acceptance and political traction
in a relatively short period of time? This is the vision that drives Larry
Lessig and his allies.
={ Stallman, Richard :
     criticisms by | freedom, and ;
   Lessig, Lawrence :
     freedom, and ;
   free culture :
     differing visions of +3
}

Some critics accuse Creative Commons of betraying the full potential of the
commons because its licenses empower individual authors to decide how
“shareable” their works can be. The licenses do not place the needs of the
general culture or the commons first, as a matter of universal policy, and some
licenses restrict how a work may be used. The lamentable result, say critics
like Niva Elkin-Koren, is a segmented body of culture that encourages people to
think of cultural works as property. People internalize the norms, such as
“This is /{my work}/ and /{I’ll}/ decide how it shall be used by others.”
={ Elkin-Koren, Niva ;
   commoners :
     sharing by +1 ;
   Creative Commons (CC) licenses :
     critics of +2
}

This can be seen in the actual choices that CC licensors tend to use. Some 67
percent of CC-licensed works do not allow commercial usage.~{ Based on Yahoo
queries, June 13, 2006, at http://wiki.creativecommons.org/License_Statistics.
}~ Arguments go back and forth about whether the NC restriction enhances or
shrinks freedom. Many musicians and writers want to promote their works on the
Internet while retaining the possibility of commercial gain, however remote;
this would seem a strike for freedom. Yet critics note that the NC license is
often used indiscriminately, even when commercial sales are a remote
possibility. This precludes even modest commercial reuses of a work, such as
reposting of content on a blog with advertising.~{ Eric Muller, “The Case for
Free Use: Reasons Not to Use a Creative Commons–NC License,” at
http://freedomdefined.org/Licenses/NC. }~

The larger point of criticism is that the Creative Commons licenses do not
“draw a line in the sand” about what types of freedoms are inherent to the
commons. In the interest of building a broad movement, Creative Commons does
not insist upon a clear standard of freedom or prescribe how a commons should
be structured.

“While ideological diversity may be crucial for the successes of a social
movement,” observed Elkin-Koren, “it may impair attempts to make creative works
more accessible. The lack of a core perception of freedom in information, may
lead to ideological fuzziness. This could interfere with the goal of offering a
workable and sustainable alternative to copyright.”~{ Niva Elkin-Koren,
“Exploring Creative Commons: A Skeptical View of a Worthy Pursuit,” chapter 14
in Lucie Guibault and P. Bernt Hugenholtz, editors, /{The Future of the Public
Domain: Identifying the Commons in Information Law}/ (The Netherlands: Kluwer
Law International BV, 2006), p. 326. }~ In an essay that offers “a skeptical
view of a worthy pursuit,” Elkin-Koren says that the CC regime encourages
narrow calculations of self-interest and the same attitudes toward property and
individual transactions as the market economy; it does not promote a coherent
vision of “freedom” that fortifies the commons as such.
={ Elkin-Koren, Niva +2 ;
   Creative Commons (CC) :
     social movement, as
}

“The normative message that we communicate by using Creative Commons licenses
is the strategy of choice,” Elkin-Koren told me. “You’re the owner, you’re the
author, and therefore, you are entitled to govern your work. . . . No one tells
you that maybe it’s wrong; maybe you should allow people to use your work.” By
using the CC licenses, she continued, we internalize these norms. “We are
teaching ourselves and others that our works are simply commodities, and like
every other commodity, everyone has to acquire a license in order to use it.”~{
Interview with Niva Elkin-Koren, January 30, 2007. }~
={ authorship :
     control, and
}

But champions of the Creative Commons licenses celebrate their approach as a
pragmatic and effective way to break free from the stifling “all rights
reserved” ethic of copyright law. Historically, of course, not much else has
been successful in challenging copyright norms — which is precisely why Lessig
and others find the CC strategy attractive. “If I believed that there was a
different discourse that had political purchase in someplace other than tiny
corners of law faculty commons rooms, I’d be willing to undertake it,” said
Lessig. He concedes that his viewpoint may be affected by his living in the
United States instead of Israel (where Elkin-Koren lives) but, in the end, he
considers the Creative Commons as “just my judgment about what’s going to be
effective.”~{ Interview with Lawrence Lessig, October 23, 2007. }~
={ Lessig, Lawrence :
     CC licenses, and
}

2~ The Splintering of the Free World?
={ Creative Commons (CC) licenses :
     critics of +20
}

At one point, the philosophical disagreements between the Creative Commons and
its critics did not matter so much. There was enough shared purpose and common
history that everyone could agree to disagree. And since the project was still
young, the stakes were not so high. But then it became clear that the CC
licenses would be quite popular indeed. When the Creative Commons issued its
Developing Nations and Sampling licenses in 2003, it brought Richard Stallman’s
simmering dissatisfaction with the organization to a boil, threatening a
serious schism. Pointing to the “four freedoms” that define the free software
movement, Stallman criticized the new CC licenses as “not free” because they do
not allow universal copying of a work.
={ Stallman, Richard :
     criticisms by +2 | freedom, and +2 ;
   Creative Commons (CC) licenses :
     popularity of ;
   Creative Commons International :
     Developing Nations license
}

Stallman objected to the Sampling license because, while it allowed a remix of
a licensed work, it did not allow the freedom to share it. The Developing
Nations license was objectionable because its freedoms to copy are limited to
people in the developing world, and do not extend to everyone. Stallman also
disliked the fact that the CC tag that licensors affix to their works did not
specify /{which}/ license they were using. With no clear standard of “freedom”
and now a mix of licenses that included two “non-free” licenses, Stallman
regarded the CC tag as meaningless and the organization itself problematic.

“I used to support Creative Commons,” said Stallman on his blog in July 2005,
“but then it adopted some additional licenses which do not give everyone that
minimum freedom, and now I no longer endorse it as an activity. I agree with
Mako Hill that they are taking the wrong approach by not insisting on any
specific freedoms for the public.”~{ Richard Stallman, “Fireworks in Montreal,”
at http://www.fsf.org/blogs/rms/entry-20050920.html. }~

Mako Hill is a brilliant young hacker and Stallman acolyte who wrote a 2005
essay, “Towards a Standard of Freedom: Creative Commons and the Free Software
Movement,”~{ Benjamin Mako Hill, “Towards a Standard of Freedom: Creative
Commons and the Free Software Movement,” /{Advogato}/, July 29, 2005, at
http://www.advogato.org/article/851.html. }~ a piece that shares Elkin-Koren’s
complaint about the CC’s “ideological fuzziness.” Then enrolled in a graduate
program at the MIT Media Lab, Hill has written a number of essays on the
philosophy and social values of free software. (When he was an undergraduate at
Hampshire College, I was an outside advisor for his senior thesis and remain
friends with him.)
={ Elkin-Koren, Niva ;
   Hill, Benjamin Mako +2 ;
   free culture :
     differing visions of +31 ;
   free software :
     social movement, as +31
}

In his “Freedom’s Standard” essay, Hill wrote: “[D]espite CC’s stated desire to
learn from and build upon the example of the free software movement, CC sets no
defined limits and promises no freedoms, no rights, and no fixed qualities.
Free software’s success is built on an ethical position. CC sets no such
standard.” While CC prides itself on its more open-minded “some rights
reserved” standard, Hill says that a real movement for freedom must make a
bolder commitment to the rights of the audience and other creators— namely,
that “essential rights are unreservable.”~{ Interview with Benjamin Mako Hill,
June 1, 2007. }~

By this, Hill means that certain essential freedoms should not be restricted by
copyright law or any license. The problem with the CC licenses, argued Hill, is
that they cannot commit to any "/{defined}/ spirit of sharing" (emphasis in
original). This is not the way to build a transformative, sustainable movement,
said Hill.~{ Ibid. See also Hill, “Freedom’s Standard Advanced?” /{Mute}/,
November 23, 2005, at http://www.metamute.org/en/node/5597. }~

But what, then, about the choice of authors? Doesn’t that freedom count for
anything? CC partisans have responded. Joi Ito, the chair of the Creative
Commons, wrote in 2007, “CC is about providing choice. FSF is mostly about
getting people to make /{their}/ choice. I realize it’s not THAT clear-cut, but
I think the point of CC is to provide a platform for choice. . . . I realize
that we are headed in the same general free culture direction and many of us
debate what choices should be allowed, but I think we are more ‘tolerant’ and
support more diverse views than the FSF.”~{ Joichi Ito, message on iCommons
listserv, June 1, 2007. }~
={ Ito, Joichi }

Lessig has argued many times that, just as the free software community decided
for itself how its content ought to be distributed, so other artistic sectors —
musicians, photographers, filmmakers, etc. — must make such decisions
themselves. If they can’t have certain choices, then they will have little
interest in joining a movement for free culture, said Lessig at the 23rd Chaos
Communication Congress in Berlin. “We don’t have the standing to tell
photographers or musicians what ‘freedom’ is.” Why should the Free Software
Foundation, or any other group, be able to dictate to an artistic community how
their works should circulate?
={ Lessig, Lawrence :
     freedom, and ;
   Free Software Foundation
}

Elkin-Koren is not so sure we can segment the world according to creative
sectors and let each determine how works shall circulate. “I don’t think we can
separate the different sectors, as if we work in different sectors,” she told
me. “We all work in the production of information. My ideas on copyright are
really affected by the art that I use and the music that I listen to. . . .
Information is essential not only for creating something functional or for
selling a work of art, but for our citizenship and for our ability to
participate in society. So it’s not as if we can say, ‘Well, this sector can
decide for themselves.’”~{ Interview with Niva Elkin-Koren, January 30, 2007.
}~
={ Elkin-Koren, Niva }

As Wikipedia began to take off in popularity, what might have been an
unpleasant philosophical rift grew into a more serious fissure with potentially
significant consequences. All Wikipedia content is licensed under the Free
Software Foundation’s GNU Free Documentation License, or FDL,~{ Wikipedia entry
on GNU Free Documentation license, at
http://en.wikipedia.org/wiki/GNU_Free_Documentation_License. }~ largely because
the CC licenses did not exist when Wikipedia was launched in 2001. The FDL,
originally intended for the documentation manuals that explicate software
applications, is essentially the same as the CC ShareAlike license (any
derivative works must also be released under the same license granting the
freedom to share). But using the FDL can get cumbersome, especially as more
video, audio, and photos are incorporated into a text; each artifact would
require that the license be posted on it. As more content is shared, the
potential for misuse of the content, and lawsuits over violations of licensing
agreements, would grow.~{ Michael Fitzgerald, “Copyleft Hits a Snag,”
/{Technology Review}/, December 21, 2005. }~
={ Free Documentation License +10 ;
   GNU Project +10 ;
   Wikipedia :
     GNU FDL, and +10 | CC licenses, and +10
}

Unfortunately, as a legal matter, the FDL is incompatible with the CC licenses.
This means that all content on Wikipedia and its sister Wikimedia projects
(Wikispecies, Wikiquote, Wikinews, among other projects) cannot legally be
combined with works licensed under CC licenses. Angered by the two “non-free”
CC licenses, Stallman dug in his heels and defended Wikipedia’s use of the FDL.
He also made it clear that he would remain a critic of Creative Commons unless
it revoked or changed its licenses to conform with the Free Software
Foundation’s standards of “freedom.”
={ Free Software Foundation ;
   Stallman, Richard :
     criticisms by +5 | Wikipedia, and +5
}

Thus began a four-year search for a resolution. Lessig recalled, “We started to
think about a way that Wikimedia could migrate to a license that we would then
deem as compatible to a Creative Commons license. That took two years of
negotiation, basically.” One proposed solution was for Wikimedia projects to
offer both licenses, the FDL and CC BY-SA, for the same work. However, it was
determined that derivative works licensed under one license would still be
incompatible with dual-licensed works, resulting in “project bleed” (new works
would migrate away the existing corpus of works). Another approach was for a
“one-way compatibility” of licenses, so that people creating works under the
FDL could use CC-licensed content.
={ Lessig, Lawrence :
     CC licenses, and +4 | freedom, and +4
}

But Lessig realized that these solutions dealt only with the issue at hand; the
real challenge was finding a more systemic solution. As various players engaged
with the FDL/CC controversy, it grew from a licensing squabble into an
intertribal confrontation. It became a symbol for everything that Stallman
found politically unacceptable about the Creative Commons’s vision of freedom.

From 2005 to 2007, the issue roiled many factions within the free culture/free
software communities. The debate and invective flew back and forth in various
venues, and there were proposals, negotiations, and political maneuvers. MIT
computer scientist (and CC board member) Hal Abelson rejoined the FSF board.
Lessig and other CC staff entered into talks with the FSF general counsel, Eben
Moglen. Wikipedia co-founder Jimmy Wales joined the Creative Commons board. Yet
Stallman continued to resist, and the Wikimedia board would not approve any
proposed solutions.
={ Abelson, Hal :
     CC board, on | Free Software Foundation, and ;
   Moglen, Eben ;
   Wales, Jimmy
}

The stalemate was broken in June 4, 2007, when Lessig made a surprise
announcement that the Creative Commons was “retiring” the Developing Nations
and Sampling licenses.~{ Lessig post to CC International listserv, June 4,
2007. More about the CC’s retired licenses can be seen at
http://creativecommons.org/retiredlicenses. }~ One reason was a lack of
interest in the licenses: only 0.01 percent of CC licensors were using each
license. But, without alluding to the Free Software Foundation or Stallman,
Lessig also noted that the two licenses did not ensure a minimal freedom to
share a work noncommercially— a standard met by all other CC licenses. In
addition, Lessig pointed out to me, some publishers were beginning to see the
Developing Nations license as a subterfuge to avoid meeting open-access
publishing standards.
={ Free Software Foundation ;
   Creative Commons International :
     Developing Nations license
}

For Creative Commons, the revocation of the two licenses was at least a shrewd
political move; it also affirmed a stricter standard of “freedom” in the
ability to use digital materials. In return for sacrificing two little-used
licenses, the organization gained Stallman’s eventual support for a deal that
would let the FDL be treated as compatible with the CC ShareAlike license. This
was a major triumph because it could avoid the contorted, legalistic solutions
that had been previously proposed and rejected. It was also a breakthrough
because it averted a major rift between two growing bodies of open content and
avoided a slow drift into a wider Balkanization of content across the Internet.
“I kind of thought that no matter what we did, Richard would find a reason to
object,” recalled Lessig, “but he didn’t. He stuck to his principles, so I give
credit to him.”~{ Interview with Lawrence Lessig, October 23, 2007. }~
={ open networks :
     license incompatibility, and
}

The debates about “freedom” produced several specific results. In November
2006, when Creative Commons released an updated legal version of its licenses,
version 3.0, it formally recognized other licenses as legally compatible with
the ShareAlike license if they have the same purpose, meaning, and effect, and
if the other license recognizes the CC license. The move should help avoid
future strife over interoperability.

A few months later, the Creative Commons also adopted a “Free Cultural Works”
definition and seal as a way to recognize works that are “free,” as understood
by the Free Software Foundation. The definition declares that works with either
the CC Attribution or Attribution-ShareAlike licenses should be considered
“free” because they give people the freedom to modify works without any
discrimination against specific uses or users. The definition and seal
/{exclude}/ the CC NonCommercial and NoDerivatives licenses, however, because
those licenses do not allow this sort of freedom. The purpose of the seal is
not to denigrate use of the NC and ND licenses, but to educate users about the
less restrictive licenses and to assert a philosophical solidarity with the
free software community.
={ Free Software Foundation }

As part of this larger effort, the Creative Commons also issued a draft
statement in April 2008 declaring the special importance of the ShareAlike
license in the free culture movement and the organization’s intentions in its
stewardship of the license. The statement amounted to a diplomatic peace
treaty, to be finalized in the months ahead.
={ free culture :
     sharing ethic of +1
}

By May 2008 the details of the agreement to make Wikipedia’s entries, licensed
under the FDL, legally compatible with materials licensed under the CC
ShareAlike license had not been consummated. But it was expected that the legal
technicalities would be ironed out, and two great bodies of open content would
no longer be legally off-limits to each other.

2~ Criticism from the Left and from the South

As the Creative Commons has grown in popularity, a longer line has formed to
take issue with some of its fundamental strategies. One line of criticism comes
from anticapitalist ideologues, another from scholars of the underdeveloped
nations of the South.

British academics Berry and Moss apparently hanker for a more bracing
revolution in culture;they object to the commodification of culture in any form
and to the role that copyright law plays in this drama. To them, Lessig is
distressingly centrist. He is “always very keen to disassociate himself and the
Creative Commons from the (diabolical) insinuation that he is (God forbid!)
anti-market, anticapitalist, or communist,” Berry and Moss complain.~{ David
Berry and Giles Moss, “On the ‘Creative Commons’: A Critique of the Commons
Without Commonality,” /{Free Software Magazine}/, July 15, 2005, at
http://www.freesoftwaremagagine.com/articles/commons_without_commonality }~ The
gist of their objection: Why is Lessig collaborating with media corporations
and neoclassical economists when there is a larger, more profound revolution
that needs to be fought? A new social ethic and political struggle are needed,
they write, “not lawyers exercising their legal vernacular and skills on
complicated licenses, court cases and precedents.”
={ Berry, David ;
   Moss, Giles ;
   Lessig, Lawrence :
     CC licenses, and
}

Dense diatribes against the antirevolutionary character of Creative Commons can
be heard in various hacker venues and cultural blogs and Web sites. The
argument tends to go along the lines sketched here by Anna Nimus of Berlin,
Germany:
={ Nimus, Anna +1 }

_1 Creative Commons preserves Romanticism’s ideas of originality, creativity
and property rights, and similarly considers “free culture” to be a separate
sphere existing in splendid isolation from the world of material production.
Ever since the 18th century, the ideas of “creativity” and “originality” have
been inextricably linked to an anti-commons of knowledge. Creative Commons is
no exception. There’s no doubt that Creative Commons can shed light on some of
the issues in the continuing struggle against intellectual property. But it is
insufficient at best, and, at its worst, it’s just another attempt by the
apologists of property to confuse the discourse, poison the well, and crowd out
any revolutionary analysis.~{ Anna Nimus, “Copyright, Copyleft and the Creative
Anti-Commons,” at http://subsol.c3.hu/subsol_2/contributors0/nimustext.html. }~

To ensure that her revolutionary analysis gets out, Nimus released her piece
under a self-styled “Anticopyright” notation, with the added phrase, “All
rights dispersed.”

A more penetrating brand of criticism has come from the South, which fears that
the West’s newfound enthusiasm for the commons may not necessarily benefit the
people of developing nations; indeed, it could simply legitimate new thefts of
their shared resources. In an important 2004 law review article, “The Romance
of the Public Domain,” law professors Anupam Chander and Madhavi Sunder argue
that “public domain advocates seem to accept that because a resource is open to
all by force of law, that resource will indeed be exploited by all. In
practice, however, differing circumstances — including knowledge, wealth, power
and ability — render some better able than others to exploit a commons. We
describe this popular scholarly conception of the commons as ‘romantic.’ . . .
It is celebratory, even euphoric, about the emancipatory potential of the
commons. But it is also naïve, idealistic and removed from reality.”~{ Anupam
Chander and Madhavi Sunder, “The Romance of the Public Domain,” California Law
Review 92, no. 1131 (2004), p. 1341. }~
={ Chander, Anupam +2 ;
   Sunder, Madhavi +2 ;
   free culture :
     international +2 ;
   public domain +3 :
     commons, and +3
}

If genes, seeds, indigenous medicines, agricultural innovations, artistic
designs, music, and the various ecological and cultural resources of the South
are not treated as private property, but instead as elements of the public
domain, then anyone can exploit them freely. This can lead to serious
injustices, as powerful corporations swoop in to exploit resources that are
available to all in the public domain.

Chander and Sunder write: “By presuming that leaving information and ideas in
the public domain enhances ‘semiotic democracy’ — a world in which all people,
not just the powerful, have the ability to make cultural meanings — law turns a
blind eye to the fact that for centuries the public domain has been a source
for exploiting the labor and bodies of the disempowered — namely, people of
color, the poor, women and people from the global South.”~{ Ibid., p. 1343. }~
Chander and Sunder argue that the binary logic of copyright law — something is
either private property or in the public domain — “masks the ways in which the
commons often functions more in the interests of traditional property owners
than in the interests of commoners.”
={ democracy :
     semiotic
}

This critique makes clear why the distinction between the public domain and the
commons matters. The public domain is an open-access regime available to all;
it has no property rights or governance rules. The commons, however, is a legal
regime for ensuring that the fruits of collective efforts remain under the
control of that collective. The GPL, the CC licenses, databases of traditional
knowledge, and sui generis national statutes for protecting biological
diversity all represent innovative legal strategies for protecting the commons.
The powerful can exploit and overwhelm the public domain, but they are not
likely to overwhelm a commons that has a legal regime to protect a collective’s
shared resources.
={ commons :
     protection of ;
   General Public License (GPL) :
     commons, and
}

A more radical and profound critique of the commons came in an open letter to
“inhabitants of the ‘legal’ Commons” from “Denizens of Non Legal Commons, and
those who travel to and from them.” The three-page letter, drafted by
Shuddhabrata Sengupta, a filmmaker and writer with the Raqs Media Collective in
New Delhi, is a plea for recognizing the informal sharing economy that
flourishes beneath the oblivious gaze of mainstream society, and certainly
beyond the reach of property rights and law.
={ Sengupta, Shuddhabrata }

“Greetings!” the letter opens. “This missive arrives at your threshold from the
proverbial Asiatic street, located in the shadow of an improvised bazaar, where
all manner of oriental pirates and other dodgy characters gather to trade in
what many amongst you consider to be stolen goods.” To this /{other}/ commons,
stolen goods are really “borrowed,” because nothing is really “owned” — and
therefore nothing can be “stolen.” This is the realm of “the great circulating
public library of the Asiatic street.” The letter continues:

_1 We appreciate and admire the determination with which you nurture your
garden of licenses. The proliferation and variety of flowering contracts and
clauses in your hothouses is astounding. But we find the paradox of a space
that is called a commons and yet so fenced in, and in so many ways, somewhat
intriguing. The number of times we had to ask for permission, and the number of
security check posts we had to negotiate to enter even a corner of your commons
was impressive. . . . Sometimes we found that when people spoke of “Common
Property” it was hard to know where the commons ended and where property began
. . .

_1 Strangely, the capacity to name something as “mine,” even if in order to
“share” it, requires a degree of attainments that is not in itself evenly
distributed. Not everyone comes into the world with the confidence that
anything is “theirs” to share. This means that the “commons,” in your parlance,
consists of an arrangement wherein only those who are in the magic circle of
confident owners effectively get a share in that which is essentially, still a
configuration of different bits of fenced in property. What they do is
basically effect a series of swaps, based on a mutual understanding of their
exclusive property rights. So I give you something of what I own, in exchange
for which, I get something of what you own. The good or item in question never
exits the circuit of property, even, paradoxically, when it is shared. Goods
that are not owned, or those that have been taken outside the circuit of
ownership, effectively cannot be shared, or even circulated.~{ “A Letter to the
Commons, from the participants of the ‘Shades of the Commons Workshop,’ ” in
/{In the Shade of the Commons:Towards a Culture of Open Networks}/ (Amsterdam,
Netherlands: Waag Society, 2006), at
http://www3.fis.utoronto.ca/research/iprp/cracin/publications/pdfs/final/werbin_InThe
Shade.pdf. }~

The letter invites a deeper consideration of how humans form commons. However
ingenious and useful the jerry-rigged legal mechanisms of the GPL and Creative
Commons, the disembodied voice of the Non Legal Commons speaks, as if through
the sewer grate, to remind us that the commons is about much more than law and
civil society. It is part of the human condition. Yet the chaotic Asiatic
street is not likely to yield conventional economic development without the
rule of law, civil institutions, and some forms of legal property. The question
posed by the informal commons remains a necessary one to ponder: What balance
of commons and property rights, and in what forms, is best for a society?

2~ Fair Use and the Creative Commons
={ Creative Commons (CC) licenses :
     fair use, and +15 ;
   fair use doctrine :
     CC licenses, and +15
}

Walk through the blossoming schools of commons thought and it quickly becomes
clear that the commons is no monolithic ideal but a many-splendored mosaic of
perspectives. To the befuddlement of conventional observers, the perspectives
are not necessarily adversarial or mutually exclusive. More often than not,
they are fractal— interesting variations of familiar commons themes. In our
fascination with newfangled commons, it is easy to overlook a more
traditionally minded defender of the commons: the champion of fair use. It is
all well and good to promote works that are “born free” under CC licenses, say
these friendly critics. But the hard fact of the matter is that for the
foreseeable future, creators will still need access to copyrighted content —
and this requires a strong fair use doctrine and aggressive public education.

It is a compelling argument, but in fact only an indirect criticism of Creative
Commons. For filmmakers who need to use film clips from existing films and
musicians who want to use a riff from another performer, the fair use doctrine
is indeed more important than any CC license. Peter Jaszi, the law professor at
American University’s Washington School of Law, believes that even with growing
bodies of CC-licensed content, “teachers, filmmakers, editors, freelance
critics and others need to do things with proprietary content.” As a practical
matter, they need a strong, clear set of fair use guidelines.
={ Jaszi, Peter +2 }

Jaszi and his colleague Pat Aufderheide, a communications professor who runs
the Center for Social Media at American University, have dedicated themselves
to clarifying the scope and certainty of fair use. They have launched a major
fair use project to get specific creative communities to define their “best
practices in fair use.” If filmmakers, for example, can articulate their own
artistic needs and professional interests in copying and sharing, then the
courts are more likely to take those standards into consideration when they
rule what is protected under the fair use doctrine.~{ Center for Social Media,
at http://www.centerforsocialmedia.org/fairuse. See also Pat Aufderheide and
Peter Jaszi, “Fair Use and Best Practices: Surprising Success,” /{Intellectual
Property Today}/, October 2007, at
http://www.iptoday.com/articles/2007-10-aufderheide.asp; and Peter Jaszi,
“Copyright, Fair Use and Motion Pictures,” /{Utah Law Review}/ 3, no. 715
(2007), and which also appeared in R. Kolker, ed., /{Oxford Handbook of Film
and Media Studies}/ (2007), at
http://www.centerforsocialmedia.org/files/pdf/fairuse_motionpictures.pdf. }~ A
set of respectable standards for a given field can help stabilize and expand
the application of fair use.
={ Aufderheide, Pat +1 }

Inspired in part by a professional code developed by news broadcasters, some of
the nation’s most respected filmmakers prepared the Documentary Filmmakers’
Statement of Best Practices in Fair Use, which was released in November 2005.
The guidelines have since been embraced by the film industry, television
programmers, and insurance companies (who insure against copyright violations)
as a default definition about what constitutes fair use in documentary
filmmaking.~{ Aufderheide and Jaszi, /{Intellectual Property Today}/, October
2007, at http://www.iptoday.com/articles/2007-10-aufderheide.asp. }~
Aufderheide and Jaszi are currently exploring fair use projects for other
fields, such as teaching, as a way to make fair use a more reliable legal tool
for sharing and reuse of works.

Lessig has been highly supportive of the fair use project and, indeed, he
oversees his own fair use law clinic at Stanford Law School, which litigates
cases frequently. “It’s not as if I don’t think fair use is important,” said
Lessig, “but I do think that if the movement focuses on fair use, we don’t
attract the people we need. . . . From my perspective, long-term success in
changing the fundamental perspectives around copyright depends on something
like Creative Commons as opposed to legal action, and even quasi-legal action,
like the Fair Use Project.”
={ Lessig, Lawrence :
     fair use, on +5
}

For Lessig, fair use is deeply flawed as the basis for building a political
movement to reform copyright law. He argues that its advocates are dogged by
the (unfair) perception that they are “just a bunch of people who want to get
stuff for free, without paying for it. . . . It’s too easy to dismiss that
movement.” Lessig recalled the time that the head of a major record label
snorted, “Fair use is the last refuge of the scoundrel.” Fair use defenders
obviously take issue with this characterization, but the accusation nonetheless
pushes fair use champions into a rhetorical corner from which it is difficult
to escape.

A more appealing alternative, Lessig argues, is to use the credibility of
copyright ownership to argue the point in a different way. He cited the
successful campaign by European software engineers in the 1980s to fight
attempts to expand patent protection for software. Their campaign did not
resemble “a bunch of peer-to-peer downloaders who are saying, ‘Yeah, I want my
music for free,’” said Lessig. “It was a bunch of people who are the
/{beneficiaries}/ of patent rights saying, ‘Look, we /{don’t want}/ these
rights.’ That creates a kind of credibility.” From a moral and political
standpoint, Lessig argued, a movement based on copyright owners declaring that
they want to forfeit certain rights in order to /{share}/ and promote
creativity, has greater credibility than a campaign seeking to “balance” the
public’s rights against private copyright privileges.

“I imagine a world where there are one hundred million Creative
Commons–licensed artists out there, creating works according to Creative
Commons views,” he said. Then, when Hollywood pressures Congress for stronger
copyright protections, he said, “there would be all these people out there who
are creating according to a radically different model. [Hollywood’s] claims
about extremism would just not be true for a large number of creators.” Instead
of a copyright debate that pits “creators” against “pirates,” Lessig said, “I
want to create this world where there is a third category of people who are
creators, but who create according to different values, values that emphasize
the importance of sharing and building upon the past.”~{ Interview with
Lawrence Lessig, October 23, 2007. }~
={ piracy }

In the larger scheme of things, the tensions between the fair use and free
culture advocates are not mutually exclusive. In the end, the two approaches
complement each other with different contributions. Both seek to promote
sharing and reuse, but the former works within the traditional framework of
copyright law; the latter is trying to build a whole new body of culture and
discourse. There is a kind of gentleman’s agreement between the fair use and
free culture communities to work on different sides of the street, while
traveling a parallel path down the same road.
={ free culture :
     fair use vs. +2 ;
   fair use doctrine :
     copyright law, and ;
   copyright law :
     fair use doctrine, and
}

For Lessig, there is little advantage in shirking the property rights discourse
of copyright law, as Elkin-Koren and the “Non Legal Commons” urge. Indeed, he
sees a distinct strategic advantage in /{embracing}/ that discourse — and then
trying to turn it to different ends. This, in a way, is what Stallman succeeded
in doing with the GPL, a license based on copyright law. Yet, while Stallman
attracted a somewhat homogeneous community of programmers to his movement,
Creative Commons has attracted a sprawling community of eclectic interests,
diverse priorities, and no agreed-upon philosophical core.
={ Elkin-Koren, Niva ;
   copyright law :
     property rights, and ;
   property rights :
     copyright law, and ;
   free software :
     social movement, as
}

By choosing a middle path that embraces but seeks to transform property
discourse, Creative Commons may avoid the marginalization of ardent leftists
and the modest agenda of fair use activism. It remains an open question whether
the ideological fuzziness at the core of Creative Commons, or the limitations
of its licenses, is offset by its success in popularizing a new cultural
vision. Yochai Benkler, the great commons theorist, understands the legal
criticisms, and agrees with them to an extent. But ultimately, the significance
of Creative Commons, he believes, has been “in galvanizing a movement, in
symbolizing it and in providing a place to organize around. From my
perspective, if I care about Creative Commons, it is as a cultural icon for a
movement, more than as a set of licenses. Which is why I am less bothered than
some, about the people who are beginning to criticize Creative Commons and how
good the licenses really are, and how compatible they are.”~{ Interview with
Yochai Benkler, February 7, 2006. }~
={ Benkler, Yochai :
     social movements, on ;
   free culture :
     social movement, as +4
}

For Cory Doctorow, the copyfighter and sci-fi writer, the eclectic viewpoints
within the free culture movement is a decisive strength: “The difference
between a movement and an organization,” he wrote on the iCommons listserv, “is
that an organization is a group of people who want the same thing for the same
reason. A movement is a collection of groups of people who want the same thing
for different reasons. Movements are infinitely more powerful than
organizations.”
={ Doctorow, Cory :
     free culture movemement, and +1
}

The reason the environmental movement is so powerful, Doctorow continued, is
the very fact that it encompasses “anticapitalists, green investors,
spiritualists, scientists, hunters and fishers, parents worried about
environmental toxins, labor reformers, proglobalists, anti-globalists, etc. . .
. Denuding the ideological landscape of the environmental movement in a purge
to eliminate all those save the ones who support environmentalism /{qua}/
environmentalism would be the worst setback environmentalism could suffer.
Likewise copyfighters: there are Marxists, anarchists, Ayn Rand objectivists,
economists, artists, free marketeers, libertarians, liberal democrats, etc.,
who see copyright liberalization as serving their agenda. If we insist that
copyright reform is about copyright reform and nothing else, there will be no
copyright reform movement.”~{ Cory Doctorow, iCommons listserv [thread, “Andrew
Orlowski Attacks Lessig], June 1, 2007. }~
={ Rand, Ayn }

There is a price to be paid for all this diversity, however. Diversity means
constant debate. Debate can escalate into strife and sectarianism. And in the
free culture movement, where so many people are feverishly improvising and
inventing, nearly everything is open for debate. It turns out that this
business of inventing the commons is complicated stuff; there are many ways to
construct a commons. It is only natural for people to have their own ideas
about how to build the digital republic.

The fundamental question may be whether the existing framework of copyright law
and property discourse can be adequately reformed — or whether its very
categories of thought are the problem. The late poet and activist Audre Lorde,
in the context of feminist struggle, declared that the prevailing discourse
must be overthrown, not reformed, because, in her words, “the master’s tools
will never dismantle the master’s house.” Within the free software and free
culture movements, however, there are those who believe that copyright law can
be sufficiently adapted to build a sharing economy, a more competitive
marketplace, and a more humane democratic culture. Others are convinced that
the legal discourse of property rights, however modified, will simply entrench
the very principles that they wish to transcend. As the movement grows and
diversifies, debates over what constitutes the most strategic, morally
honorable path forward are likely to intensify.
={ Lorde, Audre ;
   copyright law :
     property rights, and ;
   property rights :
     copyright law, and ;
   free software :
     social movement, as
}

:B~ PART III

:C~ A Viral Spiral of New Commons

1~intro_iii [Intro] -#

By 2008 the viral spiral had come a long way. Richard Stallman’s fringe
movement to build a commons for code became an enormous success, partly
inspiring Lawrence Lessig and his compatriots to develop the Creative Commons
licenses and a larger vision of free culture. Empowered by these tools,
ordinary people began to develop some exciting new models for creativity and
sharing. New types of commons arose. Soon there was a popular discourse about
the sharing economy, a politics of open networks, and a new international
social movement. The movement was so successful at diversifying itself that it
was able to engage in serious internecine squabbles.
={ Stallman, Richard :
     influence of ;
   code :
     free access to ;
   commons :
     achievement of ;
   free culture ;
   Lessig, Lawrence :
     CC licenses, and ;
   open networks +1
}

As the commons movement matured, and people came to understand the
sensibilities of open networks, the viral spiral seemed to acquire new speed
and powers. Over the past few years, it has advanced into all sorts of new
arenas. Part III examines three of the most exciting ones — business, science,
and education. Each has taken the tools and insights developed by the commons
movement — free software, CC licenses, collaborative models — and adapted them
to its own special needs.

These spin-off movements of entrepreneurs, scientists, and educators recognize
their debt to the free software and CC licenses, but none feels confined by
that history or beholden to its leaders. Each is too intent on adapting the
tools to its own circumstances. Just as CC licenses have been used in some ways
by musicians, and in other ways by filmmakers, and in still other ways by
bloggers, so the commoners in the worlds of business, science, and education
are forging their own paths. Development requires differentiation. It is
fascinating to watch how the principles of the commons are being crafted to
meet the distinctive needs of the marketplace, the academy, the research lab,
and the classroom.

What may be most notable about these developments is the blurring of these very
categories. On open platforms, social communities are becoming sites for market
activity. Scientists are increasingly collaborating with people outside their
disciplines, including amateurs. Formal education is becoming more focused on
learning, and learning is moving out of the classroom and into more informal
and practice-driven venues.

If there is a common denominator in each of the domains examined in Part III,
it is the use of distributed networks, social community, and digital
technologies to enhance the goals at hand. The new open business models seek to
bring consumer and seller interests into closer alignment. The new science
commons seek to create more powerful types of research collaboration. The open
educational resources movement wants knowledge to circulate more freely and
students to direct their own learning.

For the short term, the fledgling models in these fields are likely to be seen
as interesting novelties on the periphery of the mainstream. In time, however,
given what we know about network dynamics, the new models are likely to
supplant or significantly transform many basic parameters of business, science,
and education. The participatory practices that open networks enable are
showing that knowledge is more about socially dynamic relationships than about
fixed bodies of information. These relationships are also spawning new
challenges to institutional authority and expertise. If one looks closely
enough, the matrix for a very different order of knowledge, institutional life,
and personal engagement can be seen.

1~ 10 THE NEW OPEN BUSINESS MODELS
={ open business models +79 }

/{The commons and the market can be great partners if each shows respect for
the other and ingenuity in working together.}/

Entrepreneur John Buckman concedes that his Internet record label, Magnatune,
amounts to “building a business model on top of chaos.”~{ John Buckman
presentation at iCommons Summit, Dubrovnik, Croatia, June 15, 2007. }~ That is
to say, he makes money by honoring open networks and people’s natural social
inclinations. The company rejects the proprietary muscle games used by its
mainstream rivals, and instead holds itself to an ethical standard that verges
on the sanctimonious: “We are not evil.” In the music industry these days, a
straight shooter apparently has to be that blunt.
={ Buckman, John +4 ;
   Magnatune +8 ;
   music :
     CC licenses for +8 ;
   Creative Commons (CC) licenses :
     music, for +8
}

Magnatune is a four-person enterprise based in Berkeley, California, that since
2003 has been pioneering a new open business model for identifying and
distributing high-quality new music. It does not lock up the music with
anticopying technology or digital rights management. It does not exploit its
artists with coercive, unfair contracts. It does not harass its customers for
making unauthorized copies. Internet users can in fact listen to all of
Magnatune’s music for free (not just music snippets) via online streaming.~{
John Buckman entry in Wikipedia, at http://en.wikipedia.org/wiki/John_Buckman.
}~

Buckman, a former software programmer turned entrepreneur in his thirties,
previously founded and ran Lyris Technologies, an e-mail list management
company that he sold in 2005. In deciding to start Magnatune, he took note of
the obvious realities that the music industry has tried to ignore: radio is
boring, CDs cost too much, record labels exploit their artists, file sharing is
not going to go away, people love to share music, and listening to music on the
Internet is too much work. “I thought, why not make a record label that has a
clue?” said Buckman.~{ John Buckman at Magnatune home page, at
http://www.magnatune.com/info/why. }~

Well before the band Radiohead released its In /{Rainbows}/ album with a “pay
what you want” experiment, Magnatune was inviting its customers to choose the
amount they would be willing to pay, from $5 to $18, for any of Magnatune’s 547
albums. Buckman explains that the arrangement signals a respect for customers
who, after all, have lots of free music choices. It also gives them a chance to
express their appreciation for artists, who receive 50 percent of the sales
price. “It turns out that people are quite generous and they pay on average
about $8.40, and they really don’t get anything more for paying more other than
feeling like they’re doing the right thing,” said Buckman.~{ John Buckman,
interview with Matthew Magee of Out-Law.com, radio podcast, September 13, 2007,
at http://www.out-law.com/page-8468. }~ About 20 percent pay more than $12.~{
John Buckman at iCommons, June 15, 2007. For an extensive profile of Buckman
and Magnatune, see
http://www.openrightsgroup.org/creativebusiness/index.php/John_Buckman:_Magnatune.
}~
={ Radiohead }

“The reality is today nobody really needs to pay for music at all,” he
acknowledges. “If you choose to hit the ‘buy’ button at Magnatune then you’re
one of the people who has decided to actually pay for music. Shouldn’t we
reflect that honest behavior back and say, well, if you’re one of the honest
people how much do you want to pay?”~{ John Buckman, interview with Matthew
Magee, September 13, 2007. }~ The set-your-own-price approach is part of
Magnatune’s larger strategy of building the business by cultivating open,
interactive relationships with its customers and artists. “If you set up a
trusting world,” explains Buckman, “you can be rewarded.”

Magnatune’s business model embraces the openness of the Internet and makes it a
virtue, rather than treating it as a bothersome liability that must be
elaborately suppressed. All of Magnatune’s music is released as MP3 files, with
no digital rights management, under a CC Attribution-NonCommercial-ShareAlike
license. This means that customers can legally make their own remixes and
covers of songs, and take samples, so long as the uses are noncommercial and
carry the same CC license. Magnatune also invites customers to give free
downloads of purchased music to three friends. Podcasters have free access to
the entire Magnatune catalog.

By using a CC license, Magnatune saves a bundle by not having to oversee
complex terms and conditions for usage of music. Nor does it have to maintain a
DRM system and police the behavior of its customers, both of which squander a
key marketing asset: consumer goodwill. Instead, the music circulates freely
and, in so doing, expands public awareness of Magnatune’s 244 artists.

Two-thirds of Magnatune’s revenues comes from licensing its music to films,
ads, television, and shops. Like so many open business models, it has carved
out a mid-tier niche between “expensive and proprietary” and “cheap and
crummy.” Most mainstream music licensing involves either expensive, highly
lawyered deals with record labels or insipid stock music from royalty-free CDs.
Magnatune’s innovation is to offer high-quality music in multiple genres at
flatrate licenses for sixteen different usage scenarios. The deals can be
easily consummated via the Web; artists share in half the proceeds. No
accounting flimflam. To date, Magnatune has licensed its music to more than one
thousand indie films and many commercials.

Magnatune is a small, fledgling enterprise in the $4 billion music industry. It
does not have all the answers, and it may be sideswiped by bigger players at
some point. But Magnatune is lean, nimble, profitable, and growing. It has
shown how innovative business models can flourish in the open environment of
the Internet. Unlike its bloated, besieged competitors, Magnatune is willing to
listen closely to its customers, artists, and licensing clients. It is
fair-minded and straightforward; it wants to share the wealth and let the music
flow.

2~ Open Networks Spur New Business Models
={ open networks :
     new business models in +16 ;
   open business models :
     open networks and +16
}

Openness does not come intuitively to many businesses. Competitive advantage
has long been associated with exclusive control and secrecy. But as the
Internet’s power expands, conventional businesses are feeling pressures to
rethink their “closed” business models. A new breed of “open businesses” is
demonstrating that a reliance on open-source software, open content, and an
ethic of transparency in dealings with all corporate stakeholders can be
tremendously competitive.
={ open business models :
     transparency in ;
   transparency ;
   Internet :
     rise of
}

Open businesses understand the Great Value Shift discussed in chapter 5 — that
working through open networks and commons is likely to generate greater
consumer attention, engagement, and loyalty — and thus sales — and may
outperform a more exclusive regime of control. Working on an open network is
also the best way for a company to get smarter faster, and to stay alert to
changing market conditions. It bears noting that business models are not an
either/or choice — that is, all open or all closed. There is a continuum of
choices, as we will see below. Sometimes there are heated strategic and moral
debates about what level of openness to adopt, yet the general trend in
business today is clear: toward openness.
={ Great Value Shift ;
   open business models :
     Great Value Shift, and
}

Even as broadcast networks decry the posting of copyrighted television programs
on YouTube, they clearly welcome the ratings spikes that ensue. Wireless
telephony is fragmented among many proprietary systems, but pressures are now
growing to make them compete on an open platform.~{ See,e.g., Walter
S.Mossberg, “Free My Phone,” /{Wall Street Journal}/, October 22, 2007, p. R1.
}~ European regulators are calling for “open document format” standards to
prevent Microsoft from abusing its proprietary standards in its Office suite of
software. There are even calls for open standards for avatars in virtual worlds
like Second Life, The Lounge, and Entropia Universe, so that our digital alter
egos can glide from one virtual community to another.~{ Steve Lohr, “Free the
Avatars,” New York Times, October 15, 2007. }~
={ YouTube ;
   Microsoft :
     competition against ;
   open business models :
     interoperability of +1
}

Why this inexorable trend toward openness? Because on open networks, excessive
control can be counterproductive. The overall value that can be created through
interoperability is usually greater than the value that any single player may
reap from maintaining its own “walled network.”~{ See Elliot E. Maxwell, “Open
Standards, Open Source, and Open Innovation: Harnessing the Benefits of
Openness,” /{Innovations:Technology, Governance, Globalization}/ 1, no. 3
(Summer 2006), at http://www.emaxwell.net. }~ For a company to reap value from
interoperability, however, it must be willing to compete on an open platform
and it must be willing to share technical standards, infrastructure, or content
with others. Once this occurs, proprietary gains come from competing to find
more sophisticated ways to add value in the production chain, rather than
fighting to monopolize basic resources. Advantage also accrues to the company
that develops trusting relationships with a community of customers.
={ open business models :
     value created in +9 ;
   value :
     creation of +9
}

Free software was one of the earliest demonstrations of the power of online
commons as a way to create value. In his classic 1997 essay “The Cathedral and
the Bazaar,” hacker Eric S. Raymond provided a seminal analysis explaining how
open networks make software development more cost-effective and innovative than
software developed by a single firm.~{ Eric Raymond, “The Cathedral and the
Bazaar,” May 1997, at http://www.catb.org/~esr/writings/cathedral-bazaar. The
essay has been translated into nineteen languages to date. }~ A wide-open
“bazaar” such as the global Linux community can construct a more versatile
operating system than one designed by a closed “cathedral” such as Microsoft.
“With enough eyes, all bugs are shallow,” Raymond famously declared. Yochai
Benkler gave a more formal economic reckoning of the value proposition of open
networks in his pioneering 2002 essay “Coase’s Penguin, or, Linux and the
Nature of the Firm.”~{ Yochai Benkler, “Coase’s Penguin, or, Linux and the
Nature of the Firm,” /{Yale Law Journal}/ 112, no. 369 (2002), at
http://www.benkler.org/CoasesPenguin.html. }~ The title is a puckish commentary
on how GNU/Linux, whose mascot is a penguin, poses an empirical challenge to
economist Ronald Coase’s celebrated “transaction cost” theory of the firm. In
1937, Coase stated that the economic rationale for forming a business
enterprise is its ability to assert clear property rights and manage employees
and production more efficiently than contracting out to the marketplace.
={ Benkler, Yochai :
     open networks, on +3 ;
   Raymond, Eric S. :
     “The Cathedral and the Bazaar” ;
   free software :
     creation of value, and ;
   Linux :
     open business models, and ;
   Microsoft :
     competition against ;
   Coase, Ronald ;
   GNU/Linux :
     open business models, and ;
   transaction costs :
     theory of ;
   open business models :
     “transaction cost” theory, and
}

What is remarkable about peer production on open networks, said Benkler, is
that it undercuts the economic rationale for the firm; commons-based peer
production can perform certain tasks more efficiently than a corporation. Those
tasks must be modular and divisible into small components and capable of being
efficiently integrated, Benkler stipulated. The larger point is that value is
created on open networks in very different ways than in conventional markets.
Asserting proprietary control on network platforms may prevent huge numbers of
people from giving your work (free) social visibility, contributing new value
to it, or remixing it. “The only thing worse than being sampled on the
Internet,” said Siva Vaidhyanathan, with apologies to Oscar Wilde, “is not
being sampled on the Internet.”
={ Vaidhyanathan, Siva }

The /{New York Times}/'s experience with its paid subscription service,
TimesSelect, offers a great example. The /{Times}/ once charged about fifty
dollars a year for online access to its premier columnists and news archives.
Despite attracting more than 227,000 subscribers and generating about $10
million a year in revenue, the /{Times}/ discontinued the service in 2007.~{
Richard Pérez-Peña, “Times to Stop Charging for Parts of Its Web Site,” /{New
York Times}/, September 18, 2007. }~ A /{Times}/ executive explained that lost
subscription revenues would be more than offset by advertising to a much larger
online readership with free access. The /{Financial Times}/ and the
/{Economist}/ have dropped their paywalls, and the /{Wall Street Journal}/ in
effect has done so by allowing free access via search engines and link sites.
From some leading citadels of capitalism, a rough consensus had emerged:
exclusivity can /{decrease}/ the value of online content.~{ Frank Ahrens, “Web
Sites, Tear Down That Wall,” /{Washington Post}/, November 16, 2007, p. D1. See
also Farhad Manjoo, “The Wall Street Journal’s Website Is Already (Secretly)
Free,” /{Salon}/, March 21, 2008, at
http://machinist.salon.com/blog/2008/03/21/wsj/index.html. }~
={ New York Times }

While enormous value can be created on open networks, it can take different
forms, notes David P. Reed, who studies information architectures.~{ David P.
Reed, “The Sneaky Exponential — Beyond Metcalfe’s Law to the Power of Community
Building,” at http://www.reed.com/Papers/GFN/reedslaw.html. }~ One of the most
powerful types of network value is what Reed calls “Group-Forming Networks,” or
GFNs — or what Benkler might call commons-based peer production and I would
call, less precisely, the commons. Reed talks about “scale-driven value shifts”
that occur as a network grows in size. Greater value is created as a network
moves from a broadcast model (where “content is king”) to peer production
(where transactions dominate) and finally, to a group-forming network or
commons (where jointly constructed value is produced and shared).
={ Reed, David P. ;
   Benkler, Yochai :
     The Wealth of Networks ;
   commons-based peer production +3 ;
   group-forming networks (GFNs)
}

It is unclear, as a theoretical matter, how to characterize the size and
behavior of various “value networks” on the Web today. For simplicity’s stake —
and because Web platforms are evolving so rapidly — I refer to two general
value propositions, Web 2.0 and the commons. Web 2.0 is about creating new
types of value through participation in distributed open networks; the commons
is a subset of Web 2.0 that describes fairly distinct, self-governed
communities that focus on their own interests, which usually do not involve
moneymaking.
={ Web 2.0 :
     open business, and +4
}

The rise of Web 2.0 platforms and the commons clearly has some serious
implications for business strategy and organization. Just consider how
Craigslist is displacing millions of dollars of classified newspaper ads; how
open-access journals are threatening the economic base of commercial academic
journals; and how usergenerated content is competing with network television.
At the same time, activities that once occurred through informal social means
(finding a date, organizing a gathering, obtaining word-ofmouth
recommendations) are increasingly becoming commercial endeavors on the Web.
Especially when the commons has strong mechanisms to preserve its
value-creating capacity, such as the GPL, open networks are helping to convert
more market activity into commons-based activity, or at least shifting the
boundary between commodity markets and proprietary, high-value-added markets.
As this dynamic proceeds, the social and the commercial are blurring more than
ever before.

Many “value chains” that have long sustained conventional businesses are being
disrupted. As described in chapter 5, more efficient types of distributed media
are disrupting the production/distribution chain that sustains Centralized
Media. The Long Tail lets online consumers “pull” niche products that they want
rather than enduring a relentless marketing “push” of products they don’t want.
Commons-based peer production is a nonmarket version of the Long Tail:
dispersed communities of people with niche interests can find one another, form
social communities, bypass the market, and collaborate to create the niche
resources that they want.
={ Long Tail ;
   Centralized Media :
     production/distribution chain of
}

The question facing many businesses is how to develop stable, long-term
business models that can coexist with productive commons, if not leverage them
for market gain. Their goal is to find ingenious ways to “monetize” the social
relationships of online communities (by selling targeted advertising, personal
data, niche products, etc.). Open businesses aim to do this in a respectful,
public-spirited way; other, more traditional firms may have fewer scruples
because, for them, “it’s all about the money.”

But here’s the rub: a company can go only so far in monetizing the
value-generating capacities of a commons without enclosing it or enraging the
commoners. A company may consider itself shrewd for acquiring the copyrights
for user-generated content, for example, or for blocking user access to
third-party widgets that it disapproves of.~{ See, e.g., Paula Lehman, “MySpace
Plays Chicken with Users,” BusinessWeek Online, April 12, 2007. }~ But
participants in Web 2.0 communities will protest or simply leave if a corporate
host starts to dictate obnoxious policies. A company can try to run its Web 2.0
platform as a feudal fiefdom, but it risks inciting users to revolt and start
their own (nonmarket) online communities, reinventing themselves as commoners.
Although there is an implicit social ethic to Web 2.0 platforms, none is
necessarily “free” in the Stallman sense of “freedom.”
={ Stallman, Richard :
     freedom, and
}

Unfortunately, there is no clear consensus about how exactly to define an “open
business.” Accordingly, assessments of their social, political, or economic
virtue can be slippery. Some analysts such as Henry Chesbrough regard a
business as “open” if it relaxes or modifies its intellectual property
controls, or changes its organizational practices, as a way to reap value from
open networks.~{ Henry Chesbrough, /{Open Business Models: How to Thrive in the
New Innovation Landscape}/ (Cambridge, MA: Harvard Business School Press,
2006). }~ Others believe that an open business should use open-source software,
and support the copying and sharing of works through CC or other open-content
licenses. Sometimes the idea of open business is yoked to a vaguely defined
notion of “social responsibility.” It is not always clear whether this ethic is
a moral gloss or a structural feature, but in general open businesses strive to
practice a more open, accountable, and socially enlightened vision of commerce.
={ Chesbrough, Henry ;
   open business models :
     definition, no consensus +2 | social responsibility, and
}

One champion of this vision is OpenBusiness, a Web site jointly created by
Creative Commons UK in partnership with CC Brazil and the FGV Law School in Rio
de Janeiro, Brazil. The mission of OpenBusiness is to “analyze and explain
models by which people can share their knowledge and creativity with others
whilst at the same time enjoying the more traditional incentives of profit,
individual success and societal advancement.”~{ http://www.openbusiness.org. }~
By its lights, an open business is commons-friendly if it is committed to
“transparency,” “sustainable systems,” and to putting “the health and welfare
of people above everything else.” An open business also tries to generate as
many “positive externalities” as possible — knowledge, social relationships,
revenues — which it is willing to share with its stakeholders.
={ OpenBusiness ;
   commoners :
     sharing by ;
   open business models :
     international
}

It is perhaps best to approach open businesses as an eclectic social phenomenon
in search of a theory. As it has been said about Wikipedia, “It works in
practice, but not in theory.”~{ From blog of Professor Karim Lakhani, Harvard
Business School, April 27, 2007. }~ It is risky to overtheorize phenomena that
are still fluid and emerging. Still, specific examples of open business can
help us understand some basic principles of open networks, and how some
businesses are using CC licenses to build innovative sorts of enterprises.
={ Wikipedia :
     social movement, as
}

2~  Share the Wealth, Grow a Commercial Ecosystem
={ open business models :
     commercial ecosystem, as +5
}

The idea that a company can make money by giving away something for free seems
so counterintuitive, if not ridiculous, that conventional business people tend
to dismiss it. Sometimes they protesteth too much, as when Microsoft’s Steve
Ballmer compared the GNU GPL to a “cancer” and lambasted open-source software
as having “characteristics of communism.”~{ Joe Wilcox and Stephen Shankland,
“Why Microsoft is wary of open source,” CNET, June 18, 2001; and Lea, Graham,
“MS’ Ballmer: Linux is communism,” /{Register}/ (U.K.), July 31, 2000. }~ In
truth, “sharing the wealth” has become a familiar strategy for companies
seeking to develop new technology markets. The company that is the first mover
in an emerging commercial ecosystem is likely to become the dominant player,
which may enable it to extract a disproportionate share of future market rents.
Giving away one’s code or content can be a great way to become a dominant first
mover.
={ Ballmer, Steve ;
   General Public License (GPL) :
     critics of ;
   open business models :
     first movers +1 ;
   Microsoft :
     competition against +1
}

Netscape was one of the first to demonstrate the power of this model with its
release of its famous Navigator browser in 1994. The free distribution to
Internet users helped develop the Web as a social and technological ecosystem,
while helping fuel sales of Netscape’s Web server software. (This was before
Microsoft arrived on the scene with its Internet Explorer, but that’s another
story.) At a much larger scale, IBM saw enormous opportunities for building a
better product by using GNU/Linux. The system would let IBM leverage other
people’s talents at a fraction of the cost and strengthen its service
relationships with customers. The company now earns more than $2 billion a year
from Linux-related services.~{ Yochai Benkler, /{The Wealth of Networks}/ (Yale
University Press, 2006), Figure 2.1 on p. 47. }~
={ GNU/Linux :
     IBM, and ;
   IBM :
     GNU/Linux, and ;
   Netscape ;
   World Wide Web :
     social activity on
}

Today, sharing and openness are key to many business strategies. “Open Source:
Now It’s an Ecosystem,” wrote /{BusinessWeek}/ in 2005, describing the “gold
rush” of venture capital firms investing in startups with open-source products.
Most of them planned to give away their software via the Web and charge for
premium versions or for training, maintenance, and support.~{ “Open Source: Now
It’s an Ecosystem,” BusinessWeek Online, October 3, 2005. }~

The pioneers in using open platforms to develop commercial ecosystems on the
Internet are Amazon, Google, Yahoo, and eBay. Each has devised systems that let
third-party software developers and businesses extend their platform with new
applications and business synergies. Each uses systems that dynamically
leverage users’ social behaviors and so stimulate business — for example,
customer recommendations about books, search algorithms that identify the most
popular Web sites, and reputation systems that enhance consumer confidence in
sellers. Even Microsoft, eager to expand the ecology of developers using its
products, has released 150 of its source code distributions under three “Shared
Source” licenses, two of which meet the Free Software Foundation’s definition
of “free.”~{ Microsoft’s Shared Source Licenses, at
http://www.microsoft.com/resources/sharedsource/licensingbasics/sharedsourcelicenses.mspx;
see also Lessig blog, “Microsoft Releases Under ShareAlike,” June 24, 2005, at
http://lessig.org/blog/2005/06/microsoft_releases_under_share.html. }~
={ Amazon ;
   eBay ;
   Microsoft :
     “Shared Source” licenses of ;
   Yahoo ;
   Google ;
   World Wide Web :
     social activity on
}

More recently, Facebook has used its phenomenal reach — more than 80 million
active users worldwide — as a platform for growing a diversified ecology of
applications. The company allows software developers to create custom software
programs that do such things as let users share reviews of favorite books, play
Scrabble or poker with others online, or send virtual gifts to friends. Some
apps are just for fun; others are the infrastructure for independent businesses
that sell products and services or advertise. In September 2007, Facebook had
more than two thousand software applications being used by at least one hundred
people.~{ Vauhini Vara, “Facebook Gets Help from Its Friends,” Wall Street
Journal, June 22, 2007. See also Riva Richmond, “Why So Many Want to Create
Facebook Applications,” /{Wall Street Journal}/, September 4, 2007. }~
={ Facebook }

2~ Open Content as a Gateway to Commercial Opportunities

Of course, not every business can own a major platform, as Google, eBay, and
Facebook do. Still, there are many other opportunities. One of the most popular
is to use open platforms to attract an audience, and then strike a deal with an
advertiser or commercial distributor, or sell premium services (“get
discovered”). Another approach is to use open content to forge a spirited
community to which things may be sold (“build a market on a commons”).
={ eBay ;
   Facebook +1 ;
   Google
}

!{/{Get discovered.}/}! This dynamic has been played out countless times on
YouTube, MySpace, Facebook, and other high-traffic social networking sites. An
unknown remix artist suddenly becomes famous when his track is discovered by a
network swarm: the story of DJ Danger Mouse that we saw in chapter 6. A band
attracts a huge following through viral word of mouth: the story of Jake
Shapiro and Two Ton Shoe’s stardom in South Korea. There are even calculated
scams to get discovered, like the lonelygirl15 series of videos purportedly
shot by a teenage girl in her bedroom, which became a huge Internet sensation
in 2006.~{ Joshua Davis, “The Secret World of Lonelygirl,” Wired, December
2006, at http://www.wired.com/wired/archive/14.12/lonelygirl.html. }~
={ DJ Danger Mouse ;
   MySpace ;
   YouTube ;
   Shapiro, Jake ;
   Two Ton Shoe ;
   Internet :
     virtual word of mouth on ;
   open business models :
     using open platforms to get discovered +15
}

As any television network will tell you, the capacity to aggregate audiences is
worth a lot of money. The customary way of monetizing this talent is to sell
advertising. Or one can parlay newfound name recognition into side deals with
the mass media, which have always depended upon “star power” as a draw. Thus,
Ana Marie Cox was able to parley her notoriety as a political gossip on her
Wonkette blog into a job as Washington editor of /{Time}/ magazine. Perez
Hilton, a Hollywood blogger who attracted a following, was offered a lucrative
perch at the E! cable television channel. We saw in chapter 6 how producer
Samuli Torssonen’s /{Star Wreck}/ attracted millions of Internet viewers,
enabling him to strike a deal with Universal Studios to distribute a DVD
version. With the same visions of stardom, or at least paying gigs, in mind,
thousands of bands now have fan sites, music downloads, and banner ads on
MySpace and other sites to promote themselves.~{ Elizabeth Holmes, “Famous,
Online,” /{Wall Street Journal}/, August 8, 2006. }~
={ Cox, Ana Marie ;
   Hilton, Perez ;
   MySpace ;
   Star Wreck Studios ;
   Torssonen, Samuli
}

The CC NonCommercial license is one way to help pursue the “get discovered”
business strategy. The license allows authors to seek a global Internet
audience without having to cede rights to any commercial opportunities. It is
not, however, a terribly reliable way to make money, which is why some artists,
especially musicians, find fault with the implicit promise of the NC license.
Many serious artists regard the NC license as too speculative a mechanism to
get paid for one’s creative work. It is a fair complaint, as far as it goes.
The real problem is the closed, highly concentrated music industry, which has a
hammerlock on marketing, radio play, and distribution. Newcomers and mid-tier
talent cannot get past the corporate gatekeepers to reach an audience, let
alone make money.

In an attempt to bridge the sharing economy with the market, and thereby open
up some new channels of commercial distribution for commoners, the Creative
Commons in late 2007 introduced a new protocol, CC+. The new project aims to
make it easier for the owners of NC-licensed content to signal that agreements,
products, or services beyond the scope of the CC licenses are on offer — for
example, commercial licensing, warranties, or higherquality copies. A
photographer who has hundreds of NC-licensed photos on Flickr would be able to
continue to let people use those photos for noncommercial purposes — but
through CC+, he could also sell licensing rights to those who want to use the
photos for commercial purposes. CC+ is a metadata architecture and standard
that allows third-party intermediaries to develop services for consummating
commercial transactions. People can use CC+ as a simple “click-through”
mechanism for acquiring commercial rights for music, photos, text, and other
content.
={ Creative Commons (CC) :
     CC+, and +2
}

One of the earliest “copyright management” companies to take advantage of the
CC+ standard was RightsAgent, a Cambridge, Massachusetts, company founded by
Rudy Rouhana. RightsAgent essentially acts as a go-between for people who
create NC-licensed works on the Web and those who wish to buy rights to use
them for commercial purposes. Just as PayPal facilitates the exchange of money
on the Internet, so RightsAgent aspires to be a paid intermediary for
facilitating the sale of user-generated content.
={ Rouhana, Rudy ;
   RightsAgent
}

The rise of CC+ and associated companies brings to mind Niva Elkin-Koren’s
warning that the Creative Commons licenses can be a slippery slope that merely
promotes a property-oriented, transactional mentality — the opposite of the
commons. On the other hand, many people operating in the noncommercial sharing
economy, such as musicians and photographers, have long complained that, as
much as they enjoy participating in the commons, they still need to earn a
livelihood.
={ Elkin-Koren, Niva ;
   Creative Commons (CC) licenses :
     critics of
}

Revver is another company that has developed an ingenious way to promote the
sharing of content, yet still monetize it based on the scale of its
circulation. Revver is a Los Angeles–based startup that hosts user-generated
video. All videos are embedded with a special tracking tag that displays an ad
at the end. Like Google’s AdWords system, which charges advertisers for user
“click-throughs” on ad links adjacent to Web content, Revver charges
advertisers for every time a viewer clicks on an ad. The number of ad views can
be tabulated, and Revver splits ad revenues 50-50 with video creators. Key to
the whole business model is the use of the CC AttributionNonCommercial-No
Derivatives license. The license allows the videos to be legally shared, but
prohibits anyone from modifying them or using them for commercial purposes.
={ Revver +2 ;
   Google ;
   videos and film +2 ;
   Internet :
     videos and films on +2 ;
   World Wide Web :
     videos and film on +2
}

One of the most-viewed videos on Revver sparked a minor pop trend. It showed
kids dropping Mentos candies into bottles of CocaCola, which produces an
explosive chemical reaction. The video is said to have generated around
$30,000.~{ Revver entry at Wikipedia, at http://en.wikipedia.org/wiki/Revver.
}~ So is new media going to feature silly cat videos and stupid stunts? Steven
Starr, a co-founder of Revver, concedes the ubiquity of such videos, but is
quick to point to “budding auteurs like Goodnight Burbank, Happy Slip, Studio8
and LoadingReadyRun, all building audiences.” He also notes that online,
creators “can take incredible risks with format and genre, can grow their own
audience at a fraction of network costs, can enjoy free syndication, hosting,
audience-building and ad services at their disposal.”~{ Interview with Steven
Starr, “Is Web TV a Threat to TV?” Wall Street Journal, August 7, 2007, at
http://online.wsj.com/article/SB118530221391976425.html. }~
={ Starr, Steven }

Blip.tv is another video content-sharing Web site that splits ad revenues with
video creators (although it is not automatic; users must “opt in”). Unlike many
videos on YouTube and Revver, blip.tv tends to feature more
professional-quality productions and serialized episodes, in part because its
founders grew out of the “videoblogging” community. Blip.tv espouses an open
business ethic, with shout-outs to “democratization, openness, and
sustainability.” While there is a tradition for companies to spout their
high-minded principles, blip.tv puts some bite into this claim by offering an
open platform that supports many video formats and open metadata standards. And
it allows content to be downloaded and shared on other sites. Users can also
apply Creative Commons licenses to their videos, which can then be identified
by CC-friendly search engines. For all these reasons, Lessig has singled out
blip.tv as a “true sharing site,” in contrast to YouTube, which he calls a
“faking sharing site” that “gives you tools to /{make}/ it seem as if there’s
sharing, but in fact, all the tools drive traffic and control back to a single
site.”~{ Lessig blog post, “The Ethics of Web 2.0,” October 20, 2006, at
http://www.lessig.org/blog/archives/003570.shtml. }~
={ blip.tv +1 ;
   YouTube +1 ;
   Web 2.0 :
     open business, and +3 ;
   open business models :
     open networks and ;
   Lessig, Lawrence :
     open business sites, and +4
}

Lessig’s blog post on blip.tv provoked a heated response from blogger Nicholas
Carr, a former executive editor of the /{Harvard Business Review}/. The
contretemps is worth a close look because it illuminates the tensions between
Web 2.0 as a business platform and Web 2.0 as a commons platform. In
castigating YouTube as a “fake sharing site,” Carr accused Lessig of sounding
like Chairman Mao trying to root out counterrevolutionary forces (that is,
capitalism) with “the ideology of digital communalism.”
={ Carr, Nicholas +2 ;
   Web 2.0 :
     commons platform, as +3
}

_1 Like Mao, Lessig and his comrades are not only on the wrong side of human
nature and the wrong side of culture; they’re also on the wrong side of
history. They fooled themselves into believing that Web 2.0 was introducing a
new economic system — a system of “social production” — that would serve as the
foundation of a democratic, utopian model of culture creation. They were wrong.
Web 2.0’s economic system has turned out to be, in effect if not intent, a
system of exploitation rather than a system of emancipation. By putting the
means of production into the hands of the masses but withholding from those
same masses any ownership over the product of their work, Web 2.0 provides an
incredibly efficient mechanism to harvest the economic value of the free labor
provided by the very, very many and concentrate it into the hands of the very,
very few.

_1 The Cultural Revolution is over. It ended before it even began. The victors
are the counterrevolutionaries. And they have $1.65 billion [a reference to the
sale price of YouTube to Google] to prove it.~{ Nicholas G. Carr, “Web 2.0lier
than Thou,” Rough Type blog, October 23, 2006. Joichi Ito has a thoughtful
response in his blog, “Is YouTube Web 2.0?” October 22, 2006, at
http://joi.ito.com/archives/2006/10/22/is_youtube_web_20.html; and Lessig
responded to Carr in his blog, at
http://lessig.org/blog/2006/10/stuck_in_the_20th_century_or_t.html. The
“communism discourse” persists, and not just among critics of free culture.
Lawrence Liang of CC India used this epigraph in a book on open-content
licenses: “There is a specter haunting cultural production, the specter of open
content licensing.” which he attributes to “Karl Marx (reworked for the digital
era).” From Liang, /{Guide to Open Content Licenses}/ (Rotterdam, Netherlands:
Piet Zwart Institute, Institute for Postgraduate Studies and Research, Willem
de Kooning Academy Hogeschool, 2004). }~

Lessig’s response, a warm-up for a new book, /{Remix}/, released in late 2008,
pointed out that there are really /{three}/ different economies on the Internet
— commercial, sharing, and hybrid. The hybrid economy now emerging is difficult
to understand, he suggested, because it “neither gives away everything, nor
does it keep everything.” The challenge of open business models, Lessig argues,
is to discover the “golden mean.”
={ Lessig, Lawrence :
     Remix ;
   Internet :
     hybrid economy enabled by +1 | sharing economy of +1 | commercial economy of +1
}

It can be hard to conceptualize a “hybrid sector” when we are accustomed to
dividing the world into “private” and “public” sectors, and “profit-making” and
“nonprofit” enterprises. Open business models quickly run up against
deep-seated prejudices that associate property with “freedom” and sharing with
“communism.” How can there be a middle ground? Although some like Nicholas Carr
seem to hanker for the predatory enterprises of an earlier capitalism, only
this time on Web 2.0 platforms, that is not likely to happen in a world of
distributed computing. Power is too dispersed for predators to survive very
long, and besides, the commoners are too empowered.

!{/{ Build a market on a commons.}/}! A number of online business models are
based on building communities of deep social affection and respect, and then
using the community as a platform for selling merchandise, advertising, or
products. Interestingly, some of the most successful “customer relationship”
models revolve around music. The Grateful Dead’s strategy of building a
business around a rabid fan base (discussed in chapter 6) occurred well before
the Internet became prevalent. It is paradigmatic of the digital age,
nonetheless. If the band had locked up its music and prohibited free taping of
its concert performances and sharing of homemade tapes, it would have
effectively weakened the fan base that sustained its business model. Sharing
concert tapes actually made Deadheads more inclined to buy t-shirts, official
music releases, and concert tickets because the tape sharing deepened the
community’s identity and quasi-spiritual ethic. The Grateful Dead’s focus on
touring as opposed to studio albums not only intensified the sharing ethic of
its fan base, it obliged the band to “keep on truckin’ ” in order to keep
earning money.
={ commons :
     building a market on +11 ;
   open business models :
     building a market on a commons +11 ;
   communities :
     commons, and ;
   Grateful Dead ;
   music :
     market building on a commons +11
}

The Brazilian /{tecnobrega}/ music scene discussed briefly in chapter 7 is
another example of artists making money through respectful, in-person
relationships with their fans. In the town of Belém, Brazil, /{tecnobrega}/
artists release about four hundred CDs every year, but none are sold in stores;
street vendors sell them for $1.50 apiece. The CDs function mostly as
advertising for live “sound system” parties on the outskirts of town that
attract as many as five thousand people and use state-of-the-art audio
technology. Immediately following the performances, some artists also sell a
significant number of “instant CDs” that are of better quality (and more
expensive) than those sold in the streets. (Interestingly, street sales do not
compete with after-concert sales.)
={ Brazil :
     tecnobrega music scene in +6
}

“In their live presentations, the tecnobrega DJ’s usually acknowledge the
presence of people from various neighborhoods, and this acknowledgement is of
great value to the audience, leading thousands of buy copies of the recorded
live presentation,” said Ronaldo Lemos of CC Brazil, who has studied Brazil’s
record industry.~{ Interview with Ronaldo Lemos, September 15, 2006. }~ The
same basic model is also at work in other grassroots musical genres in Brazil,
such as baile funk, which originated in the shantytowns of Rio de Janeiro.
={ Lemos da Silva, Ronaldo +4 }

Artists make most of their money from these live performances, not from CDs,
said Lemos. Bands earn an average of $1,100 per solo performance at these
events, and $700 when playing with other bands — this, in a region where the
average monthly income is $350. Altogether, Lemos estimates that the sound
system parties as a business sector earn $1.5 million per month, on fixed
assets of $8 million.

“The band Calypso has been approached several times by traditional record
labels,” said Lemos, “but they turned down all the offers. The reason is that
they make more money by means of the existing business model. In an interview
with the largest Brazilian newspaper, the singer of the band said, ‘We do not
fight the pirates. We have become big /{because}/ of piracy, which has taken
our music to cities where they would never have been.’ ” Calypso has sold more
than 5 million albums in Brazil and is known for attracting as many as fifty
thousand people to its concerts, Lemos said.~{ Ronaldo Lemos, “From Legal
Commons to Social Commons: Developing Countries and the Cultural Industry in
the 21st Century,” 2006, at
http://www.icommons.org/resources/from-legal-commons-to-social-commons-brazil-and-the-cultural-industry-1.
See Paula Martini post on iCommons blog, “Over the Top: The New (and Bigger)
Cultural Industry in Brazil,” September 28, 2007, at
http://www.icommons.org/articles/over-the-top-thenew-and-bigger-cultural-industry-in-brazil.
}~
={ piracy }

Another highly successful open business model in the Brazilian music scene is
TramaVirtual, an open platform on which more than 15,000 musicians have
uploaded some 35,000 albums. Fans can then download the music for free. While
this does not sound like a promising business proposition, it makes a lot of
sense in the context of Brazil’s music marketplace. Major record labels release
a minuscule number of new Brazilian music CDs each year, and they sell for
about $10 to $15.~{ Ibid. }~ Only the cultured elite can afford music CDs, and
the native musical talent — which is plentiful in Brazil — has no place to go.
With such a constricted marketplace, TramaVirtual has become hugely popular by
showcasing new and interesting music.
={ TramaVirtual +2 }

TramaVirtual’s artistic and social cachet — itself the product of open sharing
in a commons — has enabled it to develop a highly respected brand identity. “By
exploiting the trademark,” said Lemos, “Trama has been able to create parallel
businesses that work with music, but not in the same way that a record label
does.”~{ Interview with Ronaldo Lemos, November 6, 2006. }~ For instance, Trama
created a business that sponsors free concerts at universities under its
trademark sponsorship. It then sells marketing rights at the concerts to
cosmetic makers and car companies. Musicians have gained wide public exposure
through Trama, and then used that association to negotiate international record
and marketing deals for themselves. CSS (Cansei de Ser Sexy) won a record
contract with the American label Sub Pop, for example.

For the past five years, a related business model for music on an international
scale has been emerging in Luxembourg. In only three years, Jamendo has amassed
a huge international following in much the same way as TramaVirtual — by
attracting music fans to its open platform for free music sharing. (The name
/{Jamendo}/ is a mix of the words /{jam}/ and /{crescendo}/.) The site is not a
music retailer but a repository for free music — with a business model overlay
to pay the bills. Jamendo’s purpose is not to maximize returns to shareholders,
in other words, but to service musicians and fans in a self-sustaining way. It
makes most of its money from “tip jar” donations from fans and from advertising
on the Web pages and streamed music. Ad revenues are shared 50-50 with artists,
and any donations are passed along to individual artists, minus a small
transaction fee.
={ Jamendo +4 }

The Jamendo community is sizable and growing. By 2008 it had more than 357,000
active members from around the world. Part of the draw is the catalog of more
than 10,000 albums, all free. Unlike Magnatune, Jamendo does not select the
artists that are featured on its site; everyone is welcome to upload his or her
music. To help fans identify music they like, the site offers many
sophisticated tools. There are some 60,000 member-written reviews, custom
playlists, community ratings of albums, and “folksonomy” tags for albums and
songs.~[* Folksonomies, a cross of /{taxonomy}/ and /{folk}/, are essentially
user-generated tags attached to each song and album, which enables categories
of music to emerge from the “bottom up,” as fans regard the music, rather than
through top-down marketing categories.]~ Fans are /{urged}/ to download music
through peerto-peer networks such as BitTorrent and eMule because it reduces
Jamendo’s bandwidth expenses.
={ Magnatune ;
   music :
     “folksonomy” tags in
}

“Users can listen, download, review, remix, and ‘widgetize,’” said Sylvain
Zimmer, the founder and chief technology officer of Jamendo. As part of its
commitment to musicians, the site has a forum for artists and listings of
concerts, as well as open APIs~[* An API is an “application programming
interface,” a set of protocols that enable a software application to operate on
a computer operating system, library, or service. Many companies use
proprietary APIs to retain control over who may develop applications that will
interoperate with their software. Other companies that wish to encourage
development of compatible applications— and thus promote a software ecosystem
entwined with the operating system or service — use open APIs.]~ so the Jamendo
ecosystem can be integrated into other software.
={ Zimmer, Sylvain +2 ;
   APIs (application programming interfaces)
}

What’s striking about Jamendo is its nonchalant international feel, as if it
were only natural to browse for “deathmetal,” “powerpop,” “hypnotique,”
“ambient,” “psytrance,” and “jazzrock” on the same site. (These are just a few
of the scores of folksonomy tags that can be used to browse the catalog.) “We
are a Babel, not a label,” said Zimmer, who reports that India and Japan are
heavy downloaders of Jamendo music. Complete, official versions of the site are
available in French, the original language for the site, and now English and
German. Incomplete versions of the site are available in Spanish, Polish,
Portuguese, Russian, Turkish, Italian, Swedish, Czech, and Ukrainian.
={ music :
     “folksonomy” tags in
}

Virtually all the albums on Jamendo use one or more of the six basic CC
licenses. The CC ethic is a perfect match for the company’s community-driven
business model, said Zimmer. “The best way of detecting CC-incompatible content
and commercial uses of NC-licensed work is the community. The Creative Commons
makes the community feel more confident and active.”~{ Sylvain Zimmer of
Jamendo, presentation at iCommons Summit, Dubrovnik, Croatia, June 15, 2007. }~
He adds that if the site’s managers run too many ads, “the community will tell
you.”

2~ Commoners as Co-creators of Value
={ open business models :
     value created in +13 ;
   value :
     creation of +13
}

For businesses operating on open networks, it is a mistake to regard people
merely as customers; they are collaborators and even coinvestors. As more
companies learn to interact closely with their customers, it is only natural
that conversations about the product or service become more intimate and
collaborative. The roles of the “consumer” and “producer” are starting to blur,
leading to what some business analysts call the “prosumer”~{ Don Tapscott and
Anthony D. Williams, /{Wikinomics: How Mass Collaboration Changes Everything}/
(New York Portfolio, 2006), chapter 5, “The Prosumers.” }~ and the
“decentralized co-creation of value.”~{ David Bollier, /{The Rise of Collective
Intelligence: Decentralized Co-creation of Value as a New Paradigm of Commerce
and Culture}/ (Washington, DC: Aspen Institute Communications and Society
Program, 2008).}~ The basic idea is that online social communities are becoming
staging areas for the advancement of business objectives. Businesses see these
communities as cost-effective ways to identify promising innovations,
commercialize them more rapidly, tap into more reliable market intelligence,
and nurture customer goodwill.

Amateurs who share with one another through a loose social commons have always
been a source of fresh ideas. Tech analyst Elliot Maxwell (citing Lessig) notes
how volunteers helped compile the /{Oxford English Dictionary}/ by contributing
examples of vernacular usage; how the Homebrew Computer Club in the San
Francisco Bay area developed many elements of the first successful personal
computer; and how sharing among auto enthusiasts helped generate many of the
most important early automotive innovations.~{ Elliot Maxwell, “Open Standards,
Open Source, and Open Innovation: Harnessing the Benefits of Openness,”
/{Innovations:Technology, Governance, Globalization}/ 1, no. 3 (Summer 2006),
at http://www.emaxwell.net, p. 150. }~ In our time, hackers were the ones who
developed ingenious ways to use unlicensed electromagnetic spectrum as a
commons, which we now know as Wi-Fi. They tinkered with the iPod to come up
with podcasts, a new genre of broadcasting that commercial broadcasters now
emulate.~{ Elliot E. Maxwell drew my attention to these examples in his
excellent essay “Open Standards, Open Source, and Open Innovation.” }~ Numerous
self-organized commons have incubated profitable businesses. Two movie buffs
created the Internet Movie Database as separate Usenet newsgroups in 1989; six
years later they had grown so large that they had merged and converted into a
business that was later sold to Amazon.~{ Wikipedia entry, IMDB, at
http://en.wikipedia.org/wiki/Internet_Movie_Database. }~ The Compact Disc
Database was a free database of software applications that looks up information
about audio CDs via the Internet. It was originally developed by a community of
music fans as a shared database, but in 2000 it had grown big enough that it
was sold and renamed Gracenote.~{ Wikipedia entry, CDDB, at
http://en.wikipedia.org/wiki/CDDB. }~
={ Amazon ;
   Gracenote ;
   Homebrew Computer Club ;
   iPod ;
   Maxwell, Elliot ;
   Oxford English Dictionary ;
   Wi-Fi ;
   hackers :
     community of ;
   commons :
     sources of new ideas, as +11
}

A commons can be highly generative because its participants are tinkering and
innovating for their own sake — for fun, to meet a challenge, to help someone
out. Amateurs are not constrained by conventional business ideas about what may
be marketable and profitable. They do not have to meet the investment
expectations of venture capitalists and Wall Street. Yet once promising new
ideas do surface in the commons, market players can play a useful role in
supplying capital and management expertise to develop, improve, and
commercialize an invention.

Because online commons are such a rich source of new ideas, the most farsighted
companies are trying to learn how they might be harnessed to help them innovate
and compete more effectively. MIT professor Eric von Hippel is one of the
foremost researchers of this process. His 2005 book /{Democratizing
Innovation}/ describes how the leading participants in high-performance sports
— extreme skiing, mountain biking, skateboarding, surfing, and hot-rodding —
are forming “innovation communities” that work closely with manufacturers.~{
Eric von Hippel, /{Democratizing Innovation}/ (Cambridge, MA: MIT Press, 2005),
available at http://mitpress.mit.edu/democratizing_innovation_pdf. }~ The most
active practitioners of these sports are intimately familiar with the equipment
and have their own imaginative ideas about what types of innovations the sport
needs. Indeed, many of them have already jerry-rigged their own innovations —
better cockpit ventilation in sailplanes, improved boot and bindings on
snowboards, a method for cutting loose a trapped rope used by canyon climbers.
For companies willing to listen to and collaborate with users, says von Hippel,
“communities of interest are morphing into communities of creation and
communities of production.”
={ von Hippel, Eric +1 }

“Users that innovate can develop exactly what they want, rather than relying on
manufacturers to act as their (often very imperfect) agents,” von Hippel
writes. “Moreover, individuals users do not have to develop everything they
need on their own: they can benefit from innovations developed and freely
shared by others.”~{ Ibid., p. 1 }~ Besides finding empirical examples of this
trend, von Hippel has developed a theoretical vocabulary for understanding how
collaborative innovation occurs. He probes the user motivations for “free
revealing” of their knowledge, the attractive economics that fuel “users’
low-cost innovation niches,” and the public policies that sometimes thwart
user-driven innovation (patent rights for a field may be fragmented,
anticopying restrictions such as the Digital Millennium Copyright Act may
prevent user tinkering, etc.).
={ Digital Millennium Copyright Act (DMCA) [1998] }

User-driven innovation is not as esoteric as the “extreme sports” examples may
suggest. It is, in fact, a growing paradigm. In one of the more celebrated
examples, Lego, the Danish toymaker, invited some of its most fanatic users to
help it redesign its Mindstorms robotics kit. The kits are meant to let kids
(and adults) build a variety of customized robots out of a wild assortment of
plastic Lego pieces, programmable software, sensors, and motors.~{ Tapscott and
Williams, /{Wikinomics}/, pp. 130–31. }~ In 2004, when some Lego users
reverse-engineered the robotic “brain” for the Mindstorms kit and put their
findings on the Internet, Lego at first contemplated legal action. Upon
reflection, however, Lego realized that hackers could be a valuable source of
new ideas for making its forthcoming Mindstorms kit more interesting and cool.
={ Lego +1 ;
   hackers :
     innovations by +1
}

Lego decided to write a “right to hack” provision into the Mindstorms software
license, “giving hobbyists explicit permission to let their imaginations run
wild,” as Brendan I. Koerner wrote in /{Wired}/ magazine. “Soon, dozens of Web
sites were hosting thirdparty programs that help Mindstorms users build robots
that Lego had never dreamed of: soda machines, blackjack dealers, even toilet
scrubbers. Hardware mavens designed sensors that were far more sophisticated
than the touch and light sensors included in the factory kit.”~{ Brendan I.
Koerner, “Geeks in Toyland,” /{Wired}/, February 2006. }~ It turns out that not
only are Lego fans happy to advise the company, the open process “engenders
goodwill and creates a buzz among the zealots, a critical asset for products
like Mindstorms that rely on word-of-mouth evangelism,” said Koerner. In the
end, he concluded, the Mindstorm community of fanatics has done “far more to
add value to Lego’s robotics kit than the company itself.”
={ Koerner, Brendan I. ;
   Internet :
     virtual word of mouth on
}

Another improbable success in distributed, user-driven innovation is
Threadless, a Chicago-based t-shirt company. Threadless sells hundreds of
original t-shirt designs, each of which is selected by the user community from
among more than eight hundred designs submitted every week. The proposed
designs are rated on a scale of one to five by the Web site’s more than 600,000
active users. Winners receive cash awards, recognition on the Web site, and
their names on the t-shirt label. Every week, Threadless offers six to ten new
t-shirts featuring the winning designs.
={ Threadless +1 }

In 2006, the company sold more than 1.5 million t-shirts without any
traditional kind of marketing. Its business model is so rooted in the user
community that Threadless co-founders Jake Nickell and Jacob DeHart have
declined offers to sell their t-shirts through conventional, big-name
retailers. Threadless’s business model has helped it overcome two major
challenges in the apparel industry, write Harvard Business School professor
Karim R. Lakhani and consultant Jill A. Panetta — the ability “to attract the
right design talent at the right time to create recurring fashion hits,” and
the ability “to forecast sales so as to be better able to match production
cycles with demand cycles.”~{ Karim R. Lakhani and Jill A. Panetta, “The
Principles of Distributed Innovation,” Research Publication No. 2007-7, Berkman
Center for Internet & Society, Harvard Law School, October 2007, at
http://papers.ssrn.com/abstract_id=1021034. See also Darren Dahl, “Nice
Threads,” /{Southwest Airlines Spirit}/, December 2006. }~
={ DeHart, Jacob ;
   Nickell, Jake ;
   Lakhani, Karim R. ;
   Panetta, Jill A.
}

A number of companies have started successful enterprises based on the use of
wikis, the open Web platforms that allow anyone to contribute and edit content
and collaborate. Evan Prodromou, the founder of Wikitravel, a free set of
worldwide travel guides, has identified four major types of wiki businesses:
service providers who sell access to wikis (Wikispace, wetpaint, PBwiki);
content hosters of wikis (wikiHow, Wikitravel, Wikia); consultants who advise
companies how to run their own wikis (Socialtext); and content developers
(WikiBiz, an offshoot of Wikipedia).
={ Prodromou, Evan +1 ;
   wikis +1
}

Since the success of a wiki-based business depends upon honoring the integrity
of wiki users, Prodromou scorns what he sees as the backhanded strategies of
business models based on “wikinomics” and “crowdsourcing.” He sees such models
as sly attempts to get “suckers” to do free work for the entrepreneur owning
the business. A sustainable commercial wiki, said Prodromou at a conference,
respects the community of users and does not try to exploit them. It strives to
fulfill a “noble purpose” for users and demonstrate in a transparent way that
it offers value. Any hint of trickery or calculation begins to sow distrust and
erode the community. Yet any wiki-based business must be able to set boundaries
that allow the owners to make responsible business decisions; those decisions,
however, must respect the wiki community’s values.~{ Evan Prodromou
presentation, “Commercialization of Wikis: Open Community that Pays the Bills,”
South by Southwest Interactive conference, March 10, 2007. }~

It is hard to predict what new models of “decentralized cocreation of value”
will take root and flourish, but the experiments are certainly proliferating.
Staples, the office supplies store, now hosts a contest inviting the public to
suggest inventions that Staples can develop and sell under the its brand
name.~{ William J. Bulkeley, “Got a Better Letter Opener?” /{Wall Street
Journal}/, July 13, 2006. }~ A number of massmarket advertisers have hosted
competitions inviting users to create ads for their products. One of the more
interesting frontiers in userdriven innovation is tapping the audience for
investment capital.
={ Staples }

SellaBand (“You are the record company”) is a Web site that invites bands to
recruit five thousand “Believers” to invest $10 apiece in their favorite bands;
upon reaching the $50,000 mark, a band can make a professional recording, which
is then posted on the SellaBand site for free downloads. Bands and fans can
split advertising revenues with SellaBand.~{ http://www.sellaband.com. }~
Robert Greenwald, the activist documentary filmmaker, used e-mail
solicitations, social networks, and the blogosphere to ask ordinary citizens to
help finance his 2006 film /{Iraq for Sale: The War Profiteers}/.~{ William
Booth, “His Fans Greenlight the Project,” /{Washington Post}/, August 20, 2006.
}~
={ Greenwald, Robert ;
   SellaBand
}

2~ Reintegrating the Sharing and Commercial Economies

If there is persistent skepticism about the very idea of open business models,
from both business traditionalists focused on the bottom line and commoners
committed to sharing, it is because the commons and the commercial economy seem
to represent such divergent moral values and social orders. One depends upon
reciprocal exchanges of monetary value, with the help of individual property
rights and contracts; the other depends upon the informal social circulation of
value, without individual property rights or quid pro quos. A market is
impersonal, transactional, and oriented to a bottom line; a commons tends to be
personal and social and oriented to continuous relationships, shared values,
and identity.

Yet, as the examples above show, the market and the commons interpenetrate each
other, yin/yang style. Each “adds value” to the other in synergistic ways.
Historically, this has always been true. Adam Smith, the author of /{The Wealth
of Nations}/, was also the author of /{The Theory of Moral Sentiments}/, about
the moral and social norms that undergird market activity. The market has
always depended upon the hidden subsidies of the commons (folk stories,
vernacular motifs, amateur creativity) to drive its engine of wealth creation.
And the commons builds its sharing regimes amid the material wealth produced by
the market (free software is developed on commercially produced computers).
={ Smith, Adam :
     The Theory of Moral Sentiments
}

What has changed in recent years is our perceptions. The actual role of the
commons in creative endeavors has become more culturally legible. For
businesses to function well on Web 2.0 platforms, they must more consciously
integrate social and market relationships in functional, sustainable ways. If
the results sometimes seem novel, if not bizarre, it is partly because
networking technologies are making us more aware that markets are not
ahistorical, universal entities; they are rooted in social relationships. Open
business models recognize this very elemental truth, and in this sense
represent a grand gambit to go back to the future.
={ open business models :
     open networks and ;
   Web 2.0 :
     open business, and
}

1~ 11 SCIENCE AS A COMMONS
={ Science Commons +90 }

/{Web 2.0 tools, open access, and CC licenses are helping to accelerate
scientific discovery.}/

It was one of those embarrassing episodes in science: Two sets of researchers
published papers in a German organic chemistry journal, /{Angewandte Chemie}/,
announcing that they had synthesized a strange new substance with “12-membered
rings.” Then, as blogger and chemist Derek Lowe tells the story, “Professor
Manfred Cristl of Wurzburg, who apparently knows his pyridinium chemistry
pretty well, recognized this as an old way to make further pyridinium salts,
not funky twelve-membered rings. He recounts how over the last couple of months
he exchanged awkward emails with the two sets of authors, pointing out that
they seem to have rediscovered a 100-year-old reaction. . . .”~{ Derek Lowe,
“Neat! Wish It Were True!” /{In the Pipeline}/ [blog], November 29, 2007, at
http://pipeline.corante.com. See also, Donna Wentworth, “Why We Need to Figure
Out What We Already Know,” Science Commons blog, January 4, 2008, at
http://sciencecommons.org/weblog/archives/2008/01/04/why-we-need-to-figure-out-what-we-already-know.
}~
={ Lowe, Derek }

In the Internet age, people generally assume that these kinds of things can’t
happen. All you have to do is run a Web search for “pyridinium,” right? But as
scientists in every field are discovering, the existence of some shard of
highly specialized knowledge does not necessarily mean that it can be located
or understood. After all, a Google search for “pyridinium” turns up 393,000
results. And even peer reviewers for journals (who may have been partly at
fault in this instance) have the same problem as any researcher: the
unfathomable vastness of the scientific and technical literature makes it
difficult to know what humankind has already discovered.

Paradoxically, even though academic science played the central role in
incubating the Internet (in conjunction with the military), it has not fared
very well in developing it to advance research. Most search engines are too
crude. Journal articles can be expensive and inaccessible. They do not link to
relevant Web resources or invite reader comment. Nor do they contain metadata
to facilitate computer-based searches, collaborative filtering, and text
mining. Scientific databases are plentiful but often incompatible with one
another, preventing researchers from exploring new lines of inquiry. Lab
researchers who need to share physical specimens still have to shuffle papers
through a bureaucratic maze and negotiate with lawyers, without the help of
eBay- or Craigslist-like intermediaries.

“The World Wide Web was designed in a scientific laboratory to facilitate
access to scientific knowledge,” observed Duke law professor James Boyle in
2007. “In every other area of life — commercial, social networking, pornography
— it has been a smashing success. But in the world of science itself? With the
virtues of the open Web all around us, we have proceeded to build an endless
set of walled gardens, something that looks a lot like Compuserv or Minitel and
very little like a world wide web for science.”~{ James Boyle, “The Irony of a
Web Without Science,” /{Financial Times}/, September 4, 2007, at
http://www.ft.com/cms/s/2/39166e30-5a7f-11dc-9bcd0000779fd2ac.html. }~
={ Boyle, James :
     Science Commons, and ;
   science :
     scientific knowledge +2
}

Therein lies a fascinating, complicated story. To be sure, various scientific
bodies have made great progress in recent years in adapting the principles of
free software, free culture, and Web 2.0 applications to their research.
Open-access journals, institutional repositories, specialty wikis, new
platforms for collaborative research, new metatagging systems: all are moving
forward in different, fitful ways. Yet, for a field of inquiry that has long
honored the ethic of sharing and “standing on the shoulders of giants,”
academic science has lagged behind most other sectors.

Part of the problem is the very nature of scientific knowledge. While the
conventional Web works fairly well for simple kinds of commerce and social
purposes, the Research Web for science requires a more fine-grained,
deliberately crafted structure.~{ John Wilbanks, director of the Science
Commons, introduced me to this term. }~ Science involves /{practices}/, after
all; it is not just about information. The “wisdom of the crowds” is not good
enough. Scientific knowledge tends to be significantly more specialized and
structured than cultural information or product recommendations. The Web
systems for organizing, manipulating, and accessing that knowledge,
accordingly, need to be more hierarchical and structured, often in quite
specific ways depending upon the discipline. A scientist cannot just type
“signal transduction genes in pyramidal neurons” into a search engine; she
needs to be able to locate specific genes and annotations of them. Data may be
strewn across dozens of different data systems, and those are not likely to be
interoperable. This means that technical standards need to be coordinated, or
some metasystem developed to allow different data reservoirs to communicate
with one another. A scientist must be able to use computers to browse and
organize a vast literature. And so on.

Much as scientists would like to build new types of Internet-based commons,
they have quickly run up against a thicket of interrelated problems: overly
broad copyright and patent limitations; access and usage restrictions by
commercial journal publishers and database owners; and university rules that
limit how cell lines, test animals, bioassays, and other research tools may be
shared. In a sense, scientists and universities face a classic
collective-action problem. Everyone would clearly be better off if a more
efficient infrastructure and enlightened social ethic could be adopted — but
few single players have the resources, incentive, or stature to buck the
prevailing order. There is no critical mass for instigating a new platform for
scientific inquiry and “knowledge management.”
={ copyright law :
     property rights, and +1 | science, in ;
   property rights :
     copyright law, and +1 ;
   science :
     copyright and patent restrictions in +1
}

Like so many other sectors confronting the Great Value Shift, science in the
late 1990s found itself caught in a riptide. The proprietarian ethic of
copyright and patent law was intensifying (as we saw in chapter 2), spurring
scientists and universities to claim private ownership in knowledge that was
previously treated as a shared resource.~{ See, e.g., Jennifer Washburn,
/{University Inc.: The Corporate Corruption of Higher Education}/ (New York:
Basic Books, 2005); Derek Bok, /{Universities in the Marketplace: The
Commercialization of Higher Education}/ (Princeton, NJ: Princeton University
Press, 2003); Sheldon Krimsky, /{Science in the Private Interest: Has the Lure
of Profits Corrupted Biomedical Research}/ (New York: Rowman & Littlefield,
2003); and Corynne McSherry, /{Who Owns Academic Work? Battling for Control of
Intellectual Property}/ (Cambridge, MA: Harvard University Press, 2001). }~ Yet
at the same time the Internet was demonstrating the remarkable power of open
sharing and collaboration. Even as market players sought to turn data, genetic
knowledge, and much else into private property rights, a growing number of
scientists realized that the best ideals of science would be fulfilled by
recommitting itself to its core values of openness and sharing. Open platforms
could also strengthen the social relationships that are essential to so much
scientific inquiry.~{ John Seely Brown and Paul Duguid, /{The Social Life of
Information}/ (Cambridge, MA: Harvard Business School Pulishing, 2000). See
also, e.g., Jane E. Fountain, “Social Capital: Its Relationship to Innovation
in Science and Technology,” /{Science and Public Policy}/ 25, no. 2 (April
1998), pp. 103–15. }~
={ Great Value Shift }

Perhaps the most salient example of the power of open science was the Human
Genome Project (HGP), a publicly funded research project to map the 3 billion
base pairs of the human genome. Many other scientific projects have been
attracted by the stunning efficacy and efficiency of the open research model.
For example, the HapMap project is a government-supported research effort to
map variations in the human genome that occur in certain clusters, or
haplotypes. There is also the SNP Consortium, a public-private partnership
seeking to identify single-nucleotide polymorphisms (SNPs) that may be used to
identify genetic sources of disease. Both projects use licenses that put the
genomic data into the public domain.
={ Human Genome Project (HGP) ;
   science :
     Human Genome Project
}

A 2008 report by the Committee for Economic Development identified a number of
other notable open research projects.~{ Committee for Economic Development,
/{Harnessing Openness to Transform American Health Care}/ (Washington, DC: CED,
2008). }~ There is the PubChem database, which amasses data on chemical
genomics from a network of researchers; the Cancer Biomedical Informatics Grid,
a network of several dozen cancer research centers and other organizations that
shares data, research tools, and software applications; and TDR Targets a Web
clearinghouse sponsored by the World Health Organization that lets researchers
share genetic data on neglected diseases such as malaria and sleeping sickness.
It is telling that Bill Gates, who in his commercial life is a staunch advocate
of proprietary control of information, has been a leader, through his Bill &
Melinda Gates Foundation, in requiring research grantees to share their data.
={ Gates, Bill }

There has even been the emergence of open-source biotechnology, which is
applying the principles of free software development to agricultural biotech
and pharmaceutical development.~{ See, e.g., Rockefeller Foundation, “2005
Bellagio Meeting on Open Source Models of Collaborative Innovation in the Life
Sciences” [report], Bellagio, Italy, September 2005. See also Janet Elizabeth
Hope, “Open Source Biotechnology,” Ph.D. diss., Australian National University,
December 2004. }~ Richard Jefferson, the founder of Cambia, a nonprofit
research institute in Australia, launched the “kernel” of what he calls the
first opensource biotech toolkit. It includes patented technologies such as
TransBacter, which is a method for transferring genes to plants, and GUSPlus,
which is a tool for visualizing genes and understanding their functions.~{
Interview with Richard Jefferson, September 7, 2006. See also
http://www.cambia.org. }~ By licensing these patented research tools for open
use, Jefferson hopes to enable researchers anywhere in the world— not just at
large biotech companies or universities — to develop their own crop improvement
technologies.
={ Jefferson, Richard }

2~ The Viral Spiral in Science

Sociologist Robert Merton is often credited with identifying the social values
and norms that make science such a creative, productive enterprise. In a
notable 1942 essay, Merton described scientific knowledge as “common property”
that depends critically upon an open, ethical, peer-driven process.~{ Robert
Merton, “Science and Democratic Social Structure,” in /{Social Theory and
Social Structure}/, 3d ed. (New York: Free Press, 1968), pp. 604–15. }~ Science
is an engine of discovery precisely because research is available for all to
see and replicate. It has historically tried to keep some distance from the
marketplace for fear that corporate copyrights, patents, or contractual
agreements will lock up knowledge that should be available to everyone,
especially future scientists.~{ Richard R. Nelson, “The Market Economy and the
Scientific Commons,” /{Research Policy}/ 33, no. 3 (April 2004), pp. 455–71.
See also Karim R. Lakhani et al., “The Value of Openness in Scientific Problem
Solving,” Harvard Business School Working Paper 07-050, January 2007, at
http://www.hbs.edu/research/pdf/07-050.pdf. }~ Secrecy can also make it
difficult for the scientific community to verify research results.
={ Merton, Robert ;
   science :
     cientific knowledge +2
}

Although scientific knowledge eventually becomes publicly available, it usually
flows in semi-restricted ways, at least initially, because scientists usually
like to claim personal credit for their discoveries. They may refuse to share
their latest research lest a rival team of scientists gain a competitive
advantage. They may wish to claim patent rights in their discoveries.

So scientific knowledge is not born into the public sphere, but there is a
strong presumption that it ought to be treated as a shared resource as quickly
as possible. As law scholar Robert Merges noted in 1996, “Science is not so
much given freely to the public as shared under a largely implicit code of
conduct among a more or less well identified circle of similarly situated
scientists. In other words . . . science is more like a limited-access commons
than a truly open public domain.”~{ Robert Merges, “Property Rights Theory and
the Commons: The Case of Scientific Research,” /{Social Philosophy and Policy}/
13, no. 2 (Summer 1996), pp. 145–61. }~ In certain disciplines, especially
those involving large capital equipment such as telescopes and particle
accelerators, the sharing of research is regarded as a kind of membership rule
for belonging to a club.
={ Merges, Robert }

As Web 2.0 innovations have demonstrated the power of the Great Value Shift,
the convergence of open source, open access, and open science has steadily
gained momentum.~{ John Willinsky, “The Unacknowledged Convergence of Open
Source, Open Access and Open Science,” /{First Monday}/ 10, no. 8 (August
2005), at http://firstmonday.org/issues/issue10_8/willinsky/index.html. }~
Creative Commons was mindful of this convergence from its beginnings, but it
faced formidable practical challenges in doing anything about it. “From the
very first meetings of Creative Commons,” recalled law professor James Boyle, a
CC board member, “we thought that science could be the killer app. We thought
that science could be the place where Creative Commons could really make a
difference, save lives, and have a dramatic impact on the world. There is
massive, unnecessary friction in science and we think we can deal with it.
Plus, there’s the Mertonian ideal of science, with which Creative Commons
couldn’t fit more perfectly.”~{ Interview with James Boyle, August 15, 2006. }~
={ Merton, Robert ;
   Boyle, James :
     Science Commons, and +1 ;
   Great Value Shift ;
   Web 2.0 :
     Great Value Shift, and
}

But despite its early interest in making the Web more research-friendly,
Creative Commons realized that science is a special culture unto itself, one
that has so many major players and niche variations that it would be foolhardy
for an upstart nonprofit to try to engage with it. So in 2002 Creative Commons
shelved its ambitions to grapple with science as a commons, and focused instead
on artistic and cultural sectors. By January 2005, however, the success of the
CC licenses emboldened the organization to revisit its initial idea. As a
result of deep personal engagement by several Creative Commons board members —
computer scientist Hal Abelson, law professors James Boyle and Michael Carroll,
and film producer Eric Saltzman — Creative Commons decided to launch a spin-off
project, Science Commons. The new initiative would work closely with scientific
disciplines and organizations to try to build what it now calls “the Research
Web.”
={ Abelson, Hall :
     CC board, on ;
   Carroll, Michael W. ;
   Saltzman, Eric ;
   Science Commons :
     CC Commons spinoff, and +5
}

Science Commons aims to redesign the “information space” — the technologies,
legal rules, institutional practices, and social norms — so that researchers
can more easily share their articles, datasets, and other resources. The idea
is to reimagine and reinvent the “cognitive infrastructures” that are so
critical to scientific inquiry. Dismayed by the pressures exerted by commercial
journal publishers, open-access publishing advocate Jean-Claude Guédon has
called on librarians to become “epistemological engineers.”~{ Jean-Claude
Guédon, “In Oldenburg’s Long Shadow: Librarians, Research Scientists,
Publishers and the Control of Scientific Publishing,” at
http://www.arl.org/resources/pubs/mmproceedings/138guedon.shtml. }~ They need
to design better systems (technical, institutional, legal, and social) for
identifying, organizing, and using knowledge. The payoff? Speedier research and
greater scientific discovery and innovation. It turns out that every scientific
discipline has its own special set of impediments to address. The recurring
problem is massive, unnecessary transaction costs. There is an enormous waste
of time, expense, bureaucracy, and logistics in acquiring journal articles,
datasets, presentations, and physical specimens.
={ Science Commons :
     libraries, and +5 ;
   science :
     transaction costs in +1 ;
   transaction costs :
     in science +1 ;
   libraries :
     Science Commons, and
}

If transaction costs could be overcome, scientists could vastly accelerate
their research cycles. They could seek answers in unfamiliar bodies of research
literature. They could avoid duplicating other people’s flawed research
strategies. They could formulate more imaginative hypotheses and test them more
rapidly. They could benefit from a broader, more robust conversation (as in
free software — “with enough eyes, all bugs are shallow”) and use computer
networks to augment and accelerate the entire scientific process.

That is the vision of open science that Science Commons wanted to address in
2005. It recognized that science is a large, sprawling world of many
institutional stakeholders controlling vast sums of money driving
incommensurate agendas. In such a milieu, it is not easy to redesign some of
the most basic processes and norms for conducting research. Science Commons
nonetheless believed it could play a constructive role as a catalyst.

It was fortunate to have some deep expertise not just from its board members,
but from two Nobel Prize winners on its scientific advisory panel (Sir John
Sulston and Joshua Lederberg) and several noted scholars (patent scholar Arti
Rai, innovation economist Paul David, and open-access publishing expert Michael
B. Eisen). The director of Science Commons, John Wilbanks, brought a rare mix
of talents and connections. He was once a software engineer at the World Wide
Web Consortium, specializing in the Semantic Web; he had founded and run a
company dealing in bioinformatics and artificial intelligence; he had worked
for a member of Congress; and he was formerly assistant director of the Berkman
Center at Harvard Law School.
={ David, Paul ;
   Eisen, Michael B. ;
   Lederberg, Joshua ;
   Rai, Arti ;
   Sulston, Sir John ;
   Wilbanks, John +1
}

After obtaining free office space at MIT, Wilbanks set off to instigate change
within the scientific world — and then get out of the way. “We’re designing
Science Commons to outstrip ourselves,” Wilbanks told me. “We don’t want to
control any of this; we’re designing it to be decentralized. If we try to
control it, we’ll fail.”

With a staff of seven and a budget of only $800,000 in 2008, Science Commons is
not an ocean liner like the National Academy of Science and the National
Science Foundation; it’s more of a tug-boat. Its strategic interventions try to
nudge the big players into new trajectories. It is unencumbered by bureaucracy
and entrenched stakeholders, yet it has the expertise, via Creative Commons, to
develop standard licensing agreements for disparate communities. It knows how
to craft legal solutions that can work with technology and be understood by
nonlawyers.

In 2006, Science Commons embarked upon three “proof of concept” projects that
it hopes will be models for other scientific fields. The first initiative, the
Scholar’s Copyright Project, aspires to give scientists the “freedom to archive
and reuse scholarly works on the Internet.” It is also seeking to make the vast
quantities of data on computerized databases more accessible and interoperable,
as a way to advance scientific discovery and innovation.
={ Scholar’s Copyright Project ;
   Science Commons :
     Scholar’s Copyright Project, and
}

A second project, the Neurocommons, is a bold experiment that aims to use the
Semantic Web to make a sprawling body of neurological research on the Web more
accessible. The project is developing a new kind of Internet platform so that
researchers will be able to do sophisticated searches of neuroscience-related
journal articles and explore datasets across multiple databases.
={ Neurocommons ;
   Science Commons :
     Neurocommons, and the
}

Finally, Science Commons is trying to make it cheaper and easier for
researchers to share physical materials such as genes, proteins, chemicals,
tissues, model animals, and reagents, which is currently a cumbersome process.
The Biological Materials Transfer Project resembles an attempt to convert the
pony express into a kind of Federal Express, so that researchers can use an
integrated electronic data system to obtain lab materials with a minimum of
legal complications and logistical delays.
={ Biological Materials Transfer Project }

In many instances, Science Commons has been a newcomer to reform initiatives
already under way to build open repositories of scientific literature or data.
One of the most significant is the openaccess publishing movement, which has
been a diverse, flourishing effort in academic circles since the 1990s. It is
useful to review the history of the open access (OA) movement because it has
been an important pacesetter and inspiration for the open-science ethic.
={ education :
     open access movement ;
   open access (OA) movement +22 ;
   Science Commons :
     open access movement, and
}

2~ The Open-Access Movement
={ open access (OA) movement +19 ;
   Science Commons :
     open access movement, and +19
}

The open-access movement has a fairly simple goal: to get the scientific record
online and available to everyone. It regards this task as one of the most
fundamental challenges in science. Open-access publishing generally consists of
two modes of digital access — openaccess archives (or “repositories”) and
open-access journals. In both instances, the publisher or host institution pays
the upfront costs of putting material on the Web so that Internet users can
access the literature at no charge.~[* “Open access” can be a confusing term.
In the context of a rivalrous, depletable natural resource like timber or
grazing land, an open-access regime means that anyone can use and appropriate
the resource, resulting in its overexploitation and ruin. An /{open-access
regime}/ is not the same as a /{commons}/, however, because a commons does have
rules, boundaries, sanctions against free riders, etc., to govern the resource.
However, in the context of an infinite, nonrivalrous resource like information,
which can be copied and distributed at virtually no cost, an open-access regime
does not result in overexploitation of the resource. For this reason, open
access in an Internet context is often conflated with the commons — even though
“open access,” in a natural resource context, tends to produce very different
outcomes.]~

The appeal of OA publishing stems from the Great Value Shift described in
chapter 5. “OA owes its origin and part of its deep appeal to the fact that
publishing to the Internet permits both wider dissemination and lower costs
than any previous form of publishing,” writes Peter Suber, author of /{Open
Access News}/ and a leading champion of OA.~{
http://www.earlham.edu/~peters/fos/fosblog.html. }~ “The revolutionary
conjunction is too good to pass up. But even lower costs must be recovered if
OA is to be sustainable.” In most cases, publishing costs are met by scientific
and academic institutions and/or by subsidies folded into research grants.
Sometimes an OA journal will defray its publishing costs by charging authors
(or their grant funders) a processing fee for articles that they accept.
={ Great Value Shift ;
   Suber, Peter
}

Just as free software and music downloads have disrupted their respective
industries, so OA publishing has not been a welcome development among large
academic publishers such as Elsevier, Springer, Kluwer, and Wiley. Online
publishing usually costs much less than traditional print publishing and it
allows authors to retain control over their copyrights. Both of these are a big
incentive for disciplines and universities to start up their own OA journals.
In addition, OA publishing makes it easier for research to circulate, and for
authors to reach larger readerships. This not only augments the practical goals
of science, it bolsters the reputation system and open ethic that science
depends upon.

Commercial publishers have historically emphasized their shared interests with
scholars and scientists, and the system was amicable and symbiotic. Academics
would produce new work, validate its quality through peer review, and then, in
most cases, give the work to publishers at no charge. Publishers shouldered the
expense of editorial production, distribution, and marketing and reaped the
bulk of revenues generated. The arrangement worked fairly well for everyone
until journal prices began to rise in the early 1970s. Then, as subscription
rates continued to soar, placing unbearable burdens on university libraries in
the 1990s, the Internet facilitated an extremely attractive alternative:
open-access journals. Suddenly, conventional business models for scholarly
publishing had a serious rival, one that shifts the balance of power back to
scientists and their professional communities.

Publishers have long insisted upon acquiring the copyright of journal articles
and treating them as “works for hire.” This transfer of ownership enables the
publisher, not the author, to determine how a work may circulate. Access to an
article can then be limited by the subscription price for a journal, the
licensing fees for online access, and pay-per-view fees for viewing an
individual article. Publishers may also limit the reuse, republication, and
general circulation of an article by charging high subscription or licensing
fees, or by using digital rights management. If a university cannot afford the
journal, or if a scholar cannot afford to buy individual articles, research
into a given topic is effectively stymied.

Open-access champion John Willinsky notes, “The publishing economy of scholarly
journals is dominated by a rather perverse property relation, in which the last
investor in the research production chain — consisting of university,
researcher, funding agency and /{publisher}/ — owns the resulting work outright
through a very small investment in relation to the work’s overall cost and
value.”~{ Willinsky, “The Unacknowledged Convergence.” }~ Scientists and
scholars virtually never earn money from their journal articles, and only
occasionally from their books. Unlike commercial writers, this is no problem
for academics, whose salaries are intended to free them to study all sorts of
niche interests despite the lack of “market demand.” Their works are not so
much “intellectual property” that must yield maximum revenues as “royaltyfree
literature,” as Peter Suber calls it. Academics write and publish to contribute
to their fields and enhance their standing among their peers.
={ Suber, Peter ;
   Willinsky, John
}

Not surprisingly, many commercial publishers regard OA publishing as a
disruptive threat. It can, after all, subvert existing revenue models for
scholarly publishing. This does not mean that OA publishing cannot support a
viable business model. Much of OA publishing is sustained through “author-side
payments” to publishers. In certain fields that are funded by research grants,
such as biomedicine, grant makers fold publishing payments into their grants so
that the research can be made permanently available in open-access journals. A
leading commercial publisher, BioMed Central, now publishes over 140 OA
journals in this manner. Hindawi Publishing Corporation, based in Cairo, Egypt,
publishes more than one hundred OA journals and turns a profit. And Medknow
Publications, based in Mumbai, India, is also profitable as a publisher of more
than forty OA journals.

It remains an open question whether the OA business model will work in fields
where little research is directly funded (and thus upfront payments are not
easily made). As Suber reports, “There are hundreds of OA journals in the
humanities, but very, very few of them charge a fee on the author’s side; most
of them have institutional subsidies from a university say, or a learned
society.”~{ Interview with Peter Suber, June 28, 2006. }~ Yet such subsidies,
in the overall scheme of things, may be more attractive to universities or
learned societies than paying high subscription fees for journals or online
access.
={ Suber, Peter +1 }

The tension between commercial publishers and academic authors has intensified
over the past decade, fueling interest in OA alternatives. The most salient
point of tension is the so-called “serials crisis.” From 1986 to 2006,
libraries that belong to the Association of Research Libraries saw the cost of
serial journals rise 321 percent, or about 7.5 percent a year for twenty
consecutive years.~{ Association of Research Libraries, /{ARL Statistics}/
2005–06, at http://www.arl.org/stats/annualsurveys/ar/stats/arlstats06.shtml.
}~ This rate is four times higher than the inflation rate for those years. Some
commercial journal publishers reap profits of nearly 40 percent a year.~{ Peter
Suber, “Creating an Intellectual Commons through Open Access,” in Charlotte
Hess and Elinor Ostrom, eds., /{Understanding Knowledge as a Commons: From
Theory to Practice}/ (Cambridge, MA: MIT Press, 2007), p. 175. }~ By 2000
subscription rates were so crushing that the Association of American
Universities and the Association of Research Libraries issued a joint statement
that warned, “The current system of scholarly publishing has become too costly
for the academic community to sustain.”~{ Association of Research Libraries,
“Tempe Principles for Emerging Systems of Scholarly Publishing,” May 10, 2000,
at http://www.arl.org/resources/pubs/tempe/index.shtml. }~ Three years later,
the high price of journals prompted Harvard, the University of California,
Cornell, MIT, Duke, and other elite research universities to cancel hundreds of
journal subscriptions — a conspicuous act of rebellion by the library
community.
={ libraries :
     “serials crisis”, and | Science Commons, and ;
   Science Commons :
     libraries, and
}

As journal prices have risen, the appeal of OA publishing has only intensified.
Unfortunately, migrating to OA journals is not simply an economic issue. Within
academia, the reputation of a journal is deeply entwined with promotion and
tenure decisions. A scientist who publishes an article in /{Cell}/ or
/{Nature}/ earns far more prestige than she might for publishing in a
little-known OA journal.

So while publishing in OA journals may be economically attractive, it flouts
the institutional traditions and social habits that scientists have come to
rely on for evaluating scientific achievement. The OA movement’s challenge has
been to document how OA models can help a university, and so it has
collaborated with university administrators to showcase exemplary successes and
work out new revenue models. It is urging promotion and tenure committees, for
example, to modify their criteria to stop discriminating against new journals
just because they are new, and hence to stop discriminating against OA journals
(which are all new). Much of this work has fallen to key OA leaders like the
Open Society Institute, the Hewlett Foundation, Mellon Foundation and the
library-oriented SPARC (Scholarly Publishing and Academic Resources Coalition)
as well as individuals such as John Willinsky, Jean-Claude Guédon, Stevan
Harnad, and Peter Suber.
={ Suber, Peter ;
   Willinsky, John ;
   Guédon, Jean-Claude ;
   Harnad, Stevan
}

One of the first major salvos of the movement came in 2000, when biomedical
scientists Harold E. Varmus, Patrick O. Brown, and Michael B. Eisen called on
scientific publishers to make their literature available through free online
public archives such as the U.S. National Library of Medicine’s PubMed Central.
Despite garnering support from nearly 34,000 scientists in 180 countries, the
measure did not stimulate the change sought. It did alert the scientific world,
governments, and publishers about the virtues of OA publishing, however, and
galvanized scientists to explore next steps.
={ Brown, Patrick O. ;
   Varmus, Harold E.
}

At the time, a number of free, online peer-reviewed journals and free online
archives were under way.~{ http://www.earlham.edu/~peters/fos/timeline.htm. }~
But much of the momentum for organized OA movement began in 2001, when the Open
Society Institute convened a group of leading librarians, scientists, and other
academics in Hungary. In February 2002 the group released the Budapest Open
Access Initiative, a statement that formally describes “open access” as the
freedom of users to “read, download, copy, distribute, print, search or link to
the full texts of . . . articles, crawl them for indexing, pass them as data to
software, or use them for any other lawful purpose, without financial, legal or
technical barriers other than those inseparable from gaining access to the
Internet itself.”~{ The Budapest Open Access Initiative can be found at
http://www.soros.org/openaccess. }~ Two subsequent statements, the Bethesda
Declaration and the Berlin Declaration, in June 2003 and October 2003,
respectively, expanded upon the definitions of open access and gave the idea
new prominence. (Suber calls the three documents the “BBB definition” of open
access.)~{ http://www.earlham.edu/~peters/fos/overview.htm. }~
={ Suber, Peter ;
   Budapest Open Access Initiative (2002) ;
   libraries :
     open access movement, and
}

Creative Commons licenses have been critical tools in the evolution of OA
publishing because they enable scientists and scholars to authorize in advance
the sharing, copying, and reuse of their work, compatible with the BBB
definition. The Attribution (BY) and Attribution-Non-Commercial (BY-NC)
licenses are frequently used; many OA advocates regard the Attribution license
as the preferred choice. The protocols for “metadata harvesting” issued by the
Open Archives Initiative are another useful set of tools in OA publishing. When
adopted by an OA journal, these standardized protocols help users more easily
find research materials without knowing in advance which archives they reside
in, or what they contain.

There is no question that OA is transforming the market for scholarly
publishing, especially as pioneering models develop. The Public Library of
Science announced its first two open-access journals in December 2002. The
journals represented a bold, high-profile challenge by highly respected
scientists to the subscription-based model that has long dominated scientific
publishing. Although Elsevier and other publishers scoffed at the economic
model, the project has expanded and now publishes seven OA journals, for
biology, computational biology, genetics, pathogens, and neglected tropical
diseases, among others.

OA received another big boost in 2004 when the National Institutes for Health
proposed that all NIH-funded research be made available for free one year after
its publication in a commercial journal. The $28 billion that the NIH spends on
research each year (more than the domestic budget of 142 nations!) results in
about 65,000 peer-reviewed articles, or 178 every day. Unfortunately,
commercial journal publishers succeeded in making the proposed OA policy
voluntary. The battle continued in Congress, but it became clear that the
voluntary approach was not working. Only 4 percent of researchers published
their work under OA standards, largely because busy, working scientists did not
consider it a priority and their publishers were not especially eager to help.
So Congress in December 2007 required NIH to mandate open access for its
research within a year of publication.~{ Peter Suber has an excellent account
of the final OA legislation in /{SPARC Open Access Newsletter}/, no. 17,
January 2, 2008, at http://www.earlham.edu/~peters/fos/newsletter/01-02-08.htm.
}~
={ National Institutes for Health (NIH) }

What may sound like an arcane policy battle in fact has serious implications
for ordinary Americans. The breast cancer patient seeking the best
peer-reviewed articles online, or the family of a person with Huntington’s
disease, can clearly benefit if they can acquire, for free, the latest medical
research. Scientists, journalists, health-care workers, physicians, patients,
and many others cannot access the vast literature of publicly funded scientific
knowledge because of high subscription rates or per-article fees. A freely
available body of online literature is the best, most efficient way to help
science generate more reliable answers, new discoveries, and commercial
innovations.

While large publishers continue to dominate the journal market, OA publishing
has made significant advances in recent years. In June 2008, the Directory of
Open Access Journals listed more than 3,400 open-access journals containing
188,803 articles. In some fields such as biology and bioinformatics, OA
journals are among the top-cited journals. In fact, this is one of the great
advantages of OA literature. In the networked environment, articles published
in OA journals are more likely to be discovered by others and cited, which
enhances the so-called impact of an article and the reputation of an author.

Although journals may or may not choose to honor OA principles, any scientist,
as the copyright holder of his articles, can choose to “self-archive” his work
under open-access terms. But commercial publishers generally don’t like to cede
certain rights, and authors usually don’t know what rights to ask for, how to
assert them in legal language, and how to negotiate with publishers. So it is
difficult for most academics to assert their real preferences for open access.
To help make things simpler, SPARC and MIT developed what is called an
“author’s addendum.” It is a standard legal contract that authors can attach to
their publishing contracts, in which they reserve certain key rights to publish
their works in OA-compliant ways.

2~ The Scholar’s Copyright Project
={ Scholar’s Copyright Project +18 ;
   Science Commons :
     Scholar’s Copyright Project, and +18
}

In an attempt to help the open-access movement, Science Commons in 2007
developed its own suite of amendments to publishing contracts. The goal has
been to ensure that “at a minimum, scholarly authors retain enough rights to
archive their work on the Web. Every Science Commons Addendum ensures the
freedom to use scholarly articles for educational purposes, conference
presentations, in other scholarly works or in professional activities.”~{
Science Commons brochure [undated]. }~ The ultimate goal is to enable authors
“to have the clear and unambiguous freedom to engage in their normal everyday
scholarly activities without contending with complex technology, continuous
amendments to contracts or the need for a lawyer.”~{ Science Commons,
“Scholar’s Copyright Project — Background Briefing,” at
http://sciencecommons.org/literature/scholars_copyright.html. }~
={ open access (OA) movement }

To make the whole process easier for scientists, Science Commons developed the
Scholar’s Copyright Addendum Engine. This point-and-click Web-based tool lets
authors publish in traditional, subscription-based journals while retaining
their rights to post copies on the Internet for download, without most
copyright and financial restrictions. There are also options for “drag and
drop” self-archiving to repositories such as MIT’s DSpace and the National
Library of Medicine’s PubMed Central. Besides making selfarchiving easier and
more prevalent, Science Commons hopes to standardize the legal terms and
procedures for self-archiving to avoid a proliferation of incompatible rights
regimes and document formats. “The engine seems to be generating a dialogue
between authors and publishers that never existed,” said John Wilbanks. “It’s
not being rejected out of hand, which is really cool. To the extent that the
addendum becomes a norm, it will start to open up the [contractual] limitations
on self-archiving.”~{ Interview with John Wilbanks, November 19, 2007. }~
={ Wilbanks, John }

Harvard University gave self-archiving a big boost in February 2008 when its
faculty unanimously voted to require all faculty to distribute their
scholarship through an online, open-access repository operated by the Harvard
library unless a professor chooses to “opt out” and publish exclusively with a
commercial journal. Robert Darnton, director of the Harvard library, said, “In
place of a closed, privileged and costly system, [the open-access rule] will
help open up the world of learning to everyone who wants to learn.”~{ Patricia
Cohen, “At Harvard, a Proposal to Publish Free on the Web,” /{New York Times}/,
February 12, 2008. See also Peter Suber’s coverage of the decision in Open
Access News, at
http://www.earlham.edu/~peters/fos/2008/02/moreon-imminent-oa-mandate-at-harvard.html,
and subsequent days. }~ Harvard’s move was the first time that a university
faculty, and not just the administration, initiated action to take greater
control of its scholarly publishing. While some critics complain the new policy
does not go far enough, most OA advocates hailed the decision as a major step
toward developing alternative distribution models for academic scholarship.
={ Darnton, Robert ;
   Harvard University ;
   open access (OA) movement
}

By far, the more ambitious aspect of the Scholar’s Copyright project is the
attempt to free databases from a confusing tangle of copyright claims. In every
imaginable field of science — from anthropology and marine biology to chemistry
and genetics — databases are vital tools for organizing and manipulating vast
collections of empirical data. The flood of data has vastly increased as
computers have become ubiquitous research tools and as new technologies are
deployed to generate entirely new sorts of digital data streams— measurements
from remote sensors, data streams from space, and much more. But the
incompatibility of databases — chiefly for technical and copyright reasons — is
needlessly Balkanizing research to the detriment of scientific progress. “There
is plenty of data out there,” says Richard Wallis of Talis, a company that has
built a Semantic Web technology platform for open data, “but it is often
trapped in silos or hidden behind logins, subscriptions or just plain difficult
to get hold of.” He added that there is a lot of data that is “just out there,”
but the terms of access may be dubious.~{ Donna Wentworth blog post, “Ensuring
the freedom to integrate — why we need an ‘open data’ protocol,” Science
Commons blog, December 20, 2007, at
http://sciencecommons.org/weblog/archives/2007/12/20/ensuring-thefreedom-to-integrate.
}~
={ Wallis, Richard ;
   science :
     databases +14 ;
   Science Commons :
     ownership of data, and +14
}

Questions immediately arise: Can a database be legally used? Who owns it? Will
the database continue to be accessible? Will access require payment later on?
Since data now reside anywhere in the world, any potential user of data also
has to consider the wide variations of copyright protection for databases
around the world.

The question of how data shall be owned, controlled, and shared is a profoundly
perplexing one. History has shown the virtue of sharing scientific data — yet
individual scientists, universities, and corporations frequently have their own
interests in limiting how databases may be used. Scientists want to ensure the
integrity of the data and any additions to it; they may want to ensure
preferential access to key researchers; companies may consider the data a
lucrative asset to be privately exploited. Indeed, if there is not some
mechanism of control, database producers worry that free riders will simply
appropriate useful compilations and perhaps sell it or use it for their own
competitive advantage. Or they may fail to properly credit the scientists who
compiled the data in the first place. Inadequate database protection could
discourage people from creating new databases in the future.

A National Research Council report in 1999 described the problem this way:
“Currently many for-profit and not-for-profit database producers are concerned
about the possibility that significant portions of their databases will be
copied or used in substantial part by others to create ‘new’ derivative
databases. If an identical or substantially similar database is then either
re-disseminated broadly or sold and used in direct competition with the
original rights holder’s database, the rights holder’s revenues will be
undermined, or in extreme cases, the rights holder will be put out of
business.”~{ National Research Council, /{A Question of Balance: Private Rights
and the Public Interest in Scientific and Technical Databases}/ (Washington,
DC: National Academy Press, 1999), p. 14. }~

In the late 1990s, when the Human Genome Project and a private company, Celera,
were competing to map the human genome, the publicly funded researchers were
eager to publish the genome sequencing data as quickly as possible in order to
prevent Celera or any other company from claiming exclusive control over the
information. They wanted the data to be treated as “the common heritage of
humanity” so that it would remain openly accessible to everyone, including
commercial researchers. When Sir John Sulston of the Human Genome Project
broached the idea of putting his team’s research under a GPL-like license, it
provoked objections that ownership of the data would set a worrisome precedent.
A GPL for data amounts to a “reach-through” requirement on how data may be used
in the future. This might not only imply that data can be owned — flouting the
legal tradition that facts cannot be owned — it might discourage future data
producers from depositing their data into public databases.~{ John Sulston and
Georgina Ferry, /{The Common Threat: A Story of Science, Politics, Ethics and
the Human Genome}/ (Washington, DC: Joseph Henry Press, 2002), pp. 212–13. }~
={ Human Genome Project (HGP) ;
   science :
     Human Genome Project ;
   Sulston, Sir John ;
   General Public License (GPL) :
     “reach-through” requirement
}

The International HapMap Project attempted such a copyleft strategy with its
database of genotypes; its goal is to compare the genetic sequences of
different individuals to identify chromosomal regions where genetic variants
are shared.~{ http://www.hapmap.org. }~ The project initially required users to
register and agree to certain contract terms in order to use the database. One
key term prohibited users from patenting any genetic information from the
database or using patents to block usage of HapMap data.~{ Andrés Guadamuz
González, “Open Science: Open Source Licenses in Scientific Research,” /{North
Carolina Journal of Law & Technology}/ 7, no. 2 (Spring 2006), pp. 349–50. }~
This viral, open-content license for data seemed to provide a solution to the
problem of how to keep data in the commons. But in time the HapMap Project
found that its license inhibited people’s willingness to integrate their own
data with the HapMap database. It therefore abandoned its license and now
places all of its data into the public domain; it is now available to be used
by anyone for any purpose, although it has issued guidelines for the
“responsible use and publication” of the data.~{
http://www.hapmap.org/guidelines_hapmap_data.html.en. }~
={ International HapMap Project }

The basic problem with applying copyright law to databases is how to draw the
line between what is private property and what remains in the commons. “If you
try to impose a Creative Commons license or free-software-style licensing
regime on a database of uncopyrightable facts,” explained John Wilbanks, “you
create an enormous amount of confusion in the user about where the rights start
and stop.”~{ Interview with John Wilbanks, November 19, 2007. }~ It is not very
practical for a working scientist to determine whether copyright protection
applies only to the data itself, to the database model (the structure and
organization of the data), or to the data entry and output sheet. A scientist
might reasonably presume that his data are covered by copyright law, and then
use that right to apply a CC ShareAlike license to the data. But in fact, the
data could be ineligible for copyright protection and so the CC license would
be misleading; other scientists could ignore its terms with impunity. At the
other extreme, other scientists may be unwilling to share their data at all
lest the data circulate with no controls whatsoever. Data are either
overprotected or underprotected, but in either case there is great ambiguity
and confusion.
={ Wilbanks, John ;
   copyright law :
     science, in +1 ;
   science :
     copyright and patent restrictions in +1 ;
   Creative Commons (CC) licenses :
     applied to databases
}

For two years, Science Commons wrestled with the challenge of applying the CC
licenses to databases. Ultimately, the project came to the conclusion that
“copyright licenses and contractual restrictions are simply the wrong tool,
even if those licenses are used with the best of intentions.” There is just too
much uncertainty about the scope and applicability of copyright — and thus
questions about any licenses based on it. For example, it is not entirely clear
what constitutes a “derivative work” in the context of databases. If one were
to query hundreds of databases using the Semantic Web, would the federated
results be considered a derivative work that requires copyright permissions
from each database owner? There is also the problem of “attribution stacking,”
in which a query made to multiple databases might require giving credit to
scores of databases. Different CC licenses for different databases could also
create legal incompatibilities among data. Data licensed under a CC ShareAlike
license, for example, cannot be legally combined with data licensed under a
different license. Segregating data into different “legal boxes” could turn out
to impede, not advance, the freedom to integrate data on the Web.
={ attribution stacking ;
   copyright law :
     attribution stacking in databases, and | derivative works, on ;
   derivative works
}

After meeting with a variety of experts in scientific databases, particularly
in the life sciences, biodiversity, and geospatial research, the Science
Commons came up with an ingenious solution to the gnarly difficulties. Instead
of relying on either copyright law or licenses, Science Commons in late 2007
announced a new legal tool, CC0 (CC Zero), which creates a legal and technical
platform for a scientific community to develop its own reputation system for
sharing data.
={ CC Zero (CC0) +6 ;
   Creative Commons (CC) :
     CC0 (CC Zero), and +6 ;
   Science Commons :
     CC0 (CC Zero), and +6
}

CC0 is not a license but a set of protocols. The protocols require that a
database producer waive all rights to the data based on intellectual property
law — copyrights, patents, unfair competition claims, unfair infringement
rights — a “quitclaim” that covers everything. Then it requires that the
database producer affirmatively declare that it is not using contracts to
encumber future uses of the data. Once a database is certified as complying
with the protocols, as determined by Science Commons, it is entitled to use a
Science Commons trademark, “Open Access Data,” and CC0 metadata. The trademark
signals to other scientists that the database meets certain basic standards of
interoperability, legal certainty, ease of use, and low transaction costs. The
metadata is a functional software tool that enables different databases to
share their data.

“What we are doing,” said John Wilbanks, “is reconstructing, contractually, the
public domain. The idea is that with any conforming implementation — any
licensed database — you have complete freedom to integrate with anything else.
It creates a zone of certainty for data integration.”~{ Ibid. }~ Unlike
public-domain data, the databases that Science Commons certifies as meeting
open-data protocols cannot be taken private or legally encumbered. To qualify
to use the Open Access Data mark, databases must be interoperable with other
databases licensed under the protocols. If someone falsely represents that his
data are covered by the license, Science Commons could pursue a trademark
infringement case.
={ Wilbanks, John ;
   public domain :
     reconstructing +4
}

To develop this scheme, Science Commons’s attorney Thinh Nguyen worked closely
with Talis, a company that has built a Semantic Web technology platform for
open data and developed its own open database license. Nguyen also worked with
the company’s legal team, Jordan Hatcher and Charlotte Waelde, and with the
Open Knowledge Foundation, which has developed the Open Knowledge Definition.
={ Nguyen, Thinh ;
   Hatcher, Jordan ;
   Waelde, Charlotte ;
   Open Knowledge Definition
}

The CC0 approach to data represents something of a breakthrough because it
avoids rigid, prescriptive legal standards for a type of content (data) that is
highly variable and governed by different community norms. CC0 abandons the
vision of crafting a single, all-purpose copyright license or contract for
thousands of different databases in different legal jurisdictions. Instead it
tries to create a legal framework that can honor a range of variable social
norms that converge on the public domain. Each research community can determine
for itself how to meet the CC0 protocols, based on its own distinctive research
needs and traditions. Different norms can agree to a equivalency of
public-domain standards without any one discipline constraining the behaviors
of another.
={ public domain :
     social norms, and
}

The system is clever because it provides legal reliability without being overly
prescriptive. It is simple to use but still able to accommodate complex
variations among disciplines. And it has low transaction costs for both
producers and users of data. Over time, the databases that comply with the CC0
protocols are likely to grow into a large universe of interoperable open data.
={ science :
     transaction costs in ;
   transaction costs :
     science, in
}

It is still too early to judge how well the CC0 program is working, but initial
reactions have been positive. “The solution is at once obvious and radical,”
said Glyn Moody, a British journalist who writes about open-source software.
“It is this pragmatism, rooted in how science actually works, that makes the
current protocol particularly important.” Deepak Singh, the co-founder of
Bioscreencast, a free online video tutorial library for the scientific
community, said, “I consider just the announcement to be a monumental
moment.”~{ Moody and Singh quotations from Donna Wentworth, Science Commons
blog post, December 20, 2007. }~
={ Moody, Glyn ;
   Singh, Deepak
}

2~ The Neurocommons

Every day there is so much new scientific literature generated that it would
take a single person 106 years to read it all.~{ Brian Athey, University of
Michigan, presentation at Commons of Science conference, National Academy of
Science, Washington, DC, October 3, 2006. }~ In a single year, over twenty-four
thousand peer-reviewed journals publish about 2.5 million research articles.~{
Stevan Harnad, “Maximizing Research Impact Through Institutional and National
Open-Access Self-Archiving Mandates,” /{Electronics & Computer Science E-Prints
Repository}/, May 2006, available at
http://eprints.ecs.soron.ac.uk/12093/02/harnad-crisrey.pdf. }~ Our ability to
generate content has far outstripped our ability to comprehend it. We are
suffering from a cognitive overload — one that can only be addressed by using
software and computer networks in innovative ways to organize, search, and
access information. For many years, Sir Tim Berners-Lee, the celebrated
inventor of the World Wide Web, and his colleagues at the World Wide Web
Consortium (W3C), based at MIT, have been trying to solve the problem of
information overload by developing a “new layer” of code for the Web.
={ Berners-Lee, Tim ;
   World Wide Web Consortium (W3C)
}

This visionary project, the so-called Semantic Web, aspires to develop a
framework for integrating a variety of systems, so they can communicate with
one another, machine to machine. The goal is to enable computers to identify
and capture information from anywhere on the Web, and then organize the results
in sophisticated and customized ways. “If you search for ‘signal transduction
genes in parameter neurons,’ ” said John Wilbanks of Science Commons, “Google
sucks. It will get you 190,000 Web pages.” The goal of the Semantic Web is to
deliver a far more targeted and useful body of specialized information.
={ Semantic Web +6 ;
   Science Commons :
     Semantic Web, and the +6 ;
   World Wide Web :
     Semantic Web +6 ;
   ilbanks, John
}

A key tool is the Unique Resource Identifier, or URI, which is analogous to the
Unique Resource Locator, or URL, used by the Web. Affix a URI to any bit of
information on the Web, and the Semantic Web will (so it is hoped) let you mix
and match information tagged with that URI with countless other bits of
information tagged with other URIs. It would not matter if the bit of
information resides in a journal article, database, clinical image, statistical
analysis, or video; the point is that the URI would identify a precise bit of
information. By enabling cross-linking among different types of information,
the idea is that scientists will be able to make all sorts of unexpected and
serendipitous insights.
={ Unique Resource Identifier (URI) ;
   Unique Resource Locator (URL)
}

For example, geneticists studying Huntington’s disease, a rare
neurodegenerative disorder, and experts studying Alzheimer’s disease are both
exploring many of the same genes and proteins of the brain. But because of the
specialization of their disciplines, the chances are good that they read
entirely different scientific journals and attend different conferences. There
is no easy or systematic way for scientists in one specialty to explore the
knowledge that has developed in another specialty. The Semantic Web could
probably help.

Unfortunately, for a grand dream that has been touted since the 1990s, very
little has developed. The W3C has been embroiled in the design challenges of
the Semantic Web for so long that many companies and computer experts now scoff
at the whole idea of the Semantic Web. There have been too many arcane,
inconclusive debates about computer syntax, ontology language, and
philosophical design choices that no one is holding their breath anymore,
waiting for the Semantic Web to arrive. (Wikipedia defines a computer ontology
as “a data model that represents a set of concepts within a domain and the
relationships between those concepts. It is used to reason about the objects
within that domain.”) The vision of the Semantic Web may have the potential to
revolutionize science, but few people have seen much practical value in it over
the near term, and so it has garnered little support.
={ World Wide Web Consortium (W3C) +1 }

Wilbanks, who once worked at the W3C, was frustrated by this state of affairs.
Although he has long believed in the promise of the Semantic Web, he also
realized that it is not enough to extol its virtues. One must demonstrate its
practicality. “The way to herd cats is not to herd cats,” he said, citing a
colleague, “but to put a bowl of cream on your back stoop and run like hell.”
For Wilbanks, the bowl of cream is the Neurocommons knowledge base, a project
that seeks to integrate a huge amount of neuroscientific research using
Semantic Web protocols and is easy to use.
={ Neurocommons +5 ;
   Science Commons :
     Neurocommons, and the +5 ;
   Wilbanks, John +4
}

“The way to overcome the inertia that the Semantic Web critics rightly point
out, is not to sit down and argue about ontologies,” said Wilbanks. “It’s to
release something that’s useful enough that it’s worth wiring your database
into the commons system. If I want to get precise answers to complicated
questions that might be found in my own database, among others, now I can do
that. I simply have to wire it into the Neurocommons. You don’t need to come to
some magical agreement about ontology; you just need to spend a couple of days
converting your database to RDF [Resource Description Framework, a set of
Semantic Web specifications], and then— boom! — I’ve got all of the other
databases integrated with mine.” By getting the ball rolling, Science Commons
is betting that enough neuroscience fields will integrate their literature to
the Neurocommons protocols and make the new commons a lively, sustainable, and
growing organism of knowledge.
={ RDF (Resource Description Framework) }

Using the “open wiring” of the Semantic Web, the Neurocommons has already
integrated information from fifteen of the top twenty databases in the life
sciences and neuroscience. The data have been reformatted to conform to
Semantic Web protocols and the scientific literature, where possible, has been
tagged so that it can be “text-mined” (searched for specific information via
URI tags). “We have put all this stuff into a database that we give away,” said
Wilbanks. “It’s already been mirrored in Ireland, and more mirrors are going
up. It’s sort of like a ‘knowledge server,’ instead of a Web server.”
={ Unique Resource Identifier (URI) }

Commercial journal publishers already recognize the potential power of owning
and controlling metadata in scientific literature and datasets. To leverage
this control many are starting to make copyright claims in certain kinds of
metadata, and to amend their contracts with libraries in order to limit how
they may retrieve electronic information. “There is a lot at stake here,” says
Villanova law professor Michael Carroll. “What Science Commons wants to do is
make sure that metadata is an open resource.”~{ Interview with Michael Carroll,
August 7, 2006. }~
={ Carroll, Michael W. ;
   libraries :
     Science Commons, and ;
   Science Commons :
     libraries, and
}

Wilbanks has high hopes that the Neurocommons project, by providing a useful
demonstration of Semantic Web tools, will hasten the interoperability of
specialized knowledge that is currently isolated from related fields. It comes
down to how to motivate a convergence of knowledge. Instead of arguing about
which discipline’s ontology of specialized knowledge is superior to another’s —
and making little headway toward a consensus — Wilbanks has a strategy to build
a knowledge tool that is useful. Period. His bet is that a useful “knowledge
server” of integrated neuroscientific information will be a powerful incentive
for adjacent disciplines to adapt their own literature and databases to be
compatible. The point is to get the commons going — while allowing the freedom
for it to evolve. Then, if people have disagreements or quibbles, they will be
free to change the ontologies as they see fit. “The version [of the
Neurocommons] that we are building is useful and it is free,” Wilbanks said.
“That means that if you want to integrate with it, you can. It means that if
you want to redo our work your way, you can— as long as you use the right
technical formats. You can reuse all of our software.”

The problem with a field like neuroscience, which has so many exploding
frontiers, is that no single company or proprietary software platform can
adequately manage the knowledge. The information is simply too copious and
complex. Like so many other fields of knowledge that are large and complicated,
it appears that only an open-source model can successfully curate the relevant
information sources. A Web-based commons can be remarkably efficient,
effective, and scalable. This has been the lesson of free and open-source
software, wikis, and the Web itself. Although it is too early to tell how the
Neurocommons project will evolve, the initial signs are promising. A number of
foundations that support research for specific diseases — Alzheimer’s disease,
Parkinson’s, autism, epilepsy, Huntington’s disease — have already expressed
interest in the Neurocommons as a potential model for advancing research in
their respective fields.

2~ Open Physical Tools
={ Science Commons :
     open physical tools in +10
}

Science is not just about text and data, of course. It also involves lots of
tangible /{stuff}/ needed to conduct experiments. Typical materials include
cell lines, monoclonal antibodies, reagents, animal models, synthetic
materials, nano-materials, clones, laboratory equipment, and much else. Here,
too, sharing and collaboration are important to the advance of science. But
unlike digital bits, which are highly malleable, the physical materials needed
for experiments have to be located, approved for use, and shipped. Therein lies
another tale of high transaction costs impeding the progress of science. As
Thinh Nguyen, counsel for Science Commons, describes the problem:
={ Nguyen, Thinh +1 }

_1 The ability to locate materials based on their descriptions in journal
articles is often limited by lack of sufficient information about origin and
availability, and there is no standard citation for such materials. In
addition, the process of legal negotiation that may follow can be lengthy and
unpredictable. This can have important implications for science policy,
especially when delays or inability to obtain research materials result in lost
time, productivity and research opportunities.~{ Thinh Nguyen, “Science
Commons: Material Transfer Agreement Project,” /{Innovations}/, Summer 2007,
pp. 137–43, at
http://www.mitpressjournals.org/doi/pdf/10.1162/itgg.2007.2.3.137. }~

To the nonscientist, this transactional subculture is largely invisible. But to
scientists whose lab work requires access to certain physical materials, the
uncertainties, variations, and delays can be crippling. Normally, the transfer
of materials from one scientist to another occurs through a Material Transfer
Agreement, or MTA. The technology transfer office at one research university
will grant, or not grant, an MTA so that a cell line or tissue specimen can be
shipped to a researcher at another university. Typically, permission must be
granted for the researcher to publish, disseminate, or use research results,
and to license their use for commercialization.
={ Material Transfer Agreements (MTAs) +7 ;
   science :
     Material Transfer Agreements (MTAs) +7
}

While certain types of transactions involve material that could conceivably
generate high royalty revenues, a great many transactions are fairly low-value,
routine transfers of material for basic research. Paradoxically, that can make
it all the harder to obtain the material because consummating an MTA is not a
high priority for the tech transfer office. In other cases, sharing the
material is subject to special agreements whose terms are not known in advance.

Corporations sometimes have MTAs with onerous terms that prevent academic
researchers from using a reagent or research tool. Individual scientists
sometimes balk at sharing a substance because of the time and effort needed to
ship it. Or they may wish to prevent another scientist from being the first to
publish research results. Whatever the motivation, MTAs can act as a serious
impediment to verification of scientific findings. They can also prevent new
types of exploratory research and innovation.

Wilbanks describes the existing system as an inefficient, artisanal one that
needs to becomes more of a streamlined industrial system. Just as Creative
Commons sought to lower the transaction costs for sharing creative works,
through the use of standard public licenses, so Science Commons is now trying
to standardize the process for sharing research materials. The idea is to
reduce the transaction costs and legal risks by, in Nguyen’s words, “creating a
voluntary and scalable infrastructure for rights representation and
contracting.”~{ Ibid. }~ Like the CC licenses, the Science Commons MTAs will
consist of “three layers” of licenses — the standard legal agreement, the
machine-readable metadata version, and the “humanreadable deed” that nonlawyers
can understand.
={ Wilbanks, John ;
   Nguyen, Thinh ;
   science :
     transaction costs in ;
   transaction costs :
     science, in
}

There are already some successful systems in place for sharing research
materials, most notably the Uniform Biological Material Transfer Agreement
(UBMTA), which some 320 institutions have accepted, as well as a Simple Letter
Agreement developed by the National Institutes of Health. The problem with
these systems is that they cannot be used for transfers of materials between
academic and for-profit researchers. In addition, there are many instances in
which UBMTA signatories can opt out of the system to make modifications to the
UBMTA on a case-by-case basis.
={ National Institutes for Health (NIH) ;
   Uniform Biological Material Transfer Agreement (UBMTA)
}

To help standardize and streamline the whole system for sharing research
materials, Science Commons is working with a consortium of ten research
universities, the iBridge Network, to develop a prototype system. The hope is
that by introducing metadata to the system, and linking that information to
standard contracts and human-readable deeds, scientists will be able to acquire
research materials much more rapidly by avoiding bureaucratic and legal
hassles. Just as eBay, Amazon, and Federal Express use metadata to allow
customers to track the status of their orders, so the Science Commons MTA
project wants to develop a system that will allow searching, tracking, and
indexing of specific shipments. It is also hoped that metadata links will be
inserted into journal articles, enabling scientists to click on a given
research material in order to determine the legal and logistical terms for
obtaining the material.
={ iBridge Network ;
   Science Commons :
     iBridge Network, and
}

Wilbanks envisions a new market of third-party intermediaries to facilitate
materials transfers: “There’s an emerging network of third parties — think of
them as ‘biology greenhouses’ — who are funded to take in copies of research
materials and manufacture them on demand — to grow a quantity and mail them
out. What Science Commons is trying to do with the Materials Transfer Project
is to put together a functional system where materials can go to greenhouses
under standard contracts, with digital identifiers, so that the materials can
be cross-linked into the digital information commons. Anytime you see a list of
genes, for example, you will be able to right-click and see the stuff that’s
available from the greenhouses under standard contract, and the cost of
manufacture and delivery in order to access the tool. Research materials need
to be available under a standard contract, discoverable with a digital
identifier, and fulfillable by a third party. And there needs to be some sort
of acknowledgment, like a citation system.”
={ Wilbanks, John }

At one level, it is ironic that one of the oldest commons-based communities,
academic science, has taken so long to reengineer its digital infrastructure to
take advantage of the Internet and open digital systems. Yet academic
disciplines have always clung tightly to their special ways of knowing and
organizing themselves. The arrival of the Internet has been disruptive to this
tradition by blurring academic boundaries and inviting new types of
cross-boundary research and conversation. If only to improve the conversation,
more scientists are discovering the value of establishing working protocols to
let the diverse tribes of science communicate with one another more easily. Now
that the examples of networked collaboration are proliferating, demonstrating
the enormous power that can be unleashed through sharing and openness, the
momentum for change is only going to intensify. The resulting explosion of
knowledge and innovation should be quite a spectacle.

1~ 12 OPEN EDUCATION AND LEARNING
={ education +44 }

/{Managing educational resources as a commons can make learning more affordable
and exciting.}/

In the late 1990s, as Richard Baraniuk taught electrical engineering to
undergraduates at Rice University, the furthest thing from his mind was
revolutionizing learning. He just wanted to make digital signal processing a
more palatable subject for his students. Baraniuk, an affable professor with a
venturesome spirit, was frustrated that half of his undergraduate class would
glaze over when he taught signal processing, perhaps because it involves a lot
of math. But then he explained the social ramifications of signal processing —
for wiretapping, the Internet, the airwaves, radar, and much more. Students got
excited.
={ Baraniuk, Richard +13 ;
   Rice University +13
}

“If I wanted to reach a broader class of people, outside of Rice University,”
Baraniuk said, “that would be very difficult. The standard thing is to write
your own book.” But he quickly realized that writing the 176th book ever
written on signal processing (he counted) would not be very efficient or
effective. It would take years to write, and then additional years to traverse
the editorial, production, and distribution process. And even if the book were
successful, it would reach only five thousand readers. Finally, it would be a
static artifact, lacking the timeliness and interactivity of online dialogue. A
book, Baraniuk ruefully observed, “redisconnects things.”~{ Interview with
Richard Baraniuk, January 21, 2008. }~

As chance had it, Baraniuk’s research group at Rice was just discovering
open-source software. “It was 1999, and we were moving all of our workstations
to Linux,” he recalled. “It was just so robust and high-quality, even at that
time, and it was being worked on by thousands of people.” Baraniuk remembers
having an epiphany: “What if we took books and ‘chunked them apart,’ just like
software? And what if we made the IP open so that the books would be free to
re-use and remix in different ways?’”
={ Linux :
     education, and
}

The vision was exciting, but the tools for realizing it were virtually
nonexistent. The technologies for collaborative authoring and the legal
licenses for sharing, not to mention the financing and outreach for the idea,
would all have to be developed. Fortunately, the Rice University administration
understood the huge potential and helped Baraniuk raise $1 million to put
together a skunk works of colleagues to devise a suitable software architecture
and nonprofit plan. A colleague, Don Johnson, dubbed the enterprise
“Connexions.”
={ Connexions +10 ;
   education :
     Connexions +10 ;
   Johnson, Don
}

The group made a number of choices that turned out to be remarkably shrewd.
Instead of organizing teaching materials into a “course” or a “textbook,” for
example, the Connexions planners decided to build an open ecosystem of shared
knowledge. Just as the Web is “small pieces loosely joined,” as David
Weinberger’s 2003 book put it, so Connexions decided that the best way to
structure its educational content was as discrete modules (such as “signal
processing”) that could be reused in any number of contexts. The planners also
decided to build a system on the open Semantic Web format rather than a simple
interlinking of PDF files. This choice meant that the system would not be
tethered to a proprietary or static way of displaying information, but could
adapt and scale in the networked environment. Modules of content could be more
easily identified and used for many different purposes, in flexible ways.
={ education :
     Semantic Web, and ;
   Semantic Web ;
   World Wide Web :
     Semantic Web ;
   Weinberger, David
}

By the summer of 2000, the first version of Connexions went live with two Rice
University courses, Fundamentals of Electronic Engineering and Introduction to
Physical Electronics. The goal was to let anyone create educational materials
and put them in the repository. Anyone could copy and customize material on the
site, or mix it with new material in order to create new books and courses.
Materials could even be used to make commercial products such as Web courses,
CD-ROMs, and printed books. By the end of 2000, two hundred course modules were
available on Connexions: a modest but promising start.

It turned out to be an auspicious moment to launch an open platform for
sharing. A wave of Web 2.0 applications and tools was just beginning to appear
on the Internet. Innovators with the savvy to take advantage of open networks,
in the style of free and open software, could amass huge participatory
communities in very short order. For Connexions, the living proof was Kitty
Schmidt-Jones, a private piano teacher from Champaign, Illinois. She discovered
Connexions through her husband and posted a 276-page book on music theory to
the site. “Kitty is not the kind of person who would be a music textbook
author,” said Baraniuk, “but she thought that music education is important, and
said, ‘I can do this, too!’ By 2007 /{Understanding Basic Music Theory}/ had
been downloaded more than 7.5 million times from people around the world. A
Connexions staffer attending a conference in Lithuania met an educator from
Mongolia who lit up at the mention of Schmidt-Jones. “We use her work in our
schools!” he said.
={ education :
     Web 2.0 applications, and ;
   Web 2.0 :
     applications :
     education, and ;
   Schmidt-Jones, Kitty
}

Besides curating a collection of educational content, Connexions has developed
a variety of open-source applications to let authors create, remix, share, and
print content easily. The project has also developed systems to let users rate
the quality of materials. Professional societies, editorial boards of journals,
and even informal groups can use a customizable software “lens” to tag the
quality of Connexions modules, which can then be organized and retrieved
according to a given lens.

It was a stroke of good fortune when Baraniuk and his associates learned, in
2002, that Lawrence Lessig was developing a new licensing project called
Creative Commons. As the CC team drafted its licenses, Connexions helped it
understand academic needs and then became one of the very first institutional
adopters of the CC licenses. Connexions decided to require that its
contributors license their works under the least restrictive CC license, CC-BY
(Attribution). This was a simple decision because most textbook authors write
to reach large readerships, not to make money.
={ Lessig, Lawrence :
     CC licenses, and
}

The real expansion of Connexions as a major international repository of
teaching materials did not occur until early 2004, when the software platform
had been sufficiently refined. Then, with virtually no publicity, global usage
of the Connexions site took off. It helped that Rice University has never
sought to “own” the project. Although it administers the project, the
university has deliberately encouraged grassroots participation from around the
world and across institutions. Electrical engineering faculty at ten major
universities are cooperating in developing curricula, for example, and diverse
communities of authors are adding to content collections in music, engineering,
physics, chemistry, bioinformatics, nanotechnology, and history. In 2008,
Connexions had 5,801 learning modules woven into 344 collections. More than 1
million people from 194 countries are using the materials, many of which are
written in Chinese, Italian, Spanish, and other languages.

One of Connexion’s neatest tricks is offering printed textbooks for a fraction
of the price of conventional textbooks. Because the content is drawn from the
commons, a 300-page hardback engineering textbook that normally sells for $125
can be bought for $25, through a print-on-demand publishing partner, QOOP.com.
Ten percent of the purchase price is earmarked to support Connexions, and
another 10 percent helps disadvantaged students obtain textbooks for free.
Unlike conventional textbooks, which may be a year or two old, Connexions
materials are generally up-to-date.

By providing an alternative to the spiraling costs of academic publishing,
Connexions’s publishing model may actually help a number of academic
disciplines pursue their scholarly missions. Over the past decade, some sixty
university presses have closed or downsized for economic reasons. “If you’re in
art history, anthropology, or the humanities, you get tenure based on your
monographs published by a university press,” Baraniuk said. “The problem is
that, as university presses shut down, there’s nowhere to publish books
anymore.” It is often financially prohibitive to publish art history books, for
example, because such books typically require highquality production and small
press runs. An overly expensive market structure is blocking the flow of new
scholarly publishing.
={ education :
     university presses +1
}

One solution: a new all-digital hybrid business model for academic publishing.
As the Connexions platform has proved itself, Rice University saw the virtue of
reopening Rice University Press (RUP), which it had closed ten years earlier.~{
Rice University Press homepage, at http://www.ricepress.rice.edu. }~ The new
RUP retains the editorial structure, high standards, and focus on special
fields of a conventional academic press, but it now works within a “branded
partition” of Connexions. RUP posts all of its books online as soon as the
manuscripts are finalized, and all books are licensed under a CC-BY
(Attribution) license. The press does not have to pay for any warehouse or
distribution costs because any physical copies of the books are printed on
demand. The sales price includes a mission-support fee for RUP and the author’s
royalty. “Because the RUP has eliminated all the back-end costs,” said
Baraniuk, “they figure they can run it from five to ten times more cheaply than
a regular university press.”

The Connexions publishing model has inspired a group of more than twenty
community colleges to develop its own publicdomain textbooks to compete with
expensive commercial textbooks. The Community College Consortium for Open
Educational Resources~{ http://cccoer.pbwiki.com. }~ —led by Foothill–De Anza
Community College District in Los Altos, California — plans to publish the ten
most popular textbooks used in community colleges, and expand from there. The
consortium will make the books available for free online and sell hardcover
versions for less than thirty dollars. Even if the effort gains only a small
slice of the textbook market, it will help hold down the prices of commercial
textbooks and demonstrate the viability of a new publishing model. More to the
point, by slashing one of the biggest costs facing community college students,
the project will help thousands of lower-income students to stay in college.

2~ MIT’s OpenCourseWare Initiative
={ MIT OpenCourseWare +8 ;
   OpenCourseWare +8 ;
   education :
     OpenCourseWare +8
}

The other pioneering visionary in open education has been MIT. In April 2001,
MIT president Charles Vest shocked the world when he announced that MIT would
begin to put the materials for all two thousand of its courses online for
anyone to use, for free. The new initiative, called OpenCourseWare, would cover
a wide array of instructional materials: lecture notes, class assignments,
problem sets, syllabi, simulations, exams, and video lectures. Putting the
materials online in a searchable, consistent format was expected to take ten
years and cost tens of millions of dollars. (The Hewlett and Mellon foundations
initially stepped forward with two $5.5 million grants, supplemented by $1
million from MIT.)
={ Vest, Charles +1 }

The project had its origins two years earlier, in 1999, when President Vest
charged a study group with exploring how the university might develop online
educational modules for lifelong learning. The assumption was that it would
sell MIT-branded course materials to the budding “e-learning” market. At the
time, Columbia University was developing Fathom.com, a bold for-profit
co-venture with thirteen other institutions, to sell a wide variety of digital
content. Publishers and universities alike envisioned a lucrative new market
for academic and cultural materials.

OpenCourseWare (OCW) was a startling move because it flatly rejected this
ambition, and appeared to be either a foolish or magnanimous giveaway of
extremely valuable information. Knowledge was assumed to be a species of
property that should be sold for as dear a price as possible; few people at the
time recognized that the Great Value Shift on the Internet was reversing this
logic. The idea that giving information away might actually yield greater
gains— by enhancing an institution’s visibility, respect, and influence on a
global scale — was not seen as credible. After all, where’s the money?
={ Great Value Shift ;
   Internet :
     Great Value Shift, and
}

After studying the matter closely, MIT decided that the online market was not
likely to be a boon, and that posting course materials online would send a
strong message about MIT’s values. President Vest conceded that the plan “looks
counter-intuitive in a market-driven world.” But he stressed that
OpenCourseWare would combine “the traditional openness and outreach and
democratizing influence of American education and the ability of the Web to
make vast amounts of information instantly available.”~{ MIT press release,
“MIT to make nearly all course materials available free on the World Wide Web,”
April 4, 2001.}~ Professor Steven Lerman, one of the architects of the OCW
plan, told the /{New York Times}/, “Selling content for profit, or trying in
some ways to commercialize one of the core intellectual activities of the
university, seemed less attractive to people at a deep level than finding ways
to disseminate it as broadly as possible.”~{ Carey Goldberg, “Auditing Classes
at M.I.T., on the Web and Free,” /{New York Times}/, April 4, 2001, p. 1. }~
={ Vest, Charles ;
   Lerman, Steven
}

MIT also realized the dangers of propertizing college courses and teaching
materials, said computer scientist Hal Abelson, another member of the OCW study
group (and a CC board member). Ownership, he said, “can be profoundly
destructive to the idea of a university community . . . The more people can
stop talking about property and start talking about the nature of a faculty
member’s commitment to the institution, the healthier the discussion will be.
It’s not really about what you own as a faculty member; it’s about what you do
as a faculty member.”~{ Interview with Hal Abelson, “OpenCourseWare and the
Mission of MIT,” /{Academe}/, September/October 2002, pp. 25–26. }~
={ Abelson, Hal :
     OpenCourseWare, and
}

School officials stressed that using MIT courseware on the Web is not the same
as an MIT education. Indeed, the free materials underscore the fact that what
really distinguishes an MIT education is one’s participation in a learning
community. Unlike the Connexions content, MIT’s OpenCourseWare is a fairly
static set of course materials; they are not modular or constantly updated. In
addition, they are licensed under a CC BY-NC-SA
(AttributionNonCommercial-ShareAlike.) license. While this prevents businesses
from profiting from MIT course materials, it also prevents other educational
institutions from remixing them into new courses or textbooks.
={ communities :
     learning ;
   education :
     learning community, in a
}

Despite these limitations, MIT’s OCW materials have been profoundly
influential. The course Laboratory in Software Engineering, for example, has
been used by students in Karachi, Pakistan; the island of Mauritius; Vienna,
Austria; and Kansas City, Missouri, among scores of other places around the
world.~{ David Diamond, “MIT Everyware,” /{Wired}/, September 2003. }~ Ten of
the leading Chinese universities now use hundreds of MIT courses, leading three
noted OER experts, Daniel E. Atkins, John Seely Brown, and Allen L. Hammond, to
conclude that MIT’s OCW “has had a major impact on Chinese education.”~{ Daniel
E. Atkins, John Seely Brown, and Allen L. Hammond, “A Review of the Open
Educational Resources (OER) Movement: Achievements, Challenges and New
Opportunities,” February 2007, at
http://www.oerderves.org/wp-content/uploads/2007/03/a-review-of-the-open-educational-re
sources-oer-movement_final.pdf, p. 23. }~ Noting the life-changing impact that
OCW has had on students in rural villages in China and West Africa, Atkins and
his co-authors cite “the power of the OCW as a means for cross-cultural
engagement.” Over the course of four years, from October 2003 through 2007, the
OCW site received nearly 16 million visits; half were newcomers and half were
repeat visits.
={ Atkins, Daniel E. ;
   Brown, John Seely ;
   Hammond, Allen L. ;
   education :
     OER movement ;
   Open Educational Resources (OER) movement
}

OCW is becoming a more pervasive international ethic now that more than 120
educational institutions in twenty nations have banded together to form the
OpenCourseWare Consortium. Its goal is to create “a broad and deep body of open
educational content using a shared model.”~{ OpenCourseWare Consortium, at
http://www.ocwconsortium.org. }~ Although plenty of universities are still
trying to make money from distance education courses, a growing number of
colleges and universities realize that OCW helps faculty connect with other
interested faculty around the world, build a college’s public recognition and
recruitment, and advance knowledge as a public good.

2~ The Rise of the Open Educational Resources Movement
={ education :
     OER movement +19 ;
   Open Educational Resources (OER) movement +19
}

While Connexions and MIT’s OpenCourseWare have understandably garnered a great
deal of attention, all sorts of fascinating educational projects, big and
small, have popped up on the Internet as Web 2.0 innovations matured. Some of
these projects have become celebrated, such as Wikipedia, the Public Library of
Science, and the Internet Archive. Others, though less celebrated, represent a
dazzling mosaic of educational innovation and new possibilities. In a sense,
the Long Tail has come to education; even the most obscure subjects have a
sustainable niche on the Internet. The groundswell has even produced its own
theorists, conveners, and infrastructure builders. Utah State University hosts
the Center for Open Sustainable Learning, which is a clearinghouse for open
educational tools. Carnegie Mellon has an Open Learning Initiative that designs
educational courses. And so on.
={ Long Tail ;
   Wikipedia
}

While American institutions and educators have been the first movers in this
field, it has quickly taken on an international grassroots flavor. Thousands of
commoners from around the world have started their own projects. MathWorld has
become the Web’s most extensive mathematical resource. Curriki is a wiki that
offers lessons plans and guidance for teachers. The British Library’s Online
Gallery features digitized versions of Mozart’s musical diary and sketches by
Leonardo da Vinci. U.K. and Australian high school students can now use the
Internet to operate the Faulkes Telescope on the island of Maui, Hawaii.
Students around the world do much the same with Bugscope, a scanning electronic
microscope that can be operated remotely.

It is hard to set a precise date when the practitioners in this area realized
that such wildly diverse projects might constitute a coherent movement with a
shared agenda. But as more grantees began to discover each other, the
movement-in-formation adopted a rather ungainly name to describe itself — “Open
Educational Resources,” or OER.

Most OER projects share a simple and powerful idea — “that the world’s
knowledge is a public good and that technology in general and the World Wide
Web in particular provide an extraordinary opportunity for everyone to share,
use and reuse knowledge.” That is how Atkins and his co-authors define OER. It
consists of “teaching, learning and research resources that reside in the
public domain or have been released under an intellectual property license that
permits their free use or re-purposing by others.”~{ Ibid. }~
={ Atkins, Daniel E. ;
   Brown
}

The heart of the OER movement is, of course, open sharing and collaboration.
OER advocates regard learning as an intrinsically social process, and so they
believe that knowledge and learning tools ought to freely circulate. Inspired
by the GPL and the CC licenses, OER advocates believe they should be free to
copy, modify, and improve their learning tools and pass them forward to others.
There is a presumption that artificial barriers to the free flow of information
should be eliminated, and that teachers and learners should be empowered to
create their own knowledge commons.
={ Creative Commons (CC) licenses :
     tools for creating commons, as
}

The OER movement has a special importance for people who want to learn but
don’t have the money or resources, which is to say, people in developing
nations, low-income people, and people with specialized learning needs. For the
4 billion people who live in the developing world, schooling is a privilege,
textbooks are rare, and money is scarce. In many African nations, there would
not be libraries if books were not photocopied. The OER movement aspires to
address these needs. OER projects can provide important benefits in
industrialized nations, too, where subscriptions to research journals are often
prohibitively expensive and many community college students drop out because
textbooks cost more than tuition.

The OER movement is currently in a formative stage, still trying to make sense
of the many players in the movement and understand the complex impediments to
its progress. Some of this could be seen at a “speed geeking” session at the
iCommons Summit in 2007 in Dubrovnik, Croatia. Speed geeking, a puckish
variation on “speed dating,” consists of people listening to a short
presentation, asking questions and then moving on to the next presentation.
After five minutes, a moderator blows a whistle and shouts, “Everyone move —
now!” A speed geek can learn about twelve different projects, and meet twelve
interesting people, in a single hour.
={ Croatia }

% added Croatia missing Croatia reference in source book index

In this case, the speed geeking took place in a sweltering loft space without
air-conditioning, in a medieval building overlooking the Adriatic Sea. At the
first station, a group of participants marveled at a sturdy lime-green laptop
of a kind that was about to be distributed to millions of children around the
world. The One Laptop Per Child project, the brainchild of Nicholas Negroponte
of MIT’s Media Lab, is an ambitious nonprofit initiative to build a sturdy,
kidfriendly laptop filled with open-source software and Wi-Fi capabilities for
$100.~{ See, e.g., John Markoff, “For $150, Third-World Laptop Stirs a Big
Debate,” /{New York Times}/, November 30, 2006. }~ (The cost turned out to be
$188, but is expected to decline as production volume grows.) Hundreds of
thousands of the so-called XO laptops have now been distributed to kids in
Peru, Uruguay, Mexico and other poor nations.
={ Negroponte, Nicholas ;
   One Laptop Per Child
}

/{Tweet!}/ Next stop: the Free High School Science Textbooks project in South
Africa is developing a free set of science textbooks for students in grades ten
through twelve. The project depends on volunteers to write modules of text
about various physics, chemistry, and mathematical topics. Paid editors then
craft the text into a coherent, high-quality textbook; printing is funded by
donations.
={ Free High School Science Textbooks }

Five minutes later, it was on to Educalibre, a Chilean project that is
installing free software on old computers so that they can be reused in
classrooms. Educalibre is also trying to integrate free software into high
school curricula, especially math. The project seeks to bring open-source
software principles into formal education.

Next, Delia Browne of the National Education Access Licence for Schools, or
NEALS, explained that some ten thousand Australian schools pay millions of
dollars each year to collecting societies in order to reprint materials that
the Australian schools themselves have produced. NEALS wants to eliminate this
expense, as well as millions of dollars in photocopying expenses, by creating a
vast new commons of freely shareable educational materials. Its solution is to
persuade Australian schools, as copyright holders, to adopt a special license
so that participating schools can copy and share each other’s materials.
={ Browne, Delia ;
   National Education Access Licence for Schools (NEALS)
}

/{Tweet!}/ At the next station, Ed Bice of San Francisco explained how his
nonprofit group, Meedan.net, is developing a “virtual town square” for Arabic-
and English-speaking Internet users. Using realtime translation and social
networking tools, the site aspires to open up a new global conversation between
Arabs and the rest of the world. It plans to break down cultural barriers while
opening up educational opportunities to Arab populations.
={ Bice, Ed }

/{Tweet! Tweet!}/ Neeru Paharia, a former executive director of the Creative
Commons, introduced her fledgling project, AcaWiki. Paharia is concerned that
too many academic articles are locked behind paywalls and are not readily
accessible to everyone. AcaWiki plans to recruit graduate students, academics,
and citizens to write summaries of academic papers. Since many grad students
make abstracts as part of their routine research, it would not be difficult to
pool thousands of summaries into a highly useful, searchable Web collection.
={ Paharia, Neeru }

The speed geekers in Dubrovnik were sweaty and overstimulated at the end, but
gratified to learn that there are a great many OER projects under way
throughout the world; they just aren’t very well known or coordinated with one
another. Two of the participants — J. Philipp Schmidt of the University of the
Western Cape and Mark Surman of the Shuttleworth Foundation, both of South
Africa — conceded that “there is still a great deal of fuzziness about what
this movement includes,” and that “we don’t yet have a good ‘map’ of open
education.” But the significance of grassroots initiatives is unmistakable.
“There is a movement afoot here,” they concluded, “and it is movement with an
aim no less than making learning accessible and adaptable for all.”~{ J.
Philipp Schmidt and Mark Surman, “Open Sourcing Education: Learning and Wisdom
from the iSummit 2007,” September 2, 2007, at
http://icommons.org/download_banco/open-sourcing-education-learning-and-wisdom-from-isummit-2007.
}~ “Education,” another participant predicted, “will drive the future of the
Commons movement.”
={ Schmidt, J. Philipp ;
   Surman, Mark
}

In a sign that the OER movement is getting serious as a movement, thirty of its
leaders met in Cape Town, South Africa, and in January 2008 issued the Cape
Town Open Education Declaration.~{ http://www.capetowndeclaration.org. Schmidt
and Surman, “Open Sourcing Education.” }~ The declaration is a call to make
learning materials more freely available online, and to improve education and
learning by making them more collaborative, flexible, and locally relevant. The
declaration outlines the challenge: “Many educators remain unaware of the
growing pool of open educational resources. Many governments and educational
institutions are either unaware or unconvinced of the benefits of open
education. Differences among licensing schemes for open resources create
confusion and incompatibility. And, of course, the majority of the world does
not have access to the computers and networks that are integral to most current
open education efforts.”

New funding support is materializing from foundations like the Open Society
Institute and the Shuttleworth Foundation, and the Creative Commons has
instigated a new project, ccLearn, headed by Ahrash Bissell, to help coordinate
OER factions and tackle barriers to further progress.
={ Bissell, Ahrash }

Despite the challenges it faces, the Open Educational Resources movement has a
promising future if only because it has such an appealing ethos and practical
value. It offers to lower the costs and increase the efficiencies of learning.
It helps to generate high-quality materials that address specific learning
needs. Where markets are too expensive or unresponsive, collective provisioning
through the commons can meet needs effectively and in socially convivial ways.

Such intangible satisfactions may be one of the secrets of the OER movement’s
success to date. Institutions and individuals take pleasure in contributing to
the public good. There is pleasure in helping people who thirst for an
education, whether in Africa or in a community college, to acquire the
resources they need. For learners, the OER movement offers new, more flexible
styles of learning. Over time, it seems likely that OER projects will transform
the familiar “information transfer” models of formal education into more
informal and participatory learning communities. Passive students will more
easily become passionate, self-directed learners.

Finally, at a time of great geopolitical rivalries and cultural animosities,
the OER movement holds itself forth as an arena of transnational cooperation.
It regards diversity as a strength and social inequity as a challenge to be
squarely met. It is a measure of the movement’s idealism that Schmidt and
Surman, the South African OER commoners, compare open education to “a flock of
migratory geese, moving back and forth between North and South. The flock
combines birds from all places. Each goose takes a turn leading the flock,
taking the strain, and then handing over to their peers. The flock is not
confined to just the North, or the South. It flourishes as a global movement.”
14
={ Schmidt, J. Philipp ;
   Surman, Mark
}

1~ CONCLUSION: THE DIGITAL REPUBLIC AND THE FUTURE OF DEMOCRATIC CULTURE
={ free culture +56 }

/{You never change things by fighting the existing reality. To change
something, build a new model that makes the existing model obsolete. —R.
Buckminster Fuller}/
={ Fuller, R. Buckminster }

Legend has it that, upon leaving Independence Hall on the final day of the
Constitutional Convention in 1787, Benjamin Franklin was approached by a woman,
who asked, “Well, Doctor, what have we got — a Republic or a Monarchy?”
Franklin famously replied, “A Republic, if you can keep it.” The American
colonies had imagined and engineered a new constitutional order, but its
survival would depend on countless new struggles and innovations. An American
civic culture had to be invented.
={ Franklin, Benjamin +1 }

The Franklin vignette might well be applied to the digital republic that the
commoners have built. Except that, instead of asking, “Well, Mr. Stallman and
Professor Lessig, what have we got — a free culture or a proprietary tyranny?”
the question might better be posed to the commoners themselves. Their very
existence answers the question, Tyranny or freedom? Free culture exists. It
exists to the extent that people practice its ideals. It is not pervasive; many
people have no idea what it is; it overlaps in fuzzy ways with the market. But
it is flourishing wherever online communities have devised satisfactory commons
structures — through law, software, and social norms — to capture the value
that they create. Or, as the American Framers put it, to secure the blessings
of liberty to ourselves and our posterity.
={ commoners :
     influence of +3
}

As the preceding chapters make clear, the commoners are now a respected force
in culture, politics, and economics. Their influence can be felt in varying
degrees in the worlds of music, video, photography, and books; in software, Web
design, and Internet policies; in social networks and peer-to-peer communities;
in business, science, and education; and in scores of countries that have
ported the Creative Commons licenses and developed their own commons-based
projects.

Thanks to the Internet, the commons is now a distinct sector of economic
production and social experience. It is a source of “value creation” that both
complements and competes with markets. It is an arena of social association,
self-governance, and collective provisioning that is responsive and trustworthy
in ways that government often is not. In a sense, the commons sector is a
recapitulation of civil society, as described by Alexis de Tocqueville, but
with different capacities.
={ Tocqueville, Alexis de ;
   Internet :
     socially created value of
}

Yet even with the great advances that the commoners have made in building their
own shared platforms, tools, and content, the digital republic is not secure.
In most countries, the commoners have less conventional political power than
corporations, which means that the interests of citizens, consumers, and users
are scanted in the policies that govern market competition, intellectual
property, and life on the Internet.~{ For a nice overview of these policy
contests, see Yochai Benkler, /{The Wealth of Networks: How Social Production
Transforms Markets and Freedom}/ (New Haven, CT: Yale University Press, 2006),
chapter 11, “The Battle Over the Institutional Ecology of the Digital
Environment,” pp. 383–459. }~ Faced with the Great Value Shift, mass-media and
entertainment corporations are not eager to surrender their historic market
franchises to newcomers without a fight; they are resisting competition from
open business models and the commons.
={ Great Value Shift ;
   value ;
   Centralized Media :
     competition, and ;
   Internet :
     attempts to control +3
}

In the United States, cable broadcast operators and telephone carriers are
threatening the very future of the Internet as a commons infrastructure. They
wish to assert greater control over Web access and traffic, and so are
staunchly resisting “net neutrality” rules that would require them to act as
nondiscriminatory common carriers. They would like to leverage their roles as
oligopolistic gatekeepers to the Internet, and boost their revenues, by
choosing whose Web sites will receive superior transmission and whose
communications may be censored or put in the “slow lane.”
={ Internet :
     net neutrality rules on | future of
}

At a further extreme, authoritarian countries such as China, Saudi Arabia,
Egypt, and Singapore have shown that national governments still retain great
powers to censor and control Internet communications.~{ Shanthi Kalathil and
Taylor C. Boas, /{Open Networks, Closed Regimes: The Impact of the Internet on
Authoritarian Rule}/ (Washington, DC: Carnegie Endowment for International
Peace, 2003). }~ Even the United States government is reportedly engaged in
extensive surveillance of Internet traffic, ostensibly for antiterrorism
purposes. Meanwhile, many poor nations, especially in Africa and Asia, are
struggling simply to get online and create their own digital commons.

These battles are all part of a larger struggle over “the institutional ecology
of the digital environment,” in Yochai Benkler’s words — a struggle that is
likely to continue for many years. What powers and capabilities will the
commoners and their institutions have relative to business and government, and
how will they be able to protect and enhance the value created within the
commons?
={ Benkler, Yochai :
     social movements, on
}

2~ A New Species of Citizenship
={ citizenship :
     new species of +22 ;
   democracy :
     new species of citizenship +22 ;
   free culture :
     new species of citizenship, as +22
}

Perhaps the most enduring contribution of the free software, free culture, and
other “open movements” has been their invention of a new species of
citizenship. Despite significant differences of philosophy and implementation,
these commons share some basic values about access, use, and reuse of creative
works and information. No matter their special passions, the commoners tend to
be improvisational, resourceful, self-directed, collaborative, and committed to
democratic ideals. They celebrate a diversity of aesthetics, viewpoints, and
cultures. They are egalitarian in spirit yet respectful of talent and
achievement. There is a strong predilection to share because the accrual of
digital contributions (code, content, metatags) will lead to a greater good for
all and perhaps even democratic change. But there is no hostility to commercial
activity — indeed, there is a lively admiration for entrepreneurialism — so
long as it does not violate basic creative and civic freedoms or core
principles of the Internet (openness, interoperability, sharing). The
disagreements that do exist center on how best to achieve those goals.
={ free culture :
     sharing ethic of
}

As this book has shown, the Internet is enabling a new species of citizenship
in modern life. It is not just a “nice thing.” It is a powerful force for
change. The new technologies have been instrumental in helping the commoners
imagine and build a digital republic of their own. Over the long term, this
citizenship and the culture that it is fostering are likely to be a politically
transformative force. They just might help real-world democracies restore a
measure of their waning legitimacy and competence.~{ David Bollier, /{The Rise
of Netpolitik: How the Internet Is Changing International Politics and
Diplomacy}/ (Washington, DC: Aspen Institute Communications and Society
Program, 2003). }~
={ Internet :
     mass participation in
}

David R. Johnson, a lawyer and scholar, describes the citizen of the Internet —
the “netizen” — as a significant historical development because he or she can
potentially compete with government as a source of binding rule sets. In a
brilliant essay, “The Life of the Law Online,” Johnson writes that “we haven’t
had a real competition for survival among rule sets. The competition is only
between the rule of (our one) law and, presumably, anarchy. So the tendency of
all rule sets to become more complicated over time, especially when written by
people considering only parts of the system in analytical isolation, has not
been checked by evolutionary forces.”~{ David R. Johnson, “The Life of the Law
Online,” /{First Monday}/ 11, no. 2 (February 2006), at
http://firstmonday.org/issues/issue11_2/johnson/index.html. }~ Government has
an unchecked monopoly on lawmaking even though its relationship to the
governed, whose consent is vital, is now greatly attenuated.
={ Johnson, David R. +1 ;
   commoners :
     “netizens” +1
}

One evolutionary “competitor” to government-made law and to markets is the
netizen — or, in my terms, the commoner. For the most part, members of a
commons generate and maintain the rules that govern their collective. By
Johnson’s reckoning, the commons must be considered a new social metabolism for
creating law; it is a new type of “legal organism.” It is, in Johnson’s words,
“a selfcausing legal order composed of systems that adopt goals that serve the
values of those they regulate, without excessively imposing those goals on
others.”
={ commons :
     new type of legal organism ;
   law :
     commons as new type of legal organism
}

A commons is a kind of biological entity operating in a complex cultural
ecosystem. It has its own internal systems for managing its affairs,
interacting with its environment, repairing itself, and defining its own
persistent identity. It is a force by which ordinary people can express their
deepest interests and passions, directly and without institutional mediation,
on a global stage. This is an unprecedented capacity in communications,
culture, and, indeed, human history.
={ commons :
     definition of
}

To understand why the commoner represents a great leap forward in citizenship,
it helps to consider the history of citizenship in the oldest democracy in the
world, the United States. In his book /{The Good Citizen}/, sociologist Michael
Schudson describes the evolution of three distinct types of citizenship over
the past three centuries:
={ Schudson, Michael +2 ;
   citizenship :
     history-making +16 ;
   Internet :
     citizenship, and +16
}

_1 When the nation was founded, being a citizen meant little more than for
property-owning white males to delegate authority to a local gentleman — and
accept his complimentary glass of rum on election day. This “politics of
assent” gave way early in the nineteenth century to a “politics of parties.”
Parties conducted elaborate campaigns of torchlight processions and monster
meetings; voting day was filled with banter, banners, fighting and drinking. .
. . The third model of citizenship, ushered in by Progressive reformers, was a
“politics of information.” Campaigning became less emotional and more
educational. Voting was by secret ballot.~{ Michael Schudson, /{The Good
Citizen: A History of American Civic Life}/ (New York: Free Press, 1998), dust
jacket. }~

We are heirs to the “politics of information,” a model of citizenship that
presumes, as economics does, that we are rational actors who, if armed with
sufficient quantities of high-quality information, will make educated decisions
and optimize civic outcomes. But as Walter Lippmann noted and Schudson echoes,
“if democracy requires omnicompetence and omniscience from its citizens, it is
a lost cause.”~{ Ibid., p. 310. }~ Life is too busy, fast, and complex. A new
type of citizenship is needed. Schudson offers a fairly weak prescription — the
“monitorial citizen,” a watchdog who vigilantly monitors the behavior of power.
={ Lippmann, Walter }

But it is precisely here that the Internet is offering up a new, more muscular
model of citizenship. I call it /{history-making citizenship}/. The rise of the
blogosphere over the past ten years is emblematic of this new paradigm of
citizenship. So is citizen-journalism, free software, Wikipedia, the Open
Educational Resources movement, open business models like Jamendo and Flickr,
and the Creative Commons and iCommons communities. In one sense, the
citizenship that these groups practice is “monitorial” in that their members
spend a great deal of time watching and discussing. But “monitoring” barely
begins to describe their activities. The commoners have the ability — rare in
pre-Internet civic life — to publish and incite others to action, and then
organize and follow through, using a growing variety of powerful tools. With
the advent of blogs, meetups, social networking, text messaging, and many other
digital systems, citizens are able to communicate, coordinate, organize, and
take timely action on a wide range of matters, including matters of public and
political concern.
={ commoners :
     influence of +1
}

I call the new sorts of citizen behaviors “history-making” because ordinary
people are able to assert moral agency and participate in making change.~{ I am
inspired in this choice of terms by Charles Spinosa, Frnando Flores, and Hubert
L. Dreyfus in their book, /{Disclosing New Worlds: Entrepreneurship, Democratic
Action, and the Cultivation of Solidarity}/ (Cambridge, MA: MIT Press, 1997).
}~ This capacity is not reserved chiefly to large, impersonal institutions such
as corporations, government agencies, and other bureaucracies. It is not a mere
“participatory citizenship” in which people can volunteer their energies to a
larger a more influential leader, political party, or institution in order to
help out. It is a citizenship in which /{the commoners themselves}/ choose
projects that suit their talents and passions. Dispersed, unorganized groups of
strangers can build their own platforms and social norms for pursuing their
goals; instigate public action that would not otherwise occur (and that may
clash with the practices of existing institutions); and push forward their own
distinctive agenda.
={ commons :
     political implications of
}

These behaviors exist in some measure in offline realms, of course, but they
are a growing norm in the digital republic. A few examples will suffice to make
the point. The Web helped create and propel a handful of cause-oriented
candidacies — Howard Dean, Ron Paul, Ned Lamont~[* Lamont was an insurgent
candidate for U.S. Senate from Connecticut challenging Senator Joseph Lieberman
in a campaign that helped culturally validate opposition to the U.S. war in
Iraq.]~ — who rapidly raised enormous sums of money, galvanized large numbers
of passionate supporters, and altered mainstream political discourse. Although
none prevailed in their races, Barack Obama made a quantum leap in online
organizing in 2008, raising $50 million in a single month from supporters via
the Internet. Obama’s candidacy was buoyed by the rise of the “netroots” — Web
activists with a progressive political agenda— whose size and credibility
enable them to sway votes in Congress, raise significant amounts of campaign
funds, and influence local activism. The stories are now legion about blogs
affecting political life — from the resignation of Senate majority leader Trent
Lott after he praised the racist past of Senator Strom Thurmond at his
hundredth birthday party, to the electoral defeat of Senate candidate George
Allen after his uttering of an ethnic slur, /{macaca}/, was posted on YouTube.
={ Dean, Howard ;
   Lamont, Ned ;
   Obama, Barack ;
   Paul, Ron ;
   Internet :
     political campaigns on ;
   Allen, George ;
   Lott, Trent ;
   YouTube
}

Citizens are now able to initiate their own policy initiatives without first
persuading the mainstream media or political parties to validate them as
worthy. For example, a handful of citizens troubled by evidence of “hackable”
electronic voting machines exposed the defects of the Diebold machines and the
company’s efforts to thwart public scrutiny and reforms.~{ See, e.g.,Yochai
Benkler, /{The Wealth of Networks}/, pp. 225–32. }~ (The effort has led to a
nationwide citizen effort, www.blackboxvoting.org, to expose security problems
with voting machines and vote counting.) An ad hoc group of activists, lawyers,
academics, and journalists spontaneously formed around a public wiki dealing
with the lethal side effects of a bestselling antipsychotic drug Zyprexa, and
the manufacturer’s allegedly illegal conduct in suppressing evidence of the
drug’s risks. (Prosecutors later sought a $1 billion fine against Eli Lilly.)~{
Jonah Bossewitch, “The Zyprexa Kills Campaign: Peer Production and the
Frontiers of Radical Pedagogy,” /{Re-public}/, at
http://www.re-public.gr/en/?p=144. }~

The Web is giving individuals extra-institutional public platforms for
articulating their own facts and interpretations of culture. It is enabling
them to go far beyond voting and citizen vigilance, to mount citizen-led
interventions in politics and governance. History-making citizens can compete
with the mass media as an arbiter of cultural and political reality. They can
expose the factual errors and lack of independence of /{New York Times}/
reporters; reveal the editorial biases of the “MSM” — mainstream media — by
offering their own videotape snippets on YouTube; they can even be pacesetters
for the MSM, as the blog Firedoglake did in its relentless reporting of the
“Scooter” Libby trial (Libby, one of Vice President Cheney’s top aides, was
convicted of obstruction of justice and perjury in connection with press leaks
about CIA agent Valerie Plame.) Citizen-journalists, amateur videographers,
genuine experts who have created their own Web platforms, parodists, dirty
tricksters, and countless others are challenging elite control of the news
agenda. It is no wonder that commercial journalism is suffering an identity
crisis. Institutional authority is being trumped by the “social warranting” of
online communities, many of which function as a kind of participatory
meritocracy.
={ Libby, “Scooter” ;
   YouTube
}

History-making citizenship is not without its deficiencies. Rumors,
misinformation, and polarized debate are common in this more open, unmediated
environment. Its crowning virtue is its potential ability to mobilize the
energies and creativity of huge numbers of people. GNU/Linux improbably drew
upon the talents of tens of thousands of programmers; certainly our
contemporary world with its countless problems could use some of this elixir—
platforms that can elicit distributed creativity, specialized talent,
passionate commitment, and social legitimacy. In 2005 Joi Ito, then chairman of
the board of the Creative Commons, wrote: “Traditional forms of representative
democracy can barely manage the scale, complexity and speed of the issues in
the world today. Representatives of sovereign nations negotiating with each
other in global dialog are limited in their ability to solve global issues. The
monolithic media and its increasingly simplistic representation of the world
cannot provide the competition of ideas necessary to reach informed, viable
consensus.”~{ Joichi Ito, “Emergent Democracy,” chapter 1 in John Lebkowsky and
Mitch Ratcliffe, eds., /{Extreme Democracy}/ (Durham, NC: Lulu.com, 2005), at
http://extremedemocracy.com/chapters/Chapter%20One-Ito.pdf. }~ Ito concluded
that a new, not-yetunderstood model of “emergent democracy” is likely to
materialize as the digital revolution proceeds. A civic order consisting of
“intentional blog communities, ad hoc advocacy coalitions and activist
networks” could begin to tackle many urgent problems.
={ Ito, Joichi ;
   NU/Linux ;
   democracy :
     emergent +1 | traditional forms of +5
}

Clearly, the first imperative in developing a new framework to host
representative democracy is to ensure that the electronic commons be allowed to
exist in the first place. Without net neutrality, citizens could very well be
stifled in their ability to participate on their own terms, in their own
voices. If proprietary policies or technologies are allowed to override citizen
interests (Verizon Wireless in 2007 prevented the transmission of abortion
rights messages on its text-messaging system, for example~{ Adam Liptak,
“Verizon Reverses Itself on Abortion Messages,” /{New York Times}/, September
27, 2007, at http://www.nytimes.com/2007/09/27/business/27cnd-verizon.html.
}~), then any hope for historymaking citizenship will be stillborn.

Beyond such near-term concerns, however, the emerging digital republic is
embroiled in a much larger structural tension with –terrestrial “real world”
governments. The commoner is likely to regard the rules forged in online
commons as more legitimate and appropriate than those mandated by government.
Again, David R. Johnson:
={ Johnson, David R. }

_1 The goals of a successful legal organism must be agreed upon by those who
live within it, because a legal system is nothing more than a collective
conversation about shared values. When it ceases to be that kind of internally
entailed organism, the law becomes mere power, social “order” becomes tyranny,
and the only option, over the long term at least, is war.

_1 Organisms can’t be repaired from the outside. But, with reference to
interactions that take place primarily online, among willing participants who
seek primarily to regulate their own affairs, that’s exactly where existing
governments are situated — outside the vibrant, self-regulating online spaces
they seek to regulate. Their efforts to engineer the Internet as if it were a
mechanism are not only fundamentally illegitimate but doomed by the very nature
of the thing they seek to regulate. They are trying to create social order, of
course. But they have not recognized . . . that order in complex systems
creates itself.~{ Johnson, “The Life of the Law Online.” }~

After all, he or she is likely to have had a more meaningful personal role in
crafting those rules. Now, of course, people live their lives in both online
and terrestrial environments; there is no strict division between the two. That
said, as people’s lives become more implicated in Internet spaces, citizens are
likely to prefer the freedoms and affordances of the open-networked environment
to the stunted correlates of offline politics, governance, and law.

Indeed, this may be why so many activists and idealists are attracted to online
venues. There is a richer sense of possibility. Contemporary politics and
government have been captured by big money, professionals, and concentrated
power. By contrast, in the digital republic, the ethic of transparency deals
harshly with institutional manipulations, deceptions, and bad faith. They
literally become part of your “permanent record,” forever available via a
Google search. More fundamentally, the digital republic has a basic respect for
everyone’s ability to contribute. It respects the principle of open access for
all. The “consent of the governed” really matters. How sobering it is, then, to
return to the “real world” of the American polity — or most other national
governments — and realize that “money talks and bullshit walks.” How depressing
to realize that the system is highly resistant to ordinary citizen action, such
is the mismatch of resources.
={ transparency +1 ;
   open business models :
     transparency in
}

The growing dissonance between the American system of governance, as practiced,
and the more open, meritocratic online world was surely a factor in Lessig’s
decision in 2007 to step down as CEO of Creative Commons, a move that
eventually took place in April 2008. Lessig’s crushing responsibilities as the
leader of Creative Commons — the international travel, the fund-raising, the
strategic planning, the public events and movement obligations — had surely
taken its toll. Feeling a personal need for new challenges as well as a
responsibility to let new leaders emerge within the CC world, Lessig announced
an ambitious new agenda for himself — tackling the “systemic corruption” of the
democratic process in Congress. He joined with Joe Trippi, the campaign manager
for Howard Dean’s 2004 presidential run, to launch a new organization, Change
Congress, which seeks to ban special-interest campaign contributions, secure
public financing for campaigns, and bring greater transparency to congressional
proceedings. In a shuffle of roles, longtime board member James Boyle — who had
been especially active on science and education initiatives — became the new
chairman of Creative Commons. Board member Joi Ito, who had been chairman for a
brief period, became CEO.
={ Boyle, James :
     CC board, on | chairman, as ;
   Change Congress (organization) ;
   Dean, Howard ;
   democracy :
     corruption in | traditional forms of +1 ;
   Trippi, Joe ;
   Lessig, Lawrence :
     political activity of
}

If Lessig is going to succeed in using the tools of the digital republic to
reform and rejuvenate the American polity (and perhaps inspire other
governments as well), he will have to confront the rather deeply rooted
premises of the official constitutional order. The fast-paced, commons-based
governance of the digital republic is naturally going to clash with a system of
governance that revolves around bureaucratic hierarchies, a slow-moving system
of law, archaic types of political intermediaries, and electoral principles
designed for eighteenth-century life. Can the two be reconciled? The structural
tensions are likely to be a significant and persistent issue for many, many
years.

2~ A Long-Term Power Shift?
={ free culture :
     political nature of +23
}

It is hard to get a fix on this long-term transformation because the struggles
to actualize an emergent democracy, as envisioned by Ito, are strangely
apolitical and intensely political at the same time. They are apolitical in the
sense that commoners are chiefly focused on the pragmatic technical challenges
of their individual projects; they are not usually involved in official
policymaking in legislatures or before courts and government agencies. Yet free
software and free culture projects are highly political in the sense that
commons projects, taken together over time, represent a profound challenge to
the conventional market order and political culture. For example, Wikitravel,
Jamendo, and open-access journals arguably provide better value than the
commercial alternatives. The success of free software punctures the
foundational assumptions of copyright law, making it easier to challenge new
expansions of copyright law. Participatory commons are diverting viewer
“eyeballs” away from commercial media and its genres of culture, spurring the
growth of new hybrid forms of user-generated content. These kinds of effects,
which advance project by project, month by month, are likely to have a longterm
transformational impact. A new social ethic is taking root.
={ Ito, Joichi ;
   free software :
     FOSS/FLOSS +2 ;
   FOSS/FLOSS +2 ;
   copyright law :
     assumptions of ;
   democracy :
     emergent
}

Free culture, though culturally progressive, is fairly nonjudgmental about
ideological politics. When American conservatives decided they wanted to start
Conservapedia because they found Wikipedia too liberal, Wikipedia founder Jimmy
Wales was happy to bless it: “Free culture knows no bounds . . . We welcome the
reuse of our work to build variants. That’s directly in line with our
mission.”~{ Robert Mackey, “Conservapedia: The Word Says it All,” /{New York
Times}/, March 8, 2007, at
http://thelede.blogs.nytimes.com/2007/03/08/conservapedia-the-word-says-it-all/?scp=1&sq=wales+conservapedia.
}~ Anthropology professor E. Gabriella Coleman has found a similar ecumenicism
in the free software movement, which is agnostic about conventional politics
but adamant about its own polity of freedom.~{ E. Gabriella Coleman, “The
Political Agnosticism of Free and Open Source Software and the Inadvertent
Politics of Contrast,” /{Anthropology Quarterly}/ 77, no. 3 (Summer 2004), pp.
507–19. See also her Ph.D. dissertation, “The Social Construction of Freedom in
Free and Open Source Software: Hackers, Ethics and the Liberal Tradition,”
abstract at http://healthhacker.org/biella/coleman-abstract.pdf. }~ Thus, the
FOSS movement has no position with respect to social justice or globalization
issues, but it does demand a strict commitment to the “four freedoms” of
software development. Johan Söderberg makes much the same case in his book
/{Hacking Capitalism}/.~{ Johan Söderberg, /{Hacking Capitalism: The Free and
Open Source Software Movement}/ (New York: Routledge, 2007). }~
={ Coleman, E. Gabriella ;
   Wales, Jimmy ;
   Söderberg, Johan
}

As projects like GNU/Linux, Wikipedia, open courseware, open-access journals,
open databases, municipal Wi-Fi, collections of CC-licensed content, and other
commons begin to cross-link and coalesce, the commons paradigm is migrating
from the margins of culture to the center. The viral spiral, after years of
building its infrastructure and social networks, may be approaching a Cambrian
explosion, an evolutionary leap.
={ commons :
     force for change, as +5
}

History suggests that any new style of politics and polity will arrive through
models developed /{from within}/ the edifice of existing law, markets, and
culture. A revolutionary coup or showdown with existing institutions will not
be necessary. Superior working models — running code and a healthy commons —
will trump polemics and exhortation.

Ideological activists and political professionals are likely to scoff at this
scenario. After all, they are suspicious of distributed political power, if not
hostile to it. They prefer the levers of consolidated power (laws, court
rulings, police powers) that are within their sphere of influence to the
dispersed, sovereign powers of an online multitude. The latter is highly
resistant to capture and control, and in that sense, profoundly threatening to
the traditional configurations of political power. We have already seen how the
mandarins of journalism, politics, and business are quick to lash out at the
noncredentialed masses who dare to put forward their own interpretations of the
world.

However necessary it is to engage in the official governance of a nation,
corrupted though it may be, the commoners have shown that building their own
functioning commons can be a powerful force for change as well. A commons of
technical standards for the Web — how mundane! — can achieve more than most
antitrust lawsuits. A common pool of information can prevent a company from
reaping easy monopoly rents from the control of a public good. Instead, the
company must “move upstream” to provide more specialized forms of value (for
example, sophisticated graphing of the information or data analysis). A commons
may also be affirmatively helpful to businesses, as Eric von Hippel has shown,
by aggregating a body of aficionados into a social community that can
articulate customer needs and preferences in highly efficient ways: the commons
as a cheap form of R & D and marketing.

In either case, the rise of a commons can be disruptive not just because it
changes how market power is exercised, but because it may disperse power to a
broader community of participants. Recall Johnson’s observation that a commons
is a “self-causing legal order” that competes with other legal orders.
Individuals who affiliate with an online community may acquire the ability to
manage their own social relationships and group identity.
={ Johnson, David R. ;
   commons :
     new type of legal organism +1 ;
   law :
     commons as new type of legal organism +1 | political implications of +1 ;
   democracy :
     power of the commons in +1
}

This is not just a form of marketplace power, it is a form of /{political}/
power. In effect, a group may be able to neutralize the power of corporations
to use brands to organize their identities. By developing its own discourse and
identity, an online community can reject their treatment as a demographic
cohort of consumers. They can assert their broader, nonmarket concerns. As a
group of commoners, they are less susceptible to propaganda, ideology, and
commercial journalism as tools for organizing their political allegiances. They
have greater civic sovereignty.

“Free cooperation aims at distributing power,” argues Geert Lovink, a Dutch
media theorist:
={ Lovink, Geert +1 }

_1 I am not saying that power as such disappears, but there is certainly a
shift, away from the formal into the informal, from accountable structures
towards a voluntary and temporal connection. We have to reconcile with the fact
that these structures undermine the establishment, but not through recognizable
forms of resistance. The “anti” element often misses. This is what makes
traditional, unreconstructed lefties so suspicious, as these networks just do
their thing and do not fit into this or that ideology, be it neoliberal or
autonomous Marxist. Their vagueness escapes any attempt to deconstruct their
intention either as proto-capitalist or subversive.~{ Geert Lovink, “Theses on
Wiki Politics,” an exchange with Pavlos Hatzopoulos, /{Re-public}/, at
http://www.re-public.gr/en/?p=135. }~

This can be disorienting. Energies are not focused on resisting an oppressor,
but rather on building innovative, positive alternatives. In Buckminster
Fuller’s terms, free culture is mostly about building new models that make the
existing models obsolete. Instead of forging an identity in relation to an
adversary, the movement has built an identity around an affirmative vision and
the challenge of /{becoming}/. People feel fairly comfortable with a certain
level of ambiguity because the whole environment is so protean, diverse,
evolving, and dynamic.
={ Fuller, R. Buckminster }

The GPL and the CC licenses are ingenious hacks because they navigate this
indeterminate ideological space with legally enforceable tools, while looking
to informal social practice and norms to provide stable governance. (“Order
without law,” in law professor Robert Ellickson’s formulation.)~{ Robert
Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge, MA:
Harvard University Press, 2005). }~ The licenses use the existing legal order
to achieve their goals (the sharing of tools and content), and so the
strategies are not seen as politically provocative. Yet the licenses are
nonetheless politically transformative because they help new communities of
practice to organize themselves and do work that may question core premises of
copyright law, conventional economics, and government policy in general.
={ Ellickson, Robert }

The beauty of this “ideological straddle” is that it enables a diverse array of
players into the same tent without inciting sectarian acrimony. (There is some,
of course, but mostly at the margins.) Ecumenical tolerance is the norm because
orthodoxies cannot take root at the periphery where innovation is constantly
being incubated. In any case, there is a widespread realization in the
networked world that shared goals are likely to require variable
implementations, depending on specific needs and contexts.

It may appear that the free software hacker, blogger, tech entrepreneur,
celebrity musician, college professor, and biological researcher have nothing
in common. In truth, each is participating in social practices that are
incrementally and collectively bringing into being a new sort of democratic
polity. French sociologist Bruno Latour calls it the “pixellation of
politics,”~{ Bruno Latour, “We Are All Reactionaries Today,” Re-public, at
http://www.republic.gr/en/?p=129. }~ which conjures up a pointillist painting
slowly materializing. The new polity is more open, participatory, dynamically
responsive, and morally respected by “the governed” than the nominal
democracies of nation-states. The bureaucratic state tends to be too large and
remote to be responsive to local circumstances and complex issues; it is
ridiculed and endured. But who dares to aspire to transcend it?
={ Latour, Bruno }

Sooner or later, history-making citizenship is likely to take up such a
challenge. It already has. What is the digital republic, after all, but a
federation of self-organized communities, each seeking to fulfill its members’
dreams by developing its own indigenous set of tools, rules, and ethics? The
power of the commons stems from its role as an organizing template, and not an
ideology. Because it is able to host a diverse and robust ecosystem of talent
without squeezing it into an ideological straitjacket, the commons is flexible
and resilient. It is based on people’s sincerest passions, not on remote
institutional imperatives or ideological shibboleths. It therefore has a
foundational support and energy that can outperform “mainstream” institutions.
={ citizenship :
     history-making +1 ;
   commons :
     political implications of +1
}

This, truly, is the animating force of the viral spiral: the capacity to build
one’s own world and participate on a public stage. (Cicero: “Freedom is
participation in power.”) When such energies are let loose in an open,
networked environment, all sorts of new and interesting innovations emerge.
Since an online commons does not have the burden of turning a profit or
supporting huge overhead, it can wait for serendipity, passion, and
idiosyncratic brilliance to surface, and then rely on the Internet to propagate
the fruits virally.
={ Cicero :
     on freedom
}

Oddly enough, entrenched commercial interests do not seem to be alarmed by the
disruptive long-term implications of free culture. If the users of CC licenses
genuflect before the altar of copyright law, it would appear, that is
sufficient. Due respect is being shown. Meanwhile, at the level of social
practice, the commoners are gradually building a very different moral economy
that converges, from different paths, on a new type of civic order. In
/{Code}/, Lessig called it “freedom without anarchy, control without
government, consensus without power.”
={ Lessig, Lawrence :
     Code and Other Laws of Cyberspace | freedom, and
}

It is not entirely clear how the special capacities of bottom-up networks — a
“non-totalizing system of structure that nonetheless acts as a whole,” in Mark
Taylor’s words — can be integrated with conventional government and
institutions of power. It is easy to imagine a future confrontation in the
political culture, however, as the citizens of the digital republic confront
the stodgy bureaucratic state (corporate and governmental). The latter will
have the advantages of constitutional authority and state and economic power,
but the former are likely to have the advantages of social legitimacy, superior
on-the-ground information, and creative energy. How the digital republic will
confront the old regime, or supplant it gradually as archaic institutions
collapse over time, is the stuff of future history.
={ Taylor, Mark ;
   citizenship :
     history-making +1
}

Theory has its limits. The building of the digital republic was in many ways
animated by theory, of course, chiefly the rejection of certain theories of
copyright law and the invention of new narratives about creativity and the
commons. But this project has not been an intellectual, theory-driven
enterprise so much as a vast, collective enterprise of history-making
citizenship. Using the affordances of digital technologies, individuals have
stepped out of their customary or assigned roles to invent entirely new
vehicles for creativity, social life, business, politics, science, and
education. Individuals have come together to make some remarkable new tools and
institutions to serve their needs and preferences.
={ commons :
     sources of new ideas, as +3
}

The story of the commons is, in this sense, the story of a series of
public-spirited individuals who are determined to build new vehicles for
protecting shared wealth and social energies. It is the story of Richard
Stallman fighting the privatization of software and the disenfranchisement of
the hacker community. It is the story of Eric Eldred’s determination to go to
jail if necessary to defend his ability to build a Web site for great American
literature. The viral spiral, as I have called it, truly gained momentum when
Lawrence Lessig, as a boundary-breaking law professor, decided to mount a
constitutional test case and then to assemble a larger effort to imagine and
build a new licensing scheme for sharing.
={ Stallman, Richard ;
   Eldred, Eric :
     public domain, and ;
   Lessig, Lawrence :
     law in contemporary context, and ;
   software :
     proprietary
}

The viral spiral then spins off in dozens of directions as newly empowered
people discover the freedoms and satisfactions that can accrue to them through
this ancient yet now rediscovered and refurbished social vessel. Taken
together, countless commons projects are validating some new models of human
aspiration. Instead of presuming that a society must revolve around competitive
individuals seeking private, material gain (the height of “rationality,”
economists tell us), the commons affirms a broader, more complex, and more
enlightened paradigm of human self-interest. If the Invisible Hand presumes to
align private interest and the public good, the commons has shown that
cooperation and sharing can also serve this goal with great versatility and
sophistication.
={ commoners :
     sharing by
}

Over the long term, the real meaning of the viral spiral may lie in our
discovery that the new platforms that we use to create and organize knowledge,
and relate to one another, is changing how we think and how we conceptualize
our place in the world. John Seely Brown, the former director of Xerox PARC,
has said, “From my perspective, a key property of participatory cultures is
that they help to create both a culture of learning and a culture of doing. The
social basis of doing (e.g. networked communities of interest/ practice) that
you see emerging here actually form reflective practicum(s). This, in turn,
ends up grounding epistemology — ways of knowing — and provides a pathway back
to a kind of pragmatism that Dewey first talked about that is situated between
realism and idealism. This is the pathway to creating a learning society and a
culture that can embrace change by unleashing and affording productive inquiry
in powerful and exciting ways.”~{ John Seely Brown, personal communication,
January 26, 2008. }~
={ Brown, John Seely ;
   Dewey, John
}

By empowering us to “step into history” and take greater responsibility for
more aspects of our lives, it is no exaggeration to say that the commons
encourages us to become more integrated human beings. We learn to integrate our
production with our consumption, our learning with our doing, and our ideals
with practical realities. This is surely why the viral spiral has been so
powerfully transformative. It has helped bring our personal needs and interests
into a closer, more congenial alignment with the institutions that serve us. We
may be caught in a messy transition, and there remains much to negotiate and
debate, but we should count our blessings. Few generations are as fortunate in
being able to imagine and build a new commons sector of such liberating
potential.
={ citizenship :
     history-making
}