Viral Spiral - How the Commoners Built a Digital Republic of Their Own
David Bollier (2008)

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.

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.

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).

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.

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.

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.”  1 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.

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.

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. 2 (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.)

The Rise of Socially Created Value

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.” 3 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.

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. 4 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. 5 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. 6

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. 7

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. 8 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. 9 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. 10

The Commoners Build a Digital Republic of Their Own

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.

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.

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.” 11 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.

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 12 —is just too counterintuitive for the conventionally minded to take seriously.

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.

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. 13 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.

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.

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. 14 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.

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.

The Rise of the Commoners

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.

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.

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.

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.”

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.

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.

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. 15 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.

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. 16 Dozens of small, Internet-based companies are now exploiting open networks to build more flexible, sustainable enterprises.

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.” 17

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). 18

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. 19 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.

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.

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.

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.” 20 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.

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.

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.

 1. Cited by John Seely Brown, former chief scientist, Xerox Palo Alto Research Center, at Open Educational Resources conference, Houston, Texas, March 29, 2007.

 2. Keith Aoki, James Boyle, Jennifer Jenkins, Down by Law! at http://www.duke.edu/cspd/comics.

 3. “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.

 4. http://www.librivox.org.

 5. http://faulkes-telescope.com.

 6. http://bugscope.beckman.uiuc.edu.

 7. 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.

 8. http://www.scoopt.com.

 9. http://www.twotonshoe.com/news.html.

 10. 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.

 11. James F. Moore, “The Second Superpower Rears its Beautiful Head,” March 31, 2003, available at http://cyber.law.harvard.edu/people/jmoore/secondsuperpower.html.

 12. Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999), p. 4.

 13. 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.

 14. 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.

 15. 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.

 16. 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).

 17. Robert D. Hof, “The Power of Us: Mass Collaboration on the Internet Is Shaking Up Business,” BusinessWeek, June 20, 2005, pp. 73–82.

 18. 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.

 19. 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.

 20. Interview with Peter Suber, June 28, 2006.



License: Creative Commons Attribution-NonCommercial license.


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