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.
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.”
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.”
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 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.”
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.
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.
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.
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.
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.”
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.”
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.”
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.
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.
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.
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.”
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.
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.
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:
Here’s an idea that we might be able to get going, and where the Berkman Center could help.
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.
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.
What do you think?
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.”
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.
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.
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.”
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.”
When Berkman Center director Eric Saltzman joined the conversation, he raised a series of difficult questions about the whole idea:
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)?
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.
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.)
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.)
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.
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.
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.
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.
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.
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.
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.
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.
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 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.”
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.”
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.
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!’”
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.
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.”
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.”
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. . . .”
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.”
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.
Carroll observed:
[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.
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.
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?”
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.
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.”
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.
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”).
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.
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.
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.
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.”
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.”
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.’”
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.
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.”
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.
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).
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.”
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.
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.”
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.”
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.
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.”
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.
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 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:
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.
To the first-time user, the licenses may seem a little daunting.
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.”
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.
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.”
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.
≅ SiSU Spine ፨ (object numbering & object search)
(web 1993, object numbering 1997, object search 2002 ...) 2024