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


The Rise of Free Culture


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

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

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

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

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

Well, it’s a long story, but to shorten it up: first-time novelists have a tough row to hoe. Our publishers don’t have a lot of promotional budget to throw at unknown factors like us. Mostly, we rise and fall based on word-of-mouth. I’m not bad at word-of-mouth. I have a blog, Boing Boing (http://boingboingnet), where I do a lot of word-ofmouthing. I compulsively tell friends and strangers about things I like. And telling people about stuff is way, way easier if I can just send it to ’em. Way easier. 194

A year later, Doctorow announced that his “grand experiment” was a success; in fact, he said, “my career is turning over like a goddamned locomotive engine.” More than thirty thousand people had downloaded the book within a day of its posting. He proceeded to release a collection of short stories and a second novel under a CC license. He also rereleased Down and Out in the Magic Kingdom under a less restrictive CC license — an Attribution, NonCommercial, ShareAlike license (BY-NC-SA), which allows readers to make their own translations, radio and film adaptations, sequels, and other remixes of the novel, so long as they are made available on the same terms. 195

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

By June 2006, Down and Out in the Magic Kingdom had been downloaded more than seven hundred thousand times. It had gone through six printings, many foreign translations, and two competing online audio adaptations made by fans. “Most people who download the book don’t end up buying it,” Doctorow conceded, “but they wouldn’t have bought it in any event, so I haven’t lost any sales. I’ve just won an audience. A tiny minority of downloaders treats the free e-book as a substitute for the printed book — those are the lost sales. But a much larger minority treats the e-book as an enticement to buy the printed book. They’re gained sales. As long as gained sales outnumber lost sales, I’m ahead of the game. After all, distributing nearly a million copies of my book has cost me nothing.” 196 In 2008, Doctorow’s marketing strategy of giving away online books to stimulate sales of physical books paid off in an even bigger way. His novel for teenagers, Little Brother, about a youthful hacker who takes on the U.S. government after it becomes a police state, spent weeks on the New York Times bestseller list for children’s books.

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

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

In 2006, Paulo Coelho, author of a bestselling book, The Alchemist, created a “pirate” blog site that invited readers to use BitTorrent and other file-sharing networks to download free copies of his books. After he put the Russian translation of The Alchemist online, sales of hardcover copies in Russia went from around 1,000 a year to 100,000, and then to more than 1 million. Coelho attributes the success of foreign translations of his book to their free availability online. 197 Experiments such as these were likely influential in the launch of LegalTorrents, a site for the legal peer-to-peer distribution of CC-licensed text, audio, video games, and other content.

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

Free culture publishing models are popping up in many unusual quarters these days. LibriVox, to take one instance, is a nonprofit digital library of public-domain audio books that are read and recorded by volunteers. 198 Since it started in 2005, the group has recorded more than 150 books by classic authors from Dostoyevsky and Descartes to Jane Austen and Abraham Lincoln. All of them are free. Most are in English but many are in German, Spanish, Chinese, and other languages.

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

Several publishing businesses now revolve around CC licenses. Wikitravel is a collaborative Web site that amasses content about cities and regions around the world; content is licensed under the CC Attribution, ShareAlike license (BY-SA). 199 In 2007, its founder joined with a travel writer to start Wikitravel Press, which now publishes travel books in a number of languages. Like the Wikitravel Web pages, the text in the books can be freely copied and reused.

Another new business using CC licenses is Lulu, a technology company started by Robert Young, the founder of the Linux vendor Red Hat and benefactor for the Center for the Public Domain.Lulu lets individuals publish and distribute their own books, which can be printed on demand or downloaded. Lulu handles all the details of the publishing process but lets people control their content and rights. Hundreds of people have licensed their works under the CC ShareAlike license and Public Domain Dedication, and under the GNU Project’s Free Documentation License. 200

As more of culture and commerce move to the Internet, the question facing the book industry now is whether the text of a book is more valuable as a physical object (a codex) or as a digital file (intangible bits that can circulate freely), or some combination of the two. Kevin Kelly, the former editor of Wired magazine, once explained: “In a regime of superabundant free copies, copies lose value. They are no longer the basis of wealth. Now relationships, links, connection and sharing are. Value has shifted away from a copy toward the many ways to recall, annotate, personalize, edit, authenticate, display, mark, transfer and engage a work.” 201

What this means in practice, Kelly has pointed out, is that books become more valuable as they become more broadly known and socially circulated — the very functionalities that the Internet facilitates. If people can discover a book online and read portions of it, share it with friends, and add annotations and links to related materials, it makes a book more desirable than a hard-copy version that is an inert text on a shelf. As Kelly writes: “When books are digitized, reading becomes a community activity. Bookmarks can be shared with fellow readers. Marginalia can be broadcast. Bibliographies swapped. You might get an alert that your friend Carl has annotated a favorite book of yours. A moment later, his links are yours.” 202

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

In general, the publishing trade remains skeptical of the Internet, clueless about how to harness its marketing power, and strangers to CC licenses. And it could be years before mainstream publishing accepts some of the counterintuitive notions that special-interest Internet communities will drive publishing in the future. In a presentation that caused a stir in the book industry, futurist Mike Shatzkin said in May 2007 that this is already happening in general trade publishing: “We’re close to a tipping point, or maybe we’re past it . . . where Web-based branding will have more credibility than print, because print, needing more horizontal reach to be viable, won’t deliver the attention of the real experts and megaphones in each field.” 203

DIY Videos and Film

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

It is too early to know which new video styles will be flash-inthe-pan novelties and which will ripen into popular, and perhaps lucrative, genres. But rarely has a culture seen so many diverse experiments in amateur and indie video expression. One site, Justin.tv, is a free platform for broadcasting and viewing live video. Some people make round-the-clock “life casts” of their daily activities; others have used it to broadcast live from Baghdad, showing war-related events. Yahoo and Reuters have entered into a partnership to host amateur photojournalism by people using their digital cameras and camera phones. Machinima video, the product of the underground gaming community, blends filmmaking with online games to produce computer-generated imagery. As John Seely Brown describes it, “Basically, you can take Second Life or Worlds of Warcraft and have a set of avatars run all over the world, that come together and create their own movie, and then you can ‘YouTube’ the movie.” 204

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

That’s what the Los Angeles–based comedy collective The Lonely Island did to promote themselves to national attention. They posted their comedy shorts and songs to their Web site using Creative Commons licenses. Soon other artists began making remixes of their songs. The remixes in effect served as free marketing, which caught the attention of the Fox Broadcasting Company, which in turn hired them to create a comedy pilot TV episode. In the end, Fox did not pick up the show, but as Wired News recounted, “Instead of letting the show wither on a shelf somewhere, the group posted the full video both cut and uncut. The edgy, quirky short— Awesometown — spread like wildfire online and eventually landed all three performers an audition spot for Saturday Night Live.” 205

Perhaps the most successful example of leveraging free Internet exposure to reap commercial benefits is the sci-fi parody Star Wreck. Finnish producer Samuli Torssonen took seven years to shoot a fulllength movie using a Sony DVCAM, computer-generated graphics, and a makeshift studio. Some three hundred people were involved in the project, including some professional actors and many amateurs. When Star Wreck was deliberately posted to the Internet in 2005, tagged with a CC-BY-NC-ND license (Attribution, NonCommercial, No Derivatives), it was eventually downloaded 5 million times and became the most-watched Finnish film in history. Fans in Russia, China, and Japan soon copied the film, which stimulated broader viewer demand and led to commercial deals to distribute the film. Star Wreck became so popular that Universal Pictures, the American studio, signed a deal in 2006 to distribute DVD versions of the film. Torssonen says that the film has earned a 20to-1 return on investment. “I wouldn’t call free distribution stupid, as some people say, but a success,” he told an audience in 2007. 206

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

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

Ton Roosendaal, who directs the Blender Institute, is trying to demonstrate that a small studio can develop a virtuous cycle of economically sustainable creativity using open-source software, Creative Commons licenses, and talented programmers and artists from around the world. “We give programmers the freedom to do their best, and what they want to do is improve the technology,” he said. “The market is too hyper-rational and nailed down and filled with limits,” he argues, referring to his peers at major animation studios. “Open source is free of most of these constraints.” 207

In April 2008, the Blender Institute released a ten-minute animated short, Big Buck Bunny, which features a kind-hearted, fat white bunny who endures the abuse of three stone-throwing rodents until they smash a beautiful butterfly with a rock — at which point the bunny rallies to teach the bullies a lesson. 208 The film uses cutting-edge computer-generated animation techniques that rival anything produced by Pixar, the Hollywood studio responsible for Toy Story, Cars, and Ratatouille. Big Buck Bunny is licensed under a CC Attribution license, which means the digital content can be used by anyone for any purpose so long as credit is given to the Blender Institute.

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

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

In Brazil, director Bruno Vianna released his first full-length film, Cafuné, under a CC BY-NC-SA license (Attribution, NonCommercial, ShareAlike) and put it on file-sharing networks at the same time that it was exhibited in a handful of theaters. 209 Each release had different endings; downloaders were invited to remix the ending as they wished. The film was financed by the government’s culture ministry as part of a competition for low-budget films, but only about fifty Brazilian films are released to commercial theaters each year. Vianna saw the Internet release as a great way to build an audience for his debut film . . . which is exactly what happened. For some weeks, it made it into the list of twenty most-watched films in the country.

Letting the Music Flow

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

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

As a result, the major labels, the mainstream retailers, and the radio broadcasters grew increasingly out of touch with what listeners actually wanted. But as long as the music cartel controlled what the vast majority of people got to hear, it didn’t matter . . . The music cartel remained the de facto only game in town. 210

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

This, at least, is the theory, as Lessig explains it. He calls it the “BMI strategy,” a reference to the strategy that broadcasters and musicians used to fight ASCAP’s monopoly control over radio music in the early 1940s. ASCAP, the American Society of Composers, Authors and Publishers, is a nonprofit organization that collects royalties for musical performances. At the time, ASCAP required artists to have five hits before it would serve as a collection agency for them, a rule that privileged the playing of pop music on the radio at the expense of rhythm and blues, jazz, hillbilly, and ethnic music. Then, over the course of eight years, ASCAP raised its rates by 450 percent between 1931 and 1939 — at which point, ASCAP then proposed doubling its rates for 1940. In protest, many radio stations refused to play ASCAP-licensed music. They formed a new performance-rights body, BMI, or Broadcast Music, Inc., which sought to break the ASCAP monopoly by offering free arrangements of public-domain music to radio stations. They also charged lower rates than ASCAP for licensing music and offered better contracts for artists. 211

“The Internet is today’s broadcasters,” said Lessig in a 2006 speech. “They are facing the same struggle.” 212 Just as ASCAP used its monopoly power to control what music could be heard and at what prices, he said, so today’s media corporations want to leverage their control over content to gain control of the business models and technologies of digital environments. When Google bought YouTube, one-third of the purchase price of $1.65 billion was allegedly a financial reserve to deal with any copyright litigation, said Lessig. This is how the incumbent media world is trying to stifle the emergence of free culture.

The same questions that once confronted broadcasters are now facing Internet innovators, Lessig argues: “How do we free the future from the dead hand of the past? What do we do to make it so they can’t control how technology evolves?” With copyright terms lasting so long, it is not really feasible to try to use public-domain materials to compete with a commercial cartel. Lessig’s answer is a BMI-inspired solution that uses the CC licenses to create a new body of “free” works that, over time, can begin to compete with popular works. The legendary record producer Jerry Wexler recalled how ASCAP marginalized R & B, country, folk, and ethnic music, but “once the lid was lifted — which happened when BMI entered the picture — the vacuum was filled by all these archetypal musics. BMI turned out to be the mechanism that released all those primal American forms of music that fused and became rock-androll.” 213 Lessig clearly has similar ambitions for Creative Commons.

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

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

Guitarist Jake Shapiro was one of the first musicians to show the marketing potential of unleashing free music on the Internet. In 1995, Shapiro put MP3 files of music by his band, Two Ton Shoe, on the group’s Web site. Within a few years, Two Ton Shoe was one of the most-downloaded bands on the Internet, developing fan bases in Italy, Brazil, Russia, and South Korea. One day Shapiro received a phone call out of the blue from a South Korean concert promoter. He wanted to know if the band would fly over to Seoul to perform four concerts. It turned out that fans in South Korea, where fast broadband connections are the norm, had discovered Two Ton Shoe through file sharing. A local CD retailer kept getting requests for the band’s music, which led him to contact a concert promoter. In August 2005, Shapiro and his buddies arrived in Seoul as conquering rock stars, selling out all four of their concerts. “The kids who showed up knew all the words to the songs,” Shapiro recalled. A year later, the band signed a deal to distribute a double CD to East Asia. 214

While such stories of viral marketing success are not common, neither are they rare. Lots of bands now promote themselves, and find admiring (paying) fans, by posting their music, for free, on Web sites and file-sharing sites. Perhaps the most scrutinized example was Radiohead’s decision to release its album In Rainbows for free online, while inviting fans to pay whatever they wanted. (The band did not release any numbers, but considered the move a success. They later released the album through conventional distribution channels as well.) 215

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

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

The music industry treats its consumer as a consumer of sex, not of love, the love of music. Just like everything else: a vacuum without values or meaning. But it is still love that everyone wants and seeks. . . . The music vendors knew then [a generation ago] what they have forgotten today, namely that we must have cultural heroes: artists that are not cloned in a manner out to get our money. There was an added value with a meaning: someone who spoke to our hearts in difficult moments, and with that someone, we would walk hand in hand for a while. We had loyalty and love, and it all meant something. 216

At the risk of sounding naïve, Lev said he wanted to stand up for the importance of “authenticity and empathy and my own truth” in making music. It is a complaint that echoes throughout the artistic community globally. A few years ago, Patti Smith, the punk rocker renowned for her artistic integrity, decried the “loss of our cultural voice” as the radio industry consolidated and as music television became a dominant force. She grieved for the scarcity of places for her to “feel connected” to a larger musical community of artists and fans. 217

The classic example of music as social experience — music as a vehicle for a community of shared values — is the Grateful Dead. The band famously invited its fans to record all of its concerts and even provided them with an authorized “tapers’ section” in which to place their microphones and equipment. Fans were also allowed to circulate their homemade tapes so long as the music was shared, and not sold. This had the effect of building a large and committed fan base, which avidly archived, edited, and traded Grateful Dead cassettes. One reason that the Dead’s “customer base” has been so lucrative and durable over several decades is that the fans were not treated as mere customers or potential pirates, but as a community of shared values. The music belonged to the fans as much as to the band, even though Deadheads were only too happy to pay to attend concerts and buy the officially released CDs and t-shirts. 218

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

The Mountain Goats, an indie rock group, authorized the Internet Archive to host their live shows on the Web because they realized the videos seed market demand for their music. The group’s front man, John Darnielle, said, “I am totally in favor of tape trading, and file sharing never did anything wrong by me. People got into The Mountain Goats after downloading my stuff.” 219 In 2001, two newcomers working out of a basement produced a cover version of Tears for Fears’ “Mad World,” which two years later went to the top of the British pop charts. 220 In a world where amateur creativity can easily migrate to the commercial mainstream, tagging works with a NonCommercial CC license is a valuable option. By requiring uses that fall outside the scope of the license to pay as usual, it can help artists get visibility while retaining their potential to earn money. A larger restructuring of the music industry, alas, will take longer to achieve.

Music as Remix

If any segment of the music world really understands the social dynamics of musical creativity, it is hip-hop artists. As Joanna Demers documents in her book about “transformative appropriation” in music, Steal This Music, hip-hop was born as a remix genre in the 1970s and 1980s. 221 In defiance of copyright law, which considers unauthorized borrowing as presumptively illegal, hip-hop artists used turntable scratching and digital sampling to transform existing songs into something new, which in time grew into a lucrative market segment. Hip-hop illustrates how the commons and the market need to freely interact, without undue restrictions, in order for both to flourish. It works because sampling is not a simple matter of “theft” but a mode of creativity, a way of carrying on a cultural conversation. Sampling is a way of paying tribute to musical heroes, mocking rivals, alluding to an historical moment, or simply experimenting with an arresting sound. When the rap group Run-DMC used Aerosmith’s “Walk This Way” as the basis for a remix, it was not only a salute to the group’s musical influence and a new turn of the creative wheel, it revived Aerosmith’s sagging career (or, in economist’s terms, it “created new value”).

The problem, of course, is that most remix culture (and the value it creates) is illegal. By the late 1980s, in fact, the freedom of the commons that gave birth to hip-hop was coming under siege. Musicians and record labels were routinely invoking copyright law to demand permission and payments for the tiniest samples of music. Only wealthy artists could afford to clear the rights of familiar songs, and basement amateurs (who had given rise to the genre in the first place) were being marginalized. When George Clinton’s group Funkadelic succeeded in its lawsuit against the rap group N.W.A. for using a nearly inaudible sample of a three-note, two-second clip from “Get Off Your Ass and Jam” — the infamous Bridgeport v. Dimension Films decision, in 2004 — it became clear that the commons of hip-hop music was being enclosed. 222 Critics like Siva Vaidhyanathan and Kembrew McLeod believe that the legal crusade against sampling has significantly harmed the creative vitality of hip-hop. Something is clearly amiss when the one of the most critically acclaimed albums of 2005 — The Grey Album, a remix collection by DJ Danger Mouse — cannot be legally released. The Grey Album artfully combined music from the Beatles’s White Album with lyrics from Jay-Z’s Black Album, resulting in “the most popular album in rock history that virtually no one paid for,” according to Entertainment Weekly. 223

The impetus for a solution to the sampling problem started with Negativland, an irreverent “sound collage” band known as much for its zany culture jamming as for its anticopyright manifestos. (One of its CDs includes a polemical booklet about fair use along with a whoopee cushion with a © symbol printed on it.) Negativland gained notoriety in the 1990s for its protracted legal battle with the band U2 and Island Records over Negativland’s release of a parody song called “U2.” Island Records claimed it was an infringement of copyright and trademark law, among other things. Negativland claimed that no one should be able to own the letter U and the numeral 2, and cited the fair use doctrine as protecting its song and title. The case was eventually settled. 224

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

This would be legally acknowledging the now obvious state of modern audio/visual creativity in which quoting, sampling, direct referencing, copying and collaging have become a major part of modern inspiration. [A sampling option would] stop legally suppressing it and start culturally encouraging it — because it’s here to stay. That’s our idea for encouraging a more democratic media for all of us, from corporations to the individual. 225

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

In 2005, Creative Commons issued the Sampling license as a way to let people take pieces of a work for any purpose except advertising. 226 It also prohibited copying and distribution of the entire work.~[* A “Sampling Plus” license was also issued to allow noncommercial copying and distribution of an entire work, which means it could be distributed via file-sharing networks. Finally, a “NonCommercial Sampling Plus” license was devised to let people sample and transform pieces of a work, and copy and distribute the entire work, so long as it was for noncommercial purposes.]~ For example, an artist could take a snippet of music, a clip of film, or a piece of a photograph, and use the sample in a new creation. Since its release, the Sampling license has been criticized on philosophical grounds by some commoners who say it does not truly enhance people’s freedom because it prohibits copying and distribution of the entire work. This concern reached serious enough proportions that in 2007 Creative Commons “retired” the license; I’ll revisit this controversy in chapter 9.

The CC Sampling license only whetted the imagination of people who wanted to find new ways to sample, share, and transform music. Neeru Paharia, then the assistant director of the Creative Commons, came up with the idea of developing ccMixter, a software platform for remixing music on the Web. 227 Paharia realized one day that “this whole remixing and sharing ecology is about getting feedback on who’s using your work and how it’s evolving. That’s almost half the pleasure.” 228 So the organization developed a Web site that would allow people to upload music that could be sampled and remixed. The site has about five thousand registered users, which is not terribly large, but it is an enthusiastic and active community of remix artists that acts as a great proof of concept while promoting the CC licenses. There are other, much larger remix sites on the Internet, such as Sony’s ACIDplanet, but such sites are faux commons. They retain ownership in the sounds and remixes that users make, and no derivative or commercial versions are allowed.

One feature of viral spirals is their propensity to call forth a jumble of new projects and unexpected partners. The CC licenses have done just that for music. ccMixter has joined with Opsound to offer a joint “sound pool” of clips licensed under an Attribution ShareAlike license. It also supports Freesound, a repository of more than twenty thousand CC-licensed samples ranging from waterfalls to crickets to music. 229

Runoff Records, Inc., a record label, discovered a remix artist who teaches physics and calculus and goes by the name of Minus Kelvin. Runoff heard a podcast of Kelvin’s CC-licensed music, and signed him up, along with another ccMixter contributor, to do music for three seasons of the television show America’s Next Top Model. 230 A few months later, two ccMixter fans based in Poland and Holland started an online record label, DiSfish, that gives 5 percent of all sale proceeds to CC, another 5 percent to charity, with the remainder split between the label and the artist. All music on the label is licensed under CC. 231

The CC licenses are not just the province of daring remix artists and other experimentalists. Disappointed by its CD sales through traditional channels, the Philharmonia Baroque Orchestra released its performance of Handel’s 1736 opera, Atalanta, exclusively through the online record label Magnatune, using a CC license. Conductor Nicholas McGegan said the Internet “has potentially given the industry a tremendous shot in the arm,” letting orchestras reach “new audiences, including ones that are unlikely to hear you in person.” 232 A company that specializes in Catalan music collaborated with the Catalonian government to release two CDs full of CC-licensed music. 233 A group of Gamelan musicians from central Java who perform in North Carolina decided to release their recordings under a CC license. 234

Big-name artists have gotten into the licenses as well. DJ Vadim created a splash when he released all the original solo, individual instrumental, and a cappella studio tracks of his album The Sound Catcher under an Attribution, NonCommercial license, so that remixers could have at it. 235 In 2004, Wired magazine released a CD with sixteen tracks by the likes of David Byrne, Gilberto Gil, and the Beastie Boys. “By contributing a track to The Wired CD., these musicians acknowledge that for an art form to thrive, it needs to be open, fluid and alive,” wrote Wired. “These artists — and soon, perhaps, many more like them — would rather have people share their work than steal it.” 236

Soon thereafter, Byrne and Gil went so far as to host a gala benefit concert for Creative Commons in New York City. In a fitting fusion of styles, Gil sang a Brazilian arrangement of Cole Porter’s cowboy song, “Don’t Fence Me In.” The crowd of 1,500 was high on the transcultural symbolism, said Glenn Brown: “Musical superstars from North and South, jamming together, building earlier works into new creations, in real time. Lawyers on the sidelines and in the audience, where they belong. The big Creative Commons logo smiling overhead.” 237 The description captures the CC enterprise to a fault: the fusion of some clap-your-hands populism and hardheaded legal tools, inflected with an idealistic call to action to build a better world.

By 2008 the power of open networks had persuaded the major record labels to abandon digital rights management of music CDs, and more major artists were beginning to venture forth with their own direct distribution plans, bypassing the standard record label deals. Prince, Madonna, and others found it more lucrative to run their own business affairs and deal with concert venues and merchandisers. In a major experiment that suggests a new business model for major music acts, Nine Inch Nails released its album Ghosts I-IV under a Creative Commons NonCommercial ShareAlike license, and posted audio files of the album on its official Web site, inviting free downloads. It did not do advertising or promotion. Despite the free distribution — or because of it — the group made money by selling 2,500 copies of an “Ultra-Deluxe Limited Edition” of the album for $300; the edition sold out in less than three days. There were also nonlimited sales of a “deluxe edition” for $75 and a $10 CD. The scheme showed how free access to the music can be used to drive sales for something that remains scarce, such as a “special edition” CD or a live performance. One week after the album’s release, the Nine Inch Nails’ Web site reported that the group had made over $1.6 million from over 750,000 purchase and download transactions. Considering that an artist generally makes only $1.60 on the sale of a $15.99 CD, Nine Inch Nails made a great deal more money from a “free” album distribution than it otherwise would have made through a standard record deal. 238

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

In the music industry, the early signs seem to support this approach. When digital guru Don Tapscott surveyed the events of 2006, he concluded that “the losers built digital music stores and the winners built vibrant communities based on music. The losers built walled gardens while the winners built public squares. The losers were busy guarding their intellectual property while the winners were busy getting everyone’s attention.” In a penetrating analysis in 2007, music industry blogger Gerd Leonhard wrote: “In music, it’s always been about interaction, about sharing, about engaging — not Sell-Sell-Sell right from the start. Stop the sharing and you kill the music business — it’s that simple. When the fan/user/listener stops engaging with the music, it’s all over.” 239

Serious change is in the air when the producer/consumer dichotomy is no longer the only paradigm, and a vast network of ordinary people and talented creators are becoming active participants in making their own culture. They are sharing and co-creating. Markets are no longer so separate from social communities; indeed, the two are blurring into each other. Although we may live in a complicated interregnum between Centralized Media and distributed media, the future is likely to favor those creators and businesses who build on open platforms. As Dan Hunter and F. Gregory Lastowka write: “It is clear that two parallel spheres of information production exist today. One is a traditional, copyright-based and profit-driven model that is struggling with technological change. The second is a newly enabled, decentralized amateur production sphere, in which individual authors or small groups freely release their work.” 240

Hunter and Lastowka liken copyright law today to the Roman Empire in decline: “It is meaningless to ask whether the unitary might of imperial Rome was preferable to the distributed, messy agglomeration of tribes and states that eventually emerged after Rome fell. It was not better, just different.” That is certainly a debatable conclusion, depending upon one’s cultural tastes and sense of history. But the Rome metaphor does capture the fragmentation and democratization of creativity that is now under way. And that, in fact, is something of the point of the CC licenses: to make access and use of culture more open and egalitarian. For all his commitment to law and the CC licenses, Lessig ultimately throws his lot in with social practice: “Remember, it’s the activity that the licenses make possible that matters, not the licenses themselves. The point is to change the existing discourse by growing a new discourse.” 241

 194. Cory Doctorow, “A Note About This Book,” February 12, 2004, and “A Note About This Book,” January 9, 2003, in Down and Out in the Magic Kingdom, available at http://www.craphound.com/down.

 195. Anna Weinberg,“Buying the Cow, Though the Milk Is Free: Why Some Publishers are Digitizing Themselves,” June 24, 2005, Book Standard, June 24, 2005, available at http://www.thebookstandard.com/bookstandard/news/publisher/article_display.jsp?vnu_content_id=1000968186.

 196. Cory Doctorow, “Giving it Away,” Forbes.com, December 1, 2006, available at http://www.forbes.com/2006/11/30/cory-doctorow-copyright-tech-media_cz_cd_books06_1201doctorow.html.

 197. Smaran, “Alchemist Author Pirates His Own Book,” TorrentFreak blog, January 24, 2008, at http://torrentfreak.com/alchemist-author-pirates-own-books080124.

 198. Mia Garlick, “LibriVox,” Creative Commons blog, December 5, 2006, at http://creativecommons.org/text/librivox.

 199. “Wikitravel Press launches,” Creative Commons blog, August 3, 2007, at http://creativecommons.org/weblog/entry/7596. See also Mia Garlick, “Wikitravel,” Creative Commons blog, June 20, 2006, at http://creativecommons.org/text/wikitravel.

 200. Mia Garlick, “Lulu,” Creative Commons blog, May 17, 2006, at http://creativecommons.org/text/lulu.

 201. Kevin Kelly, “Scan This Book!” New York Times Magazine, May 14, 2006, p. 43.

 202. Ibid., p. 45.

 203. Mike Shatzkin, “The End of General Trade Publishing Houses: Death or Rebirth in a Niche-by-Niche World,” presented to the Book Expo America, New York, May 31, 2007, available at http://www.idealog.com/speeches/endoftrade.htm.

 204. Cited in David Bollier, The Rise of Collective Intelligence: Decentralized Cocreation of Value as a New Paradigm in Commerce and Culture (Washington, DC: Aspen Institute Communications and Society Program, 2007), p. 27.

 205. Matt Haughey, “From LA’s Awesometown to New York City’s SNL,” Wired News, October 1, 2005.

 206. Samuli Torssonen presentation at iCommons Summit 2007, Dubrovnik, Croatia, June 15, 2007. See also www.starwreck.com.

 207. Ton Roosendaal remarks at conference, “Economies of the Commons,” De Balie Centre for Culture and Politics, Amsterdam, April 10–12, 2008.

 208. The film can be downloaded at http://www.bigbuckbunny.org/index.php/download.

 209. Mia Garlick, CC blog, at http://creativecommons.org/weblog/entry/6048; see also “Cafuné breaking the limits for open business models,” iCommons blog, at http://www.icommons.org/static/2006/11/22/cafune-breakingthe-limits-for-open-business-models.

 210. Harold Feld, “CD Sales Dead? Not for Indies!” blog post on Public Knowledge Web site, March 27, 2007, at http://www.publicknowledge.org/node/890.

 211. Donald Clarke, The Rise and Fall of Popular Music, chapter 11.

 212. Lessig explained his BMI strategy at a speech, “On Free, and the Differences Between Culture and Code,” at the 23d Chaos Communications Conference (23C3) in Berlin, Germany, December 30, 2006; video can be watched at http://video.google.com/videoplay?docid=7661663613180520595&q=23c3.

 213. From BMI, Inc., Web site, at http://www.bmi.com/genres/entry/533380.

 214. Shapiro described his experiences at the “Identity Mashup Conference,” June 19–21, 2006, hosted by the Berkman Center for Internet and Society at Harvard Law School, at http://blogs.law.harvard.edu/mediaberkman/2006/06/28/id-mashup-2006-day-two-the-commons-open-apis-meshups-and-mashups. His band’s Web site is at http://www.twotonshoe.com.

 215. Jon Pareles, “Pay What You Want for This Article,” New York Times, December 9, 2007.

 216. Nimrod Lev, “The Combina Industry,” November 16, 2004, at http://law.haifa.ac.il/techlaw/new/try/eng/nimrod.htm.

 217. Patti Smith at a panel at the National Conference for Media Reform, St. Louis, sponsored by Free Press, May 14, 2005.

 218. A fascinating collision of the Grateful Dead’s sharing ethic and the copyright business model occurred in 2005, when the Internet Archive placed a huge cache of fan recordings online, available for free download. When Grateful Dead Merchandising objected, Deadheads accused the band’s representatives of betraying the band’s long-established sharing ethic. Paradoxically, the band’s merchandisers may also have jeopardized the band’s commercial appeal by prohibiting the downloads. As music critic Jon Pareles put it, “The Dead had created an anarchy of trust, going not by statute but by instinct and turning fans into co-conspirators, spreading their music and buying tickets, T-shirts and official CDs to show their loyalty. The new approach . . . removes what could crassly be called brand value from the Dead’s legacy by reducing them to one more band with products to sell. Will the logic of copyright law be more profitable, in the end, than the logic of sharing? That’s the Dead’s latest improvisational experiment.” Jon Pareles, “The Dead’s Gamble: Free Music for Sale,” New York Times, December 3, 2005.

 219. Creative Commons blog, “Musicians Large and Small on Internet Downloading,” by Matt Haughey, July 26, 2004.

 220. http://news.bbc.co.uk/l/hi/entertainment/3352667.stm.

 221. Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity (Athens: University of Georgia Press, 2006).

 222. This story is told by Demers in Steal This Music. The court ruling is Bridgeport v. Dimension Films, 383 F. 3d 390 (6th Circ. 2004).

 223. DJ Danger Mouse’s remix received considerable press attention. A good overview is by Chuck Klosterman, “The DJ Auteur,” New York Times Magazine, June 18, 2006, pp. 40–45.

 224. See Negativland’s book, Fair Use: The Story of the Letter U and the Numeral 2 (Concord, CA: Seeland, 1995).

 225. Glenn Otis Brown, “Mmm . . . Free Samples (Innovation la),” Creative Commons blog, March 11, 2003, at http://creativecommons.org/weblog/entry/3631.

 226. Creative Commons Web site, at http://creativecommons.org/about/sampling. See also Ethan Smith, “Can Copyright Be Saved?” Wall Street Journal, October 20, 2003.

 227. See http://wiki.creativecommons.org/ccMixter. Interview with Mike Linksvayer, February 7, 2007, and Neeru Paharia, April 13, 2007.

 228. Interview with Neeru Paharia, April 13, 2007.

 229. Neeru Paharia, “Opsound’s Sal Randolph,” Creative Commons blog, October 1, 2005, at http://creativecommons.org/audio/opsound; Mike Linksvayer, “Freesound,” Creative Commons blog, October 1, 2005, at http://creativecommons.org/audio/freesound; Matt Haughey, “Free Online Music Booms as SoundClick Offers Creative Commons Licenses,” Creative Commons blog, August 11, 2004.

 230. Neeru Paharia, “Minus Kelvin Discovered on ccMixter,” Creative Commons blog, May 17, 2005, at http://creativecommons.org/weblog/archive/2005/5.

 231. Cezary Ostrowski from Poland and Marco Raaphorst from Holland met online at ccMixter and decided to go into business together. They started an online label called DiSfish.

 232. Mia Garlick, “Classical Music Goes Digital (& CC),” May 3, 2006, at http://creativecommons.org/weblog/entry/5883.

 233. The Enderrock Group, a company that specializes in Catalan music and publishes three popular music magazines, released the two CDs, Música Lliure and Música Lliure II, free within the page of its magazines. See Margot Kaminski, “Enderrock,” Creative Commons Web site, January 17, 2007, at http://creativecommons.org/audio/enderrock.

 234. The group, Gamelan Nyai Saraswait, was blogged about by Matt Haughey on February 1, 2003, at http://creativecommons.org/weblog/entry/3599.

 235. Victor Stone, “DJ Vadim Releases Album Tracks Under CC,” August 20, 2007, at http://creativecommons.org/weblog/entry/7619.

 236. Thomas Goetz, “Sample the Future,” Wired, November 2004, pp. 181–83.

 237. Glenn Otis Brown, “WIRED Concert and CD: A Study in Collaboration,” September 24, 2004, available at http://creativecommons.org/weblog/entry/4415.

 238. See, e.g., Wikipedia entry, “Ghosts I-IV,” at http://en.wikipedia.org/wiki/Ghosts_I-IV.

 239. Gerd Leonhard, “Open Letter to the Independent Music Industry: Music 2.0 and the Future of Music,” July 1, 2007, at http://www.gerdleonhard.net/2007/07/gerd-leonhards.html.

 240. Dan Hunter and F. Gregory Lastowka, “Amateur-to-Amateur,” William and Mary Law Review 46, no. 951 (December 2004), pp. 1029–30.

 241. Interview with Lawrence Lessig, September 14, 2006.

License: Creative Commons Attribution-NonCommercial license.

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