Returning Creativity to the Commons

by Richard Koman

It was Eldred reunion night Dec. 16 at the SomArts performance space in San Francisco's South of Market district to celebrate the rollout of Lawrence Lessig's Creative Commons organization. There was Net radical John Gilmore furtively handing out little LED key-chain lights in an array of colors--of course, John wasn't at the Eldred hearing because he only flies anonymously, which is to say he doesn't fly at all. EFF provacateur Cory Doctorow was there sporting a slimmer frame courtesy of the Atkins diet and a new EFF bumpersticker. Creative Commons' XML maven Lisa Rein was buzzing excitedly about the outlook for the Elcomsoft trial (they were acquitted the next day). And there was Brewster Kahle and the Internet Bookmobile, parked right on the floor of the space, just below a trippy computer projection slide show and not too far from the grilled eggplant and hummus table, handing out yet more copies of Alice in Wonderland, made on the spot thanks to the amazing desktop binding machine. Oh, and Eric Eldred himself was there, unassuming in a Red Sox baseball cap.

When the program itself started, Eldred attorney Lawrence Lessig took the stage and did what he does so well in his public speeches--boiling complex issues down to their essence, sometimes a one- or two-word essence. This boiling down is underlined by his slides, writing large the juxtaposition of two opposing themes. He starts with a story of his father complaining about someone who owes him money and the young Larry innocently asks, "Dad, why don't you sue him?" The elder Lessig gives a stern look and tells his son, "Son, in this world there are those who do"; cues a black slide with the Courier-set word "do"; "and those who sue"; cue the "sue" slide. "Those who tear down and those who build"; cue the "build" slide.

As the attorney on the Eldred case, Lessig is, of course, pursuing the sue option. But even in the event of full-bore victory for the Eldred forces, the copyright issue will not be fixed. Now Lessig is building something more: a system of projects that taken together will enable creators to give their works to the public domain, or to limit the terms of their copyright protection, or to retain certain rights and give up others. What is being built may reflect the nuances of all of human creation, it may reflect the sometimes low-cost nature of creating and distributing on the Net as opposed to creating things that cost thousands or millions of dollars to display.

O'Reilly Emerging Technology Conference.

The genesis for Creative Commons came from Eldred himself, who told Lessig in an early meeting on the case that he didn't even care if they won the case; "what I care about," Lessig reports Eldred saying, "is that we build something that increases the public domain." That's Creative Commons, a series of projects designed to increase the amount of "stuff available to others."

Creative Commons is trying to build, or rebuild, the enabling of the public domain. It starts with two efforts, both of which allow creators to say, "I want to be compensated (perhaps financially or perhaps just with credit) for my work, and I want to enrich the public domain with my works." These two efforts are:

  • The Creative Commons license, which includes "legal code" (assuring creators that the rights they assert will be legally protected), a "commons deed," (a simple statement of which rights are asserted and which are ceded, which anyone can understand), and "machine-readable code," (some metadata in the form of RDF, so that computer programs can understand the terms of the work.)

  • The Founders Copyright, under which publishers and creators agree to limit their copyright protections to 14 years, renewable to 28 years. (O'Reilly & Associates has pledged to convert some 200 works to Founders Copyright within the next month.)

Copyright Gone Wrong

Why do we need these initiatives? What's wrong with the copyright system we've had for over two centuries? In fact, copyright today could not look more different than it did when the Constitution was drafted in 1790, with the specification that copyright be for a term of "limited" duration. Today, in the age of the 1998 Sonny Bono Copyright Extension Act, copyright lasts for the lifetime of the author plus 70 years. What is the meaning of the term "limited" when Congress has extended copyright so many times, made it so long? This is the crux of the Eldred case: Lessig says the term is rendered meaningless, while MPAA lobbyist Jack Valenti (and the U.S. Attorney General, and Congress) says: "Limited means whatever Congress says it means."

Roll Your Own License

The Creative Commons license lets you specify that your work can be freely copied with any or none of several restrictions. To create a license, visit the Creative Commons site and answer these three questions:

  • Do you want to require attribution?
  • Do you want to allow commercial uses?
  • Do you want to allow derivative works?

Based on these choices, Creative Commons' software pulls up the appropriate license and provides an image and text that you can place on a Web site or include in printed material. You can post the commons deed (a simple statement of license) on your Web site and link to the legal document. Creative Commons also provides code for you to link to their RDF for your license. Creative Common's RDF includes the following:

  • title
  • description
  • subject
  • publisher
  • creator
  • contributor
  • rights
  • date
  • format
  • type
  • source, derivative work
  • license

As long as this information is linked from your document, other computers (with RDF-reading ability) accessing the document will know the rights and permissions. This is crucial as the Web moves from the computer-to-human paradigm to the computer-to-computer paradigm.

What's next? Look for the ability to add more metadata to your creations, and the integration of Creative Commons metadata into search engines like Google.

In so many words, the current law says that creators (or the corporations to whom they assign their rights) should control their works for a very long time. Long after an author's death, profits should continue to flow to his or her heirs. The public should not be able to copy, expand, alter, or make art out of the works even after the author's grandchildren are dead. Which side of this case do you think the heirs of Dr. Seuss are on?

The framers of the Constitution had a different idea: that people have the right to collect for their creations, but after a set amount of time those creations go into the public domain. The time specified was 14 years, renewable for another 14 years. After 28 years, there are no more extensions--even if the work is still filling your bank account. The framers wanted to enable the public domain.

In the old days, your work was not copyrighted unless you explicitly made a copyright claim; if you wanted to extend your copyright for another 14 years you had to file for that extension. By default, work was entered in the public domain unless the creator took steps to (temporarily) remove it. The law today says everything you create you can copyright automatically. "The copyright system has a default of no with regard to all creative work," Lessig told me earlier the day of the event.

The Constitution envisions a world in which intellectual property and a public commons are kept in balance. It rewards entrepreneurial initiative and seeks to compensate artists and inventors for the time, money, and talent it takes to create, build, market, and distribute a work or a product. It also claims for Americans a rich public domain.

Intellectual Recycling

Lessig talks about creative works having two lives. First, there is the private, commercial life, during which money is charged and, perhaps, profits are made. Then there is a second life, a noncommercial life, when the work is turned over to the public domain. It's not a new idea; surely this was the framers' vision.

"Think of it as recycling," Tim O'Reilly tells me after the presentations, while technical difficulties delayed DJ Spooky's real-time remixing of Birth of a Nation. "It's a code of conduct for the digital age: recycle stuff when you're done with it .... Keeping under copyright something that no longer has value is like keeping all your old newspapers .... It's about small opportunities. You never know what people will do with something you're not using."

And how do we guarantee that once things enter the public domain, they will remain available? Internet archivist Brewster Kahle took the stage with his son Caslon to make this offer: The Internet Archive will provide unlimited storage and bandwidth--forever--for all video and audio media made available as Creative Commons-licensed or public domain content.

So is O'Reilly endangering his business by committing to the Founders' Copyright? "No. As a computer book publisher, 28 years is far longer the life of any title. It's not a very hard choice when it comes down to it, although I might feel differently if I were a fiction publisher. As a publisher of useful works, all I have to do is keep updating it. If the first edition enters the public domain in 14 years, I'm probably on the fourth or fifth edition by that time. An example is our X books. People have asked for those over the years but it no longer makes financial sense for us to publish them. Someone could take those books and put them in a Linux distribution, for example.

O'Reilly recalls a book he wrote about Frank Herbert back in 1978, which has been long out of print. When a few people asked for a copy of it, he contacted the publisher but got no response. "I decided to break the law and put it on the Web, under the theory that they'd probably never find out about it and if they did it would be a wake-up call. So, one of the exciting things about Creative Commons is that it makes things explicit up front.

"We have an obligation to make a statement," O'Reilly says, while conceding that his decision will likely have little impact on the general publishing industry. "It may tip our competitors to start thinking about it. It may matter more to computer geeks."

O'Reilly is not only releasing out-of-print books, he has made a commitment to publishing all future titles under the Founders' Copyright. The final list of titles should be released within a month.

The Third Way

As part of his presentation, Lessig shows two videos from two well-known figures. First, John Perry Barlow, Grateful Dead lyricist and well-known radical Internet thinker: "Creative Commons, by setting up a conservancy of the middle, is increasing the right to know. As a species, we will get away from thought as something to own .... You are assuring that our grandchildren will have access to information, that it won't die in the clutches of institutions trying to clutch it to their breasts."

And then ... Jack Valenti himself, smiling graciously, apologizing for not being at the event in person, nattering on about how he's debated Lessig three times, supposedly to the chagrin of his friends who demanded to know why he was debating "the most brilliant lawyer in America," telling him these appearances do not make him look intelligent by association but simply make him look like an "ass."

"Larry makes it clear that he is supportive of copyright, and I agree that people may want to give up part or all of their copyright protection .... Creative Commons strikes a marvelous balance between copyright protection and copyright material that people want to make available," Valenti says on the video.

Quickly dismissing Valenti's "bullshit" about his brilliance, Lessig is nonetheless beaming. He claims the evening is the first time Barlow and Valenti have been in agreement on anything. "Both permit us this middle place."

"We adopt this strategy now because there's an urgency to this debate, an urgency when the laws want to turn anyone who shares into a criminal. Our tradition is one where we share our culture. We start with Valenti and Barlow expressing agreement on an ideal to build something different. Our tradition is freedom, not control; creativity is built on top of freedom, not control.

"The ideology of control must end now."

So, where's all the CC-licensed content? Part of the Creative Commons site is devoted to highlighting some of the works and Web sites that have signed on to the CC license. Most notable is a huge amount of material from Byrds leader Roger McGuinn (the works, not his recordings). Ultimately, however, Creative Commons has no intention of maintaining a full database of all licensed materials. Look for tools in the future that will enable search engines to access license information and for Web sites to identify the licensing of given works.