Barbara Lattanzi on Tue, 12 Feb 2002 16:18:02 +0100 (CET)

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[Nettime-bold] Fwd: All Hail Creative Commons


I am late in considering issues of copyright, including copyleft and open 
source strategies.  So, waking up like the church mouse, I am forwarding an 
article which has obvious relevance.

Barbara Lattanzi

From: Tom Damrauer <>
Date: Mon, 11 Feb 2002 15:07:30 -0500
Subject: All Hail Creative Commons
X-Sender: (Unverified)

All Hail Creative Commons: Stanford professor and author Lawrence Lessig 
plans a legal insurrection Hal Plotkin,
Special to SF Gate (SF Chronicle) Monday, February 11, 2002


Stanford law professor and author Lawrence Lessig and a small band of 
collaborators at MIT, Duke, Harvard and Villanova are about to embark on a 
new endeavor that could help reignite the global high-tech economy.

A prolific thinker, writer and doer, and a national authority on 
intellectual-property law and a former columnist at The Industry Standard, 
Lessig is perhaps best known as the author of two of the most important 
books yet produced about computers, the Internet and how our legal system 
deals with them: "Code and Other Laws of Cyberspace," and his more recent 
work, "The Future of Ideas."

In an interview last week, Lessig confirmed the basic details about his 
latest venture, Creative Commons, which is slated to be formally unveiled 
in a few months.

In a boon to the arts and the software industry, Creative Commons will make 
available flexible, customizable intellectual-property licenses that 
artists, writers, programmers and others can obtain free of charge to 
legally define what constitutes acceptable uses of their work. The new 
forms of licenses will provide an alternative to traditional copyrights by 
establishing a useful middle ground between full copyright control and the 
unprotected public domain.

The first set of licensing options Creative Commons plans to make available 
are designed mostly for people looking for some protections as they move 
their wares into the public domain. Those protections might include 
requirements that the work not be altered, employed for commercial purposes 
or used without proper attribution.

Lessig adds that it's possible Creative Commons' licenses may eventually 
evolve to include options that permit or enable certain commercial 
transactions. An artist might, for example, agree to give away a work as 
long as no one is making money on it but include a provision requiring 
payments on a sliding scale if it's sold. As participation in the Commons 
project increases, a variety of specific intellectual-property license 
options will evolve in response to user needs, which in turn would create 
templates for others with similar requirements.

Within a few months, artists, writers and others will soon be able to go 
online, select the options that suit them best and receive a custom-made 
license they can append to their works without having to pay a dime to a 
lawyer, let alone the thousands of dollars it typically costs to purchase 
similar legal services.

"We also want to facilitate machine-readable languages," adds Lessig, who 
will be taking a partial leave from Stanford to help jump-start the 
Creative Commons effort.

In Lessig's model, an MP3 song or a document or any other intellectual 
property would contain a special machine-readable tag that specifies the 
exact licensing terms approved by its creator. That means film 
studentsmaking a movie, for example, could do a search, say, for jazz songs 
released under public domain-friendly licenses that they can use for their 
soundtrack without charge.

At the same time, Creative Commons also plans to build a "conservancy" to 
facilitate the preservation and sharing of intellectual property.

A Win-Win Proposition

In one masterstroke, Lessig and colleagues will empower creators of 
intellectual property by giving them more control over their work while 
also increasing the communal technical resources that contribute to 
innovation and growth. The result will be a new spark of life for the 
Internet, and for the tech sector in general.

Rather than abandon an outdated software program, for example, a computer 
company would have the option of donating its source code to the Creative 
Commons conservancy, where people could build on it to create other new and 
useful products.

Some of that activity, of course, is already taking place within the 
often-chaotic open-source software community. But many mainstream business 
executives have been reluctant to hop aboard the open-source bandwagon. 
Some of them have expressed fears that the origins and ownership of certain 
open-source code projects could eventually come into question. Many of them 
would prefer to play it safe, deal with proprietary vendors and not take 
any chances.

The Creative Commons conservancy will address some of those fears, in part, 
by providing access to more reliable legal protections that will make 
participation in open-source projects more likely. The implicit guarantees 
that usually accompany most open-source projects will be turned into the 
more explicit, ironclad licensing language that helps build confidence 
among information-technology professionals. Once an owner has formally 
conserved a piece of work, for example, any risks of inadvertent copyright 
infringement related to that work will be greatly reduced, if not 
eliminated entirely.

The project's backers hope that over time, companies and individuals may 
even receive tax breaks for donating works to the conservancy. That outcome 
could encourage the release of additional technical resources that everyone 
can use.

The Problem With Copyright Law

For years now, Lessig and other critics have maintained that inflexible 
copyright rules as they exist often just protect entrenched -- and usually 
uncreative -- interests at the expense of virtually everyone else, 
including many of those the copyright rules were originally supposed to 

He points out, for example, that when Congress first enacted copyright law 
in 1790, the protection extended for a term of 14 years, which could be 
renewed for another 14 years if the author was still alive. Congress has 
since increased that term to the life of the author plus 70 years. Given 
current life expectancies, that means a corporation can now bank on 
preventing a piece of intellectual property produced by a 30-year-old today 
from falling into the public domain for more than a century.

Lessig says such practices run contrary to one of the main reasons 
copyright law was conceived in the first place. Originally, he says, 
copyright and patent laws sought to balance two competing interests: 
protecting and rewarding innovators for their work, but also making sure 
innovations were available for reuse or repurposing by others after a 
reasonable length of time.

The rationale for that policy goes something like this:

The first person who figures out a new invention -- say, the wheel -- 
deserves to get rich. But that person should not have a right to prevent 
others from using his or her invention for so long that future progress is 
hampered. What's often missed by the most ardent private-property stalwarts 
(usually big-company lawyers, incidentally) is that the intended goal of 
the copyright system was to provide incentives for creativity not only for 
the originators of new ideas but also for others who want to use and build 
on those ideas in other ways.

Unfortunately, over the years concentrated financial interests have 
convinced Congress to steadily shift that balance. Privatized rights have 
won favor over the public interests that were once a far more essential 
aspect of copyright protections. That trend has only accelerated recently, 
as Congress has caved in to one demand after another from big media firms, 
Microsoft and others to "strengthen" copyright protections for a variety of 
high-tech digital goods.

On one level, the Creative Commons idea is all about commerce. But its 
deeper significance does not involve commerce in its usual form. Lessig 
isn't just trying to make his own cash register ring. Instead, his goal is 
to get millions of others ringing by making it easier to create new goods, 
products and services. In a larger sense, the goal is to make the world 
safer for innovators by nurturing the conditions that lead to economic 
growth and technological progress.

Not a Moment too Soon

In his most recent book, Lessig makes a convincing case that the health of 
the Internet and the tech sector in general is being choked off by 
increasingly successful efforts to erect proprietary bottlenecks that 
prevent competition. The most obvious example is Microsoft's Windows 
operating system, which remains the subject of federal antitrust 
litigation. But there are many other similar, although less 
well-publicized, cases that could prove equally worrisome over time.

A company called Thomson Multimedia, for example, owns patents to the 
popular MP3 digital music format. So far, the company has made it 
relatively easy for others to adopt the technology, which has facilitated 
its wide use and rapid acceptance. But like Microsoft, Thomson could decide 
at some future date that the time has come to more fully exploit its 
dominant position as the key enabler of online music-delivery systems. 
Thatuncertainty puts at risk the business plans of every company or artist 
that relies on MP3s, which is just one of the reasons there are so few 
investors interested in online music ventures these days. It's just too 
risky building a business in a sandlot someone else owns.

Lessig says the solution to that and other problems can be found in the 
age-old idea of the commons -- that is, the notion that society and the 
economy are better off when certain resources are protected and made 
freelyavailable. Public streets, for example, provide accessible places 
where businesses can set up shop and where goods can be transported. 
Likewise, laws that prevented phone companies from discriminating between 
voice and data traffic allowed free use of those lines for other purposes, 
which in turn helped create the Internet.

The Creative Commons conservancy service is intended to extend that 
approach to as many other areas as possible.

"One of our goals is to lower the cost to give something away, and to make 
it harder for people to be ambushed [by proprietary claims]," says Lessig.

The result will be a more robust, healthier high-tech economy.

And this time, remarkably, a lawyer will actually deserve credit for 
helping make it happen.

Veteran Silicon Valley writer and broadcaster Hal Plotkin is also a 
contributing writer at Harvard Business School's publishing division.
Tom Damrauer

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