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Plays Well With Others

How Creative Commons is redefining the way we think about what is mine and what is yours

By Michael May, Fri., Feb. 28, 2003

Lawrence Lessig
Lawrence Lessig
Photo By John Anderson

Last October, author, lawyer, and intellectual-property-rights activist Lawrence Lessig fought the toughest battle of his career: man vs. mouse. And lost.

Lessig stood before the Supreme Court, representing the plaintiff in Eldred v. Ashcroft, and argued that Congress had violated the Constitution by passing what he calls "the Mickey Mouse Protection Act" (known in more polite circles as the Sonny Bono Copyright Extension Act of 1998). Lessig says it was no coincidence that the Sonny Bono Act, which extended copyright protection by 20 years, was passed shortly before Mickey Mouse's copyright was set to retire. The Disney Corporation has bought a lot of friends on Capitol Hill, but Lessig thinks the founding fathers are on his side.

The authors of the Constitution believed that the creative soul of the nation depended on a rich public domain -- a space where intellectual property is freely shared in the name of progress. So they sharply limited copyright protection, granting it for a maximum of 28 years. But since 1960, thanks to intense lobbying by corporations like Disney, Congress has extended copyrights no less than 11 times, and protection now lasts the author's life plus 75 years and for 95 years if created by a corporation. "Just as a limited-edition print is not limited," Lessig told the Supreme Court, "if you print a new one each time a customer leaves the store, so a limited term is not limited if it is extended [every time it's going to end]."

At this point, you may be asking yourself how this affects you. Intellectual property, we are led to believe, is no different than other types of property, like a house or a car, and file-sharing programs allow people to shoplift from the comfort of their own home. In reality, however, the world is not divided cleanly into producers and mindless consumers. For artists, musicians, authors, and filmmakers, the Web provides a limitless palette of images and sounds to slice, dice, sample, and satire. But doing so -- even if individuals plan to give their creation away for free -- could easily land them in court.

Imagine if the giant intellectual property conglomerates hadn't bought control of the law. Before 1978, every work without a copyright symbol automatically became part of the public domain. If those rules applied today, the term "public domain" would not be an elusive intellectual concept discussed by lawyers and academics, but a resource available right on your desktop. A struggling musician living in Des Moines, Iowa, could combine photographs on the site of a Native American Inuit photographer to her own minimalist music to create a music video for her Web site. Or, a social-studies class in Dallas could create a Web site about the civil rights movement, borrowing images and films from museum collections across the country to complement the students' own writings. But projects like these have been stymied because of the threat -- or perceived threat -- of being sued for copyright infringement.

On Jan. 16, the Supreme Court justices ruled for the federal government (7-2), but the velvet revolution had already begun a month earlier. At an art museum in San Francisco on Dec. 16, Lessig unveiled Creative Commons, a nonprofit that provides creators with alternative copyright licenses that they can customize to fit their needs. This won't liberate pop culture icons like Mickey and friends, but it does allow artists, writers, and musicians to use a body of work without fear of retribution. Glenn Otis Brown, executive director of Creative Commons, calls the approach "creative civil obedience."

The licenses reintroduce flexibility into copyright protection. Creators will be able to specify that a work can only be used for noncommercial purposes, or that it be displayed unaltered or attributed. The licenses will also be machine readable, meaning search engines will be able to identify available materials.

The beauty of this system is that it is completely voluntary and does not challenge existing law. Even a staunch defender of the status quo would find little to criticize. "Creative Commons is not an attack on copyright law," says James Boyle, Creative Commons board member and Duke law professor. "It is a fine tuning. We are using the system, not revolting against it."

Even Jack Valenti, president of the Motion Picture Association of America, pledged his support of the new licenses. Valenti has led the charge against Internet file sharing, and believes that copyrights should be granted for "forever minus a day." He argues that everlasting protection for the arts, like any other private property, encourages free enterprise and original expression. Without it, he says, artists wouldn't be able to keep what they made for posterity and therefore would have no incentive to work at all. Thus, the easier it becomes to steal material on the Internet, the stronger these protections need to be.

But for all the talk about protecting the rights of artists, current law actually favors corporations. Copyright kingpin Time Warner, for example, owns huge swaths of American popular culture. Since Mickey Mouse and his brethren populate the American experience, it is increasingly difficult for independent artists to create works of critical value without treading across corporate property.

And for many of these corporations, the control is much more valuable than the commodities themselves. "For example, how much money do you think Disney can make off its racist World War II cartoons?" asks Rick Prelinger, who owns the copyrights to more than 45,000 films. "They are practically worthless. But it looks good on the balance sheet to overvalue them and keep the exclusive rights. If they are scrutinized, these guys could be the Enrons of the entertainment industry."

Prelinger knows firsthand that giving away older material won't kill a business. Since 1996, his Web site, www.archive.org, has been giving away educational, commercial, and amateur films from the American past. These are films that beg comment, like "About Bananas," produced in 1935 by the United Fruit Company about their farms in Central America; or "Japanese Relocation," a U.S. government film defending World War II internment camps. Prelinger uses Creative Commons licenses to donate the films to the public domain, meaning they can be used in just about any way you can imagine.

"For a long time, I followed a model of scarcity," says Prelinger. "I figured that the more control I had over these films, the more valuable they would be. In fact, the opposite has proven to be true, the site has attracted paying customers for my other films, or those wanting higher-quality copies than can be downloaded." Prelinger says the site has hosted more than a million downloads, and the films have appeared in classrooms, museum exhibits, and documentaries across the country.

Vicki Bennett, a United Kingdom-based experimental musician and filmmaker, has used the archive extensively in her projects. "I believe that history should be available for commentary by all people, not just those that can afford it," Bennett wrote via e-mail. "Outside of the Prelinger archives, almost all stock-footage companies are unhelpful or hostile when they find out I would like to use the film to make new work. And most are beyond my reach since I often work with little or no budget."

Creative Commons hopes to do for media what the free-software movement did for computers. In the 1980s, just as software development moved from the academy to the market, becoming more closed and proprietary, a devoted group of "open source" programmers took the opposite approach. They protected their free software with General Public Licenses, which allowed open-source software to be modified, but never sold at a profit. Thousands of programmers volunteered their time, and a decade later, Linux, an open-source operating system, is used on 27% of the world's servers.

The licenses have only been available for three months, but already some 47,000 works are tagged with Creative Commons licenses. The popularity of the licenses doesn't surprise Brown. "Widespread change on the Internet will always be a grassroots effort," he says. "We have known for a long time that the reality of the Internet didn't square with the rules created in Congress. Creative Commons has simply proved that the demand is out there."

Who is using Creative Commons licenses? Bloggers for one. Bloggers (short for webloggers) distill their daily experience into words and upload it unto a Web site. These writers don't spend hours sweating over a glowing screen to make it rich; they simply want the world to recognize their effort. And Creative Commons licenses allow their work to proliferate across the Internet and beyond. They are most likely to use a license that forbids commercial use and derivative works and demands attribution.

A Creative Commons license is also being used by the popular science fiction author, Cory Doctorow (who will be appearing with Glenn Otis Brown and others at the SXSW panel on Creative Commons). Doctorow's novel Down and Out in the Magic Kingdom, which just so happens to take place in a futuristic Disney World, is available in hardcover by Tor Books. But it also can be downloaded for free from Doctorow's Web site (www.craphound.com), and has been -- 75,000 times. Doctorow uses a Creative Commons license that forbids commercial use and derivative works and requires attribution. Doctorow contends that the buzz created by the free downloads more than makes up for lost sales.

The online electronica community is also using the licenses, but they are more likely to set a work free to propagate among others of its kind. These are artists that thrive on being derivative -- all is fair in love, war, and a good remix. So these artists might forbid commercial use of their works, but would love for you to, you know, use that cool sound you get by filling metal bowls with water and hitting them with an eggbeater, add your baby brother's gurgle, slice it, dice it, loop it, add it to the mix, and jam it at your next party. In short, these licenses are a godsend to fledgling DJs across the world.

The licenses also have more, um, highbrow uses as well. Rice University is using Creative Commons licenses in a program called Connexions (www.cnx.rice.edu), which could very well foster a revolution in pedagogy. Many professors tend to view textbooks -- rigid, obsessively linear, and often obsolete -- as a necessary evil, but they lack a viable alternative. Rich Baraniuk, a computer and electrical engineering professor at Rice, was all too familiar with these frustrations and decided to do something about it. Rather than write another ink-and-paper textbook to fit his needs, he created Connexions, which applies the flexibility of the Web to educational content and curricula. That means that a professor can go to the Connexions site, download their software, and have access to a vast collection of materials, which can be easily customized, formatted, and copied according to class focus and personal teaching style. Why hadn't anybody thought of it earlier?

Well, for one thing, a project such as this one is venturing into turbulent legal waters. Baraniuk was asking for the university to allow any user to modify the software that drives Connexions, as well as the content provided by the academics themselves. This is the kind of talk that makes legal departments at universities very, very nervous; they are, after all, paid to protect intellectual property, not give it away. The two sides were deadlocked, until the introduction of Creative Commons licenses. "Creative Commons," commented Chris Kelty, an anthropologist on staff at Connexions, via e-mail, "solved a very pressing problem for us: how to allow the reuse of digital teaching materials without causing a copyright train wreck. The licenses give professors and educators maximum control over their work, but in a way that also allows maximum flexibility in the uses others make of it." (Kelty will be appearing at the SXSW panel on Creative Commons.)

Taken on their own, each of these projects seems novel, but hardly earthshaking. But taken as a whole they trace the outline of a new creative space on the Internet, a domain where artists and writers once again have the right to share. "What kind of world do we want?" Rick Prelinger asks. "Do we want to just be consumers of other people's work, or do we want to make room for smaller, independent creators? I would love to see a world where ordinary people are constantly reinventing the art, music, and film around them." end story


"Some Rights Reserved: The Creative Commons Project" takes place at 11:30am-12:30pm on Sunday, March 9.
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