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CC in Review: Lawrence Lessig on Supporting the Commons

So today, Creative Commons launches its first fund raising campaign. Until now, we've lived on very generous grants from some very wise foundations. But the IRS doesn't allow nonprofits to live such favored lives for long. To maintain our nonprofit status, the IRS says we must meet a "public support test" -- which means we must demonstrate that our support comes from more than a few foundations.

And thus, this campaign.

This email is a pitch, asking for your support. But it is also the first in a series of emails I will write explaining what Creative Commons is, and where we're going with it. This is something I should have done long ago. There have been many thoughtful (even if some not so thoughtful) questions raised about who we are, and where we're going. I've wanted an excuse to answer them thoughtfully before. The IRS has given me that excuse. Creative Commons was launched in December, 2002. Within a year, we counted over 1,000,000 link-backs to our licenses. At a year and a half, that number was over 1,800,000. At two, the number was just about 5,000,000. At two and a half years (last June), the number was just over 12,000,000. And today -- three months later -- Yahoo! reports over 50,000,000 link-backs to our licenses.

CC: Aims and Lessons

So, what problem was Creative Commons trying to solve? And from what in the past did we learn?

Creative Commons took its idea ˜ give away free copyright licenses ˜ from the Free Software Movement. But the problem we aimed to solve was somewhat different.

When Richard Stallman launched the Free Software Foundation just over 20 years ago, he was responding to something new in the world of software development. In his experience, software had been free, in the sense that the source code was freely accessible and could be freely modified. But by the early 1980s, this norm was changing. Increasingly, software was proprietary, meaning the source code was hidden, and users were not free to understand or modify that source code. Stallman thus launched his movement to build a buttress against this trend, by developing a free operating system within which the freedoms he had known could continue.

The story with culture is somewhat different. We didn’t begin with a world without proprietary culture. Instead, there has always been proprietary culture ˜ meaning work protected by an exclusive right. And in my view at least, that's not a bad thing either. Artists need to eat. Authors, too. A system to secure rewards to the creative community is essential to inspiring at least some creative work.

But for most of our history, the burdens imposed by copyright on other creators, and upon the culture generally, were slight. And there was a great deal of creative work that could happen free of the regulation of the law. Copyright was important to cultural development, but marginal. It regulated certain activities significantly, but left most of us free of copyright's control.

All that began to change with the birth of digital technologies, and for a reason that no one ever fully thought through.

If copyright regulates "copies," then while a tiny portion of the uses of culture off the net involves making "copies," every use of culture on the net begins by making a copy. In the physical world, if you read a book, that's an act unregulated by the law of copyright, because in the physical world, reading a book doesn't make a copy. On the Internet, the same act triggers the law of copyright, because to read a book in a digital world is always to make a "copy." Thus, as the world moves online, many of the freedoms (in the sense of life left unregulated by the law of copyright) disappear. Every use of copyrighted content at least presumptively triggers a requirement of permission. The failure to secure permission places a cloud of uncertainty over the legality of the use. (The critical exception in the American tradition is "fair use," which I'll talk about next week.)

Now many don't care about clouds of uncertainty. Many just do what they want, and ignore the consequences (and not just on the Net). But there are some, and especially some important institutions like schools, universities, governments, and corporations that rightly hesitate in the face of that uncertainty. Some, like an increasing number of universities, would require express permission to use material found on the Internet in classrooms. Some, like an increasing number of corporations, would expressly ban employees from using material they find on the web in presentations. Thus just at the moment that Internet technologies explode the opportunities for collaborative creativity and the sharing of knowledge, uncertainty over permissions interferes with that collaboration.

We at Creative Commons thought this was a kind of legal insanity ˜ an insanity, that is, created by the law. Not because we believe people ought to be forced to share. But because we believe that many who make their work available on the Internet are happy to share. Or happy to share for some purposes, if not for others. Or eager that their work be spread broadly, regardless of the underlying rules of copyright. And these people, we thought, could use a simple way to say what their preferences were.

And thus the motivation for CC licenses: A simple way for authors and artists to express the freedoms they want their creativity to carry.  Creators who want to say "All Rights Reserved" need not apply. But creators who want just "Some Rights Reserved" could use our licenses to express that idea simply. And individuals and institutions that wanted to use work they've found on the Internet could do so without fearing they would be confused with those who believe in "No Rights Respected" when it comes to copyright.

Like the Free Software Movement, we believed this device would help open a space for creativity freed of much of the burden of copyright law.  But unlike the Free Software Movement, our aim was not to eliminate "proprietary culture" as at least some in the Free Software Movement would like to eliminate proprietary software. Instead, we believed that by building a buttress of free culture (meaning culture that can be used freely at least for some important purposes), we could resist the trends that push the other way. Most importantly, the trend fueled by the race to "digital rights management" (DRM) technologies.

What's wrong with DRM? And what about "fair use"? Great questions.  Tune in next week for the start of an answer. From last week's episode: ... Like the Free Software Movement, we believed this device would help open a space for creativity freed of much of the burden of copyright law. But unlike the Free Software Movement, our aim was not to eliminate "proprietary culture" as at least some in the Free Software Movement would like to eliminate proprietary software. Instead, we believed that by building a buttress of free culture (meaning culture that can be used freely at least for some important purposes), we could resist the trends hat push the other way. Most importantly, the trend fueled by the race to "digital rights management" (DRM) technologies.

What's wrong with DRM? And what about "fair use"? Great questions.
The story continued:

So imagine this happy picture: Your 14 year old daughter has to write a school report about the recent floods in New Orleans. The question she's assigned is this: "How did people's views about the disaster differ depending upon their background?" So she does what many kids increasingly do: she goes to the Internet to begin her work. She searches in Google for news about the flood. And she begins to gather places to look to complete her research.

Imagine she finds an archive with sound recordings of victims of the flood. Then she finds collections of news programs, reporting on the flood. Finally, she finds some polling data asking about the response the American government should make to the flood, and about views about the responses, the government has already made.

Then using these different voices, films, and descriptions, your daughter creates a short film of her own. She integrates the voices from the sound archive as narration, and then takes short clips from the news programs to show differing views. And when she's finished, she proudly shows you her work, and you (predictably) believe you have the next George Lucas on your hands.

Interoperability.

Perhaps the most important thing that the Internet has given us is a platform upon which experience is interoperable. At first, the aim of the computer and network geniuses was simply to find a way to make computers talk to each other. Then application geniuses found ways to make the content that runs on these different devices interoperate on a single digital platform. We are close to a world where any format of sound can be mixed with any format of video, and then supplemented with any format of text or images. There are exceptions; there are some who don't play in this interoperability game. But the push of the network has been to produce a world where anyone can clip and combine just about anything to make something new. Just as the senses process many different kinds of experiences (sound, images, smell, emotions) and then offer them for translation on a single platform (the brain), so too have digital networks made it possible to combine many forms of media, and make them usable on single platform.

This convergence is what makes your daughter's creative work possible. Of course, in a sense she's doing nothing different from what film makers have done for almost a century. But the difference is that she's not a film maker, and you didn't have to buy hundreds of thousands of dollars of equipment. The digital technologies and the Internet have democratized this way of speaking. And we're just beginning to see the creativity that this change has produced.

But think for a second about what made it possible for your daughter to produce the film she produced. It wasn't just the existence of certain technologies: digital technology, and especially the Internet. It was also the absence of other technology: namely, technologies to control how and whether she could use the content she found. When your daughter copied the sound recordings of survivors, the computer didn't ask, 'for what purpose?' When she integrated those recordings into her movie, the software didn't demand that she show she had permission. She was able to do all the things she did because the technology is oblivious to whether she had permission to do what she did. The Internet was not built with permissions in mind. Free access was the rule.

That free access creates many problems for many, indeed, in principle; it might create problems for us all. Record and film companies are notorious for complaining an out this Internet feature. Given its original design, you could "share" your complete record and film collection with your 100,000 "best friends." It's not surprising that they view this feature rather as a bug. But I suggest any of us might regret this feature of the net in certain circumstances. Do you really like it that someone can take a personal email you sent him and forward it to his 100 best friends?

The point is that however good free access is, sometimes, at least some think its not very good, at least for them. And the most powerful of these some have therefore pushed for technologies that would be layered onto the Internet and enable them, or content owners generally, to control how digital content gets used. So if you buy a song from an online music store, perhaps you can copy it to four or five of your machines, but you can't copy it 20 times, or post it on the Internet for others to access. Or if you are sent a confidential report, the technologies might disable your ability to print the report, or to move it to a different machine. The ability to control is essentially limitless ˆ imagine any control you'd like, and there's someone out there working on adding that control to the technologies of the Net.

Call these technologies in general "Digital Rights Management" technologies (DRM). My claim at the end of last week's missive was that there was a strong push to layer DRM onto the Internet, and that that push was a bad thing.

But I don't think DRM is a bad thing because I think that violating others' rights is a good thing. The bad in DRM is that if it is deployed universally as a default, it would move us from one bad extreme to another. No doubt, DRM might make it easier for record companies to stop the illegal spread of their content. But it would also destroy the opportunities for the kind of uses that began this (already too long) email: creative, unexpected, critical use. We would move from a world where free use was the default, to a world where permission for every use would be the rule.

Or put differently, we wanted to offer a technology to make it easy to say what rights were reserved, and what rights were not, which we hope would make it unnecessary to then add technology to enforce the rights reserved. "Digital Rights Expression" was our aim. And our hope was that good DRE would staunch at least some of the demand for crude DRM. But why not add DRM to the rights expressed through Creative Commons DRE? What's wrong with a cheap system to enforce the rights still reserved?

There are two problems at least. We can see the first by returning to the picture of what made this network amazing ˆ interoperability. Widespread DRM would disable that interoperability. Or at least, it would disable interoperability without permission first. We could remix, or add, or criticize, using digital content, only with the permission of the content controller. And that requirement of permission first would certainly disable a large part of the potential that the Internet could realize.

The second problem relates to "fair use." The law of copyright has never given copyright owners the right to perfect control over their copyrighted work. Fair use is a codified exception to that control. As we see them today, DRM technologies cannot respect "fair use."

Why is that so? And how does Creative Commons respect fair use?
The story continued

I began this series with a bit of background. This is the last of these background emails. In the first week, I described the basic idea of Creative Commons ˜ free licenses that signaled to the world the freedoms an author intends his work to carry. In week two, we confessed we stole this idea from the Free Software Movement. In very different contexts, both they and we use free licenses to avoid the creativity-stifling effects of overly restrictive control. That control was the subject of last week's email ˜ the technical locks that control access to and use of content that we call DRM. DRM, we fear, will add a layer of restriction to the Internet that will defeat content interoperability, and weaken "fair use."

"Fair use": No word is more used in debates about copyright with less understanding. What is "fair use" (in America, "fair dealing" in most of the rest of the world) and how does DRM threaten it?

The law recognizes three kinds of "uses" of copyrighted works: 1. Free uses (uses that don't trigger the law of copyright, such as reading a physical book); 2. Regulated uses (uses that do trigger the law of copyright, such as republishing a book; 3. Fair uses (uses that trigger the law of copyright, but which are nonetheless free because the law deems them "fair" ˜ such as copying words from a book in a review of the book).

Digital technologies are changing the balance between these three kinds of uses. As life moves online, "free uses" shrink. Because every act on a digital network produces a copy, and "copies" trigger copyright law, there are vastly fewer "free uses" in digital space than in analog space.

This shrinkage means that "fair use" must now shoulder the burden of protecting uses that were before free. Yet, there isn't much precedent protecting these new "fair uses." For example, there is no case that says it is a "fair use" to give someone a book. That's because in the analog world, giving someone a book never triggered copyright law, so no one ever needed the copyright defense of "fair use" to authorize that giving. But in the digital world, giving someone a book means making a copy. If that copy is not authorized, then it is only "fair use" that can secure the freedom to share. And those trying to defend the freedom to give must look to a body of "fair use" law built for a different world.

This point is crucial: we now must rely upon a clumsy and expensive legal defense ("fair use") to protect freedoms that were before taken for granted. No doubt, with all the money and time in the world, we might imagine that "fair use" freedoms would balance out. But this is where DRM becomes a particularly dangerous problem.

For before you can claim your use is "fair," you must have the technical ability to use the work in a particular way. "Fair use" is a defense; you have to be able to use the material in a way that creates a copyright question before you get to play your defense.

Yet if DRM is deployed the way most of it is designed, then the technology will remove the technical ability to use the work in a way that even gives you the right to make a fair use. "Fair use" would thus not be removed by the law. "Fair use" would be removed by code. And as in the United States at least, it is an offense to build tools to tinker with that code ˜ even if the purpose is "fair use" ˜ you begin to see the danger of DRM: digital technologies have shrunk the range of "free uses" (since every use produces a copy); this new generation of digital technology (DRM) will shrink the range of "fair uses," by removing even the ability to use content in a way that would otherwise be "fair."

That's the problem that DRM creates for "fair use." How can Creative Common help solve this problem?

In two important ways: (1) By building a layer of Creative Commons marked creativity, we increase the range of creative work that doesn't need the locks of DRM. (2) By banning the use of DRM that interferes with the freedoms guaranteed by our license, we assure that the freedoms we've built into our license are not restricted by DRM. Among these freedoms, the very first is "fair use." As section 2 of every license says, "Creative Commons licenses do not modify or restrict 'fair use.'"

Thus, we use our licenses to build the freedoms authors want upon a reinforced layer of "fair use" freedoms. Creative Commons is thus "fair use"-plus: a promise that any freedoms given are always in addition to the freedoms guaranteed by the law.

That's the end of the background. Next week I will describe some of the fun stuff Creative Commons has built, and some more about where we're going.

Last week, I said this week's email would describe the Science Commons. Let me introduce John Wilbanks, executive director of the Science Commons. Here's his description:

Science Commons (SC) was launched in early 2005.   SC is a part of Creative Commons - think of us as a wholly owned subsidiary - drawing on the amazing success of CC licenses, especially the CC community and iCommons.  But we're also a little different.  Whereas CC focuses on the individual creators and their copyrights, SC by necessity has a broader focus.  That necessity is caused by, for example, the fact that most scientists sign employee agreements that assign intellectual property rights to a host institution.  Another example is that scientific journals regularly request that scientific authors sign over their copyrights, and scientists eagerly do so in return for citations in what are called "high impact" journals.  There's a very real collective action problem here:  no one individual or institution has strong incentives to change the system.

But the system is causing problems in the scientific and academic communities.  Scientific articles are locked behind firewalls, long after their publishers have realized economic returns.  This means that the hot new article about AIDS research can't be redistributed much less translated into other languages (where it might inspire local researcher to solve a local problem).  The difficulties faced in relation to the "open access" of publications are easy compared to those presented when we consider access to tools and data. Published research indicates that nearly half of all geneticists have been unable to validate research from colleagues due to problems with secrecy and legal friction.

So Science Commons works on these problems:  inaccessible journal articles, tools locked up behind complex contracts, socially irresponsible patent licensing, and data obscured by technology rend-user licensing agreements.  We translate this into projects, with work in three distinctly different project spaces:  publishing (covered by copyright), licensing (covered by patent and contract) and data (in the US, covered only by contract). We work on agreements between funders and grant recipients, between universities and researchers and between funders and universities all in the service of opening up scientific knowledge, tools and data for reuse.  We also promote the use of CC licensing in scientific publishing, on the belief that scientific papers need to be available to everyone in the world, not simply available to those with enough resources to afford subscription fees.

The Publishing Project Scholarly communication in the sciences generally involves three components: data generated by experimental research, a peer-reviewed article explaining and interpreting the data, and metadata that describes or interprets the underlying data or the article. Traditionally, journal publishers were predominantly responsible forgathering, distributing and archiving this information. The Internet and associated digital networks create a range of opportunities and challenges for changing the nature of what information gets stored and communicated, how and when it gets communicated, and how it is marked with metadata to aid in its use and reuse.  Science Commons is devoted to using its legal and technical expertise to help scientific researchers make the best use possible of these new communication technologies.  For example, some science publishers experimenting with a new business model for scholarly communication require authors of peer-reviewed articles to grant a Creative Commons license in their articles.  These publishers include the Public Library of Science, BioMed Central, and SpringerOpenChoice.

Science Commons also has convened a working group to discuss other means for better associating research articles with research data and/or standardizing metadata associated with both of these components.

The Licensing Project

In licensing, we work in a focused manner on the funding of disease research.  Such work involves a lot of basic science carried out by many individuals at a diverse range of institutions, both public and private, and each with different policies about intellectual property rights, different licensing agreements, and, to some extent, even different funders. When the research begins to yield the kinds of leads that might attract drug company attention, it will be desirable (both in remuneration, and also in encouragement to pharmaceutical companies interest and participation) to offer drug companies’ inefficient package of rights that covers the basic permissions they need to turn research into viable drugs and treatment regimens. The current practice will certainly not allow the benefits of such "one stop shopping."

Using Huntington's disease research as a case study, Science Commons is exploring a "technology trust," which will combine an intellectual property rights conservancy, patent pool and other related rights-bundling methods.  We are assessing the types of problems of rights-fragmentation, a range of possible legal solutions to this problem (including compulsory terms in funder agreements), the institutional design of the trust or conservancy, and the question of what institution would be best suited to administer such a trust or conservancy. While the project aims to produce a method to ameliorate the problem for Huntington's, we would hope to provide guidelines for solving such problems more generally.

The Data Project

In the United States, there is no intellectual property right on data (there is such a right in the European Union, albeit with mounting evidence that it was not needed). But current expansions in intellectual property law could generate an entirely new set of obstacles to sharing data among scientists or with the public. Extending intellectual property rights to databases are likely to result in basic data being locked up, made more expensive, or more easily subjected to restrictive licensing agreements.

Additionally, there is a wasteful data economy evolving in which raw data is not made accessible; scientists are either leery of the risks of losing control over their data or subject to institutional requirements that mandate a closed approach. Implicit in data sets are answers to questions the researcher perhaps did not specify – answers that are a consequence of the throughput of the experiment. This data could be reused many times over if properly annotated and preserved. This, however, requires a cultural shift among scientists, not a technical shift driven by lawyers.

The Science Commons Data project has two aspects. First, we assert that data should not be covered by intellectual property law. As part of this project we provide a resource for database providers struggling with licensing. Second, we are looking to improve on the data economy by aiding in the construction of an integrated web of data, papers, tools, and policy with the explicit goal of facilitating research into brain disease - the NeuroCommons.

John Wilbanks

http://science.creativecommons.org

internationally. That was the beginning of the "iCommons Project." Directed from Berlin, this project began with a single objective: to "port" Creative Commons licenses into the law of local jurisdictions. Our aim was to build an infrastructure of free licenses internationally so that creative work could move from jurisdiction to jurisdiction while preserving the freedoms that the creator chose. In less than three years, we have over 70 volunteer projects working to port Creative Commons licenses and 25 jurisdictions that have already launched their local licenses.

This first effort to build an international Commons has been much more successful than I ever imagined. There were many sleepless nights when I worried whether we would find any international partners Let’s just say the sleeplessness has now moved far from that concern. Indeed, if anything, we’ve seen the iCommons project become much more than we imagined.  As CC projects developed around the world, they connected with movements that had the same ideals. These ideals of a "Commons" are not American. They are human. And as iCommons opened channels of discussions of these ideals, we began to recognize that the iCommons Project would have to grow.

Last June, around a hundred of our volunteers from more than 40 of our iCommons jurisdictions gathered in Boston for the first iCommons Summit. We   began a discussion then about how we could best support this growing   international movement. And as I listened to the iCommons participants   describe the work that they wanted to do, I realized then that commons   promised to become much more than the (relatively) simple project that   Creative Commons was. Creative Commons was launched to build an   infrastructure of freedom; iCommons promised to build a global movement that   would embrace and extend (in the best possible way) that infrastructure of   freedom. 

So in June, we began to discuss publicly an idea that had been suggested by   one iCommons participant ˜ that we separate iCommons into its own organization, led by the many young leaders of this movement from around the   world. And with this email, I am very happy to announce that we have done just that.    iCommons is now a separate nonprofit, organized under the laws of Britain.   Its board will comprise a wide range of activists from around the world. And while iCommons will continue to support the spread of Creative Commons licenses, it will also do much more. iCommons will become the core of a   federation of movements all pushing to enable creativity and the spread of   knowledge and culture internationally. 

Creative Commons will seed this movement with financial and organizational   support (yet another reason we need your support!). But as iCommons becomes its own movement with its own voice, the role of Creative Commons in this federation will be just one of many.    What happens then to the project designed to port Creative Commons licenses

internationally? That work will remain with Creative Commons. Christiane Asschenfeldt will continue to lead that part of our project. But its work   will be focused upon building the legal infrastructure that Creative Commons   needs internationally. Christiane will continue to identify international   volunteers to help port our licenses in their local jurisdictions. We will   continue to celebrate as these licenses are locally launched.  And some (we   hope all) of these local partners of Creative Commons will join iCommons. 

So "what more than licenses" is Creative Commons? We're building an   infrastructure of free licenses internationally. We're working with   scientists and scholars to extend these ideals to science. And now we've helped seed an international movement that will work with artists,   educators, collecting rights societies, museums, publishers and governments,   to build upon this infrastructure free cultures.    Creative Commons is all this that these emails have described. More   importantly, it is all this that needs your support. 

In the next two weeks, I'll describe two other new initiatives that will   define our work over the next year. And then this path of missives will turn   to consider some criticisms of what we've done and where we're going. Stay   tuned, but fear not: I promise to be finished by Christmas!    -------

    Before I end this week's email, some news from the fundraising-front: On   November 3 in San Francisco, over 120 supporters and friends of Creative   Commons attended a cocktail event to celebrate new iCommons board member   Jimmy Wales of Wikipedia.  The event was sponsored by the law firms that  first launched Creative Commons, Cooley Godward, and Wilson Sonsini Goodrich  & Rosati, as well as a new supporter of CC – Scharffen Berger Chocolate.   Thanks to everyone who helped make that event a success. And after you view  some of the photos from the event, please feel free to join them in  supporting CC today! http://www.flickr.com/photos/49051714@N00/sets/1383014/

In the next two weeks, I'll describe two other new initiatives that will  define our work over the next year. And then this path of missives will turn  to consider some criticisms of what we've done and where we're going. Stay  tuned, but fear not: I promise to be finished by Christmas!  The story continues: From the start, we've had a simple slogan: "Some Rights  Reserved." A Creative Commons license gives permission to exercise some  rights, but also allows the author or creator to keep some rights to him- or herself. Thus the meaning of a BY-NC (Attribution-NonCommercial) license is  not that the author would never grant commercial rights. Instead it simply  means that the commercial rights are not granted or "pre-cleared" by the  Creative Commons license. To get the commercial rights, you need to ask the  author first.

Many people have never understood this about us. They've confused "commons"  with "communist." They've suggested we believe that artists don't need to  eat. But nothing in our mission is against artists profiting from their  work. Indeed, our message from the start has been that for at least some  creative work, and some artists, the exposure that a Creative Commons  license offers could help the artist profit from his or her work.

Today we announce a project to make that message clearer. Over the next six  months, we will be developing a new feature with some Creative Commons  licenses to enable creators to add links to permit users to commercially  exploit their works.  We call this project "cc.com," and while the details are still being  hammered out, here's the basic idea: Let's imagine you're a musician who is  happy to have your music shared noncommercially. But, like most, if someone  is going to make a profit from your work, you want a piece of that pie. So  while you'll allow members of the public to use your work noncommercially  under a Creative Commons license, you reserve the commercial rights. But  you'd also be very happy to offer the commercial rights to others on certain  terms.

Here's how cc.com might work. You come to the Creative Commons site and  select your Creative Commons license. If you select a license with a  NonCommercial license element, then we'll give you the choice of partners  who might be able to offer your work commercially. (Alternatively, you could  simply specify a link back to yourself for any commercial licensing.)

If you select a partner, the system would pass you through a partner site to  enable you to specify the commercial terms associated with your content.  That information would be added back to the Creative Commons license as a  link to the partner site. Your Commons Deed could then look something like  this:  http://mirrors.creativecommons.org/emails/cc.com.mockup.gif

So that when someone comes to your Commons Deed, they would be informed of  the rights you have licensed to the public for free use and enjoyment. But  then they'd also be given a link to a site where they can buy something more  than what is given for free. That something more could be more rights. It  could be CDs. Or it could be anything that you and our partners decided  would be useful to offer through the Commons Deed link.

Creative Commons would not be running these commercial sites. Except for  selecting trusted partners, we would have nothing to do with any commercial  transaction. Our aim would simply be to enable another link between the  artist and a fan, so that the artist could more directly profit from his or  her creativity.

We're already tinkering with the technology to make this work. We're  beginning to talk to potential partners. There's lots left to be done. But  I'm confident that within the next 6 months, we'll be launching this  important new Creative Commons initiative, with the support, I'm confident,  of many important creators.  Next week I'll describe a second initiative that we'll be launching over the  next year. And while this second initiative will be important for Creative  Commons, it will be critical to the ecology of creativity generally. Stay  tuned.  ----

One final fundraising plug: It took a lot of work, but I convinced my staff  to re-release the original Creative Commons t-shirt, with a slight, but  important, modification. Check it out here:  http://creativecommons.org/images/support/commonershirt.jpg

And buy millions for your friends here:

http://creativecommons.org/support/#buyshirts

Next week I'll describe a second initiative that we'll be launching over the  next year. And while this second initiative will be important for Creative  Commons, it will be critical to the ecology of creativity generally. Stay  tuned.

The story continued: Creative Commons didn't invent the idea of free public  licenses.

Richard Stallman did, at least in the first broadly successful  way. Nor did Creative Commons invent the first free public licenses for  content. Before our work, there were many others who had followed Stallman's  lead, releasing free licenses tuned to creative work. The Art Libre license  is perhaps the most famous. The BBC's Creative Archive licenses are the most  prominent recent examples, freeing access to important British culture, at  least for British citizens. And finally, the Free Software Foundation's GNU  Free Documentation License is a copyleft license designed initially for  software documentation, but used most prominently by the Wikipedia project.  These free licenses all share a common goal. With each, the aim is to give  creators the opportunity to offer others important freedoms. The particular  freedoms may be different. The Creative Archive licenses, for example, are  not all copyleft. And the restrictions of the FDL make it inappropriate for  much of the work covered by the Art Libre license. But these differences  reflect the diversity that exists across creative communities. The important  point is not the differences but instead the common aim.

Yet all of these free licenses, as well as the current versions of all  Creative Commons licenses, share a common flaw. Like the world of computing  in the 1970's, or like the world of content that DRM will produce  [http://creativecommons.org/weblog/entry/5676], these licenses wrap creative  work in ways that makes that creativity incompatible.  For example, imagine you're a high school student writing a report about the philosopher Wittgenstein. But because you're a high school student in the  21st century, your report won't be a traditional essay. It will instead be a  short film. Your title is "Wittgenstein's World, Today." And you create your  movie based upon Wikipedia's biography of Wittgenstein.

Your plan is very simple: You'll set the life described in the Wikipedia  entry to film, supplement it with images that you find in Flickr, and add  music that you've downloaded from Opsound.  As I described earlier, perhaps the most important feature of digital  content is that from a technical perspective such a project is now trivial.  Technology now gives creators ˜ at a relatively tiny cost ˜ the ability to  take sounds and images from the culture around us and remix them to produce  something new.  A high school student using off the shelf technology will  find no technical barriers to the remix I've just described. Of course,  you've got to be good creatively. (Note: why – it could be bad? The idea is  to create whether it's good work or bad.) It's not easy even with the best  technology to make a film. But that challenge, one might well think, is the  appropriate challenge for a creator. Get the technology out of the way, and  let the difficult task be the task of creating.  Yet there's another difficulty lurking in this story that many are just  becoming aware of within the Free Culture Movement.  You might be able ˜technically˜ to remix all this creativity. But can you remix it legally?  Will the licenses that "free" content permit that free content to be  remixed?

The astonishing (and for us lawyers, embarrassing) answer is no. Even if all  the creative work you want to remix is licensed under a copyleft license,  because those licenses are different licenses, you can't take creative work  from one, and remix it in another. Wikipedia, for example, is licensed under  the FDL. It requires derivatives be licensed under the FDL only. And the  same is true of the Creative Commons Attribution-ShareAlike license that  governs Opsound content, as well as much of the creativity within Flickr.  All of these licenses were written without regard to the fundamental value  of every significant advance in the digital age ˜ interoperability.  We're going to fix this. Or at least, we're going to try. One way would be  for everyone to use just one particular Creative Commons license. But  bullying the world into using a single license is neither consistent with  our values nor sensible for the ecology of free culture. So instead, we are   launching a project to facilitate interoperability among sufficiently  compatible license types. And we will work hard to persuade others within  the free license ecology to join us in this movement.

Here's the basic idea we're starting with (though recognize that there will  be lots of discussion before we settle on any final plan). As you'll see, it  builds upon the strategy we've already adopted to assure compatibility  across licenses in different jurisdictions:  Creative Commons licenses come in three layers: (1) a human readable Commons  Deed, which describes the freedoms associated with the content in terms  anyone should be able to understand; (2) a lawyer- readable Legal Code ˜ a  license ˜ that makes enforceable the freedoms associated with the content;  and (3) machine-readable metadata that makes the freedoms associated with  the content understandable by computers. You can visualize the three  together like this:  http://mirrors.creativecommons.org/emails/w9-1.png

Early on, we started porting our licenses to other jurisdictions, so that  people around the world can license their creativity under local law. In  that process, our aim was to assure that creativity licensed in one country  was compatible with creativity licensed in another. Thus we multiplied the  licenses at the second layer of our architecture, creating something that  looks like this:  http://mirrors.creativecommons.org/emails/w9-2.png

Today we announce the beginning of a project to explore expanding this  interoperability beyond Creative Commons licenses. We've begun a process to  build a board (what we'll call the Creative Commons Legal Advisory Board, or ccLab for short) that will be composed of experts in licensing from around the world. This board will establish procedures by which similar free licenses, upon submission from the license curator, can be deemed "compatible." And if a license is deemed compatible, adds CC metadata to express the freedoms associated with the content, and links to a Commons Deed, to explain the freedoms associated with the content, then we will certify the license as within the federation of free licenses that we're trying to build. This world will then look something like this:http://mirrors.creativecommons.org/emails/w9-3.png

If we succeed in this project, then creative work will more easily be able to move from one license to another, as creativity is remixed. And this ability for creative work to move to compatible free licenses will provide a market signal about which licenses are deemed more stable, or reliable, by the free licensing community. Free culture will no longer be ghettoized within a particular free license. It will instead be able to move among all relevantly compatible licenses. And the world of "autistic freedom" that governs much of the free software world will be avoided in the free culture world.

This project won't, of course, make incompatible licenses compatible. For example, work licensed under an Attribution-No Derivatives license can't be mixed with work licensed under an Attribution-ShareAlike license. That incompatibility, however, is intended by the creator. And while I agree with many that we should work to reduce this sort of incompatibility as well, I believe it is much more important to eliminate unintended incompatibility first. The creators who are joining the Free Culture Movement by releasing their creative work under free licenses do so because of the values those licenses express.  They don't do so because of the particular flair of legal prose that one free license might have over another. We must find a way to push the egos of the lawyers off of center stage, so that the values of the creators can finally be realized.

This is not an easy project. It will require lots of support. Most importantly, it will require all of us within the Free Culture Movement to put aside our own parochial interests, and work to cooperate for a sensible end. As Richard Stallman famously said:

"If we don't want to live in a jungle, we must change our attitudes. We must start sending the message that a good citizen is one who cooperates when appropriate..."

Stallman is absolutely correct. The creators who have chosen the values of free culture don't want a world where their creativity can't be used consistent with their values. We who are building the infrastructure of free culture have a responsibility to respect their values.

Creative Commons is a young organization.

And while we've been more successful than I ever imagined we'd be, we've also made mistakes. Some of these mistakes we've corrected. Some I hope to persuade us to correct. But throughout the three years since our launch, we have worked hard to build a solid and sustainable infrastructure of freedoms for creators.

Along the way, we have picked up some critics. I don't have the space here to address every criticism. In this email, I'll talk about just two ˜ one directed at our NonCommercial license option, and the other at two of CC's non-core licenses. But I'll continue this discussion next year in a new forum that we'll launch just for this purpose. Mark Shuttleworth is my model here, and I will be a part of that discussion whenever I can.

In the meantime, a bit from our critics.

(1) Criticism of the use of Noncommercial licenses In an article in http://intelligentdesigns.net , Erik Möller argues against the use of a Creative Commons NonCommercial (NC) license. His argument has five parts, but the core is a concern about incompatibility. As he puts it, "[f]ree content is no longer a fringe movement." He cites Wikipedia as an obvious example, and correctly points out that content licensed under a NC license can't be included within Wikipedia. This is a problem, he argues, especially for "collaborative projects." As he says, "marking up regions of content as non-commercial and consistently following these boundaries is almost impossible in a collaborative environment."

Möller is absolutely right. The NC license does interfere with this sort of collaboration. It does create potential incompatibility. Of course, as Möller also acknowledges, there is incompatibility even without the NC restriction: As I described last week, [ http:// creativecommons.org/weblog/entry/5709 ], it's not possible to mix content licensed under the FDL with even an equivalent CC license. That's because both licenses, as they are presently designed, block interoperability. This is a real problem for the ecology of free culture. And again, as I argued last week, this is a problem that Creative Commons intends to fix by launching a project to federate free licenses to encourage interoperability between licenses of the same type.

Yet even if we succeed with federation, the problem that Möller describes will remain. Some license types are incompatible with others. And among the kinds of incompatibility most likely to cause trouble is exactly the sort Möller has identified: The NC restriction will block content from being included within ShareAlike projects such as Wikipedia. So what's the solution? My recommendation is much like Möller's ˜ use the least restrictive license that you can. But I say "much like Möller's" because my sense is that he'd really like to see the NC license never used at all, and I believe, given the wide range of creators using CC licenses, there are important cases where a NC license makes sense.

For example, imagine you're in a band and you've recorded a new song. You're happy to have it spread around the Internet. But you're not keen that Sony include it on a CD ˜ at least without asking you first. If you release the song under a simple Attribution license there's no reason Sony (or anyone else) couldn't take your song and sell it. And I personally see nothing wrong with you wanting to reserve your commercial rights so that Sony has to ask you permission (and pay you) before they can profit from your music.

Möller suggests you can avoid this problem by copylefting the song, using, for example, a CC-ShareAlike term. As he argues, "[a]ny company trying to exploit your work will have to make their 'added value' available for free to everyone. Seen like this, the 'risk' of exploitation turns into a potentially powerful benefit."

But this is not quite right. The ShareAlike requirement kicks in only if the adopter makes a "derivative work" out of the song. Merely adding it to a CD isn't a derivative work. So that's not a sufficient protection against this particular form of exploitation. And it is thus for this sort of case that the NC term is designed.

It is certainly true, however, that for a great deal of the creativity being added to the net ˜ especially in the context of collaboration ˜ there's not much need to protect commercial rights. My blog, for example, is licensed under a simple Attribution license. CNET Japan translates the blog and sells advertising around its content. For my purposes, that's just fine. I write to spread ideas; I try to avoid tariffs where I can. From my perspective, Möller is certainly correct: the least restrictive license is enough for me. And I would generalize the point: We all should use the least restrictive licenses that we can, consistent with our goals.

We've not done a good enough job helping users understand this. Möller is right to call upon Creative Commons to do better. We will do just that. But the lesson Möller is absolutely right to teach is that we all should consider the consequences of our choices. Some will want nothing more than that their content be available noncommercially. For them, the NC license is a useful option. But others really simply want their work used and incorporated into the remix of the net. For them, the NC option may do more harm than good.

(2) Criticism of the Sampling and Developing Nations License Creative Commons offers six core licenses. Each of these six gives people the freedom "to copy, distribute, display, and perform" the work. But in addition to these core licenses, Creative Commons offers two licenses that don't give these freedoms. These are the "Sampling" License, and the "Developing Nations" License.

The Sampling license was inspired by the band Negativland and one of Brazil's most famous musicians and current Culture Minister, Gilberto Gil. Basically, it say this: you can remix, or "sample" this content. The default Sampling license says you can even remix for commercial purpose. But the default Sampling license also says you don't have permission to copy, distribute, display or perform the underlying work. Those rights are reserved. The only right given away is essentially the right to make a certain kind of derivative.

The Developing Nations license is different. It was inspired by activists in the Access2Knowledge movement most prominently, Jamie Love. They wanted a license that would free content (completely) within developing nations even if it wouldn't alter the rules for that content outside of developing nations. So the Developing Nations license basically says that this content is free even for commercial use within a developing nation. But outside of the developing nations, ordinary rules apply. That means for content licensed under the DevNat license, outside of developing nations, there is no right to copy, distribute, display or perform the underlying work.

Richard Stallman criticizes the one element that these two licenses have in common that while they both secure important freedoms, they also both forbid (for some groups at least) the right to "copy" the underlying work. For him, that right is fundamental. And thus for him, any license that denies this fundamental freedom does not deserve the support of Creative Commons. He's thus asked us to either drop, or disassociate ourselves from, these two licenses.

It's extremely important first to clarify what this disagreement is not. Some of you will remember the battles between the "free software" and "open source software" movements. To some, those were battles between a movement that believed in values and a movement that believed in pragmatism. The disagreement between CC and Richard Stallman is not of that sort. It isn't pragmatism that drives us to adopt the Sampling and DevNat license. It is instead a different conception of value. CC will never offer licenses that secure just any freedom; we believe CC licenses should only secure important freedoms. But that's precisely what we believe these two licenses do ˜ they secure important freedoms, even if they don't include the freedom to copy. That's not because the freedom to copy is not an important freedom in some contexts, or for some creators. But the freedom to copy is not an important freedom in all contexts ˜ at least if it interferes with other important values.

For example, imagine you're a teacher in Nigeria. You want textbooks to teach Algebra to your Fulani speaking students. That you would have the right to copy a particular English textbook isn't really of much use to you. What you need is the right to translate that book. In that context, the derivative right is the critical one; the right to copy is unimportant.

The same point could be made more generally. Our view is that the necessary freedoms in different domains of creativity are not necessarily the same. That music could be different from software, software different from film. And as we have done throughout this project, we have asked leaders in different fields who share the values of freedom to help us understand what values are important within those specific fields. Gil and Negativland know something about music. So when they say that the freedom to remix is critical even if the freedom to copy is not, it would take a great deal to persuade us they are wrong.

The same is true of the DevNat license. The target here is creativity that depends upon a domestic market but never expects to exploit a developing nations market. So, for example, one of the coolest adopters of these licenses are architects designing low-cost housing. They've marked their designs with the DevNat license, meaning people in the developing world are free to do with them what they want. But in their view, at least, they can't also give these designs freely to their direct competitors.

These creators may be wrong. Gil, Negativland, and Jamie Love might be mistaken about what rights the relevant creators need to keep. But what's needed is an informed debate among creators about what freedoms they need. We hope to encourage this debate. But in the meantime, we'll continue to guide ourselves based upon the values that the relevant communities have identified. As I've said, there is much more I should say about other thoughtful criticism. This email, however, is already too long. We'll announce the discussion space sometime early in the next year. And stay tuned next week when I'll turn to some of the particular projects we're working on right now

More new projects.

The story continues. So, what's new? Where are we going next? What projects would Creative Commons like to do that this fundraising campaign could support?

In this next-to-last email, I'll describe two projects we'd like to launch. This isn't a formal announcement. If you ask me about these projects outside of this email, I'll deny knowing anything about them. Both are far enough along to build support to launch them, but not far enough along to properly announce them. What would put them over the edge is a strong reaction of support from you (or your friends). And now is the time we need that support.

A public domain wiki One project that we're very close to announcing draws together the wisdom and expertise of the Wikipedia project with the extraordinary foresight of a major rights organization keen to help clarify the boundaries of the public domain. The project would work something like this: This rights clearing organization (and we can't say which one just now) would give us a data dump of records they have about authors in a particular country. Those records would include books published by those authors, the authors' dates of birth, and if available or relevant, the authors' dates of death. Using that information, one could determine which works were in the public domain. The problem is that the data about whether an author has died is often incomplete and sometimes inaccurate. So the question is how we might supplement that data through a community process that could add lots of value to this database.

Enter the ideals of a wiki. Through a site run by the Creative Commons affiliate in the country we're working with, we'd build a community devoted to "rediscovering the public domain in country X." That community would develop procedures for updating the data about the public domain status of a work˜ procedures for establishing levels of confidence in the accuracy of that data, for example, before it was added to the wiki. The community would also encourage other data be added to the database, such as reviews of the authors' books, links to places the books might be bought, and biographies of the authors themselves. We imagine this site could become a goldmine of information about authorship within country X, drawing new attention out of print or hard to find work by older authors and generating new interest in their work.

We'd then craft a set of APIs ˜ basically interfaces to the database ˜ that anyone could use to ping the database and get information about a particular work. For example, anyone could ask, for free, if a particular book by a particular author is in the public domain or not, and the database would return an answer with some indication about levels of confidence. (E.g., "With 95% confidence, we can say this book is in the public domain.") This data could then be used by people to decide what books could be made available on the Internet or what permissions are needed to use the book in a university class.

This project, called the WikiPD, has just received seed funding. For us to commit to it will require another big chunk of public support. So here's the question for you: Should we?

Returning Authors' Rights The second project we've been working on in stealth is a plan to give creators a chance to recover rights that they signed away many years ago which the law gives them the chance to recover. Under US copyright law, a creator has the right to "terminate" any transfer of rights he or she made 35 years after the transfer. But to do so requires an insanely complex series of steps which most creators simply don't have the time or knowledge to engage in. Thus, the law gives authors this right, but the law is so insanely complicated that creators would have a difficult time trying to exercise it.

We can help with this. Over the past year, we've been mapping out a computer program ˜ a kind of wizard for termination of transfer applications ˜ that creators could use to know whether they have rights that they might reclaim and to help authors reclaim those rights. Using our wizard, a creator would enter information about his or her transfer of rights. The wizard would then indicate what possibilities are likely. And if the creator wants, the system would then refer the case to a legal aid clinic or Volunteer Lawyers for the Arts, so that with the help of a trained counselor, the creator could reclaim his or her rights. We'd offer this tool for free. And while, of course. we'd give creators the freedom to license any rights they recover under Creative Commons licenses, we wouldn't require them to do so. Instead, our only purpose is to make the law simple so that it might work better for the people it was intended to benefit: Creators.

This project will surprise some ˜ those who think (wrongly) that we're against authors' rights. In fact, in my view, this project is the best expression of the ideals of Creative Commons: Find a way to make the law simpler to manage, and find a way to make it easier for creators to get what they want.

This project too needs a substantial amount of support. We should have a beta by the beginning of February. But to test and implement the project will require a great deal of infrastructure. Here is yet another reason why you need to click on the support link below. Or better yet, another reason why you should send the support link to your 10,000 best friends. If we're to make these projects happen, we need to build the infrastructure that they need. And while some out there work for the sort of salary I get at CC (ie, nothing!), not everyone on our staff can afford that sort of commitment. So click and support, or email and ask others for support.

And so this is the final of these letters explaining the origin and aims of Creative Commons. When I started this writing about three months ago, I wasn't sure I'd have something to say each week through the end of 2005. But as the year comes to an end, I realize I could continue writing these emails to you through all of 2006 and still not be finished with everything there is to say

These letters have been part of a campaign to build a diverse base of financial support for the organization, Creative Commons. That organization has just under 20 employees working in offices in Berlin, London, Boston and San Francisco. About a quarter of the staff builds the technical infrastructure. Another quarter coordinates the spreading of the project internationally. One (and soon two) work on the Science Commons project from Boston. And the balance of the staff working in San Francisco keep the trains running on time, and help spread the message and the infrastructure into as many places as we can.

If you had asked me four years ago what the chances were that I?d be helping to direct a 20 person staff, I would have said exactly zero. My father was the entrepreneur. I was to be the academic. But though these years have been difficult, the most rewarding part has been to build an organization that is hard working, and committed. This is an underpaid, overworked staff that I am extraordinarily proud of. They have accomplished more in these last years than anyone, certainly I, even imagined they would.

But the part that is missing from even a complete description of the organization, Creative Commons, is the part that in my view will ultimately be the most important. That is the growing number of affiliate organizations around the world that have first ported Creative Commons licenses to their local jurisdictions and are now pushing the movement far beyond licenses.

As I described in week 7, we initially thought we would spread Creative Commons internationally by simply porting licenses to local jurisdictions. But that process sparked a network of creators, scholars, librarians and activists who all recognize that they share a common set of interests that Creative Commons can help organize. iCommons was thus launched to be the infrastructure of this network. The iCommons Summit last June marked its birth. And the most important work that we will do over the next few years is to support this international network. Not everyone within the iCommons network will be from Creative Commons. But I want Creative Commons to help build a broad federation of individuals and organizations, from the Free Culture Movement that has been launched at universities across the world[1], to WikiPedians[2] and others who want to make the protections of the law that we call "copyright" make sense in a digital age.

This ultimately will be the real contribution of Creative Commons, if in fact we can make it work. As I?ve traveled to the launches of Creative Commons projects across the world, I?ve met literally thousands working on a common set of ideals. Every one of them sees a promise in the creative potential that the Internet could enable. Every one of them sees a reason to work now to make that potential real. Some have spent literally hundreds of hours spreading the work of CC, not as staff, but as volunteers. Others have just begun this work, both within CC, and outside it.

I could never say anything that would adequately thank these volunteers. The most that we all can do is to make their project work. We are extremely close to meeting the targets we set for this campaign. We must meet those targets if we are to continue. Thank you for allowing me to invade your inbox every week over these past months. But please help us in these remaining three days to meet our challenge, and spread CC.

One final word of thanks: I am grateful to Maria Cristinia Alvite and the iRights.info project for their work in translating these letters. Some day we will find a leader for this movement who can speak all the languages of the movement. I promise, I am looking.

Thanks again for your time, your help, and your inspiration.

[1] http://freeculture.org <http://freeculture.org/>
[2] http://en.wikipedia.org/wiki/Wikipedia:Wikipedians

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To link to or comment on this message, go to:
http://creativecommons.org/weblog/entry/5743

Week 12 - Lawrence Lessig on New Projects
http://creativecommons.org/weblog/entry/5734

Week 12 - Lawrence Lessig on New Projects - Spanish Version
http://mirrors.creativecommons.org/translations/lessig-letter-12-es.pdf

Thanks to Maria Cristinia Alvite for translation.

Archive of Lessig Letters
http://creativecommons.org/support/letters

Support the Commons
http://creativecommons.org/support

Learn More
http://creativecommons.org/learnmore

For comics and movies: http://creativecommons.org/about/licenses/how1,
http://mirrors.creativecommons.org/